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                                                                                              2015 AUG25       AIM, 8. 1., 5
    IN THE COURT OF APPEALS OF THE STATE OF W

                                                 DIVISION II

 STATE OF WASHINGTON,                                          I                No. 461


                                      Respondent,


          V.



 JOHN E. WEITZEL,                                                           UNPUBLISHED OPINION




          J. SUTTON — John Weitzel appeals his exceptional sentence for second degree assault with


two aggravating factors, arguing that the trial court failed to enter written findings of fact and

conclusions of law to support the exceptional sentence imposed of 60 months. The State concedes

the error. We accept the State' s concession and remand the case for entry of the necessary findings

and conclusions.



                                                         FACTS
          A police officer was dispatched to an emergency room, where N.K.B. 1 had been admitted.

N.K.B. alleged that Weitzel, whom she had been dating for two years and living with for one year,

had assaulted her. N.K.B. had two black eyes, a bruised and swollen right arm, and patches of hair

pulled    out.   The State -charged Weitzel with one count second degree assault with a domestic

violence enhancement.2 A jury convicted Weitzel of second degree assault. A jury also returned

a special verdict,   finding   two    aggravators, (     1) the presence of domestic violence that manifested




1 We refer to N.K.B. by her initials to protect the victim' s privacy.

2 The State also charged Weitzel with second degree rape with a domestic violence enhancement,
but the   jury   found him   not   guilty   as charged   in   count   II.
No. 46132 -3 - II




deliberate cruelty or intimidation and ( 2) N.K.B.' s injuries substantially exceeded the level of

bodily   harm necessary to satisfy the             elements.        The standard range for second degree assault is

three to nine months. The trial court imposed an exceptional sentence of 60 months confinement.


The trial court orally explained that the aggravating factors served as the basis for the exceptional

sentence, but did not enter written findings of fact or conclusions of law. Weitzel appeals.

                                                        ANALYSIS


          Weitzel argues, and the State concedes, that the trial court erred in failing to enter written

findings    of   facts   and conclusions of        law in   support of      the 60    month exceptional sentence.           We


accept the State' s concession because no written findings of fact or conclusions of law were

entered regarding the exceptional sentence.

          The     Sentencing    Reform Act          requires   that "    the court shall set forth the reasons for its

decision in      written    findings   of   fact   and conclusions of       law."      RCW 9. 94A. 535. "[        T] he entry of

written    findings is     essential when a court         imposes       an exceptional sentence."          State v. Friedlund,


182 Wn. 2d 388, 393, 341 P. 3d 280 ( 2015).                 In the event that a sentence departs from the standard


range, written findings are sent to the Washington State Sentencing Guidelines Commission, along

with   the judgment         and sentence.      Friedlund, 182 Wn.2d             at   394.     Thus, if the trial court fails to


enter such       findings   and conclusions, remand            is   required.    State   v.   Shemesh, _         Wn. App.

347 P. 3d 1096 ( 2015).


          It is also imperative that the trial court observe the intent of the legislature, and the plain

language of the statute informs the legislative intent. State v. Hamedian, No. 71253- 5, 2015 WL

 3970518     at *   2 ( Wash. June 29, 2015).             The legislature       deliberately       chose   to   require " written




                                                            RCW 9. 94A.535 (                                     The legislature
findings offact          and conclusions      of law. "                                emphasis      added).




                                                                    P
No. 46132 -3 - II




could easily have required oral or written findings of fact and conclusions of law, but it declined

to do so.   Instead, "` [ a] trial 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."'   Friedlund, 182 Wn.2d at 394- 95


 quoting State v. Mallory, 69 Wn.2d 532, 533- 34, 419 P. 2d 324 ( 1966)).

        Here, the trial court erred in failing to enter written findings of fact and conclusions of law

for an exceptional sentence. The trial court' s sentence of 60 months was greater than the standard

range. for second degree assault of 3 to 9 months. Therefore, the trial court was required to enter


written findings of fact and conclusions of law. RCW 9. 94A.535. The court failed to do so. Thus,

this case must be remanded so that the proper findings and conclusions may be entered. We accept

the State' s concession and remand the case for entry of the necessary findings and conclusions.

        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.



                                                                  AJ-

  We concur:
                                                              SUTTON, J.tM5- - '       IV -




 WV(  OSW      CK, P. J.




i.




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