       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )          No. 78327-1-1
                                           )
                   Respondent,             )         DIVISION ONE
                                           )
            v.                             )         UNPUBLISHED OPINION
                                           )
RICARDO LIARDO BRUNO,                      )
                                           )
                   Appellant.              )
                                           )         FILED: August 5, 2019


      HAZELRIGG-HERNANDEZ,      J. — Judges must exercise discretion at

resentencing, but it does not follow that a judge must impose a different sentence.

On resentencing, Ricardo L. Bruno's exceptional sentence was again 55 months

above the standard range. Bruno argues that the trial court failed to exercise

discretion and asks us to remand for another resentencing hearing. But because

the colloquy regarding the meaning of our prior opinion demonstrates careful

consideration, we hold that the judge properly exercised discretion. Affirmed.

                                     FACTS

      Ricardo Bruno was tried and convicted for second degree rape. The jury

found that the offense was against a household member and was part of an

ongoing pattern of psychological, physical, or sexual abuse of a victim manifested

by multiple incidents over a prolonged period of time. That finding satisfied the

aggravated domestic violence circumstance codified as RCW 9.94A.535(3)(h)(i).
No. 78327-1/2


       At sentencing, in addition to the domestic violence aggravating

circumstance found by the jury, the Honorable Bruce Heller considered two

additional aggravating circumstances, namely that Bruno should have known that

the victim was particularly vulnerable and that the victim was under the age of 18

and the crime was part of an ongoing pattern of sexual abuse. Judge Heller

sentenced Bruno to 125 months confinement, the top of the standard range, and

55 additional months as an exceptional sentence, for a total of 180 months. Bruno

appealed his sentence. This court reversed and remanded for resentencing

because his offender score had been improperly calculated and Judge Heller had

considered aggravating circumstances that had not been found by the jury.

       Because Judge Heller had retired, the resentencing hearing was held

before the Honorable Kristin Richardson. The state asked the judge to reimpose

the same exceptional sentence of 180 months. Bruno asked the judge to consider

the minimum of the standard range.

       Judge Richardson engaged in a colloquy with the parties regarding the

meaning of the opinion remanding the case for resentencing. She did not have a

transcript of the previous sentencing hearing. Specifically, she noted that ongoing

abuse manifested by multiple incidents over a prolonged period of time, which

Judge Heller appeared to consider as a separate aggravating circumstance, used

language comparable to an element of the aggravated domestic violence

circumstance. Judge Richardson also,acknowledged that the vulnerable victim

circumstance considered by Judge Heller was not found by the jury.




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No. 78327-1/3


       Before pronouncing judgment, Judge Richardson noted that she had not

heard the trial testimony, but she had access to the certification for probable cause,

the jury instructions, the record on appeal, and our previous opinion. She listed

the jury's findings of the crime of conviction, rape in the second degree, which in

this case involved forcible compulsion, and the domestic violence aggravating

circumstance, which in this case involved an ongoing pattern of psychological,

physical, or sexual abuse of a family or household member, manifested by multiple

incidents over a prolonged period of time. Judge Richardson correctly noted that

those were the facts she could take into account when determining the sentence.

She elaborated on some of the factual details, including the victim's age. She also

noted that the sentencing range was lower because of the reduced offender score.

Judge Richardson sentenced Bruno to 114 months, the top of the new standard

range, and 55 more months as an exceptional sentence, for a total of 169 months.

Bruno appeals.

                                   DISCUSSION

I.     The resentencing judge appropriately exercised discretion.

       Bruno argues that Judge Richardson failed to exercise her discretion on

resentencing. Failure to exercise discretion is an abuse of discretion subject to

reversal. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997);

see State v. Kennedy, 19 Wn.2d 152, 154, 142 P.2d 247(1943); see also Brunson

v. Pierce County, 149 Wn. App. 855, 861, 205 P.3d 963(2009).

       Bruno argues that Judge Richardson committed multiple errors that lead to

her giving inappropriate deference to Judge Heller's exceptional sentence. Bruno


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No. 78327-1/4



argues that she failed to read the transcripts of the evidence produced at trial,

believed Judge Heller correctly imposed the exceptional sentence, expressed

confusion about our previous decision, and imposed a harsher exceptional

sentence. We disagree.

       Judge Richardson expressly stated at the hearing that she had access to

the record from the previous appeal. A copy of that complete record was not filed

with this appeal, but the transcript from the sentencing hearing held in April 2016

suggests there were at least 795 pages of transcribed proceedings in Bruno's first

appeal. While Judge Richardson stated that she did not hear the testimony, at no

point did she suggest that she failed to read the transcripts or familiarize herself

with the facts produced at trial. Absent other evidence, we will not assume that a

judge with access to the appropriate records failed to read them.

       Neither does it appear that Judge Richardson was under the mistaken

impression that Judge Heller's view of the aggravating circumstances was correct,

nor that she was meaningfully confused about our prior decision.             Judge

Richardson engaged the parties in a colloquy regarding the meaning of our

decision remanding the case for resentencing. Engaging in a colloquy with the

parties and allowing each to be heard regarding the meaning of an appellate court

decision is the most appropriate course of action for a trial court on remand. Judge

Richardson twice acknowledged that the vulnerable victim               aggravating

circumstance was not found by the jury. Judge Richardson also noted that Judge

Heller erroneously considered the ongoing pattern of sexual abuse of a minor




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No. 78327-1/5



aggravating circumstance, RCW 9.94A.535(3)(g), separately from the domestic

Violence aggravating circumstance, RCW 9.94A.535(3)(h).

       The only confusion that arose was because of the similarity in language

between those provisions. RCW 9.94A.535(3)(g) reads: "The offense was part of

an ongoing pattern of sexual abuse of the same victim under the age of eighteen

years manifested by multiple incidents over a prolonged period of time." As

provided to the jury in this case, the relevant parts of RCW 9.94A.535(3)(h) read

"The current offense involved domestic violence, as defined in RCW 10.99.020

. . . . (i) The offense was part of an ongoing pattern of psychological, physical, or

sexual abuse'of a victim . . . manifested by multiple incidents over a prolonged

period of time." The statutes use identical language to punish offenders who

engage in ongoing patterns of abuse manifested by multiple incidents over a

prolonged period of time. They vary in that RCW 9.94A.535(3)(h), the domestic

violence aggravating circumstance, protects anyone in a household relationship

with the offender from various forms of abuse and RCW 9.94A.535(g) protects any

child from sexual abuse.

       Judge Richardson's careful consideration of the language in each

aggravating factor supports the conclusion that she exercised her discretion

regarding the facts of the case and the appropriate sentence. After comparing the

other aggravating circumstances, Judge Richardson concluded that she could only

consider the domestic violence aggravating circumstance found by the jury. While

Judge Richardson did mention the age of the victim as she listed the facts in more

detail, the parent-child relationship and pattern of abuse over a prolonged period



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No. 78327-1/6


of time were inherent in the domestic violence aggravating circumstance found by

the jury. Judge Richardson was entitled to consider the facts that supported the

domestic violence aggravator. It does not appear that she considered the victim's

age separately, and we find no error.

       Bruno argues that Judge Richardson imposed a harsher exceptional

sentence on resentencing because 55 months is a larger percentage of 114

months than 125 months. But comparison with standard length sentences is

inconsistent with substantial and compelling reasons that justify imposition of an

exceptional sentence. State v. Ritchie, 126 Wn.2d 388, 397,894 P.2d 1308(1995).

Because an exceptional sentence is determined by the discretion of the judge

based on the reasons that justify the exceptional sentence, not based on the

relationship to the standard range sentence, a 55 month exceptional sentence is

not automatically harsher when applied to a 114 month standard range rather than

a 120 month standard range. Here, because the 55 month exceptional sentence

was based on the facts supporting the domestic violence aggravating

circumstance, we find no error.

       Finally, Bruno argues that this case should be assigned to a new judge on

remand. Because we affirm the judgment of the trial court, we need not address

that issue.




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No. 78327-1/7


       Affirmed.




WE CONCUR:




                   I




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