                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 11, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 51906-2-II

                                Respondent,

        v.
                                                              UNPUBLISHED OPINION
 SOCORRO ARMANDO VELAZQUEZ,

                                Appellant.


       GLASGOW, J. – Socorro Armando Velazquez pleaded guilty to two counts of vehicular

assault and one count of hit and run injury for his involvement in a head-on collision that seriously

injured two people. The State recommended standard range sentences for each conviction, all

running concurrently. The trial court determined that due to Velazquez’s high offender score, one

of the vehicular assaults would go unpunished, and it imposed exceptional consecutive sentences

on Velazquez’s vehicular assault convictions.

       Velazquez appeals, arguing that the trial court relied on improper reasons in imposing an

exceptional sentence and the basis that the court gave did not apply as a matter of law. He also

challenges the imposition of certain legal financial obligations. The State concedes that the legal

financial obligations were improperly imposed.

       We affirm Velazquez’s sentence and remand for the trial court to strike the improper legal

financial obligations.
No. 51906-2-II


                                             FACTS

       Velazquez was involved in a head-on collision with another car. The collision resulted in

serious injuries to two people. Immediately following the crash, Velazquez fled the scene yelling

at onlookers to call 911.

       Velazquez later pleaded guilty to two counts of vehicular assault and one count of hit and

run injury. Considering his prior convictions and the current offenses, his offender score was over

nine for each count. As part of Velazquez’s plea deal, the State and Velazquez’s attorney jointly

recommended 68 months for each of the vehicular assault counts and 60 months for the hit and

run count, all to run concurrently.

       The court sentenced Velazquez to 60 months on each count, but ran the sentences on the

two vehicular assault convictions consecutive to each other, for a total of 120 months. The court

ordered that the sentence for the hit and run conviction would be served concurrently. The court

explained, “I believe that 68 months would not be enough to serve justice, and I’m not sure that

120 months or 10 years is enough to serve justice, but I do want to recognize that Mr. Velazquez

has taken some responsibility and has admitted to his violations.” Verbatim Report of Proceedings

(VRP) (May 8, 2018) at 47.

       When the State asked the court to clarify its basis for imposing this exceptional sentence,

the court responded that under RCW 9.94A.535(2)(c), the defendant committed “multiple current

offenses, and the defendant’s high offender score result[ed] in some of the current offenses going

unpunished.” VRP at 49. The court noted that without an exceptional sentence, Velazquez would

have “free crimes.” Id.




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       On Velazquez’s judgment and sentence, the court found “substantial and compelling

reasons that justify an exceptional sentence.” Clerk’s Papers at 25. The court reiterated the

reasoning expressed in its verbal ruling. The court concluded that an exceptional consecutive

sentence was “justified given the facts of this case and the defendant’s prior criminal history.” Id.

Thus, the court required that the sentences for counts I and III would run consecutively to each

other and the sentence for count II would run concurrently.

       The court also imposed a $200 criminal filing fee and $100 DNA collection fee. At the

time of sentencing, Velazquez was receiving public assistance and had no other source of income.

       Velazquez appeals his sentence and the imposition of these fees.

                                            ANALYSIS

                                    I. EXCEPTIONAL SENTENCE

       Velazquez argues that the trial court improperly imposed an exceptional sentence. We

disagree.

       We will reverse an exceptional sentence only if, “under a clearly erroneous standard, there

is insufficient evidence in the record to support the reasons for imposing an exceptional sentence;”

the reasons given do not justify an exceptional sentence under a de novo standard; or the sentence

is clearly excessive or clearly too lenient under an abuse of discretion standard. State v. France,

176 Wn. App. 463, 469, 308 P.3d 812 (2013). A defendant’s standard range sentence reaches its

maximum limit at an offender score of “‘9 or more,’” based on both prior and current convictions.

Id. at 468; RCW 9.94A.510, .525(1). Where, as here, a defendant has multiple current offenses

that result in an offender score greater than nine, additional increases in the score above nine do

not increase the standard range. France, 176 Wn. App. at 468.


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No. 51906-2-II


       Under the free crimes aggravator in RCW 9.94A.535(2)(c), the trial court may impose an

exceptional sentence when the defendant committed multiple current offenses and their high

offender score results in some of the current offenses going unpunished. Id. at 469. Once the court

determines that one or more of the defendant’s current offenses will go unpunished, it has

discretion to impose an exceptional sentence on all current offenses. State v. Smith, 7 Wn. App.

2d 304, 309-11, 433 P.3d 821 (2019), review denied, 193 Wn.2d 1010.

       Velazquez first argues that the trial court’s imposition of an exceptional sentence was

improper because its primary motivation was dissatisfaction with the standard range. But the

Sentencing Reform Act of 1981, chapter 9.94A RCW, requires the trial court to consider the act’s

purposes, including “providing punishment which is just,” RCW 9.94A.010(2), before imposing

an exceptional sentence, RCW 9.94A.535. That is precisely what the trial court did here. And the

trial court explained in its findings of fact and conclusions of law that it was relying on the free

crimes aggravator. We reject this argument.

       Velazquez also argues that the free crimes aggravator does not apply to him as a matter of

law because RCW 9.94A.535(2)(c) applies when “some of the current offenses” would go

unpunished, and “some of” means more than one. Br. of Appellant at 15. We recently rejected

this precise argument in Smith, concluding instead that “some” can be singular or plural. 7 Wn.

App. 2d at 309-10.

       Here, Velazquez would have been subject to the same standard sentence range had he

committed only one vehicular assault. His offender score on each of the vehicular assault

convictions was eleven, and each of those convictions counted as two points.                  RCW

9.94A.525(11). Therefore, Velazquez’s offender score still would have been nine even if one of


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No. 51906-2-II


the vehicular assault convictions were removed, resulting in an identical standard range sentence

with or without the second vehicular assault conviction. The legislature has determined that the

trial court may impose an exceptional sentence when the defendant’s offender score is so high that

the presumptive standard range does not account for one of their crimes, and that was the case

here.

        Velazquez finally contends that because the statutory maximum for his hit and run

conviction is 60 months, the free crimes aggravator could not apply to that conviction, citing RCW

9A.20.021(1)(c). But contrary to Velazquez’s assertion, he was not improperly sentenced beyond

the 60-month maximum for his hit and run conviction; he received a sentence of 60 months running

concurrently with the sentences imposed for his other convictions. The trial court did not apply

the free crimes aggravator to the hit and run conviction.

        We hold that the trial court did not err in applying the free crimes aggravator to impose the

exceptional sentence.

                                 II. LEGAL FINANCIAL OBLIGATIONS

        Velazquez argues the criminal filing fee and DNA collection fee were improperly imposed.

The State concedes that these fees must be stricken. We accept the State’s concession and remand

to strike the challenged fees.

        RCW 36.18.020(h) now prohibits the imposition of the criminal filing fee if a defendant is

indigent as defined in RCW 10.101.010(3) (a) through (c). RCW 43.43.7541 authorizes the

imposition of a DNA collection fee “unless the state has previously collected the offender’s DNA

as a result of a prior conviction.” Our Supreme Court has held that the newly amended versions




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No. 51906-2-II


of these statutes apply to cases pending on direct review and not final when the amendments were

enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).

        Here, the State concedes that Velazquez is indigent under RCW 10.101.010(3)(a) – (c)

because the record shows he was receiving public assistance before he was incarcerated. The State

also concedes that its records show that Velazquez’s DNA was previously collected and is on file

with the Washington State Patrol Crime Lab. The criminal filing fee and DNA collection fee must

therefore be stricken from Velazquez’s judgment and sentence.

                                         CONCLUSION

        We affirm Velazquez’s sentence and remand for the trial court to strike the criminal filing

fee and DNA collection fee.

        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.



                                                     Glasgow, J.
 We concur:



 Maxa, C.J.




Melnick, J.




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