                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      February 20, 2019
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                           No. 51097-9-II

                 Respondent,

          v.

    ERIC V. TRENT, SR.,                                      UNPUBLISHED OPINION

                 Appellant.


         SUTTON, J. — Eric V. Trent, Sr. appeals his conviction and sentence for first degree

burglary. Trent argues that (1) the charging document was constitutionally insufficient, (2) the

exceptional sentence was improper for several reasons, and (3) the legal financial obligations

(LFOs) were improperly imposed.1

         We hold that the charging document was constitutionally sufficient. But we also hold that

there is no evidence that any of Trent’s prior offenses were omitted from his offender score as

required to impose an exceptional sentence under RCW 9.94A.535(2)(d). Thus, we affirm the

conviction, but we reverse Trent’s exceptional sentence and remand for resentencing in accordance

with this opinion.

                                             FACTS

         The State charged Trent with one count of first degree burglary and two counts of second

degree assault. As to the first degree burglary charge, the second amended information alleged



1
 Because we reverse the exceptional sentence and remand for resentencing, we do not address
Trent’s arguments regarding LFOs.
No. 51097-9-II


that Trent “did enter or remain unlawfully, in a building . . . and, in entering or while in the building

or immediate flight therefrom, did intentionally assault any person therein . . . in violation of RCW

9A.52.020(1).” Clerk’s Papers (CP) at 47. The State also charged Trent with the following

aggravating factors:

                 Furthermore, pursuant to RCW 9.94A.535(2)(b)[,] [t]he defendant's prior
        unscored misdemeanor or prior unscored foreign criminal history 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. RCW 9.94A.535(2)(c)[,] the defendant
        has 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)(d)[,]
        the failure to consider the defendant's prior criminal history which was omitted
        from the offender score calculation pursuant to RCW 9.94A.525 results in a
        presumptive sentence that is clearly too lenient.

CP at 48.

        Trent signed a waiver of his right to a jury trial after consulting with his attorney. The

waiver stated:

        1. I understand that I have a constitutional right to have a trial by a jury.
        2. I do not want a jury trial. I want my case to be tried by a judge without a jury.
        3. I understand that if I have signed this waiver at the time of arraignment (entry
        of my plea), I have the right to withdraw this waiver and request a jury trial within
        ten days from arraignment.

CP at 36. The trial court accepted the waiver and stipulation and set the case for a bench trial.

        After trial, the trial court found Trent guilty of first degree burglary (Count I) and one count

of second degree assault (Count III), and found him not guilty of one count of second degree

assault (Count II).

        Because the State requested an exceptional sentence based on aggravating factors, the trial

court requested briefing by the parties, and asked for clarification as to whether the defendant




                                                   2
No. 51097-9-II


stipulated to his criminal history and the offender score of 21 as calculated by the State.2 Trent

stipulated to his criminal history as follows:

    IV. Crime                    Date of     Date of    Sentencing        A or J      Type of   DV* Yes
                                 Crime       Sentence   Court (County     (Adult or   Crime
                                                        & State)          Juvenile)
    1      Unlawful Pos.         02/15/05-   3/15/06    Pacific County,   A           FB        N
           Firearm 1st Degree    3/9/05                 WA
           (05-1-00173-7)
    2      Attempted elude       6/11/05     9/27/05    Pacific County,   A           FC        N
           (05-1-00147-8)                               WA
    3      Malicious Misc.       2/18/02     6/7/02     Pacific County,   A           FC        N
           2nd (02-1-00060-                             WA
           4)
    4      Assault 3rd (01-01-   11/10/01    2/15/02    Pacific Co., WA   A           FC        N
           00200-5)
    5      Burglary 1 w/         11/5/[90]   3/18/91    Pacific Co., WA   A           FA        N
           Deadly Weapon
           (90-1-00182-1)
    6      Att. Robbery 1 w/     11/5/90     3/18/91    Pacific Co., WA   A           FA        N
           Deadly Weapon
           (90-1-00182-1)
    7      Att. Robbery 1 w/     11/5/90     3/18/91    Pacific Co., WA   A           FA        N
           Deadly Weapon
           (90-1-00182-1)
    8      Escape 1 (88-1-                   1/11/89    Pacific Co., WA   A           FB        N
           02937-9)
    9      Mal. Misc. 2 (88-1-   1/30/88     6/10/88    Pacific Co., WA   A           FC        N
           00027-0)
    10     Mal. Misc. 2 (88-1-   1/30/88     6/10/88    Pacific Co., WA   A           FC        N
           00027-0)
    11     TMVWOP (88-1-         4/18/88     6/10/88    Pacific Co., WA   A           FC        N
           00027-0)
    12     Possession of         7/5/86      12/30/86   Pacific Co., WA   A           FB        N
           Stolen Property 1st
           Degree (86-1-
           00056-7)
    13     Burg. 2 (86-1-        7/5/86      12/30/86   Pacific Co., WA   A           FB        N
           00056-7)
    14     Burg. 2 (84-8-        3/11/84     7/16/84    Pacific Co., WA   J           FB        N
           00029-9)
    15     Burg. 2               12/31/83    7/16/84    Pacific Co., WA   J           FB        N
    16     TMVWOP                6/1/84      7/16/84    Pacific Co., WA   J           FC        N




2
 Although the State at sentencing referred to Trent having prior misdemeanor offenses, there is
no evidence in the record proving those offenses other than defense counsel’s reference to prior
misdemeanors.


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No. 51097-9-II




CP at 70-71.

          Trent also stipulated to the offender score of 21 and that “the . . . criminal history and

scoring are correct . . . and . . . that the offender score is correct and that none of the convictions

have ‘washed out.’” CP at 71.

          After hearing arguments, the trial court issued a written ruling regarding the aggravating

factors and double jeopardy.3 CP at 73-80. The trial court ruled that, as to the crime of first degree

burglary, the State had proved the aggravating factor under RCW 9.94A.535(2)(d),4 that “[t]he

failure to consider the [d]efendant[’s] prior criminal history, which was omitted from the

offender’s [score] calculation[,] pursuant to RCW 9.94A.525, results in a presumptive sentence

[that] is clearly too lenient.” CP at 73, 93. The court’s written ruling stated,

                 Without objection, the State presented argument that the Defendants (sic)
          offender score was 21. The scoring grid provided by the statute does not score
          beyond 10. Therefore the presumptive sentence is the same for a similarly situated
          defendant with a score of 10 and one who has a score of 20 or 30 or 100. Clearly
          common sense would dictate that an exceptional sentence is justified for anyone
          who has more than 2 times the highest score possible under the grid.
                  Considering the purpose of RCW 9.94A, there is a substantial and
          compelling reason justifying an exceptional sentence because there are unscored
          felonies which are not accounted for in the presumptive sentence.

CP at 77.




3
    The trial court dismissed the assault conviction (Count II) based on double jeopardy.
4
  RCW 9.94A.535(2)(d) provides that “[t]he trial court may impose an aggravated exceptional
sentence without a finding of fact by a jury [when t]he failure to consider the defendant’s prior
criminal history which was omitted from the offender score calculation pursuant to RCW
9.94A.525 results in a presumptive sentence that is clearly too lenient.”


                                                  4
No. 51097-9-II


       Defense counsel agreed with the State that the trial court had the legal authority and the

broad discretion to impose an exceptional sentence above the standard range, but requested a

standard range sentence at the lower end of 87-116 months. The trial court sentenced Trent to an

exceptional sentence of 136 months based on RCW 9.94A.535(2)(d) and Blakely v. Washington,

542 U. S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The court entered the following relevant

findings of fact regarding the exceptional sentence:

       5. Pursuant to RCW 9.94A.535(2)(d) the failure to consider the defendant’s prior
       criminal history which was omitted from the offender score calculation pursuant to
       RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.
       6. Pursuant to Blakely v. Washington, 542 U. S. 296 (2004), the above-listed
       aggravating factors support an exceptional sentence of 136 months.

CP at 93. The trial court also made the following relevant conclusions of law:

       1. The Court has jurisdiction of the parties and subject matter of this action.
       2. The Court has authority to impose an exceptional sentence pursuant to Findings
       of Fact no. 2, 3, 4, and 5[,] and Blakely v. Washington, 542 U. S. 296 (2004) to have
       a judge or jury determine whether facts exist to justify an exceptional [s]entence.
       5. A sentence above the standard range is in the interest of justice and is consistent
       with the purposes of the Sentencing Reform Act.
       6. A sentence of 136 months is appropriate to ensure that punishment is
       proportionate to the seriousness of the offense.

CP at 93.

       The trial court imposed mandatory and discretionary LFOs. Trent appeals his conviction,

his exceptional sentence, and the court’s imposition of LFOs.

                                           ANALYSIS

       Trent argues that the charging document was constitutionally defective regarding the first

degree burglary charge because it “omit[ted] the essential element of entering or remaining

unlawfully ‘with intent to commit a crime against a person or property therein.’” Br. of Appellant


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No. 51097-9-II


at 6 (emphasis omitted) (quoting RCW 9A.52.020(1)). The State argues that the information is

sufficient because “a fair construction of the charging document informs Trent that he was accused

of ‘entering or remaining unlawfully’ and ‘intentionally assaulted a person therein.’” Br. of Resp.

at 8. We agree with the State.

                                    I. STANDARDS OF REVIEW

       We review challenges regarding the sufficiency of a charging document de novo. State v.

Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007). We review the sentencing court’s authority

to impose an exceptional sentence de novo. State v. France, 176 Wn. App. 463, 469, 308 P.3d

812 (2013). We review the appropriateness of an exceptional sentence by answering the following

three questions under the relevant standards of review:

       1. Are the reasons given by the sentencing judge supported by evidence in the
       record? As to this, the standard of review is clearly erroneous.

       2. Do the reasons justify a departure from the standard range? This question is
       reviewed de novo as a matter of law.

       3. Is the sentence clearly too excessive or too lenient? The standard of review on
       this last question is abuse of discretion.

State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Here, because our inquiry on the exceptional

sentence challenge focuses on the first question, we apply a clearly erroneous standard of review.

Law, 154 Wn.2d at 93.

                                    II. CHARGING DOCUMENT

       Under the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution, the State must allege in the charging document all essential elements

of a crime to inform a defendant of the charges against him and to allow for preparation of his




                                                6
No. 51097-9-II


defense. U.S. Const. amend. VI; Const. art. I, § 22; State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d

86 (1991). “A charging document is constitutionally sufficient if the information states each

essential element of the crime, whether statutory or nonstatutory, even if it is vague as to some

other matter significant to the defense.” State v. Mason, 170 Wn. App. 375, 378-79, 285 P.3d 154

(2012).

          Where, as here, the defendant challenges the sufficiency of an information after verdict,

we construe the document liberally, asking whether: (1) “the necessary facts appear in any form,

or by fair construction can they be found, in the charging document; and, if so, (2) can the

defendant show that he or she was nonetheless actually prejudiced by the inartful language which

caused a lack of notice?” Kjorsvik, 117 Wn.2d at 105-06.

          Applying this two-pronged Kjorsvik test, our first inquiry is whether the statutory element,

“with intent to commit a crime against a person or property therein,” appears in any form, or by

fair construction can be found in the information. RCW 9A4.52.020(1)5; Kjorsvik, 117 Wn.2d at

108. Our Supreme Court has observed that it is not necessary to “use the exact words of a statute

in a charging document; it is sufficient if words conveying the same meaning and import are used.”

Kjorsvik, 117 Wn.2d at 108. Further, we read the words in a charging document as a whole,

construed according to common sense, and we include facts which are necessarily implied.

Kjorsvik, 117 Wn.2d at 109.




5
  RCW 9A.52.020(1) states that “[a] person is guilty of burglary in the first degree if, with intent
to commit a crime against a person or property therein, he or she enters or remains unlawfully in
a building and if, in entering or while in the building or in immediate flight therefrom, the actor or
another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.”


                                                   7
No. 51097-9-II


       The charging document alleged that Trent “did enter or remain unlawfully, in a building

. . . and, in entering or while in the building or immediate flight therefrom, did intentionally assault

any person therein . . . in violation of RCW 9A.52.020(1),” which statute contains all essential

elements of the charge of first degree burglary. CP at 47. Viewing the information liberally in

favor of its validity and reading the information as a whole and in a common sense manner, it

follows that the charging document did inform Trent of all of the essential elements of the first

degree burglary charge.

       Turning to the second prong, our next inquiry is whether “the defendant has shown that he

was nonetheless prejudiced by any vague or inartful language in the charge.” Kjorsvik, 117 Wn.2d

at 111. Trent argues that he does not need to establish prejudice because the charging document

omitted an essential element. See State v. Zillyette, 178 Wn.2d 153, 163, 307 P.3d 712 (2013).

But because an essential element was not omitted, we do not presume prejudice and Trent has the

burden to establish that any vague or inartful language actually prejudiced him. Kjorsvik, 117

Wn.2d at 95.

       Trent does not argue that he was actually prejudiced by the language in the charging

document, nor can he show actual prejudice. Under Kjorsvok, the charging document was

constitutionally sufficient. Kjorsvok, 117 Wn.2d at 106. We hold that, because the charging

document was constitutionally sufficient and Trent fails to show actual prejudice, his claim fails.

We affirm Trent’s conviction.

                      III. EXCEPTIONAL SENTENCE – RCW 9.94A.535(2)(d)

       Trent argues that his exceptional sentence was improperly imposed under RCW

9.94A.535(2)(d). We hold that under the applicable clearly erroneous standard of review, there is



                                                   8
No. 51097-9-II


insufficient evidence in the record to support an exceptional sentence under RCW

9.94A.535(2)(d), and thus, we reverse Trent’s sentence and remand for resentencing. Because we

reverse and remand on this issue, we do not address Trent’s remaining arguments regarding

sentencing and LFOs.

       A defendant’s offender score is calculated based on current and prior convictions. RCW

9.94A.525(1). The standard sentencing ranges in the Sentencing Reform Act of 1981 do not

account for offender scores in excess of nine. RCW 9.94A.510; France, 176 Wn. App. at 468. A

trial court may impose a sentence outside the standard range only if there are “substantial and

compelling reasons justifying an exceptional sentence,” and the court sets forth the reasons for its

decision in written findings of fact and conclusions of law. RCW 9.94A.535.

       The legislature created a nonexclusive list of factors that support an exceptional sentence.

RCW 9.94A.535. RCW 9.94A.535(2) states in relevant part:

              The trial court may impose an aggravated exceptional sentence without a
       finding of fact by a jury under the following circumstances:
               ....
               (b) The defendant’s prior unscored misdemeanor or prior unscored foreign
       criminal history 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.
              (c) The defendant has committed multiple current offenses and the
       defendant’s high offender score results in some of the current offenses going
       unpunished.
              (d) The failure to consider the defendant’s prior criminal history which was
       omitted from the offender score calculation pursuant to RCW 9.94A.525 results in
       a presumptive sentence that is clearly too lenient.

(Emphasis added).

       We review the trial court’s findings of fact related to the imposition of an exceptional

sentence to determine whether the reasons given by the trial court are clearly erroneous, and we


                                                 9
No. 51097-9-II


will reverse a trial court’s exceptional sentence only if no substantial evidence supports its

conclusions. State v. Ferguson, 142 Wn.2d 631, 647 n.76, 15 P.3d 1271 (2001). Substantial

evidence is “evidence in sufficient quantum to persuade a fair-minded person of the truth of the

declared premise.” Ferguson, 142 Wn.2d at 647 n.76 (internal quotation marks omitted) (quoting

State v. Jeannote, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997)).

       Here, Trent stipulated that his offender score was 21 based on his criminal history, and also

stipulated that none of his prior convictions had washed out. The trial court accepted the

stipulation. Further, the trial court noted that none of Trent’s prior offenses encompassed the same

course of conduct, and thus, under RCW 9.94.525(5)(a), all of his multiple prior offenses were

counted separately in the offender score calculation.

       The State requested an exceptional sentence under RCW 9.94.535(2)(d), arguing that based

on Trent’s prior criminal history, there were additional points omitted from the offender score and

those offenses went unpunished. Specifically, the State claimed that “each of Trent's three prior

juvenile second degree burglary offenses were counted as one full point pursuant to RCW

9.94A.525(10) rather than half points. Because of Trent's high offender score these points were

omitted and thus unpunished.” Br. of Resp. at 13. The trial court agreed with the State.

       The trial court based the exceptional sentence of 136 months on its finding that the “failure

to consider the defendant’s prior criminal history which was omitted from the offender score

calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too

lenient.” CP at 93. The court ruled that “an exceptional sentence is justified for anyone who has

more than 2 times the highest score possible under the [offender score] grid” under RCW

9.94A.535(2)(d), even though the State provided no evidence to support this conclusion. CP at



                                                10
No. 51097-9-II


77. The court explained that it “simply can’t ignore that there are unscored felonies (sic) here and

that the . . . nine point eight years . . . is not sufficient under these circumstances.” VRP (Aug. 18,

2017) at 250.

       However, there is no evidence in the record to support the court’s finding that any of

Trent’s prior offenses were omitted from the offender score under RCW 9.94A.525 as argued by

the State. A review of the colloquy at the sentencing hearing reveals that the State failed to

specifically identify which prior offenses were omitted.         There was discussion about other

aggravating factors identified in different provisions under RCW 9.94A.535(2)(b) which refers to

prior unscored misdemeanor or prior unscored foreign criminal history and RCW 9.94A.535(2)(c)

(the free crimes provision) which refers to multiple current offenses, and some of the current

offenses going unpunished.

       But the State clarified during sentencing that it was relying only upon RCW

9.94A.535(2)(d) to request an exceptional sentence.             The court did not cite to RCW

9.94A.535(2)(b) or (2)(c) in its findings, rather it cited only to RCW 9.94A.535(2)(d).

       Because there is no evidence in the record to support the court’s finding, we hold that,

under the applicable clearly erroneous standard of review, there is insufficient evidence in the

record to support an exceptional sentence under RCW 9.94A.535(2)(d). Thus, we reverse Trent’s

sentence and remand for resentencing.




                                                  11
No. 51097-9-II


                                        CONCLUSION

        We hold that the charging document was constitutionally sufficient and we affirm Trent’s

conviction. However, we reverse Trent’s exceptional sentence and remand for resentencing in

accordance with this opinion.

        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.



                                                    SUTTON, J.
 We concur:



 LEE, A.C.J.




 WORSWICK, J.




                                               12
