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                                                                 2015 JUL 27 m 10: 3


      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 71702-2-1
                     Respondent,
       v.                                        DIVISION ONE


DAVID LAINEZ,                                    UNPUBLISHED OPINION


                     Appellant.                  FILED: July 27, 2015


       Leach, J. — David Lainez appeals the exceptional 60-month sentence

imposed by the trial court after he pleaded guilty to one count of felony stalking

with a rapid recidivism aggravating factor and two counts of assault in the fourth

degree.     He argues that the sentence is clearly excessive.        Because Lainez

stalked the same victim shortly after being released from custody on two prior

occasions, substantial and compelling reasons justified the exceptional sentence.

We conclude that the trial court did not abuse its discretion and affirm.


                                    Background

       David Lainez began stalking Katelyn Stockman in 2011.                  On May 15,

2012, he pleaded guilty to telephone harassment. When he was released from

jail the same day, an antiharassment order prevented him from having any

contact, including by telephone, with Stockman. The next day, Lainez contacted

Stockman in violation of this order. Although a Renton police officer spoke with
No. 71702-2-1/2




him about this violation, Lainez continued to violate the order, calling Stockman

again the following day.

       On August 9, 2012, Lainez pleaded guilty to felony stalking, violation of an

antiharassment order, and nonfelony stalking. After serving a sentence for these

crimes, he was released on June 25, 2013. On June 29, Stockman saw Lainez

attempting to enter her workplace.         Officers responded and arrested Lainez.

Lainez assaulted the arresting officers.

       Lainez pleaded guilty to one count of felony stalking and stipulated to the

aggravating circumstance of rapid recidivism. Because Lainez had a prior felony

conviction and was under community custody at the time of the offense, Lainez

had an offender score of 2. This score produced a statutory standard sentencing

range of 13 to 17 months. The State recommended the statutory maximum of 60

months. The trial court imposed an exceptional sentence of 60 months. Lainez

appeals his sentence.

                                     Analysis

       Lainez claims that the trial court abused its discretion by imposing a

"clearly excessive" exceptional sentence.

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, allows a trial

court to impose a sentence outside the standard sentence range for the offense

when, considering the purpose of the act, it finds substantial and compelling

reasons justifying an exceptional sentence.1

        RCW 9.94A.535.
No. 71702-2-1/3




       We review a judgment imposing an exceptional sentence for abuse of

discretion.2 We look to see if the court based its sentence on untenable grounds

or reasons or imposed a sentence no reasonable judge would have imposed. To

reverse an exceptional sentence, this court must find either (1) the record before

the trial court does not support the reasons supplied by the court or that those

reasons do not justify an exceptional sentence or (2) the court imposed a "clearly

excessive" or "clearly too lenient" sentence.3       Circumstances "must truly

distinguish the crime from others of the same category" for the trial court to

impose an exceptional sentence.4

       Aggravating circumstances that can support a sentence above the

standard range include those where "[t]he defendant committed the current

offense shortly after being released from incarceration."5 Lainez acknowledges

that this circumstance applied and justified a departure from the standard range.

Yet he also claims that his circumstances "were not sufficiently 'exceptional' to

distinguish him from others committing the crime of stalking." He identifies three

factors supporting this contention: (1) the sentence imposed is four times the low

end of the standard range and three times the high end, (2) he has only one prior

felony conviction, and (3) he has never been sentenced to a prison range term of

confinement.




      2 State v. Branch. 129 Wn.2d 635, 649, 919 P.2d 1228 (1996).
      3 RCW 9.94A.585(4).
      4 State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003).
      5 RCW 9.94A.535(3)(t).
No. 71702-2-1/4




      At the time of the commission of the crime, stalking carried a statutory

maximum sentence of 60 months.6 In State v. Zatkovich.7 Division Two of this

court affirmed a 60-month exceptional sentence for stalking where the trial court

found that domestic violence and a pattern of psychological abuse occurring over

a long period of time justified the exception.        Here, also, circumstances

distinguish this crime from a "typical" incidence of stalking due to prolonged and

patterned behavior involving the same victim, renewed twice within days of being

released from jail for the same or similar behavior. The trial court found that

Lainez on two occasions stalked the same victim, each time shortly after the

State released him from custody. The trial court concluded that "[e]ach one of

these aggravating circumstances is a substantial and compelling reason,

standing alone, that is sufficient justification for the length of the exceptional

sentence imposed." We agree.

                                   Conclusion


       Because substantial and compelling reasons justify the 60-month




       6 Former RCW 9A.46.110(5)(b) (2007); RCW 9A.20.021(c). In July 2013,
felony stalking became a class B felony, carrying a statutory maximum of 120
months. RCW9A.46.110(5)(b); RCW9A.20.021(b).
      7 113 Wn. App. 70, 83, 52 P.3d 36 (2002).
No. 71702-2-1/5




exceptional sentence imposed by the trial court, the trial court did not abuse its

discretion, and we affirm.




WE CONCUR:
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