                                                                          FILED
                                                                        JULY 2, 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. 36945-5-III
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
MATTHEW S. MCNEIL,                           )
                                             )
                     Appellant.              )

       FEARING, J. — During the same sentencing hearing, the superior court sentenced

Matthew McNeil for three crimes prosecuted in three distinct proceedings. The

sentencing court imposed consecutive sentences for the three crimes. Because the court

did not enter a written finding of fact supporting an exceptional sentence, we, based on

RCW 9.94A.589(1), vacate the sentences and remand for resentencing.

                                         FACTS

       This appeal is one of three unconsolidated appeals concerning the sentencing in

one day of Matthew McNeil for three crimes. This appeal concerns the charge of

attempting to elude a law enforcement officer on February 23, 2017, the second crime in
No. 36945-5-III
State v. McNeil


chronological order. Each appeal presents the same question of whether the sentencing

court could impose consecutive sentences for the three offenses.

       On June 21, 2017, the State of Washington charged Matthew McNeil with one

count of attempting to elude a police vehicle and one count of possessing a dangerous

weapon. The charges stem from McNeil’s riding of a motorcycle on June 12, 2017.

When apprehended, McNeil possessed a switchblade knife.

       On February 23, 2018, Matthew McNeil again fled a traffic stop. Deputy Brent

Miller observed McNeil driving a white Dodge Durango in the front yard of a known

drug residence, 8211 N Wall Street. Deputies initiated a traffic stop, and, while McNeil

fled, he almost struck a deputy’s vehicle before pulling into a second yard.

                                      PROCEDURE

       On February 28, 2018, the State charged Matthew McNeil with attempt to elude a

police vehicle stemming from his February 23 flight from the police.

       Thereafter, the parties reached an agreement for McNeil to plead guilty to the

charge pending in this prosecution and the charges pending from the June 12 incident.

Matthew McNeil would plead guilty to two counts of attempting to elude a law

enforcement officer. The State agreed to recommend a prison-based drug offender

sentencing alternative (DOSA) to include 12.75 months in custody and 12.75 months on

community custody, with both sentences to run concurrently. The State also agreed to

dismiss the dangerous weapon violation charge.

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State v. McNeil


       On September 5, 2018, Matthew McNeil pled guilty to the two distinct counts of

attempting to elude a police vehicle. McNeil requested the court to continue his

sentencing hearing for at least twelve weeks, so that he could participate in a parenting

skills class, relationship class, and drug and alcohol treatment offered at the Geiger

Correctional Center. The trial court granted his request and scheduled the sentencing

hearing for January 2, 2019. The court later postponed the hearing until February 27,

2019. We do not know the reason for this second continuance.

       While in custody awaiting sentencing on the two charges, Matthew McNeil and

Emily Hammond agreed to smuggle controlled substances into the Geiger Correctional

Facility. On February 26, 2019, Spokane County Detention Services listened to recorded

telephone conversations between McNeil and Hammond, during which conversations

McNeil asked Hammond to covertly mail him Suboxone. Later that day, a property

custodian intercepted a letter addressed to McNeil and, after a diligent search, found clear

strips secreted in the back seams of the envelope. The strips later tested positive for

Suboxone.

       Another recorded conversation caught Matthew McNeil requesting Emily

Hammond to arrive early to court the next day, February 27, 2019, to attend McNeil’s

sentencing hearing from his previous two pleas. McNeil directed her to hide contraband

in the bench cushion, on which he would sit, and to mark the area with a squirt of ketchup

so that McNeil could locate the substance, conceal it within his body, and smuggle it into

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State v. McNeil


the correctional facility. After law enforcement discovered the plot, the superior court

continued the February 27 sentencing hearing until May 30.

       At the sentencing hearing, on May 30, 2019, for the crimes of attempting to elude

a law enforcement officer, the State disclosed that, although sentencing had been

continued before, the parties were attempting to reach a global resolution for all pending

charges, and the State awaited confirmation that one of the substances sent by Emily

Hammond tested positive as Suboxone. At the request of the State, the court continued

the hearing to July 3, 2019, but declared that, if the parties had not reached a global

settlement by July 3, the court would then impose a sentence on the two counts of

eluding.

       Before July 3, 2019, the parties reached a global resolution which included

Matthew McNeil pleading guilty to one count of conspiracy to deliver a controlled

substance to resolve the new charges. On July 3, 2019, the State amended the

information in this case to charge one count of conspiracy to commit delivery of a

controlled substance. McNeil pled guilty to the charge. With the plea, McNeil had a 9+

offender score and faced a standard range sentence of twenty-two to twenty-nine months

for each of the attempting to elude offenses and zero to twelve months for the controlled

substance offense. McNeil had twenty-one earlier felony convictions.

       The superior court proceeded with sentencing for all three offenses on July 3,

2019. At the sentencing hearing, the State informed the court of a joint sentencing

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State v. McNeil


recommendation, in which the State and McNeil agreed to request a prison-based,

concurrent DOSA sentence of 12.75 months in custody and another 12.75 months on

community supervision for the attempting to elude offenses. For the conspiracy to

deliver a controlled substance charge, the parties recommended six months of

confinement, consecutive to the DOSA sentence. McNeil’s trial counsel, during the

hearing, acknowledged the joint recommendation for sentencing.

       During the sentencing hearing, the sentencing court asked Matthew McNeil

whether he had participated in a DOSA sentence before and if he had successfully

completed the sentence. McNeil responded:

               I was—kind of. It was—they —I went through in Airway Heights
       and it was kind of like a . . . training class that they did. I completed the
       class, but it wasn’t—like, the facilitator wasn’t really . . . kind of hard to
       explain. But, like, my group that went in there was the first group that they
       kind of allowed some money that got us in there. We got a four-month
       class for the group. And the facilitator wasn’t really qualified for the job.
       And so I completed his class, but it wasn’t really a treatment-based class.

Report of Proceedings (RP) at 29.

       During his oral ruing at the conclusion of the sentencing hearing, the sentencing

court weighed the joint recommendation with Matthew McNeil’s lengthy criminal

history, the purposes of rehabilitation, and the facts behind McNeil’s three current

convictions. Thereafter, the court declined to follow the joint recommendation. The

court commented:

              Here you have two counts of attempting to elude. . . .

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State v. McNeil


              ....
              On each of those two cases, the Court’s required to impose a
      sentence, for the most part, between 22 to 29 months unless the Court gives
      you a Drug Offender Sentencing Alternative. But based upon your
      offender score, the Court can also go above that and impose an exceptional
      sentence because your offender score is so far beyond the maximum of nine
      and a crime would be unpunished if the Court were to run these concurrent.
      With all that said, I firmly believe in rehabilitation. I think that if you were
      to get your drug addiction under control it would probably help everything.
      But at the same time, for 27 years people have been trying to assist you in
      resolving your problem. And it’s one thing to get a possession charge. It’s
      another thing to be going a hundred miles an hour down Country Homes
      while running from the police and then run from the police a second time
      and almost strike a patrol vehicle.
              So as much as I respect the recommendation here, it seems that, first,
      one charge will go unpunished, at least one if the Court follows the
      recommendation. Secondly, I’d rather use our resources of the DOSA
      program on someone who might benefit from that. It [sic] think after 27
      years, I hate to say it, but I’m more or less giving up and thinking maybe
      just incarceration will resolve the problem.

RP at 31-32.

      The trial court sentenced Matthew McNeil to twenty-nine months for each count

of attempting to elude and twelve months for the conspiracy to possess a controlled

substance charge. The sentencing court ordered McNeil to serve each sentence

consecutive to the others, for a total of seventy months. In the judgment and sentence,

the sentencing court made no entry imposing an exceptional sentence.

                                 LAW AND ANALYSIS

      The only questions on appeal surround the consecutive sentences imposed on

Matthew McNeil. McNeil contends that the sentencing court lacked authority to sentence


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State v. McNeil


him to consecutive sentences under RCW 9.94A.589. McNeil requests that his sentence

be vacated and the case be remanded for resentencing. The State concedes that the

sentencing court lacked authority to sentence him to consecutive sentences.

Nevertheless, the State simply requests that McNeil’s sentence be remanded for the entry

of written findings in support of McNeil’s exceptional sentence.

        Issue 1: Whether the sentencing court possessed authority to impose consecutive

sentences for the three crimes, despite sentencing occurring on the same day, because of

the delay in the sentencing of the two attempting to elude offe nses?

        Answer 1: No.

        RCW 9.94A.589 controls the question of whether the sentencing court may

impose concurrent sentences or consecutive sentences. The statute declares, in relevant

part:

               (1)(a) Except as provided in (b), (c), or (d) of this subsection,
        whenever a person is to be sentenced for two or more current offenses, the
        sentence range for each current offense shall be determined by using all
        other current and prior convictions as if they were prior convictions for the
        purpose of the offender score: PROVIDED, That if the court enters a
        finding that some or all of the current offenses encompass the same
        criminal conduct then those current offenses shall be counted as one crime.
        Sentences imposed under this subsection shall be served concurrently.
        Consecutive sentences may only be imposed under the exceptional sentence
        provisions of RCW 9.94A.535.


RCW 9.94A.589 presents the general rule that “current offenses” shall be sentenced

concurrently. Another section of the sentencing reform act defines “current offense” as:

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State v. McNeil


              Convictions entered or sentenced on the same date as the conviction
       for which the offender score is being computed shall be deemed “other
       current offenses” within the meaning of RCW 9.94A.589.

RCW 9.94A.525(1). Thus, sentences imposed on the same day must be sentenced

concurrently, unless sentenced under the exceptional sentence provisions of RCW

9.94A.535. In re Personal Restraint of Finstad, 177 Wn.2d 501, 507, 301 P.3d 450

(2013).

       RCW 9.94A.535 allows the sentencing court to enter an exceptional sentence,

including consecutive sentences for crimes sentenced on the same day, under numerous

circumstances. One circumstance is 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). For the court to impose an exceptional

sentence, the court must “set forth the reasons for its decision in written findings of fact

and conclusions of law.” RCW 9.94A.535. A written finding is essential. State v.

Friedlund, 182 Wn.2d 388, 341 P.3d 280 (2015). No court has addressed whether a

corresponding written conclusion of law is essential.

       Matthew McNeil’s sentencing court mentioned, during the hearing, that he could

impose an exceptional sentence on McNeil because of McNeil’s excessive offender

score. But the court did not declare that he would impose an exceptional sentence, nor

did the court enter any finding or conclusion of law favoring or approving an exceptional

sentence.

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State v. McNeil


         Matthew McNeil’s sentencing court sentenced McNeil on the same day for one

conviction of conspiracy to possess a controlled substance and two convictions for

attempting to elude a police vehicle. Accordingly, McNeil insists that the superior court

could not impose consecutive sentences without declaring an exceptional sentence. We

agree.

         Issue 2: What remedy should this court issue as a result of the erroneous

consecutive sentences?

         Answer 2: We remand to the superior court for resentencing.

         The trial court observed, in its oral ruling, that McNeil’s high offender score could

result in an offense going unpunished, and that the court had authority to impose an

exceptional sentence. Because of these comments, the State asks us to remand to the

sentencing court for the sole purpose of entry of a finding of fact that the grant of

concurrent sentences would allow McNeil to go unpunished for one or two of his new

crimes.

         Matthew McNeil contends that his sentence must be vacated and remanded for

resentencing. He does not expressly seek to preclude the superior court, during

resentencing, from entering a written finding of fact that would validate an exceptional

sentence or consecutive sentences. We understand the different position of the parties to

lie in the State’s desire for this court to merely direct the court to enter a written finding

that the free crimes aggravator applies, while McNeil wants the superior court to exercise

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State v. McNeil


discretion during an entirely new hearing as to what sentence to impose, including

whether to run the sentences for two or more offenses consecutively.

       The State relies on State v. Friedlund, 182 Wn.2d 388, 341 P.3d 280 (2015). In

Friedlund, the trial court sentenced John Friedlund to 120 months in prison, above the

standard range sentence of three to nine months. The trial court explained its reasons for

imposing an exceptional sentence on the record at sentencing. But when the court signed

the judgment and sentence, no written findings were entered. Thereafter, the superior

court retroactively entered appropriate findings. The Friedlund court held that the

remedy for a trial court’s failure to enter written findings of fact and conclusions of law is

to remand the case for entry of those findings and conclusions. State v. Friedlund, 182

Wn.2d at 395.

       Matthew McNeil contends State v. Rasmussen, 109 Wn. App. 279, 286, 34 P.3d

1235 (2001) provides the proper remedy for his case. Andrew Rasmussen was convicted

of four crimes committed on three different dates. The superior court sentenced all

counts on the same day, and the trial court imposed consecutive sentences, but the trial

court did not did not consider whether aggravating circumstances warranted imposition of

an exceptional sentence. The Rasmussen court vacated the sentence and remanded the

case for resentencing.

       We deem State v. Rasmussen, not State v. Friedlund, analogous. Matthew

McNeil’s sentencing court discussed grounds for the imposition of an exceptional

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State v. McNeil


sentence, but did not expressly state that he wished to enter an exceptional sentence.

Thus, a full rehearing is due.

                                      CONCLUSION

       We remand for the sentencing court to perform resentencing.

       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, J.


______________________________
Pennell, C.J.




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