State Of Washington v. Manuel R. Ramirez , 190 Wash. App. 731 ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72246-8-1
Respondent,
DIVISION ONE
v.
MANUEL R. RAMIREZ, UNPUBLISHED OPINION
Appellant. FILED: September 21, 2015
Becker, J. — Manuel Ramirez appeals his judgment and sentence,
challenging the calculation of his offender score and the imposition of a 12-month
term of community custody. Because the findings of fact on criminal history do
not support Ramirez's offender score, we reverse and remand for resentencing.
On December 7, 2012, the King County Superior Court entered an order
prohibiting Ramirez from coming within 1,000 feet of his mother or her residence.
Two months later, on February 13, 2014, two King County Sheriff's deputies saw
Ramirez standing in the road at the end of his mother's driveway, which was
"well within" 1,000 feet of her house.
Following this incident, the State charged Ramirez with domestic violence
felony violation of a court order. Ramirez waived his right to counsel and his right
to a jury trial. After a bench trial, the court found Ramirez guilty as charged.
No. 72246-8-1/2
The case proceeded to sentencing. The court found that Ramirez's
criminal history included four prior convictions. It determined that his offender
score was 7, with a total standard range of 51-60 months.
The State recommended an exceptional sentence below the standard
range. The court agreed with the recommendation and imposed an exceptional
sentence of 36 months in custody and 12 months of community custody. It
entered findings of fact and conclusions of law with respect to the exceptional
sentence. Ramirez appeals.
Ramirez first argues that the trial court's findings of fact do not support his
offender score. We agree.
A defendant may challenge his offender score for the first time on appeal.
State v. Mendoza, 165 Wash. 2d 913, 919-20, 205 P.3d 113 (2009).
The State has the burden of proving a defendant's criminal history by a
preponderance of the evidence. RCW 9.94A.500(1); Mendoza, 165 Wash. 2d at
920. "The State does not meet its burden through bare assertions, unsupported
by evidence." State v. Ford, 137 Wash. 2d 472, 482, 973 P.2d 452 (1999).
Here, the trial court determined that Ramirez's offender score was 7. This
score was based on four prior convictions. These convictions were itemized in
appendix B of the judgment and sentence. The earliest conviction was a juvenile
felony conviction with a 1996 sentencing date. The next two convictions were
adult felony convictions with 2007 sentencing dates. The fourth conviction was
an adult felony conviction with a 2012 sentencing date.
No. 72246-8-1/3
Significantly, the State agrees that the criminal history as listed in
appendix B does not support the offender score. The State points to three
additional misdemeanor convictions to explain how it calculated the offender
score of 7. Nonetheless, the State argues that it met its burden to prove criminal
history because Ramirez "affirmatively agreed in writing that his offender score
was 7.'"
We reject this argument. The Supreme Court has emphasized "the need
for an affirmative acknowledgement by the defendant of facts and information
introduced for the purposes of sentencing" before the State will be excused from
its burden of providing criminal history. Mendoza, 165 Wash. 2d at 928. There was
no such affirmative acknowledgement in this case.
The State cites a document in the record titled "Findings of Fact and
Conclusions of Law for Exceptional Sentence" to support this claim. One of the
findings of fact states that Ramirez's offender score is 7. Contrary to the State's
representation, this finding is not a "stipulation" between the parties as to
Ramirez's offender score. Rather, it is a finding of fact made by the trial court.
Further, the fact that Ramirez signed this document does not establish that he
affirmatively acknowledged his criminal history. In short, the State's reliance on
this document is unpersuasive.
The remaining question is the appropriate remedy. The State argues that
the proper remedy is to remand "for the sole purpose of correcting Appendix B to
reflect the correct criminal history used to calculate Ramirez's offender score as
7.'" It points to the Presentence Statement of King County Prosecuting Attorney
No. 72246-8-1/4
to explain that Ramirez's offender score was calculated by also including three
misdemeanor convictions. In contrast, Ramirez asserts that the proper remedy is
to reverse the sentence.
We agree with Ramirez. The State seeks to limit what can happen on
remand, but it provides no authority to support its position. Because Ramirez did
not affirmatively agree to the criminal history as represented in the Presentence
Statement of King County Prosecuting Attorney, we decline to impose the
limitation suggested by the State. The proper remedy is to reverse and remand
for resentencing.
Ramirez next argues that the trial court erred in imposing a 12-month term
of community custody. He relies on RCW 9.94A.701 (9). Under that statute, the
term of community custody "shall be reduced by the court whenever an
offender's standard range term of confinement in combination with the term of
community custody exceeds the statutory maximum for the crime as provided in
RCW9A.20.021."
In re Pers. Restraint of McWilliams, 182 Wash. 2d 213, 340 P.3d 223 (2014),
forecloses Ramirez's argument. In that case, the Supreme Court expressly held
that RCW 9.94A.701(9) applies only to terms of confinement imposed within the
standard range. Ramirez received a term of confinement below the standard
range, and thus, the statute is inapplicable in this case.
No. 72246-8-1/5
We reverse and remand for resentencing.
WE CONCUR:
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