FILED
COURT OF APPEALS
DIVISION 11
2915 AUG 18 AM 9- 04
IN THE COURT OF APPEALS OF THE ST A
81 TTON
ATE OF
DIVISION II BY _
DEIPUTY
STATE OF WASHINGTON, No. 46106 -4 -II
Respondent,
V.
RUSSEL A. FORD, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Russel A. Ford appeals his sentences following his guilty pleas to two counts
of felony eluding and three counts of theft of a motor vehicle. The sentencing court imposed
sentences below the standard range for the three counts of theft of a motor vehicle, and also
sentenced Ford to consecutive sentences, without entering findings of fact or conclusions of law
such sentences, as required by RCW 9. 94A.535 and RCW 9. 94A. 589. The ' State
supporting
concedes this error, but argues that we should remand for resentencing to allow the sentencing
court to consider an exceptional sentence. Ford asks us to strike the improper consecutive
sentences and allow him to serve the exceptional downward sentence of 24 months. Because the
sentencing court erred by failing to enter findings supporting consecutive sentences or downward
departures on any of Ford' s counts, and because Ford raises issues on appeal that require a full
resentencing, we reverse Ford' s sentence and remand for a full resentencing.
No. 46106 -4 -II
FACTS
Russel Ford pled guilty to counts 1 and 2- felony eluding, and counts 3, 4, and 5 - theft of
a motor vehicle, as alleged in the Second Amended Information. The Second Amended
Information did not allege any aggravating facts for the charges. Ford' s sentencing range was
14 to 18 months for the felony eluding charges and 43 to 57 months for the theft of a motor vehicle
charges.
At the sentencing hearing, the State, according to the plea agreement, recommended 8
months on counts 1 and 2 and a total of 50 months on counts 3, 4, and 5 with all sentences to run
concurrently. The sentencing court instead imposed sentences of 8 months each on counts 1 and
2, consecutive to each other, but concurrent to the sentences in the remaining counts; and
24 months each on counts 3, 4, and 5 consecutive to each other, but concurrent to the sentences in
counts 1 and 2. Thus, the sentencing court imposed a sentence of 72 months of total confinement.
The sentencing court made the following comments during the hearing:
COURT]: I' m going to give the lawyers a little quiz here, unless they change
the statute. You know, the difference between what they call concurrent sentences
and consecutive is if they happen to be the same crime, the same time, with the
same thought process going on. Okay. You have three separate matters on three
separate days. They' re not the same crimes. And so the issue of concurrent is not
in my vocabulary when it comes down to him.
Verbatim Report of Proceedings ( VRP) ( March 24, 2014) at 8. The prosecutor tried to dispute the
court' s interpretation of the statute:
PROSECUTOR]: , As far as consecutive or concurrent, because I am - they are
all separate....As far as consecutive or concurrent, because they count against one
another, in other words because he' s getting an extra point for every count that I -
that I added on to this - to this charge, they are presumptively concurrent.
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No. 46106 -4 -II
COURT]: I' m not bound by that. On each one of the eludings, eight months
consecutive. On the other charges, 24 months consecutive.
VRP ( March 24, 2014) at 9.
Ford appeals the sentencing court' s decision to run his .sentences consecutively. The State
did not appeal the sentencing court' s exceptional sentences downward on counts 3, 4, and 5.
ANALYSIS
Ford argues that the sentencing court violated RCW 9. 94A.589( 1)( a) when it ordered
consecutive terms for multiple current offenses. The State concedes that the sentencing court erred
when it imposed an aggravated exceptional sentence without making findings supporting such a
sentence. Ford argues that, because the State did not appeal the sentence, the proper remedy is for
this court to " vacate that portion of the judgment and sentence that orders the counts to run
consecutively and remand for entry of an order clarifying . that the sentences shall run
concurrently." Br. of Appellant at 10. The State argues that Ford' s remedy is for us to remand for
a full resentencing. We agree with the State.
1. THE SENTENCING COURT IMPOSED AN ILLEGAL SENTENCE
Under RCW 9. 94A.589( 1)( a), a sentencing court must impose concurrent terms for
multiple felony offenses sentenced on the same day unless the court declares an exceptional
sentence under RCW 9. 94A. 535. And under RCW 9. 94A.535, whenever a sentencing court
imposes a sentence outside the standard sentence range, " the court shall set forth the reasons for
its decision in written findings of fact and conclusions of law." We review the legal justification
for a sentence de novo. State v. Stubbs, 170 Wn.2d 117, 124, 240 P. 3d 143 ( 2010).
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No. 46106 -4 -II
Here, the sentencing court did not claim to be imposing a sentence under RCW 9. 94A.535
and did not enter findings or conclusions in support of an exceptional sentence. Rather, the
sentencing court' s statement at the time of sentencing reveals that the court did not consider itself
bound by that provision, and was likely confusing the law regarding concurrent sentences with
that of same criminal conduct.
Because the sentencing court violated the plain language of RCW 9. 94A.535 and
RCW 9. 94A. 589( 1)( a) when it imposed consecutive sentences in this case, we accept the State' s
concession that the sentencing court erred by imposing an exceptional sentence.
II. THE PROPER REMEDY IS REMAND FOR A FULL RESENTENCE
Ford argues that because the State never appealed the sentencing court' s decision to impose
sentences that were below the standard range, it is precluded from arguing such error on appeal.
RAP 2. 4( a) ( a respondent in an appeal may seek affirmative relief from portions of a trial court' s
decision only if the respondent timely files a notice of appeal).
Ford contends that we must strike his consecutive sentences and impose a 24 -month
sentence. We disagree.
RAP 2. 4( a) limits the circumstances under which a respondent may seek affirmative relief:
The appellate court will grant a respondent affirmative relief by modifying the
decision which is the subject matter of the review only ( 1) if the respondent also
seeks review of the decision by the timely filing of a notice of appeal or a notice of
discretionary review, or (2) if demanded by the necessities of the case.
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No. 46106 -4 -II
The State seeks affirmative relief because it asks for partial reversal of the sentencing
court' s court order, rather than merely advancing an alternative argument for affirming the court.
State v. Sims, 171 Wn.2d 436, 443, 256 P. 3d 285 ( 2011). Thus, our inquiry turns to whether the
necessities of this case demand a full resentence.
Ford relies on Sims to support his argument that we must remand to strike the consecutive
sentences and allow him to serve a 24 -month sentence. In Sims, the defendant argued, and the
State conceded, that a banishment condition in his special sex offender sentencing alternative
SSOSA) sentence was unconstitutional. Sims, 171 Wn. 2d at 440. The Court of Appeals agreed
but held that the trial court on remand would have discretion to either impose or deny a SSOSA.
Sims, 171 Wn.2d at 441. The State Supreme Court reversed the Court of Appeals in part, ruling
that because Sims only challenged a condition of the SSOSA sentence, and because the State did
not cross- appeal the SSOSA, the State could not seek denial of the SSOSA on remand. Sims,
171 Wn.2d at 449. Although the Supreme Court acknowledged that such relief would be available
under RAP 2. 4( a) if demanded by the necessities of the case, it concluded that such necessities had
not been shown, particularly given the chilling effect that such relief would have on Sims'
constitutional right to appeal. Sims, 171 Wn.2d at 449.
Here, the necessities of the case demand a full resentence. Ford has raised issues on appeal
that call his entire sentence into question and require a full resentence, not just a striking of the
consecutive sentences. Because the sentencing court failed to enter findings of fact and
conclusions of law to support either an upward or downward deviation, and because the sentencing
court expressed no legally justifiable reasons to impose an exceptional sentence, a full resentence
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hearing is the only appropriate remedy. Accordingly, we reverse Ford' s sentence and remand for
a full resentencing before a different judge.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040,
it is so ordered.
A-r+
SUTTON, J.
hMJ.
We concur:
MAXA; P. J. J—
LLE, J.
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