FILE'D
COURT OF APPEALS ow 1
STATE OF WASHINGTON
2018 HAR -5 AM 8: 27
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76209-5-1
Respondent, )
v. ) UNPUBLISHED OPINION
CHRISTOPHER ARDIS PHELPS, )
Appellant. ) FILED: March 5, 2018
SCHINDLER, J. — Christopher Ardis Phelps pleaded guilty to taking a motor
vehicle without permission in the second degree, count 1, and hit and run injury
accident, count 2. The State agreed to a concurrent sentence of 29 months on count 1
and 33 months on count 2. The court imposed an exceptional consecutive sentence of
29 months on count 1 and 33 months on count 2. The court found a concurrent
sentence "would result in the defendant being unpunished for Count!" and the multiple
victims and Phelps' criminal history were aggravating factors for count 2. Because
these reasons do not justify the imposition of an exceptional sentence, we reverse and
remand for resentencing.
On September 4, 2016, Christopher Ardis Phelps stole a Nissan Sentra. Phelps
drove through a four-way stop sign at approximately 70 m.p.h. The Nissan hit a truck
driven by Donald Fox then hit a parked vehicle. The parked vehicle was forced over the
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curb and caused minor injuries to a 12-year-old pedestrian. Two of the four passengers
in the Nissan were also injured. Phelps fled.
On October 14, 2016, the State charged Phelps with possession of a stolen
vehicle, count 1, and a hit and run injury accident, count 2. Phelps agreed to plead
guilty to taking a motor vehicle without permission (TMVVVOP)in the second degree,
count 1, and the hit and run injury accident, count 2. The State calculated the offender
score and standard sentence range for each count. With an offender score of 19, the
standard sentence range for count 1, TMVVVOP in the second degree, was 22 to 29
months. With an offender score of 6, the standard sentence range for count 2, hit and
run injury accident, was 33 to 43 months.
At sentencing, the State recommended the court impose a concurrent sentence
of 33 months. The State explained:
The defendant does have extensive criminal history. His score is a
little odd the way it comes out. His offender score on Count 1 is a 19
because there's a multiplier effect for his prior stolen car cases. So his
range on that is 22 to 29 months. But, despite that fact, the operative
range is Count II, hit and run injury. His offender score on that is a 6
because it doesn't have those multipliers, but his range is 33 to 43 months
on that count.
And, pursuant to plea negotiations with defense, I'm recommending
the Court impose the low end of the range, 33 months.
Phelps agreed with the sentencing recommendation. Defense counsel stated
that Phelps had "taken responsibility for his actions." Counsel attributed Phelps'
offenses to "addiction issues." Phelps addressed the court, stating:
I'm doing everything in my power to rehabilitate myself while I'm in prison.
Being in this accident and accidentally hurting these people has been a
big turning point in my life. I've had a lot of time to think and evaluate my
decisions in the past that I've had. I — I'm going to do everything in my
power to rehabilitate myself so I can do better so I don't hurt nobody else,
including myself.
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The court disagreed with the plea agreement and the sentencing
recommendation.
I'm not happy about this case. I'm not happy about this plea. I'm not
happy about the offer at all. And I'm not happy with Mr. Phelps.
You, sir, are a danger to society. You need to be locked away for
as long as possible. That's made clear from your criminal history. From
the age of 16, you have decided that you have the right to steal people's
stuff at your whim, whenever you want. You didn't accidentally hurt these
victims, you intentionally did it. That's your actions. You intentionally stole
a vehicle and intentionally operated in a reckless manner that put people's
lives in danger, and you continue to do this.
The court reviewed Phelps' criminal history, pointing out that Phelps has five
previous felonies and multiple adult misdemeanors. The court told Phelps:
You're not an addict, you're just a criminal. And you're a criminal
because you think that you have the right to take people's stuff. You have
a malfunction, but it certainly isn't addiction, and I don't see anything
changing no matter what you say. Somebody with a criminal history like
this, in and out, in and out, there's — there's nothing going to change
here.
The court decided to impose an exceptional sentence because the TMVWOP
conviction was a "free crime." The court expressed its reasoning for why an exceptional
sentence was warranted:
I'm going to do that based on his criminal history. I'm going to do it based
on the theft of a motor vehicle points out at 19 points. He's getting a free
ride on that charge if I give him the low end of hit and run injury accident.
The State disagreed with the finding that the TMVWOP in the second degree
conviction would go unpunished. The State explained that count 1 is not a free crime
because the TMV1NOP conviction increased the standard sentence range for the hit and
run injury accident conviction. The prosecutor stated, "I don't think it's a free crime
because it scores on the hit and run and ups his range on that."
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The court rejected this reasoning and imposed an exceptional consecutive
sentence of 29 months on count 1 and 33 months on count 2. The court ruled,
"Criminal history, multiple victims, free crime,[and] offender score" are lap good bases
to go above and beyond" the State's recommendation.
The judgment and sentence states the grounds for the imposition of an
exceptional sentence as follows:
The Court finds that concurrent sentences would result in the defendant
being unpunished for Count!, pursuant to RCW 9.94A.535(2)(c). The
Court also finds that the multiple victims listed in Count 11 are an
aggravating factor. The Court also finds the defendant's criminal history to
be an aggravating factor.
Phelps contends the court erred by imposing an exceptional sentence. Phelps
asserts none of the court's reasons justify the imposition of an exceptional sentence.
RCW 9.94A.585 governs our review of an exceptional sentence. RCW
9.94A.585(4) states:
To reverse a sentence which is outside the standard sentence range, the
reviewing court must find: (a) Either that the reasons supplied by the
sentencing court are not supported by the record which was before the
judge or that those reasons do not justify a sentence outside the standard
sentence range for that offense; or(b) that the sentence imposed was
clearly excessive or clearly too lenient.
We review under a clearly erroneous standard whether evidence supports the
reasons given by the sentencing judge to impose an exceptional sentence. State v.
Law, 154 Wn.2d 85, 93, 110 P.3d 717(2005). We review de novo whether those
reasons justify a departure from the standard sentence range. Law, 154 Wn.2d at 93.
And we review whether the sentence is clearly too excessive or too lenient for an abuse
of discretion. Law, 154 Wn.2d at 93.
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As a general rule, the court must impose a sentence within the standard
sentence range, and a sentence for multiple current convictions is concurrent. RCW
9.94A.505(2)(a)(i), .589(1)(a); see also Law, 154 Wn.2d at 94. A court may impose
consecutive sentences only under the exceptional sentence provisions of RCW
9.94A.535. RCW 9.94A.589(1)(a).
RCW 9.94A.535 allows the court to impose a sentence outside the standard
sentence range if it finds "substantial and compelling reasons justifying an exceptional
sentence." Other than the fact of a prior conviction, facts supporting aggravated
sentences must be determined in accordance with RCW 9.94A.537. RCW 9.94A.535.
Under RCW 9.94A.537(3), the facts supporting aggravating circumstances must be
proved to a jury beyond a reasonable doubt.
RCW 9.94A.535(2)(c) states a court may impose an exceptional sentence
without findings by a jury where "[t]he defendant has committed multiple current
offenses and the defendant's high offender score results in some of the current offenses
going unpunished." This provision is referred to as the "free crimes" aggravator. See
State v. France, 176 Wn. App. 463, 469, 308 P.3d 812(2013). The court may impose
an exceptional sentence "if the number of current offenses results in the legal
conclusion that the defendant's presumptive sentence is identical to that which would be
imposed if the defendant had committed fewer current offenses." France, 176 Wn. App.
at 469.
The offender score is calculated with prior and current convictions. RCW
9.94A.525(1), .589(1)(a). The maximum offender score is 9. RCW 9.94A.510; State v.
Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345(2008). Here, Phelps had two current
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convictions—TMVWOP in the second degree, count 1, and a hit and run injury accident,
count 2. Phelps had six prior adult and juvenile convictions for TMVWOP and theft of a
motor vehicle. In calculating the offender score for the current conviction of TMVWOP
in the second degree, each of these prior convictions counted as 3 points, resulting in
an offender score of 18. RCW 9.94A.525(20). The current hit and run injury accident
conviction added another point to the offender score, for a total of 19. RCW
9.94A.525(1),(19).
In calculating the offender score for the current conviction of hit and run injury
accident, Phelps' three prior adult felony convictions each counted for 1 point and his
four juvenile convictions each counted for .5 points, resulting in an offender score of 5.
RCW 9.94A.525(11). The current conviction of TMVWOP in the second degree added
1 point to the offender score for a total of 6. RCW 9.94A.525(1),(19). With an offender
score of 6, Phelps' standard sentence range for hit and run injury accident was 33 to 43
months. RCW 9.94A.515, .510. Contrary to the conclusion of the sentencing court, the
standard sentence range of 33 to 43 months is not identical to what would have been
imposed if Phelps had committed fewer crimes. As the State pointed out at sentencing,
the TMVWOP in the second degree conviction increased Phelps' offender score and the
standard sentence range for the hit and run injury accident conviction.
The State argues France compels a different result. We disagree. France
pleaded guilty to nine counts of felony harassment. France, 176 Wn. App. at 466.
France's prior felony convictions counted as 6 points toward his offender score. France,
176 Wn. App. at 466. France's current offenses counted as 8 points, resulting in an
offender score of 14. France, 176 Wn. App. at 466. Relying on the free crimes and the
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"officer of the court" aggravators, the trial court imposed an exceptional sentence.
France, 176 Wn. App. at 467-68. We upheld the exceptional sentence in France
because a standard sentence range would result in some of the current offenses going
unpunished. France, 176 Wn. App. at 472-73.
This case is distinguishable. Phelps was convicted of two different offenses with
different offender scores. The current conviction of TMVWOP in the second degree
increased the offender score and standard sentence range for the conviction of hit and
run injury accident. Therefore, Phelps' presumptive sentence was greater than it would
have been if he had committed fewer current offenses. We conclude count 1 was not a
free crime and the trial court erred by imposing an exceptional sentence on this basis.
The sentencing court also found two aggravating factors—Phelps' criminal
history and the multiple victims of the hit and run—justified the imposition of the
exceptional sentence. But as previously noted, the court can impose an exceptional
sentence without a finding of fact by a jury only in the limited circumstances listed in
RCW 9.94A.535(2). The State concedes, as it must, that RCW 9.94A.535(2) does not
list multiple victims as a basis upon which the court may impose an exceptional
sentence without a finding of fact by a jury. Likewise, RCW 9.94A.535(2) does not list
the fact of criminal history as a basis upon which the court can impose an exceptional
sentence.
The State argues that even if the court relied on "improper factors," we should
affirm because there is no reason to believe the court would impose a different
sentence. Nothing in the record justifies the State's argument.
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We conclude the stated reasons do not justify the imposition of an exceptional
sentence. We reverse and remand for resentencing.
WE CONCUR:
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