The opinion
Filed
Washington State
Court of Appeals
Division Two
January 7, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58772-6-II
Appellant,
v.
LENEYAH NICOLE FROST, UNPUBLISHED OPINION
Respondent.
VELJACIC, A.C.J. — Leneyah Nicole Frost pleaded guilty to one count of assault in the
third degree and one count of theft in the third degree. Based on several factors, the trial court
imposed an exceptional downward sentence. The State appeals, arguing the bases for all of the
factors are impermissible. Because the factors are either unsupported by the record or do not
justify a downward departure, we reverse and remand for resentencing.
FACTS
I. BACKGROUND
On February 27, 2023, around 2:25 a.m., Frost, 23, and two minor females, L.A. and N.A.,
entered a convenience store/gas station in Olympia. The clerk, and another patron, were in the
store. The clerk observed Frost, N.A., and L.A. split up shortly after entering the store. N.A.
grabbed a “bottle of Barefoot Pink Moscato wine worth approximately $6.99” and put it in her
jacket. Clerk’s Papers (CP) at 2. After seeing this, the clerk exclaimed, “you can either give me
58772-6-II
the wine or go to jail.” CP at 2. N.A. bolted for the door, struggling to get past the other patron,
who unsuccessfully attempted to apprehend her.
After N.A. fled the store, the clerk noticed L.A. and Frost “reaching over the front
counter[,] . . . taking vape product and lighters.” CP at 2. In an effort to stop her, the clerk grabbed
both Frost and L.A. by their hair. Both women began kicking and punching the clerk. Frost
continued “to reach over the counter” and stuff the stolen product “in her pink coat pockets.” CP
at 3. The other patron rushed over, attempting to assist in detaining Frost. Frost shoved the other
patron and threw a plastic trash can at the clerk. Then, Frost took the plastic lid off the trash can
and hit the clerk, causing it to break. Frost proceeded to tip over a “Red Bull display case” and
exit the store. CP at 3. Afterward, the clerk pulled L.A. behind the counter and called 911.
Officer Spithaler arrived on the scene around 2:27 a.m. Spithaler was approached by L.A.
and Frost. L.A., in distress, told Spithaler, “I just tried to rob that store.” CP at 1. Before Spithaler
had the opportunity to talk with Frost, she fled. L.A. was placed under arrest. Police tracked down
N.A., who was then “referred to the Thurston County Prosecutor’s Office for [a] review of
charges.” CP at 3. The clerk did not sustain any injuries, and the other patron had a 6 inch
laceration on his neck.
On March 8, 2023, Spithaler “was dispatched . . . for a reported suspicious person.” CP at
3. Spithaler found Frost in a wooded area behind a parking lot. Spithaler ultimately took Frost
into custody, advising that she was under investigation for a recent robbery. After being read her
Miranda1 rights, Frost voluntarily acknowledged involvement in the robbery. Frost stated, “I
didn’t steal anything,” and “he [(presumably Hoffman)] assaulted me first.” CP at 3. Frost was
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
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transported to the Thurston County jail, and subsequently charged with robbery in the second
degree in violation of RCW 9A.25.210.
II. SENTENCING
Pursuant to In re Pers. Restraint of Barr, 102 Wn.2d 265, 684 P.2d 712 (1984), Frost
pleaded guilty to assault in the third degree (count 1) and theft in the third degree (count 2). With
no criminal history, Frost’s offender score was zero. The standard sentencing range for assault in
the third degree was 1 to 3 months. The standard sentencing range for theft in the third degree was
0 to 364 days.
At the sentencing hearing, the State advocated for 3 months of confinement for count 1,
the high end of the standard sentencing range. Defense counsel acknowledged the plea agreement,
but suggested the 3-month sentence was unfair because Frost suffered from catatonia2 and was
susceptible to bad influence. After the State threatened to withdraw the plea and proceed with the
original charges, defense counsel clarified it was not challenging the agreement.
Throughout the hearing, the court inquired into several aspects of the case. The court first
questioned the State regarding the outcome of the other individuals involved in the incident.
Failing to accurately report the outcomes of Frost’s accomplices, the State explained that L.A. and
N.A. fled, “were not arrested,” and were not able to be found. Rep. of Proc. (RP) at 8.3 The court
2
“‘Catatonia is a disorder that disrupts how your brain works, disrupting how a person processes
and reacts to the world around them. People with catatonia often don’t react to things happening
nearby or may react in ways that seem unusual. Impaired communication, unusual movements or
lack of movement, and behavior abnormalities are the most striking feature of the condition.’” Br.
of Resp’t at 3 n.1 (quoting Catatonia, CLEVELAND CLINIC,
https://my.clevelandclinic.org/health/diseases/23503-catatonia (last visited Nov. 7, 2024).
3
Both the original and amended information did not list any co-defendants for the case. The
affidavit for probable cause, however, clearly stated that L.A. was detained and N.A. was referred
to the Thurston County Prosecutor’s office for an evaluation of charges.
3
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then asked whether a weapon was used. The State replied, “No. They came in just with fists.”
RP at 11.
The court imposed an exceptional downward sentence of no time in confinement and one
year of community custody for assault in the third degree. For theft in the third degree, the court
imposed ninety days in confinement, suspended all ninety days, and required Frost to continue
with mental health treatment. In its written ruling, the court based its decision on three factors: (1)
the “others involved not being held accountable,” (2) there was “no weapon[] . . . involved,” and
(3) the defendant had no criminal history. CP at 34. Throughout its oral ruling, the court
referenced all three factors, highlighting that Frost accepted responsibility for her actions and
achieved stability after getting mental health treatment.
The State appeals the exceptional downward sentence.
ANALYSIS
THE TRIAL COURT ERRED IN IMPOSING AN EXCEPTIONAL DOWNWARD SENTENCE.
The State argues the court based the exceptional downward sentence on impermissible
mitigating factors. We agree.
The Sentencing Reform Act of 1981 (SRA) was enacted with the intent “to make the
criminal justice system accountable to the public,” RCW 9.94A.010, and decrease the impact of
racism and favoritism at sentencing, see State v. Thomason, 199 Wn.2d 780, 792-95, 512 P.3d 882
(2022) (Gonzales, C.J., concurring). The SRA sought to achieve this “by developing a system for
the sentencing of felony offenders which structures, but does not eliminate discretionary decisions
affecting sentences.” RCW 9.94A.010.
4
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A. Standard of Review
Generally, courts must impose a sentence within the standard range. State v. Alexander,
125 Wn.2d 717, 722, 888 P.2d 1169 (1995); RCW 9.94A.535. A court, however, may impose an
exceptional sentence outside the standard range if it concludes that “there are substantial and
compelling reasons justifying an exceptional sentence.” RCW 9.94A.535. We may reverse a
sentence outside the standard sentence range only if we conclude:
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.
RCW 9.94A.585(4).
Courts “have construed [RCW 9.94A.585(4)] to establish three prongs, each with its own
corresponding standard of review.” State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). In
analyzing “‘the appropriateness of an exceptional sentence,’” we first evaluate if “‘the reasons
given by the sentencing judge are supported by evidence in the record,’” which is reviewed under
the clearly erroneous standard. Id. (quoting State v. Ha’mim, 132 Wn.2d 834, 840, 940 P.2d 633
(1997), abrogated on other grounds by State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015)).
Under this standard, we reverse “‘only if no substantial evidence supports [the court’s]
conclusion.’” State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997) (quoting State v.
Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991)). Substantial evidence is “‘evidence in
sufficient quantum to persuade a fair-minded person of the truth of the declared premises.’”
Jeannotte, 133 Wn.2d at 856 (internal quotation marks omitted) (quoting Olmstead v. Dep’t of
Health, 61 Wn. App. 888, 893, 812 P.2d 527 (1991)). Next, we ask whether the “‘reasons justify
a departure from the standard range,’” which is a matter of law reviewed de novo. Law, 154 Wn.2d
at 93 (quoting Ha’mim, 132 Wn.2d at 840). Finally, we determine if “‘the sentence [is] clearly too
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excessive or too lenient,’” which is reviewed for an abuse of discretion. Law, 154 Wn.2d at 93
(quoting Ha’mim, 132 Wn.2d at 840).
B. Legal Principles
The SRA “provides a nonexclusive list of mitigating circumstances . . . support[ing] an
exceptional sentence below the [standard] range.” Thomason, 199 Wn.2d at 788. Generally,
“mitigating factors ‘must relate to the crime and make it more, or less, egregious.’” Law, 154
Wn.2d at 98 (quoting State v. Fowler, 145 Wn.2d 400, 404, 38 P.3d 335 (2002)). To determine
whether a non-statutory mitigating factor is proper, courts apply a two-part test articulated in
Grewe, 117 Wn.2d 211. First, we must determine whether the mitigating factor was “considered
by the [l]egislature in establishing the standard sentence range.” Id. at 215-16. Second, the
mitigating factor “must be sufficiently substantial and compelling to distinguish the crime in
question from others in the same category.” Id. at 216.
There are several factors that may not be considered when imposing an exceptional
sentence. For example, a court may not rely on the defendant’s criminal history, see, e.g., State v.
Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065 (1987), or the purposes of the SRA, Alexander, 125
Wn.2d at 730 n.22, because these are already taken into consideration by the legislature when
establishing the standard range for an offense. “An exceptional sentence may be upheld on appeal
even where all but one of the . . . court’s reasons for the sentence have been overturned.” State v.
Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993). Remand is necessary, however, “where it is not
clear whether the . . . court would have imposed an exceptional sentence on the basis of only the
one factor upheld.” Id.
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C. Accountability of Others
The State argues that the court erred in basing an exceptional sentence on L.A. and N.A.
not being held accountable. We agree.
Even if this factor were supported by sufficient evidence, it cannot justify an exceptional
sentence. Here, the “accountability of others” factor is akin to the policy purpose of proportionality
underlying the SRA. Br. of Appellant at 13; RCW 9.94A.010(3) (“The purpose of this chapter is
to . . . [b]e commensurate with the punishment imposed on others committing similar offenses.”).
As our Supreme Court in Alexander explained, the purposes of the SRA alone cannot justify an
exceptional sentence because they are not mitigating factors in and of themselves. 125 Wn.2d at
730 n.22. Therefore, we conclude the accountability of others is an impermissible basis for an
exceptional sentence.4, 5
D. Absence of a Weapon
The State also argues that the court erred in basing an exceptional sentence on the absence
of a weapon. We agree.
4
In relation to this factor, Frost references the court’s reliance on RCW 9.94A.535(1)(c)-(e). The
court, however, did not include these mitigating factors in its written ruling. “Washington is a
written order state.” State v. Huckins, 5 Wn. App. 2d 457, 469, 426 P.3d 797, 804 (2018). A
“court’s oral statements are ‘no more than a verbal expression of [its] informal opinion at that time
. . . . necessarily subject to further study and consideration, and may be altered, modified, or
completely abandoned.’” Id. at 469-70 (internal quotation marks omitted) (quoting State v. Dailey,
93 Wn.2d 454, 458, 610 P.2d 357 (1980)). Our use of a court’s oral ruling is limited to interpreting
an ambiguous written ruling; when a court's written ruling is unambiguous, we do not consider the
court’s oral ruling. See In re Dep. of C.M., 118 Wn. App. 643, 650, 78 P.3d 191 (2003). The
court’s written ruling here is unambiguous.
5
Frost relies on State v. Statler, 160 Wn. App. 622, 248 P.3d 165 (2011), a Division Three case,
for the proposition that severity of sentence compared to co-defendants can be a factor considered
by a court in upholding an exceptional sentence. But Statler also considered a number of other
factors in upholding the exceptional sentence. Id. at 639-40. Moreover, we are not bound by
Statler. See In re Pers. Restraint of Arnold, 190 Wn.2d 136, 148-49, 410 P.3d 1113 (2018).
7
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This factor is supported by the record. The affidavit for probable cause made no mention
of a weapon being used, which was confirmed by the State at the sentencing hearing.
Nonetheless, this factor is an improper basis for an exceptional downward sentence. The
parties disagree on whether the absence of a weapon should be evaluated through robbery in the
second degree or assault in the third degree. We agree with the State that the analysis would
necessarily focus on robbery in the second degree.
When a defendant pleads guilty under Barr, as Frost did here, they “plead to a related lesser
charge that was not committed in order to avoid certain conviction for a greater offense.” 102
Wn.2d at 270 (emphasis added). In doing so, a defendant takes “advantage of a plea offer without
having to admit that his or her conduct satisfies the elements of the charged crime.” State v. Zhao,
157 Wn.2d 188, 199-200, 137 P.3d 835 (2006). Consequently, the lesser offense is a legal fiction.
See Barr, 102 Wn.2d at 269-70; Zhao, 157 Wn.2d at 199. This approach has its benefits as it
enables the parties to target an agreeable standard range, allowing the State to resolve a case with
a plea bargain instead of trial, and the defendant avoids exposure to a higher standard range or
other collateral consequences associated with the greater charge. See Barr, 102 Wn.2d at 267-68,
270.
Adopting Frost’s argument would lead to absurd results because there is never a factual
basis for the offense a defendant pleads to under Barr. See 102 Wn.2d at 269-70; Zhao, 157 Wn.2d
at 199. As a result, the offense the defendant pleads guilty to would always be distinguishable
from what the legislature considered when establishing the standard range for the crime, Grewe,
117 Wn.2d at 215-16, and every Barr plea would be subject to an exceptional sentence, either
downward or upward. This uncertainty can be an unanticipated deterrent or incentive to utilizing
a Barr plea and militates against adopting Frost’s reasoning.
8
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Even so, Frost’s argument is unavailing because the legislature contemplated the absence
of a weapon in both offenses. For robbery, the use of a weapon results in the offense qualifying
as robbery in the first degree, not second degree; clearly, the legislature’s standard range sentence
for robbery in the second degree contemplates the absence of a weapon in the commission of that
crime. Compare RCW 9A.56.190 and RCW 9A.56.210 with RCW 9A.56.200. But assuming
without deciding that we are to look at the lesser crime, here assault in the third degree, the broadly
defined scope of assault in the third degree also contemplates the absence of a weapon. RCW
9A.36.031(1)(d) (“[w]ith criminal negligence, causes bodily harm to another person by means of
a weapon or other instrument or thing likely to produce bodily harm”) (emphasis added). As is
evident, the legislature considered the absence of a weapon in the commission of both robbery in
the second degree and assault in the third degree. Frost’s argument fails. As a result, the factor
does not pass the first step of the Grewe analysis.
Therefore, the court erred in basing an exceptional sentence on the absence of a weapon.
E. Criminal History
Finally, the State argues that the court erred in basing an exceptional sentence on Frost’s
lack of criminal history. We agree.
While this factor is supported by the record,6 it was also an improper basis for an
exceptional sentence. Our Supreme Court has clearly stated that a sentencing court may not
properly consider the defendant’s criminal history when imposing an exceptional sentence.
Pascal, 108 Wn.2d at 137; State v. Freitag, 127 Wn.2d 141, 144, 896 P.2d 1254, 905 P.2d 355
(1995); Fowler, 145 Wn.2d at 405. This is so because a defendant’s criminal history “is one of
the components used to compute the presumptive range for an offense under the [SRA]”. Pascal,
6
The record clearly supports that Frost has no criminal history.
9
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108 Wn.2d at 137. As a result, this factor fails at the first step of the Grewe analysis because it
has already been considered by the legislature.
Therefore, it was improper for the trial court to base an exceptional downward sentence
based on Frost’s lack of criminal history.
CONCLUSION
Accordingly, none of the factors relied on by the trial court justified an exceptional
downward sentence.7 Therefore, we reverse the sentence and remand for resentencing.
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.
Veljacic, A.C.J.
We concur:
Lee, J.
Glasgow, J.
7
Because none of the factors justified an exceptional sentence, we need not reach the State’s
second argument that the sentence was too lenient.
10