                                                         FILE'D
                                                 COURT OF APPEALS ow 1
                                                  STATE OF WASHINGTON

                                                  2018 HAR -5 AM 8: 27




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

STATE OF WASHINGTON,                    )       No. 76209-5-1

                       Respondent,      )

                v.                      )       UNPUBLISHED OPINION

CHRISTOPHER ARDIS PHELPS,               )

                       Appellant.       )       FILED: March 5, 2018

      SCHINDLER, J. — Christopher Ardis Phelps pleaded guilty to taking a motor

vehicle without permission in the second degree, count 1, and hit and run injury

accident, count 2. The State agreed to a concurrent sentence of 29 months on count 1

and 33 months on count 2. The court imposed an exceptional consecutive sentence of

29 months on count 1 and 33 months on count 2. The court found a concurrent

sentence "would result in the defendant being unpunished for Count!" and the multiple

victims and Phelps' criminal history were aggravating factors for count 2. Because

these reasons do not justify the imposition of an exceptional sentence, we reverse and

remand for resentencing.

      On September 4, 2016, Christopher Ardis Phelps stole a Nissan Sentra. Phelps

drove through a four-way stop sign at approximately 70 m.p.h. The Nissan hit a truck

driven by Donald Fox then hit a parked vehicle. The parked vehicle was forced over the
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curb and caused minor injuries to a 12-year-old pedestrian. Two of the four passengers

in the Nissan were also injured. Phelps fled.

      On October 14, 2016, the State charged Phelps with possession of a stolen

vehicle, count 1, and a hit and run injury accident, count 2. Phelps agreed to plead

guilty to taking a motor vehicle without permission (TMVVVOP)in the second degree,

count 1, and the hit and run injury accident, count 2. The State calculated the offender

score and standard sentence range for each count. With an offender score of 19, the

standard sentence range for count 1, TMVVVOP in the second degree, was 22 to 29

months. With an offender score of 6, the standard sentence range for count 2, hit and

run injury accident, was 33 to 43 months.

      At sentencing, the State recommended the court impose a concurrent sentence

of 33 months. The State explained:

                The defendant does have extensive criminal history. His score is a
       little odd the way it comes out. His offender score on Count 1 is a 19
       because there's a multiplier effect for his prior stolen car cases. So his
       range on that is 22 to 29 months. But, despite that fact, the operative
       range is Count II, hit and run injury. His offender score on that is a 6
       because it doesn't have those multipliers, but his range is 33 to 43 months
       on that count.
                And, pursuant to plea negotiations with defense, I'm recommending
       the Court impose the low end of the range, 33 months.

       Phelps agreed with the sentencing recommendation. Defense counsel stated

that Phelps had "taken responsibility for his actions." Counsel attributed Phelps'

offenses to "addiction issues." Phelps addressed the court, stating:

       I'm doing everything in my power to rehabilitate myself while I'm in prison.
       Being in this accident and accidentally hurting these people has been a
       big turning point in my life. I've had a lot of time to think and evaluate my
       decisions in the past that I've had. I — I'm going to do everything in my
       power to rehabilitate myself so I can do better so I don't hurt nobody else,
       including myself.
No. 76209-5-1/3


       The court disagreed with the plea agreement and the sentencing

recommendation.

      I'm not happy about this case. I'm not happy about this plea. I'm not
      happy about the offer at all. And I'm not happy with Mr. Phelps.
              You, sir, are a danger to society. You need to be locked away for
      as long as possible. That's made clear from your criminal history. From
      the age of 16, you have decided that you have the right to steal people's
      stuff at your whim, whenever you want. You didn't accidentally hurt these
      victims, you intentionally did it. That's your actions. You intentionally stole
      a vehicle and intentionally operated in a reckless manner that put people's
      lives in danger, and you continue to do this.

       The court reviewed Phelps' criminal history, pointing out that Phelps has five

previous felonies and multiple adult misdemeanors. The court told Phelps:

              You're not an addict, you're just a criminal. And you're a criminal
      because you think that you have the right to take people's stuff. You have
      a malfunction, but it certainly isn't addiction, and I don't see anything
      changing no matter what you say. Somebody with a criminal history like
      this, in and out, in and out, there's — there's nothing going to change
      here.

      The court decided to impose an exceptional sentence because the TMVWOP

conviction was a "free crime." The court expressed its reasoning for why an exceptional

sentence was warranted:

       I'm going to do that based on his criminal history. I'm going to do it based
       on the theft of a motor vehicle points out at 19 points. He's getting a free
       ride on that charge if I give him the low end of hit and run injury accident.

       The State disagreed with the finding that the TMVWOP in the second degree

conviction would go unpunished. The State explained that count 1 is not a free crime

because the TMV1NOP conviction increased the standard sentence range for the hit and

run injury accident conviction. The prosecutor stated, "I don't think it's a free crime

because it scores on the hit and run and ups his range on that."



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No. 76209-5-1/4

       The court rejected this reasoning and imposed an exceptional consecutive

sentence of 29 months on count 1 and 33 months on count 2. The court ruled,

"Criminal history, multiple victims, free crime,[and] offender score" are lap good bases

to go above and beyond" the State's recommendation.

       The judgment and sentence states the grounds for the imposition of an

exceptional sentence as follows:

       The Court finds that concurrent sentences would result in the defendant
       being unpunished for Count!, pursuant to RCW 9.94A.535(2)(c). The
       Court also finds that the multiple victims listed in Count 11 are an
       aggravating factor. The Court also finds the defendant's criminal history to
       be an aggravating factor.

       Phelps contends the court erred by imposing an exceptional sentence. Phelps

asserts none of the court's reasons justify the imposition of an exceptional sentence.

       RCW 9.94A.585 governs our review of an exceptional sentence. RCW

9.94A.585(4) states:

      To reverse a sentence which is outside the standard sentence range, the
      reviewing court must find: (a) Either that the reasons supplied by the
      sentencing court are not supported by the record which was before the
      judge or that those reasons do not justify a sentence outside the standard
      sentence range for that offense; or(b) that the sentence imposed was
      clearly excessive or clearly too lenient.

       We review under a clearly erroneous standard whether evidence supports the

reasons given by the sentencing judge to impose an exceptional sentence. State v.

Law, 154 Wn.2d 85, 93, 110 P.3d 717(2005). We review de novo whether those

reasons justify a departure from the standard sentence range. Law, 154 Wn.2d at 93.

And we review whether the sentence is clearly too excessive or too lenient for an abuse

of discretion. Law, 154 Wn.2d at 93.




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       As a general rule, the court must impose a sentence within the standard

sentence range, and a sentence for multiple current convictions is concurrent. RCW

9.94A.505(2)(a)(i), .589(1)(a); see also Law, 154 Wn.2d at 94. A court may impose

consecutive sentences only under the exceptional sentence provisions of RCW

9.94A.535. RCW 9.94A.589(1)(a).

       RCW 9.94A.535 allows the court to impose a sentence outside the standard

sentence range if it finds "substantial and compelling reasons justifying an exceptional

sentence." Other than the fact of a prior conviction, facts supporting aggravated

sentences must be determined in accordance with RCW 9.94A.537. RCW 9.94A.535.

Under RCW 9.94A.537(3), the facts supporting aggravating circumstances must be

proved to a jury beyond a reasonable doubt.

       RCW 9.94A.535(2)(c) states a court may impose an exceptional sentence

without findings by a jury where "[t]he defendant has committed multiple current

offenses and the defendant's high offender score results in some of the current offenses

going unpunished." This provision is referred to as the "free crimes" aggravator. See

State v. France, 176 Wn. App. 463, 469, 308 P.3d 812(2013). The court may impose

an exceptional sentence "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." France, 176 Wn. App.

at 469.

      The offender score is calculated with prior and current convictions. RCW

9.94A.525(1), .589(1)(a). The maximum offender score is 9. RCW 9.94A.510; State v.

Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345(2008). Here, Phelps had two current




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No. 76209-5-1/6

convictions—TMVWOP in the second degree, count 1, and a hit and run injury accident,

count 2. Phelps had six prior adult and juvenile convictions for TMVWOP and theft of a

motor vehicle. In calculating the offender score for the current conviction of TMVWOP

in the second degree, each of these prior convictions counted as 3 points, resulting in

an offender score of 18. RCW 9.94A.525(20). The current hit and run injury accident

conviction added another point to the offender score, for a total of 19. RCW

9.94A.525(1),(19).

       In calculating the offender score for the current conviction of hit and run injury

accident, Phelps' three prior adult felony convictions each counted for 1 point and his

four juvenile convictions each counted for .5 points, resulting in an offender score of 5.

RCW 9.94A.525(11). The current conviction of TMVWOP in the second degree added

1 point to the offender score for a total of 6. RCW 9.94A.525(1),(19). With an offender

score of 6, Phelps' standard sentence range for hit and run injury accident was 33 to 43

months. RCW 9.94A.515, .510. Contrary to the conclusion of the sentencing court, the

standard sentence range of 33 to 43 months is not identical to what would have been

imposed if Phelps had committed fewer crimes. As the State pointed out at sentencing,

the TMVWOP in the second degree conviction increased Phelps' offender score and the

standard sentence range for the hit and run injury accident conviction.

       The State argues France compels a different result. We disagree. France

pleaded guilty to nine counts of felony harassment. France, 176 Wn. App. at 466.

France's prior felony convictions counted as 6 points toward his offender score. France,

176 Wn. App. at 466. France's current offenses counted as 8 points, resulting in an

offender score of 14. France, 176 Wn. App. at 466. Relying on the free crimes and the



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No. 76209-5-1/7

"officer of the court" aggravators, the trial court imposed an exceptional sentence.

France, 176 Wn. App. at 467-68. We upheld the exceptional sentence in France

because a standard sentence range would result in some of the current offenses going

unpunished. France, 176 Wn. App. at 472-73.

       This case is distinguishable. Phelps was convicted of two different offenses with

different offender scores. The current conviction of TMVWOP in the second degree

increased the offender score and standard sentence range for the conviction of hit and

run injury accident. Therefore, Phelps' presumptive sentence was greater than it would

have been if he had committed fewer current offenses. We conclude count 1 was not a

free crime and the trial court erred by imposing an exceptional sentence on this basis.

       The sentencing court also found two aggravating factors—Phelps' criminal

history and the multiple victims of the hit and run—justified the imposition of the

exceptional sentence. But as previously noted, the court can impose an exceptional

sentence without a finding of fact by a jury only in the limited circumstances listed in

RCW 9.94A.535(2). The State concedes, as it must, that RCW 9.94A.535(2) does not

list multiple victims as a basis upon which the court may impose an exceptional

sentence without a finding of fact by a jury. Likewise, RCW 9.94A.535(2) does not list

the fact of criminal history as a basis upon which the court can impose an exceptional

sentence.

       The State argues that even if the court relied on "improper factors," we should

affirm because there is no reason to believe the court would impose a different

sentence. Nothing in the record justifies the State's argument.




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      We conclude the stated reasons do not justify the imposition of an exceptional

sentence. We reverse and remand for resentencing.




WE CONCUR:




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