State v. Friedlund, s. 89926–6

• Decision Date: 15 January 2015
• Docket Number: Nos. 89926–6,90005–1.,s. 89926–6
• Citation: 182 Wash.2d 388,341 P.3d 280
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. John Herbert FRIEDLUND, Petitioner. State of Washington, Respondent, v. Casmer Joseph Volk, Petitioner.

182 Wash.2d 388

341 P.3d 280

STATE of Washington, Respondent

v.John Herbert FRIEDLUND, Petitioner.

State of Washington, Respondent

v.Casmer Joseph Volk, Petitioner.

Nos. 89926–6

90005–1.

Supreme Court of Washington, En Banc.

Jan. 15, 2015.

Marie Jean Trombley, Attorney at Law, Graham, WA, for Petitioner.

Gregory Lee Zempel, Kittitas Co Pros Attorney, Christopher Thomas Herion, Attorney at Law, Ellensburg, WA, Timothy Rasmussen, Lech Radzimski, Stevens County Prosecutor, Colville, WA, for Respondent.

Opinion

WIGGINS, J.

¶ 1 We must determine whether an on-the-record oral ruling may substitute for written findings when a trial court imposes an exceptional sentence that is, a sentence that is outside the standard sentence range for an offense. We conclude that oral findings do not satisfy the requirements of the Sentencing Reform Act of 1981 (SRA) and remand these matters to the trial court for entry of written findings of fact and conclusions of law (hereinafter written findings). Ch. 9.94A RCW.

¶ 2 This consolidated appeal consists of two criminal cases. In each case, the jury convicted the defendant and found that aggravating circumstances were present. At sentencing, the trial courts deviated from the standard sentencing range and imposed exceptional sentences. While both trial courts explained on the record their reasons for deviating from the standard range, neither court entered written findings as required by statute.¹ See RCW 9.94A.535. Both sentences were affirmed by the Court of Appeals in unpublished opinions. State v. Friedlund, noted at 178 Wash.App. 1039, 2014 WL 94322 ; State v. Volk, noted at 179 Wash.App. 1024, 2014 WL 465452.

¶ 3 The language of RCW 9.94A.535 is clear: “Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.” (Emphasis added.) Because neither court entered written findings prior to appeal, we remand both cases to the trial court for entry of written findings.

FACTS

I. State v. Friedlund

¶ 4 The State charged John Friedlund with first degree theft, alleging that he misappropriated over $800,000 belonging to the victim, Frances Swan, by converting the money to his own use. Swan was an old family friend of Friedlund. In 2001, after her husband passed away, Swan requested that Friedlund move into her house and designated him as her primary attorney-in-fact. At the time Friedlund moved in, Swan was 96 years old. Over the following decade, Friedlund gradually took control of Swan's life and finances. In addition to misappropriating Swan's money, Friedlund willfully neglected Swan herself. In 2011, 10 years after Friedlund moved into Swan's house, law enforcement officers responded to a report that no one had seen Swan for several months. Investigating officers found the house in a state of horrific disrepair and observed that Swan (by then 106 years old) was on the brink of starvation.

¶ 5 The State charged Friedlund with first degree theft. The information alleged two aggravating factors: (1) Friedlund had abused a position of trust to facilitate the crime and (2) his victim had been particularly vulnerable or incapable of resistance. A jury convicted Friedlund on the theft charge and found both aggravating circumstances present. The trial court sentenced Friedlund to 120 months in prison, above the standard sentence range of 3 to 9 months. The trial court explained the reasons for imposing an exceptional sentence on the record at Friedlund's sentencing hearing. But when the trial court entered its judgment and sentence, no written findings were entered.

¶ 6 Friedlund appealed. The Court of Appeals affirmed, holding that because “[t]he trial court's oral opinion clearly and sufficiently articulates the exceptional sentence was imposed based on the jury's finding of the aggravating circumstances,” the absence of written findings was “harmless” and remanding for written findings would be a “mere formality.” Friedlund, 2014 WL 94322, at *3. We granted review on the exceptional sentence only. 180 Wash.2d 1009, 325 P.3d 913 (2014).

II. State v. Volk

¶ 7 The State charged Casmer Volk with first degree rape of a child. The victim was four years old, and Volk was a friend of the victim's family at the time of the offense. As in Friedlund's case, the prosecution included an aggravating circumstance in the information alleging that Volk knew or should have known that the victim was particularly vulnerable or incapable of resistance. A jury convicted Volk and found the aggravating circumstance present.

¶ 8 The trial court calculated the standard sentence range as 162 to 216 months. The trial court then sentenced Volk to a term of 336 months to life, citing the aggravating circumstance as the basis for sentencing Volk at least 120 months above the standard range.² The trial court never entered written findings articulating the reason for this exceptional sentence.

¶ 9 Volk appealed. The Court of Appeals affirmed, explaining that remand for entry of written findings would be a “mere formality” because “the record is sufficiently comprehensive and clear for us to discern the sentencing court imposed an exceptional sentence solely because the jury found an aggravating circumstance by special interrogatory.” Volk, 2014 WL 465452, at *8. We granted review. 180 Wash.2d 1013, 327 P.3d 54 (2014).

III. Motions To Supplement

¶ 10 After we granted review, the superior court in Friedlund belatedly entered written findings and the State moved to supplement the appellate record with those findings. The findings closely track, both in structure and content, the oral reasoning that the superior court provided at Friedlund's sentencing hearing. We passed the State's motion to be decided by the court after oral argument.

¶ 11 In Volk, the State moved the superior court to enter proposed written findings after we granted review. Unlike in Friedlund, however, the superior court in Volk declined to enter the State's proposed findings. Instead, the court ruled that while the State's “proposed findings accurately reflect its sentencing of Mr. Volk,” it would not enter those findings “because the court does not find it has the authority per RAP 7.2.” The State's pending motion seeks to supplement the appellate record with the State's proposed findings and the superior court's ruling declining to enter those findings. As in Friedlund, we passed the motion to the merits.

¶ 12 Petitioners filed briefs opposing both pending motions to supplement.

ANALYSIS

¶ 13 We hold that an oral colloquy, even if on the record, cannot satisfy the SRA's requirement that findings justifying an exceptional sentence must be in writing. We deny the pending motions to supplement the appellate record in both cases and remand both cases for entry of written findings.

I. Written Findings Requirement

¶ 14 We hold that the entry of written findings is essential when a court imposes an exceptional sentence.

Because the record does not contain written findings in either of the pending cases,³ we remand both Friedlund and Volk for the entry of written findings. We review de novo whether a trial court's reasons for imposing an exceptional sentence meet the requirements of the SRA. State v. Fowler, 145 Wash.2d 400, 406, 38 P.3d 335 (2002).

¶ 15 The SRA permits a court to impose sentences that deviate from the standard sentence range “if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535. When a trial court imposes an exceptional sentence, the SRA requires the court to “set forth the reasons for its decision in written findings of fact and conclusions of law.” Id. (emphasis added). This requirement, word for word, has been part of the SRA from its inception. See Laws of 1981, ch. 137, § 12(3). The written findings must then be sent to the Washington State Sentencing Guidelines Commission along with the trial court's judgment and sentence. CrR 7.2(d) (“If the sentence imposed departs from the applicable standard sentence range, the court's written findings of fact and conclusions of law shall also be supplied to the Commission.”).

¶ 16 We hold that the SRA's written findings provision requires exactly that—written findings. Permitting verbal reasoning—however comprehensive—to substitute for written findings ignores the plain language of the statute. It would also deprive defendants of the finality accorded by the inclusion of written findings in the court's formal judgment and sentence. “Atrial court's oral or memorandum opinion is no more than an expression of its informal opinion at the time it is rendered. It has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.” State v. Mallory, 69 Wash.2d 532, 533–34, 419 P.2d 324 (1966). A written judgment and sentence, by contrast, is a final order subject to appeal. See State v. Gallegos, 69 Wash.2d 586, 587–88, 419 P.2d 326 (1966) (judgment and sentence “was self-executing and was the final order in this case”). Our court rules reflect this distinction: the superior court's authority to modify a judgment is limited by CrR 7.8 and, if a party appeals, RAP 7.2(e) ; a trial court's oral rulings are not subject to the same limitations.

¶ 17 Allowing courts to ignore the written findings requirement would also run contrary to the SRA's explicit statutory purpose of “mak[ing] the criminal justice system accountable to the public.” RCW 9.94A.010. Without written findings, the Sentencing Guidelines Commission and the public at large could not readily determine the reasons behind exceptional sentences, greatly hampering the public accountability that the SRA requires.

¶ 18 Here, the records of both pending cases are devoid of written findings. The remedy for a trial court's failure to enter written findings of fact and conclusions of law is to remand the case for entry of those...