FILED
JUNE 29, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34108-9-111
Respondent, )
)
v. )
)
DEMETRIO PAZ, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Demetrio Paz asks this court to remand his prosecution to the
trial court to enter written findings of fact addressing a CrR 3.5 confession hearing and to
decrease his sentence for community custody from eighteen months to twelve months.
We deny both requests.
FACTS
On January 14, 2015, Demetrio Paz severely beat Tyson Heath, a fellow inmate at
the Okanogan County Jail. The beating resulted in blood drippings on the jail floor.
PROCEDURE
The State of Washington charged Demetrio Paz with assault in the second degree.
On the morning of trial, the trial court held a CrR 3.5 hearing to determine the
admissibility of statements Paz made to Okanogan County Sherriff s Deputy Joshua
No. 34108-9-III
State v. Paz
Brown. Deputy Brown was the only witness to testify at the hearing. The State provided
scant argument, and Paz provided no responsive argument. The trial court orally ruled:
Court is finding that the inquiry was custodial in nature. Court's
further finding that there's an undisputed fact that the defendant was
advised of his Miranda warnings. He was also advised of the waiver. He
waived his right freely and voluntarily, he spoke with the officer. There
was [sic] no threats or promises made of any kind or nature by the officer.
The statement as indicated, he had no knowledge of the assault. He
did give a statement with respect to being confronted by Mr. Heath as to
issues of stolen commissary products.
Therefore the court will allow the statement,-finds it was freely and
voluntarily given, without any duress, and no request to be represented by
counsel during any inquiry.
Therefore he voluntarily waived his rights.
Any question?
Report of Proceedings (RP) at 32-33. The trial court did not enter written findings of fact
and conclusions oflaw for the CrR 3.5 hearing until January 13, 2017.
A jury convicted Demetrio Paz of assault in the second degree. The trial court
sentenced Paz to seventy months of incarceration and eighteen months of community
custody. Paz did not object to the sentence.
LAW AND ANALYSIS
Written CrR 3.5 Findings of Fact
Demetrio Paz contends the trial court erred in failing to enter findings of fact and
conclusions of law following the CrR 3.5 confession hearing. Paz argues the late
submission of findings does not comport with RAP 7 .2( e) and requests remand for entry
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State v. Paz
of findings and conclusions. The State responds that the issue is moot because the trial
court entered written findings on January 13, 2017.
CrR 3 .5 controls the procedures for determining admissibility of statements by
criminal defendants. CrR 3.5(c) provides:
Duty of Court to Make a Record. After the hearing, the court shall
set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3)
conclusions as to the disputed facts; and (4) conclusion as to whether the
statement is admissible and the reasons therefor.
Despite the mandatory language of CrR 3. 5, a trial court's failure to enter written
findings required by CrR 3.5 is harmless error if the court's oral findings are sufficient to
permit appellate review. State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 (2008),
adhered to on remand, 158 Wn. App. 272, 246 P.3d 196 (2010). This court does not
need to address whether the late submission of written findings suffices because the trial
court's oral ruling rendered harmless any absence of written findings.
At the conclusion of the CrR 3 .5 hearing, the trial court entered its findings and
rulings on the record. The court found Demetrio Paz received his Miranda warnings,
understood his rights, waived his right to remain silent, and voluntarily spoke with
Deputy Brown. This on-the-record ruling addressed any concern regarding the
admissibility of Paz's statement to Deputy Brown. Since Demetrio Paz did not testify,
the hearing did not pose any dispute of facts for resolution by the court.
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State v. Paz
Sentencing
Demetria Paz argues the trial court erred in imposing eighteen months of
community custody because RCW 9.94A.701(2) and (3) conflict. In tum, according to
Paz, this court must resolve this ambiguity in his favor.
RCW 9.94A.701 reads, in relevant part:
( 1) If an offender is sentenced to the custody of the department for
one of the following crimes, the court shall, in addition to the-other terms of
the sentence, sentence the offender to community custody for three years:
(a) A sex offense not sentenced under RCW 9.94A.507; or
(b) A serious violent offense.
(2) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for eighteen months when the
court sentences the person to the custody of the department for a violent
offense that is not considered a serious violent offense.
(3) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for one year when the court
sentences the person to the custody of the department for:
(a) Any crime against persons under RCW 9.94A.411(2)
RCW 9.94A.701(2) mandates an eighteen-month term of community custody for a
violent offense, not considered a serious violent offense. The law does not consider
Demetria Paz's assault on Tyson Heath a serious violent offense. RCW 9.94A.701(3)
requires a twelve month term of community custody for a crime against a person. Paz
contends that, because second degree assault is both a violent offense and crime against a
person, the statute presents conflicting community custody sentences for his crime. We
agree. Assault in the second degree is both a violent offense and a crime against a
person. RCW 9.94A.030(55)(a)(viii); RCW 9.94A.411(2). Paz asks us to employ the
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State v. Paz
rule of lenity and require the trial court to impose the more lenient twelve-month term.
The State responds that RCW 9.94A.701(2) and (3) do not create any ambiguity
because the two community custody time periods comprise a part of a tiered sentencing
scheme that increases community custody terms as culpability increases. The State
asserts that the higher tiers of culpability, such as violent offenses, may also fit on a lower
tier, but the accused remains subject to the lengthier custody term. We agree with the
State.
A trial court may only impose sentences that statutes authorize. State v. Albright,
144 Wn. App. 566, 568, 183 P.3d 1094 (2008). A defendant may challenge a sentence
that is contrary to law for the first time on appeal. State v. Hood, 196 Wn. App. 127, 138,
382 P.3d 710 (2016), review denied, 187 Wn.2d 1023, 390 P.3d 331 (2017).
State v. Hood, 196 Wn. App. 127 controls our decision. Christopher Hood raised
the same argument when convicted of burglary. Like second degree assault, first degree
burglary qualifies as both a violent crime and a crime against a person. Hood contended
that the legislature created an ambiguity by placing the crime of first degree burglary in
two different categories and that the court must resolve the ambiguity, under the rule of
lenity, by shortening his term of community custody to twelve months. This court
disagreed. The Hood court reasoned that the statute establishes a tiered step-down
sentencing structure depending on the seriousness of the crime: three years of community
custody is imposed for serious violent offenses; eighteen months for a violent offense not
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State v. Paz
considered a serious violent offense; and twelve months for crimes against persons. The
court held the defendant may be sentenced to the lengthier time period.
CONCLUSION
We decline Demetria Paz's request to remand for the trial court to enter findings
of fact in response to the CrR 3.5 hearing. We affirm Paz's sentence. We deny the State
costs on appeal because of the indigency of Demetria Paz.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
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State of Washington v. Demetrio Paz
Combined Opinion