"a lack of a criminal history is not a mitigating factor because criminal history is already encompassed in the sentencing guidelines"
How later courts described this case
- "a lack of a criminal history is not a mitigating factor because criminal history is already encompassed in the sentencing guidelines"
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 74205-1-1 c:::~i ^o
Appellant,
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DIVISION ONE m
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UNPUBLISHED OPINION
MICHAEL TODD FERNANDEZ, 33. GO (-r;
FILED: December 27, 2016
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Respondent.
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Becker, J. — This is the State's appeal from a downward exceptional
sentence for second degree escape. Because the factors identified as
supporting a downward departure were necessarily considered by the legislature
in establishing the standard range, we reverse and remand for resentencing.
Respondent Michael Fernandez was serving a sentence for cocaine
possession and identity theft. Two months into his sentence, he was placed in
work release. His first full day in the work release program was April 30, 2015.
He received a pass allowing him to leave for three hours to search for
employment. He did not return.
Fernandez was arrested on a warrant two months later. He was returned
to the Department of Corrections. The department terminated his work release
placement and revoked good time credits he had earned on the sentence he was
serving for cocaine possession and identity theft.
No. 74205-1-1/2
The State charged Fernandez with first degree escape, later amended to
second degree escape pursuant to plea negotiations. He pled guilty. The
presumptive sentencing range was 22 to 29 months based on the charge and
Fernandez's offender score of six.
At a sentencing hearing, Fernandez told the court, "I made a mistake. The
day I got to work release, I got high.... And once they let me out on a pass, I
didn't come back." The State and defense counsel recommended 22 months,
the sentence they had agreed to during plea negotiations. The court was
reluctant to sentence Fernandez at even the lowest end of the standard range.
The court expressed concern about how sentencing statutes treat nonviolent
offenders afflicted with substance addiction or mental illness:
And so what I have here is somebody who walked away from work
release now looking at another two year sentence. For what
purpose? To warehouse him?
I'm just, I am, I got this gut reaction at this point in time that
what we're doing is misguided. Our Sentencing Reform Act is
taking this model that says repeat offenders who have substance
abuse mental health issues, which I think historically when you look
at the record, many of the underlying offenses, at least one or two,
appear to be related to that. But we're not addressing those issues
because when you go to Monroe, Walla Walla, there's no
treatment. It's warehousing. And they let you out and they say,
they give you no skills.... So I'm having this visceral response.
The court told Fernandez "were I to sentence you to 22 to 29 months, I couldn't
look in the mirror."
The court reviewed RCW 9.94A.535(1), which sets forth a nonexclusive
list of mitigating circumstances to support a downward exceptional sentence. At
No. 74205-1-1/3
the court's request, defense counsel agreed to draft proposed findings of fact and
conclusions of law in support of a reduced sentence.1
After a second sentencing hearing, the court decided to impose an
exceptional sentence of 30 days. The court adopted proposed findings of fact
and conclusions of law in an order issued on October 26, 2015. The court
identified three substantial and compelling reasons for an exceptional sentence.
The offenses Fernandez was held on (identity theft and cocaine possession)
were nonviolent; Fernandez's escape did not endanger the work release facility,
its employees, or other inmates; and Fernandez lost "good time" as a result of
escaping and lost his eligibility for future work release placements.
The State appeals and argues that none of these reasons justify the
sentence.
Courts are generally required to impose a sentence within the standard
range. RCW 9.94A.505(2)(a)(i); State v. Law, 154 Wn.2d 85, 94, 110 P.3d 717
(2005). The standard range is determined by the seriousness of the offense and
the defendant's criminal history. See RCW 9.94A.510. The range represents the
legislature's determination regarding appropriate sentencing. A court's
disagreement with the legislature's determination cannot justify a departure from
the standard range. Law, 154 Wn.2d at 101. Rather, a departure must be
supported by substantial and compelling reasons related to the crime, the
defendant's culpability for the crime, or the defendant's criminal record. RCW
1 Defense counsel did not request an exceptional sentence or otherwise
violate the plea agreement.
No. 74205-1-1/4
9.94A.340; RCW 9.94A.535; Law, 154 Wn.2d at 89. The court must state its
reasoning in written findings of fact and conclusions of law. RCW 9.94.A.535.
Reviewing courts use a two-part test to determine whether a factor legally
supports a departure from the standard range: (1) a trial court may not base an
exceptional sentence on factors necessarily considered by the legislature in
establishing the standard range and (2) the asserted aggravating or mitigating
factor must be sufficiently substantial and compelling to distinguish the crime in
question from others in the same category. State v. Ha'mim. 132 Wn.2d 834,
840, 940 P.2d 633 (1997), citing State v. Alexander, 125 Wn.2d 717, 725, 888
P.2d 1169 (1995).
We will reverse an exceptional sentence that relies on improper mitigating
factors. RCW 9.94A.585(4). Our review is de novo. Law, 154 Wn.2d at 93.
The primary factor the court relied on was that Fernandez's escape did not
endanger the work release facility, its employees, or other inmates. This is the
only factor Fernandez defends in his briefing as a proper mitigating
circumstance. The State contends this factor is improper because it was
necessarily considered by the legislature.
The legislature ranks the seriousness of crimes based on their relative
violence to society. State v. Calvert, 79 Wn. App. 569, 581, 903 P.2d 1003
(1995), review denied. 129Wn.2d 1005(1996). First degree escape is
categorized as a class B felony with a seriousness level of IV. RCW 9.94A.515;
RCW 9A.76.110. Second degree escape is categorized as a class C felony with
a seriousness level of III. RCW 9.94A.515; RCW 9A.76.120. These crimes fall
No. 74205-1-1/5
on the low end of the seriousness list, which ranges from level I to level XVI.
RCW9.94A.515.
Because the legislature considers comparative violence when ranking
seriousness, the nonviolent nature of a crime does not constitute a proper
mitigating factor. Calvert, 79 Wn. App. at 581. Thus, in Calvert, the trial court's
conclusion that "a forger should not be sentenced the same as a violent offender"
was inadequate to support a downward exceptional sentence. Calvert, 79 Wn.
App. at 574, 581; see a|so State v. Fowler. 145 Wn.2d 400, 404, 38 P.3d 335
(2002), citing State v. Nordbv. 106Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986).
We adhere to the reasoning of Calvert and Fowler. The legislature
considered whether and to what extent escape is a violent crime when ranking its
seriousness and determined it is a relatively nonviolent crime. Fernandez's
offender score, not the seriousness of the crime of escape, is the primary reason
why the standard range was 22 to 29 months in his case. If second degree
escape had been his first conviction, he would have faced a standard range of
only one to three months. Clerk's Papers at 29.
The legislature did not have only prison breakouts in mind when it set the
standard range for escape. As the result of an amendment enacted in 2001,
failing to return to work release was subsumed into the statutes defining first and
second degree escape. RCW 9A.76.110(1); RCW 9A.76.120(1). These statutes
penalize escape from a "detention facility," a term defined to include work release
as well as other places of confinement. RCW 9A.76.010(3).
No. 74205-1-1/6
Fernandez quotes comments made during a 2001 meeting of the House
Committee on Criminal Justice and Corrections when the committee was hearing
testimony on the proposal to amend the escape statute. He states that a
representative "expressed his concern that failing to return would be treated 'the
same or nearly the same as a violent escape.'" An individual legislator's
comments from the floor do not necessarily reveal legislative intent. Spokane
County Health Dist. v. Brockett. 120 Wn.2d 140, 154-55, 839 P.2d 324 (1992).
To the extent this particular comment is relevant, it indicates that the legislature
did consider whether the crime of escape should encompass a failure to return to
work release.
All escapes have the potential to cause violence, either during the escape
or later when the fugitive is arrested. If an offender commits a violent offense in
the course of escaping, the violent offense may be charged separately. For
instance, if Fernandez had attacked an employee of the work release facility or
another inmate to facilitate his escape, he could have been charged and
punished for assault in addition to escape. In that case, his presumptive
sentence would have been longer.
The escape statutes distinguish between the three degrees of escape
based on circumstances unrelated to whether a defendant used violence. See
RCW 9A.76.110 to .130. Fernandez argues that because the three degrees are
not differentiated on the basis of the level of violence used to escape,
nonviolence is an appropriate mitigating factor. This conclusion does not
necessarily follow. The State's argument is just as logical: There is no
No. 74205-1-1/7
differentiation by levels of violence because the legislature viewed violence as
irrelevant to evaluating culpability for an escape.
To conclude, the fact that Fernandez walked away from work release
without committing a violent act does not justify mitigation of his sentence. It fails
the first prong of the test for mitigating factors. The legislature ranked second
degree escape as a relatively nonviolent crime. Therefore, the standard range
already assumes that second degree escape is nonviolent.
Another reason given by the court for imposing an exceptional sentence is
the nonviolence of the offenses that Fernandez was serving time for when he
escaped, identity theft and cocaine possession. The nonviolence of a
defendant's past crimes "does not qualify as a mitigating circumstance" because
criminal history is one of the components used to compute the presumptive
range. Calvert, 79 Wn. App. at 581; see ajso Fowler, 145 Wn.2d at 406 ("a lack
of a criminal history is not a mitigating factor because criminal history is already
encompassed in the sentencing guidelines").
The court's third reason for mitigating the sentence was that Fernandez,
as a result of escaping, lost "good time" credits and will not be eligible for future
work release placements. This court has rejected loss of "good time" and other
institutional sanctions as proper mitigating factors in escape cases. State v.
Akin. 77 Wn. App. 575, 586, 892 P.2d 774 (1995).
At oral argument before this court, Fernandez suggested that the
exceptional sentence is justified by his need for substance abuse treatment. He
cited State v. O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), for the proposition
No. 74205-1-1/8
that a sentencing court may consider as a mitigating circumstance a personal
characteristic, such as drug addiction, if it drives a defendant's criminal behavior.
While addiction is not mentioned in the written findings and conclusions, the
order signed by the trial court incorporated the court's oral statements. In the
oral ruling, the court lamented institutional failures and criticized the sentencing
scheme for requiring a "draconian" and purely punitive response to a person
"who is suffering from a medical condition."
A court must support its decision to impose an exceptional sentence with
written findings and conclusions. RCW 9.94.A.535. Even if oral findings may be
incorporated by reference, the court's oral statements did not include concrete,
reviewable findings about drug use. There is scant evidence in the record
demonstrating Fernandez suffers from an addiction, aside from speculative
inferences based on his criminal history. It is unclear why, if Fernandez wanted
to be treated for substance abuse, he did not seek and the court did not consider
a treatment-based sentencing alternative. We conclude the record is insufficient
both factually and legally to support affirming the exceptional sentence on the
basis of a reason unspecified in the written order.
Having decided that the factors do not meet the first prong of the two-part
test, we do not address the second prong of the test. See Alexander, 125 Wn.2d
at 731. In addition to deciding whether the reasons for a mitigated sentence are
adequate, reviewing courts also consider whether the reasons are supported by
the record and if the sentence is clearly too lenient. RCW 9.94A.585(4). Given
8
No. 74205-1-1/9
our conclusion that the reasons in this case are inadequate, we do not address
whether the other two standards are satisfied.
Fernandez's sentence is reversed. We remand for resentencing.
fjpeo^g
WE CONCUR:
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