                                                                                                    FILED
                                                                                          CUT OF APPEALS
                                                                                                  DIVISION II

                                                     AN : 36                             20! 4 JUN - 3
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          SLATE     F    A 51-11 r11 T ©?l

                                                       DIVISION II                        fly

STATE OF WASHINGTON,                                                               No. 44707 -0 -II


                                         Respondent,


         v.




IVAN PRIETO,                                                                UNPUBLISHED OPINION


                                         Appellant.




         MAxA, J. —       Ivan Prieto appeals the sentence imposed following his conviction for second
                    1
degree   assault.        He   argues    that ( 1)     the sentencing court' s judgment and sentence mistakenly

imposed a sentence enhancement instead of an exceptional sentence, and ( 2) the sentencing court

did not make the required findings of fact and conclusions of law in support of Prieto' s

exceptional   sentence.        We agree and remand for correction of the judgment and sentence and


entry of findings supporting the exceptional sentence.

                                                            FACTS


         Prieto   and     his brother    got   into   a verbal confrontation with another man.          Chase Maarhuis


approached    the       men and asked      them to take their fight     elsewhere.    Prieto responded by punching

Maarhuis in the head.


         The State        charged   Prieto     with second    degree   assault.   It also alleged as a ground for an


exceptional sentence that Prieto committed the offense against a victim who was acting as a


Good Samaritan. After a trial before Judge Haan, the jury found Prieto guilty as charged. It also



1
    Prieto does   not    appeal   the   sentence    imposed for his fourth degree     assault conviction.
44707 -0 -I1



found that Prieto had committed the assault against a victim who was acting as a Good

Samaritan.


        Judge     Warning       sentenced   Prieto.     The standard sentence range for Prieto' s conviction


was 6 to 12 months of confinement. The State asked for an additional 24 months of confinement

because    of   the   finding    that Prieto had      assaulted   a   Good Samaritan.       In oral findings, Judge


Warning agreed and added 24 months of confinement to a mid - ange sentence of nine months,
                                                           r

for a total of 33 months of confinement. However, Judge Warning mistakenly stated on Prieto' s

written judgment and sentence that he was imposing a 24 -month sentence enhancement rather

than a 24 -month exceptional sentence. Further, he did not enter findings of fact and conclusions

of law supporting entry of an exceptional sentence.

        Two weeks later, Judge Haan entered Findings of Fact and Conclusions of Law For an


Exceptional Sentence, finding that ( 1) the jury' s special verdict that Prieto had committed his

assault against a victim who was acting as a Good Samaritan was sufficient cause to impose an

exceptional      sentence       under   RCW 9. 94A. 535( 3)(      w),   and (   2)   an   exceptional   sentence   was



appropriate. Prieto appeals.


                                                       ANALYSIS


A.        EXCEPTIONAL SENTENCE


          Prieto argues and the State concedes that Judge Warning' s written judgment and sentence

erroneously unposed a 24 -month sentence enhancement rather than a 24 -month exceptional

sentence. We agree. However, we reject Prieto' s argument that this error requires us to strike


the excess 24 months from his sentence. It appears that Judge Warning simply made an

inadvertent clerical error. As a result, the proper remedy is to remand to the sentencing court to


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44707 -041



correct the error. See In re Pers. Restraint ofMayer, 128 Wn. App. 694, 701, 117 P. 3d 353

 2005).


          We remand for Judge Warning to correct the judgment and sentence to reflect the

imposition of an exceptional sentence rather than a sentence enhancement.


B.        ENTRY OF FINDINGS AND CONCLUSIONS


          Prieto argues that the trial court erred because Judge Warning failed to make required

findings of fact and conclusions of law justifying the exceptional sentence. We agree.

          RCW 9. 94A.537( 6) requires that before imposing an exceptional sentence based on a

jury' s finding   of an   aggravating   circumstance under     RCW 9. 94A.535( 3), the court must " find[],


considering the     purposes    of [ chapter    9. 94A RCW], that the facts found are substantial and


compelling    reasons     justifying   an   exceptional   sentence."   Judge Warning failed to make this

required finding.

          Further, RCW 9. 94A. 535 requires the court to enter findings of fact and conclusions of

law supporting the imposition           of an   exceptional   sentence.   After Judge Warning sentenced

Prieto, Judge Haan,         entered the findings of fact and conclusions of law supporting the

exceptional sentence. However, Judge Haan was not the sentencing judge. Because it was Judge

Warning who imposed the exceptional sentence he, rather than Judge Haan, was required to enter

the findings of fact and conclusions of law supporting the imposition of the exceptional sentence.

See State v. Bryant, 65 Wn. App. 547, 449 -51, 829 P.2d 209 ( 1992).

          The remedy for a sentencing court' s failure to enter findings of fact and conclusions of

law supporting an exceptional sentence is a remand for entry of findings. In re Pers. Restraint of

Breedlove, 138 Wn.2d 298, 311, 979 P. 2d 417 ( 1999).                  The same remedy applies when an


                                                          3
44707 -0 -II


unauthorized    judge   enters   the findings   and   conclusions.   Bryant, 65 Wn.   App.   at   551.   We


remand for Judge Warning to enter the findings and conclusions required by RCW 9. 94A.537( 6)

and RCW 9. 94A. 535.


        We remand for correction of the judgment and sentence to reflect an exceptional sentence

rather than a sentence enhancement and for entry of findings supporting the exceptional

sentence.




        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.




We concur:




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