                                                                          FILED
                                                                       APRIL 30, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals Division III




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

STATE OF WASHINGTON,                          )        No. 36547-6-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )        UNPUBLISHED OPINION
                                              )
RUDY E. WILLIAMS,                             )
                                              )
                     Appellant.               )

       FEARING, J. — In this third appeal, Rudy Williams challenges the resentencing

court’s imposition of consecutive sentences. We affirm.

                                      PROCEUDRE

       After a bench trial, the superior court convicted Rudy Williams of third degree

assault, felony violating a no-contact order, and three counts of witness tampering.

The underlying facts of Williams’s conduct lack relevance to this appeal.
No. 36547-6-III
State v. Williams


       On appeal from the convictions, this court affirmed Rudy Williams’s convictions

for violation of a court order and two of the three counts of witness tampering. State v.

Williams, No. 34959-4-III, slip op. at 25 (Wash. Ct. App. Sept. 27, 2018) (unpublished),

https://www.courts.wa.gov/opinions/pdf/349594_unp.pdf. This court reversed the

conviction for assault in the third degree and the conviction for one count of witness

tampering and remanded both charges for a new trial.

       On remand, the State moved to dismiss the charges for the two crimes reversed by

this court, rather than retry the charges. The trial court granted the State’s motion to

dismiss.

       Following the dismissal of two of the five initial charges, the State recommended

that Rudy Williams receive an exceptional sentence of ninety months based on the “free

crimes” doctrine. Report of Proceedings (RP) at 4-6. Rudy Williams had an offender

score of ten for each of the three remaining convictions.

       Rudy Williams, appearing pro se, objected to the State’s recommendation and

asked that the trial court impose a lesser sentence because he had already been sentenced.

Williams argued:

              [WILLIAMS]: I believe the court’s already sentenced me on Count 3
       and 4, for a total of ten months consecutive. I don’t see . . . any reason why
       that needs to be addressed. I’ve already—I’ve already—sentenced for it.


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No. 36547-6-III
State v. Williams


RP at 5. The trial court thereafter extensively questioned both the State and Williams

about each’s requests. The trial court adopted the State’s recommendation.

       In the amended judgment and sentence, the resentencing court noted the standard

range for the no-contact order violation was sixty months and fifty-one to sixty months for

the tampering with witnesses convictions. The court found “substantial and compelling

reasons that justify an exceptional sentence,” including imposing consecutive sentences,

based on the free crimes doctrine. Clerk’s Papers (CP) at 6. On page two of the amended

judgment and sentence, the court interlineated in handwriting the words “free crimes

doctrine” following the heading “EXCEPTIONAL SENCTENCE.” CP at 6.

       The resentencing court entered findings of fact and conclusions of law supporting

the exceptional sentence. One finding of fact reads:

              Due to the Defendant’s high offender score of 10, counts 3 + 4
       [tampering with a witness] would go effectively unpunished. A sentence
       with[in] the standard range and concurrent would clearly be too lenient.

CP at 15. Accordingly, the trial court entered the following conclusion of law:

              Pursuant to RCW 9.94A.535(2)(c), an exceptional sentence of
       30 months on Counts 3 + 4 to be served consecutively to Count 1 [violation
       of no-contact order] is the appropriate sentence.

CP at 15. The total length of the sentence imposed was ninety months of incarceration

plus twelve months of community custody.


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No. 36547-6-III
State v. Williams


       At the end of the sentencing hearing, the trial court signed a warrant of

commitment. The warrant, inconsistently with the judgment and sentence, read that the

court sentenced Rudy Williams to sixty months on count 1, and thirty months on counts 3

and 4 concurrent to count 1.

       In a second appeal, this court ordered removal of the imposed legal financial

obligations of the $100 DNA collection fee and the $200 criminal filing fee from Rudy

Williams’ judgment and sentence. State v. Williams, No. 35271-4-III, slip op. at 7 (Wash.

Ct. App. Dec. 18, 2018) (unpublished),

https://www.courts.wa.gov/opinions/pdf/352714_unp.pdf.

       Thereafter, Rudy Williams moved, based on the warrant of commitment, to

confirm that the resentencing court sentenced him to concurrent rather than consecutive

sentences, for a total of sixty months. Williams wished to appear in court or argue by

telephone his motion. In response, the State moved to amend the warrant of commitment

to correct a clerical error so that the warrant’s language would echo the consecutive

sentences imposed in the amended judgment and sentence.

       The trial court conducted a telephonic hearing to address the parties’ cross-

motions. During the hearing, Rudy Williams requested a one-week continuance. He

argued that he needed a continuance to later present jurisdictional issues to the court.


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No. 36547-6-III
State v. Williams


The trial court denied the continuance and granted the State’s motion to amend the

clerical error in the warrant of commitment. The court entered an order amending the

warrant of commitment to read that the thirty month concurrent sentences for witness

tampering ran consecutively to the sixty month sentence for violation of the no-contact

order.

                                  LAW AND ANALYSIS

         Rudy Williams challenges the resentencing court’s imposition of an exceptional

sentence. He contends that the court failed to articulate its reasons for imposing its

sentence. He further argues his sentence should be vacated because the trial court’s

written order shows that it imposed an exceptional sentence based on the “clearly too

lenient” factor without a fact finding inquiry.

                                   Exceptional Sentence

         A trial court may impose an aggravated exceptional sentence without a finding

of fact by a jury when the defendant 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); State v. France, 176 Wn. App. 463, 468-69,

308 P.3d 812 (2013). We call this statutory provision the “free crimes” aggravator.

State v. France, 176 Wn. App. at 468. The possibility of an offense going unpunished


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No. 36547-6-III
State v. Williams


arises because a standard range sentence reaches its maximum at an offender score of

nine. RCW 9.94A.510. As a result, when a criminal defendant has multiple current

offenses resulting in an offender score greater than nine, further increases in the offender

score do not increase the standard sentence range. State v. France, 176 Wn. App. at 468.

       Under RCW 9.94A.535(2)(c), the legislature provided that an offenders’ current

offenses going without punishment, based on the offender score exceeding nine,

constitutes an aggravating circumstance per se. State v. Alvarado, 164 Wn.2d 556, 567,

192 P.3d 345 (2008). Accordingly, the sentencing court need not engage in additional

fact finding to impose an exceptional sentence based on the “free crimes” factor. State

v. Alvarado, 164 Wn.2d at 567.

       Rudy Williams argues that the trial court abused its discretion by refusing to

consider concurrent sentences. We disagree that the trial court refused to consider

concurrent sentences. Williams requested concurrent sentences, and the trial court

listened to the request. The court’s denial of the request does not mean that the court

refused to consider a request.

       The trial court has all but unbridled discretion in setting the length of an

exceptional sentence. State v. Halsey, 140 Wn. App. 313, 325, 165 P.3d 409 (2007).

Imposition of an additional thirty months for two concurrent crimes each having a


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No. 36547-6-III
State v. Williams


standard range of fifty to sixty months is not clearly excessive. State v. Negrete, 72 Wn.

App. 62, 71, 863 P.2d 137 (1993). Accordingly, the ninety months’ exceptional sentence

was not excessive and not an abuse of discretion.

       Rudy Williams next contends that the trial court’s sentence is invalid under State

v. Alvarado, 164 Wn.2d 556 (2008), because the court imposed its exceptional sentence

based on the “clearly too lenient” factor, without a fact finding inquiry. The former

version of this aggravating factors statute stated that an exceptional sentence could be

imposed when: “The operation of the multiple offense policy of RCW 9.94A.589 results

in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter,

as expressed in RCW 9.94A.010.” Former RCW 9.94A.535(2)(i) (2003) (emphasis

added). After Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004), our Supreme Court, held that former RCW 9.94A.535(2)(i)’s “clearly too lenient”

language required a subjective, factual finding made by a jury to satisfy the Sixth

Amendment right to a jury trial. State v. Alvarado, 164 Wn.2d at 563-64. We do not

deem Alvarado controlling, however, when the accused waives a jury trial. Williams

cites no authority that requires a court to convene a jury for the sentencing stage, when

the accused waives a jury for the guilt phase.




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No. 36547-6-III
State v. Williams


       We agree that the resentencing court mentioned that a sentence within the

standard range would “clearly be too lenient” in its findings of fact. Nevertheless, a

reading of the entire findings and other documents shows the court intended to impose a

sentence based on the free crimes factor. The trial court handwrote the words “free

crimes doctrine” following the heading “EXCEPTIONAL SENCTENCE” in the

judgment and sentence. CP at 6. In a conclusion of law, the court referenced RCW

9.94A.535(2)(c), the statutory subsection known as the “free crimes” aggravator.

                                 Motion for Continuance

       Rudy Williams next contends the trial court abused its discretion by denying his

motion for a continuance to respond to the State’s motion to amend the warrant of

commitment. A grant or denial of a motion for a continuance is a decision that rests

within the sound discretion of the trial court. State v. Kelly, 32 Wn. App. 112, 114, 645

P.2d 1146 (1982). The trial court may consider a number of factors including “surprise,

diligence, redundancy, due process, materiality, and maintenance of orderly procedure.”

State v. Downing, 151 Wn.2d 265, 273, 87 P.3d 1169 (2004). A trial court’s decision to

deny a defendants’ continuance will be disturbed on appeal only on a showing of

prejudice. State v. Kelly, 32 Wn. App. at 114.




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No. 36547-6-III
State v. Williams


       Rudy Williams cites State v. Purdom, 106 Wn.2d 745, 748-49, 725 P.2d 622

(1986), for the proposition that amendments to the charging information made the day of

trial may be cause for a continuance. Williams argues that the State sought an

amendment to his judgment and sentence that increased the sentence from sixty to ninety

months.

       We distinguish State v. Purdom. In Purdom, the amendment raised a new criminal

charge. Rudy Williams’s resentencing court corrected an error in the warrant of

commitment. Williams incorrectly contends the trial court amended the judgment and

sentence.

       Rudy Williams also contends that the sentencing court did not consider his

argument that he needed additional time to bring a jurisdictional challenge. Nevertheless,

Williams does not disclose the nature of the challenge, let alone show the likely success of

such a challenge.

                                     CONCLUSION

       We affirm the resentencing court’s imposition of an exceptional sentence and its

correction to the warrant of commitment.




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No. 36547-6-III
State v. Williams


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                         _________________________________
                                         Fearing, J.

WE CONCUR:



______________________________           ________________________________
Korsmo, A.C.J.                           Siddoway, J.




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