                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 26, 2019




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

    STATE OF WASHINGTON,                                            No. 50335-2-II

                               Respondent,

         v.

    JULIEN BROUSSARD,                                        UNPUBLISHED OPINION

                               Appellant.

        LEE, J. — Julien Broussard appeals his exceptional sentence, arguing that the “free crimes”

aggravator, RCW 9.94A.535(2)(c), does not support an exceptional sentence if only one crime will

go unpunished. We disagree and affirm.

                                             FACTS

        Broussard pleaded guilty to first degree promoting prostitution and second degree assault.

The sentencing court found that the second degree assault would go unpunished because of

Broussard’s high offender score, which was 12. Based on its finding, the sentencing court imposed

an exceptional sentence by imposing consecutive sentences. Broussard appeals his exceptional

sentence.1



1
  In his Statement of Additional Grounds for Review, RAP 10.10, Broussard also argues that the
sentencing court may not impose an exceptional sentence under RCW 9.94A.535(2)(c) without a
finding by a jury. Broussard’s argument has already been considered and rejected by our Supreme
No. 50335-2-II



                                           ANALYSIS

       Broussard argues that the sentencing court did not have the authority to impose an

exceptional sentence because the “free crimes” aggravator does not allow an exceptional sentence

if only one crime will go unpunished. We disagree.

       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, chapter 9.94A

RCW, do not account for offender scores in excess of nine. RCW 9.94A.510; State v. France, 176

Wn. App. 463, 468, 308 P.3d 812 (2013), review denied, 179 Wn.2d 1015 (2014). Therefore,

“[w]here a defendant has multiple current offenses that result in an offender score greater than

nine, further increases in the offender score do not increase the standard sentence range.” Id.

       RCW 9.94A.535(2)(c) allows a sentencing court to impose an exceptional sentence when

the “defendant has committed multiple current offenses and the defendant’s high offender score

results in some of the current offenses going unpunished.” Imposing consecutive sentences is an

exceptional sentence. RCW 9.94A.535. We review the sentencing court’s authority to impose an

exceptional sentence de novo. France, 176 Wn. App. at 469.

       In State v. Smith, ___ Wn. App. 2d ___, 433 P. 3d 821, 823-24 (2019), we held that the

free crimes aggaravtor allows a sentencing court to impose an exceptional sentence when one

crime will go unpunished. Therefore, we reject Broussard’s arguments. Under Smith, the

sentencing court properly imposed an exceptional sentence based on the “free crimes” aggravator.




Court. State v. Alvarado, 164 Wn.2d 556, 566-69, 192 P.3d 345 (2008). Accordingly, we do not
address it any further.


                                                 2
No. 50335-2-II



        We affirm.

        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.



                                                    Lee, J.
 We concur:



 Maxa, C.J.




 Sutton, J.




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