                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            April 28, 2020
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 53790-7-II

                                 Respondent,

           v.

    FORREST EUGENE AMOS,                                      UNPUBLISHED OPINION

                                 Appellant.

         WORSWICK, J. — Forrest Amos appeals from the denial of his CrR 7.8(b)(1) motion to

modify his judgment and sentence. Amos’s court appointed counsel on appeal has filed an

Anders1 brief, seeking to withdraw as counsel.

         Amos’s appellate counsel suggests two potential issues: (1) RCW 9.94A.535 and RCW

9.94A.506(3) prohibit a consecutive sentence that exceeds the maximum set forth in RCW

9A.20.021 and (2) RCW 9.94A.535 is ambiguous. Amos has filed a statement of additional

grounds (SAG) for review in which he also argues that RCW 9.94A.535 cannot exceed the

statutory maximum set forth in RCW 9A.20.021 as it relates to determinate sentences and also

that his sentence is clearly excessive. We grant counsel’s motion to withdraw and dismiss

Amos’s appeal.

                                               FACTS

         Amos was convicted of four counts of forgery and four counts of first degree criminal

impersonation. The trial court ruled that the four convictions for first degree criminal



1
    Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
No. 53790-7-II


impersonation were the same criminal conduct as the forgery convictions. Forgery is a class C

felony. RCW 9A.60.020(3).

       At sentencing, Amos’s offender score was over nine points. The State sought an

exceptional sentence under RCW 9.94A.535(2)(c), arguing that because of Amos’s high offender

score and multiple current offenses, some convictions would go unpunished. The trial court

agreed and imposed consecutive sentences for the crimes as an exceptional sentence. The court

sentenced Amos to 29 months for each forgery, to be served consecutively for a total of 116

months. The trial court’s finding to support the exceptional sentence under RCW

9.94A.535(2)(c) stated, “The exceptional sentence is justified by the following aggravating

circumstances: (a) Multiple Current Offenses RCW 9.94A.535(2)(c).” Clerk’s Papers (CP) at

113. Amos filed a direct appeal of his convictions and sentence.

       Amos, acting pro se, then filed a CrR 7.8(b)(1) motion to modify his judgment and

sentence. Amos did not challenge the sentencing court’s reason for imposing an exceptional

sentence, recognizing that it was justified under RCW 9.94A.535(2)(c). Instead, he argued that

certain statutes were ambiguous and that his exceptional sentence violated the sentencing

limitations set forth in RCW 9A.20.021. The trial court appointed counsel, who filed a

supplemental memorandum to support the motion. Following a hearing, the trial court denied

Amos’s motion, ruling that “Amos provided no authority that showed his sentence was illegal,

therefore, Amos did not meet his burden pursuant to CrR 7.8(b)(1) to show the court made a

mistake.” CP at 121.

       Amos appeals the denial of his CrR 7.8(b)(1) motion, and Amos’s court appointed

counsel on appeal moves to withdraw.



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No. 53790-7-II


                                           ANALYSIS

                                      I. MOTION TO WITHDRAW

       RAP 15.2(i) provides that court appointed counsel should file a motion to withdraw “[i]f

counsel can find no basis for a good faith argument on review.” Pursuant to Anders v.

California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Theobald, 78

Wn.2d 184, 185, 470 P.2d 188 (1970), counsel’s motion to withdraw must

       be accompanied by a brief referring to anything in the record that might arguably
       support the appeal. A copy of counsel’s brief should be furnished the indigent and
       time allowed him to raise any points that he chooses; the court—not counsel—
       then proceeds, after a full examination of all the proceedings, to decide whether
       the case is wholly frivolous.

State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (quoting Anders, 386 U.S. at 744);

RAP 18.3(a)(2). In accordance with this procedure, Amos’s counsel on appeal filed a brief with

the withdrawal motion. Amos was served with a copy of the brief and informed of his right to

file a SAG. Amos filed a SAG.

       The material facts are accurately set forth in counsel’s brief in support of the motion to

withdraw. We have reviewed the briefs and the record. We specifically consider the following

potential issues raised by counsel:

       [1.] When sentencing for multiple crimes under the “free crime aggravator,” do
       RCW 9.94A.506(3) and RCW 9.94A.535 prohibit the sentencing court from
       imposing a consecutive sentence that exceeds the statutory maximum designated in
       RCW 9A.20.021?

       [2.] Is the language of RCW 9.94A.535 ambiguous and therefore, subject to the
       rule of lenity where the statute provides: “A departure from the standards in RCW
       9.94A589(1) and (2) governing whether sentences are to be served consecutively
       or concurrently is an exceptional sentence subject to the limitations in this section
       and may be appealed by the offender or the state as set forth in RCW 9.94A.585(2)
       thru (6)”?



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No. 53790-7-II


Motion To Withdraw at 2-3.

       We hold that (1) there is no good faith argument that RCW 9.94A.535 and RCW

9.94A.506(3) prohibit a consecutive sentence for multiple convictions that exceeds the maximum

set forth in RCW 9A.20.021 for a single conviction, and (2) RCW 9.94A.535 is not ambiguous

regarding its “subject to the limitations” language.

       Appellate review here is limited to whether the trial court abused its discretion when it

denied the CrR 7.8 motion. State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005).

The trial court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or reasons. State v. Robinson, 193 Wn. App. 215, 217-18, 374 P.3d 175

(2016). A trial court also abuses its discretion if it makes an error of law. State v. Tobin, 161

Wn.2d 517, 523, 166 P.3d 1167 (2007).

A.     RCW 9.94A.535 and RCW 9.94A.506 Do Not Prohibit Amos’s Sentence

       We hold that there is no good faith argument that RCW 9.94A.535, RCW 9.94A.506(3),

or RCW 9A.20.021 limit a consecutive sentence for multiple convictions to the statutory

maximum for a single conviction.

       Forgery is a class C felony. RCW 9A.60.020(3). “Unless a different maximum sentence

for a classified felony is specifically established by a statute” the maximum allowable sentence

for a class C felony is “confinement in a state correctional institution for five years.” RCW

9A.20.021(1)(c). If a sentencing court imposes consecutive sentences, the sentencing court may

stack each individual crime’s statutory maximum to determine a defendant’s total statutory

maximum allowable sentence. State v. Weller, 197 Wn. App. 731, 734-35, 391 P.3d 527 (2017).




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No. 53790-7-II


       RCW 9.94.535 allows a sentencing court to impose an exceptional sentence, including

when the “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).

RCW 9.94A.589 sets forth standards for consecutive and concurrent sentences, and a departure

from these standards is an exceptional sentence. RCW 9.94A.535. RCW 9.94A.535 states:

       A departure from the standards in RCW 9.94A.589(1) and (2) governing whether
       sentences are to be served consecutively or concurrently is an exceptional sentence
       subject to the limitations in this section, and may be appealed by the offender or the
       state as set forth in RCW 9.94A.585(2) through (6).

(Emphasis added.)

       We hold that there is no good faith argument that RCW 9.94A.535 and RCW

9.94A.506(3) prohibit a consecutive sentence for multiple convictions that exceeds the maximum

set forth in RCW 9A.20.021 for a single conviction. Amos’s motion argued that his maximum

sentence for the forgery convictions was 5 years in total because a conviction for 1 forgery

conviction was 5 years. Thus, when the trial court imposes an exceptional sentence of

consecutive sentences for forgery, this exceptional consecutive sentence is confined by the 5-

year maximum. But when convictions are imposed consecutively, the statutory maximum for

the convictions are stacked. Weller, 197 Wn. App. at 734-35. Amos’s statutory maximum for

the 4 forgery convictions was a total maximum of 20 years, or 240 months. RCW

9A.20.021(1)(c); Weller, 197 Wn. App. at 734-35. As a result, Amos’s 116 month-sentence was

within the total statutory maximum.

       Amos’s motion cited RCW 9.94A.506(3) to support his argument. But, RCW

9.94A.506(3) addresses standard range sentences and is inapplicable here because Amos’s

sentence was an exceptional sentence. There is no good faith argument that RCW 9.94A.535,


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No. 53790-7-II


RCW 9.94A.506(3), or RCW 9A.20.021 limits a consecutive sentence for multiple convictions

to the statutory maximum for a single conviction.

B.     RCW 9.94A.535 Is Unambiguous

       We hold that there is no good faith argument that RCW 9.94A.535 is ambiguous.

Statutory interpretation is a question of law we review de novo. State v. Dennis, 191 Wn.2d 169,

172, 421 P.3d 944 (2018). The purpose of statutory interpretation is to ascertain legislative

intent. Dennis, 191 Wn.2d at 172. We first look to the statute’s plain language. State v.

Velasquez, 176 Wn.2d 333, 336, 292 P.3d 92 (2013). If the plain language is unambiguous,

subject only to one reasonable interpretation, this court’s inquiry ends. Velasquez, 176 Wn.2d at

336. A statute is not ambiguous merely because multiple interpretations are conceivable.

Velasquez, 176 Wn.2d at 336. Related statutory provisions must be harmonized to effectuate a

consistent statutory scheme. Velasquez, 176 Wn.2d at 336. If, however, the statute is

ambiguous, we apply the rule of lenity, which construes ambiguity in favor of the defendant.

State v. Barbee, 187 Wn.2d 375, 383, 386 P.3d 729 (2017).

       Amos’s brief raises the issue that the phrase “subject to the limitations in this section” in

RCW 9.94A.535 is ambiguous. The contested provision of RCW 9.94A.535 states:

       A departure from the standards in RCW 9.94A.589(1) and (2) governing whether
       sentences are to be served consecutively or concurrently is an exceptional sentence
       subject to the limitations in this section, and may be appealed by the offender or the
       state as set forth in RCW 9.94A.585(2) through (6).

(Emphasis added.)

       The plain language of RCW 9.94A.535 states that a sentencing court cannot deviate from

the standards in RCW 9.94A.589(1)-(2) unless that departure is enumerated in RCW 9.94A.535.

Accordingly, that deviation is “subject to the limitations” in RCW 9.94A.535. In other words,


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No. 53790-7-II


when a sentencing court imposes an exceptional sentence that deviates from RCW 9.94A.589(1)

and .589(2) standards for consecutive and concurrent sentences, that deviation must be set forth

in RCW 9.94A.535. Here, the enumerated reason was RCW 9.94A.535(2)(c), multiple current

offenses. The phrase “subject to the limitations in this section” in RCW 9.94A.535 is

unambiguous. Because the statute is unambiguous, the rule of lenity does not apply. Barbee,

187 Wn.2d at 383.

       We hold that there are no good faith arguments. We grant counsel’s motion to withdraw.

                            II. STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Amos argues that RCW 9.94A.535 cannot exceed the statutory maximum set

forth in RCW 9A.20.021 as it relates to determinate sentences and, as a result, his sentence is

clearly excessive. We hold that Amos fails to raise reversible grounds in his SAG.

       Amos argues that his sentence imposed under RCW 9.94A.535 is subject to the

limitations in RCW 9A.20.021 because it is a determinate sentence. A determinate sentence is a

sentence that “states with exactitude the number of actual years, months, or days of total

confinement.” RCW 9.94A.030(18). Amos’s sentence was indeed a determinate sentence of

116 months. However, as set forth above, Amos’s sentence did not exceed the limitations in

RCW 9A.20.021. The maximum sentence for each forgery count was stacked, and Amos was

sentenced to less than the stacked maximum. Amos’s argument fails.

       Amos also argues that his sentence was clearly excessive “because it exceeds the

applicable five year [statute of limitations] maximum.” SAG at 9. This was a potential issue

raised by counsel that is addressed above. Having determined that there is no good faith




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No. 53790-7-II


argument supporting this claim, we do not further address it. We hold that Amos fails to raise

reversible grounds in his SAG.

       Following this court’s review of potential issues raised by counsel and the issues raised in

Amos’s SAG, we conclude that the issues do not present a good faith argument for review. This

court’s independent review of the record does not reveal any potential nonfrivolous issues that

may be raised in this appeal. Accordingly, we grant counsel’s motion to withdraw and dismiss

Amos’s appeal.

       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.



                                                     ______________________________
                                                               Worswick, J.


_______________________________
 Lee, C.J.



_______________________________
 Sutton, J.




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