State v. France

• Decision Date: 09 September 2013
• Docket Number: No. 67959–7–I.
• Citation: State v. France, 176 Wash.App. 463, 308 P.3d 812 (Wash. App. 2013)
• Parties: STATE of Washington, Respondent, v. William Neal FRANCE, Appellant.
• Court: Washington Court of Appeals

176 Wash.App. 463

308 P.3d 812

STATE of Washington, Respondent,

v.William Neal FRANCE, Appellant.

No. 67959–7–I.

Court of Appeals of Washington, Division 1.

Sept. 9, 2013.

Nielsen Broman Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Prosecuting Atty King County, King Co. Pros/App Unit Supervisor, Samantha Dara Kanner, King Co. Prosecutors Office, Seattle, WA, for Respondent.

APPELWICK, J.

[176 Wash.App. 465]¶ 1 France pleaded guilty to nine counts of felony harassment. He had six prior felony convictions. The trial court imposed an exceptional sentence on all nine counts, based in part on the “free crimes” aggravator and in part on the officer of the court aggravator. France argues that the free crimes aggravator could not lawfully attach to three current offenses, because they increased his offender score to a “9 or more” and therefore did not go unpunished. We affirm France's exceptional sentence, but remand for correction of the two clerical errors in the judgment and sentence.

FACTS

¶ 2 This appeal arises from William France's 180 month exceptional sentence for felony harassment of three women—Anita Paulsen, Nina Beach, and Lisa Daugaard. Paulsen, a public defense attorney at The Defender Association, represented France in a previous case. Beach was also involved in the previous case as France's social worker. Unsatisfied with his representation, France began leaving graphic voicemails with both women threatening to stalk them, sexually assault them, and then “put a bullet” in them. Paulsen notified Daugaard, deputy director at The Defender Association, who sent France a cease and desist letter. France then began leaving Daugaard similar threatening voicemails. All three women feared for their safety and contacted the Seattle Police Department.

¶ 3 The State charged France by amended information with 16 counts of felony harassment. The State alleged two aggravating factors: that France's conduct manifested deliberate cruelty to the victims (all 16 counts) and was committed against officers of the court (counts 1–11).

¶ 4 The parties entered a plea agreement in which France agreed to plead guilty to nine counts of felony harassment as follows: counts 3, 4, 6 (against Paulsen), counts 7, 8, 9 (against Daugaard), and counts 12, 14, 15 (against Beach). In exchange, the State recommended dismissing the remaining seven counts and removing the deliberate cruelty aggravator. France stipulated that the officer of the court aggravator applied to the six counts (3, 4, 6, 7, 8, and 9) against Paulsen and Daugaard.

¶ 5 France also agreed that his prior felony convictions counted as six points toward his offender score. His current offenses counted as eight points, resulting in an offender score of 14. Based on his offender score of 9 or more, the standard range sentence for each count was 51 to 60 months. The plea statement provided: “The sentences imposed on counts 3, 4, [176 Wash.App. 467]6, 7, 8, 9, 12, 14, [and] 15 ... will run concurrently unless there is a finding of substantial and compelling reasons to do otherwise.” But, the State indicated its intent to seek an exceptional sentence on all counts based on the free crimes aggravator. As a result, the State recommended 180 months total confinement, consisting of exceptional consecutive sentences as follows: 60 months on counts 3, 4, 6, concurrent to each other; 60 months on counts 7, 8, 9, concurrent to each other; and 60 months on counts 12, 14, 15, concurrent to each other.

¶ 6 During the plea colloquy, France acknowledged that the officer of the court aggravator attached to counts 3, 4, 6, 7, 8, and 9. He also acknowledged that no statutory aggravator attached to counts 12, 14, and 15. The State explained its sentence recommendation:

[B]asically on Counts 12, 14 and 15, there would be a base sentence of 60 months with no aggravator, Counts 3, 4 and 6 there would be 60 months consecutive based on the aggravator of officer of the court, and then Counts 7, 8 and 9 would run consecutive to both of those based on the aggravator of officer of the court.

However, the State reiterated that it would be seeking an exceptional sentence on the additional basis that France's high offender score resulted in some of his current offenses going unpunished, essentially receiving free crimes.

¶ 7 The trial court adopted the State's recommendations and sentenced France to 180 months confinement as follows: counts 3, 4, 6 shall run concurrent to each other and consecutive to all others; counts 7, 8, 9 shall run concurrent to each other and consecutive to all others; and counts 12, 14, 15 shall run concurrent to each other and consecutive to all others. The court justified the exceptional sentence based on the frequency and “truly alarming” nature of the voicemails. The court found little hope for France's rehabilitation. Therefore, the function of the sentence “really comes down to protection.” Moreover,

[I]n this case we are dealing with the very underpinning of our democracy, and that is the right to protection and constitutional protection, and we have dedicated officers performing that duty, and we need to make sure that they are safe and able to perform that duty without such threats.

The court explained that it relied on both the free crimes aggravator and the officer of the court aggravator, but that either alone would have been sufficient.

¶ 8 France appeals.

DISCUSSION

¶ 9 France challenges the trial court's authority to impose an exceptional sentence based on the free crimes aggravator on three of his current offenses. He also argues that there is a clerical error in the judgment and sentence stating that the officer of the court aggravator attached to all nine counts. Lastly, he contends that the trial court imposed a community custody condition when it had no statutory authority to do so.

I. Free Crimes Aggravator

¶ 10 A defendant's standard range sentence reaches its maximum limit at an offender score of “9 or more.” RCW 9.94A.510. An offender score is computed based on both prior and current convictions. RCW 9.94A.525(1). For the purposes of calculating an offender score when imposing an exceptional sentence, current offenses are treated as prior convictions. State v. Newlun, 142 Wash.App. 730, 742, 176 P.3d 529 (2008). Where a defendant has multiple current offenses that result in an offender score greater than nine, further increases in the offender score do not increase the standard sentence range. See State v. Alvarado, 164 Wash.2d 556, 561–63, 192 P.3d 345 (2008). However, a trial court may impose an exceptional sentence under the free crimes aggravator when “[t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.” RCW 9.94A.535(2)(c). In other words, 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, then the court may impose an exceptional sentence. Newlun, 142 Wash.App. at 743, 176 P.3d 529.

¶ 11 France's prior felony convictions contributed six points toward his offender score. Three more current offenses were needed before France's offender score reached nine points on the sentencing grid. Therefore, France contends, those three current offenses were punished, because they increased his standard range sentence. Only six remaining counts would go unpunished if France was sentenced within the standard range. According to France, then, only six of his crimes are subject to an exceptional sentence, because the free crimes aggravator cannot lawfully attach to the three punished crimes. He contends that those three punished crimes must then run concurrently with the six unpunished counts. Therefore, he argues, his sentence should be 120 months instead of 180 months, and remand for resentencing is required to rectify the error.

¶ 12 To reverse an exceptional sentence, we must find: (1) under a clearly erroneous standard, there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence; (2) under a de novo standard, the reasons supplied by the sentencing court do not justify a departure from the standard range; or (3) under an abuse of discretion standard, the sentence is clearly excessive or clearly too lenient. RCW 9.94A.585(4); State v. Law, 154 Wash.2d 85, 93, 110 P.3d 717 (2005). The second standard of review applies here, because France challenges the trial court's authority to construct the exceptional sentence as it did. He does not argue that 180 months is clearly excessive.

¶ 13 In construing the free crimes aggravator, our primary duty is to ascertain and carry out the legislature's intent. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010). Statutory interpretation begins with the statute's plain meaning. Id. If the statute's meaning is unambiguous, our inquiry ends. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007). A statute is ambiguous when it is susceptible to two or more reasonable interpretations. State v. Gonzalez, 168 Wash.2d 256, 263, 226 P.3d 131 (2010). However, a statute is not ambiguous merely because different interpretations are conceivable. Id.

¶ 14 The free crimes aggravator is triggered when the defendant's high offender score combines with multiple current offenses to leave “ some of the current offenses going unpunished.” RCW 9.94A.535(2)(c) (emphasis added). The legislature could have specified that “only those current offenses going unpunished are subject to an exceptional sentence.” But, it did not do so. Nor does the statute specify that the trial court must find that all current offenses would go unpunished. Rather, use of the word “some” contemplates a situation like France's where some current offenses contribute to the...