                                                                              FILED 


                                                                        August 22, 2013 


                                                                 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. 30121-4-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )         OPINION PUBLISHED
DAVID AARON SOTO,                             )         IN PART
                                              )
                     Appellant.               )

       SIDDOWAY, A.C.J. -     This case presents a statutory construction issue of first

impression: whether a sentencing court has the statutory authority to impose a firearm

sentence enhancement on a defendant's sentence for conviction ofan unranked felony.

We conclude that RCW 9.94A.S33, which provides for firearm and other sentence

enhancements, applies only to ranked offenses.

       We therefore reverse the firearm sentence enhancement and remand to the trial

court for resentencing. With respect to the second issue raised by Mr. Soto, we direct the

court to exclude from the judgment and sentence any finding of Mr. Soto's present or

future ability to pay legal financial obligations and other expenses, since the record

lacked support for such findings.
No. 30121-4-111
State v. Soto


                     FACTS AND PROCEDURAL BACKGROUND

       David Soto was found guilty following a bench trial of animal cruelty in the first

degree and unlawful possession of a firearm in the first degree. The court found that in

committing the animal cruelty offense, Mr. Soto was armed with a firearm. It imposed an

I8-month firearm enhancement to run consecutive to its concurrent sentences of 12

months for the animal cruelty conviction and 48 months for the firearm possession

conviction.

       Mr. Soto challenged the trial court's authority to impose a firearm enhancement on

a conviction for animal cruelty, which is an unranked crime. The trial court rejected his

argument, construing RCW 9.94A.533, which provides for the enhancement, as applying

to all felonies, ranked or unranked.

       The judgment and sentence imposed legal financial obligations in the amount of

$3,700. The court found that Mr. Soto had the present or likely future ability to pay the

financial obligations imposed and the means to pay for the costs of incarceration and any

costs of medical care incurred while incarcerated. Mr. Sotoappeals.

                                        ANALYSIS

                                              I

       We first address the statutory construction issue raised by Mr. Soto in the trial

court: Must the sentence for an unranked offense be increased based upon a finding that

the offender was armed with a firearm in committing the offense?

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No.30121-4-II1
State v. Soto


       The statute at issue is RCW 9.94A.533, entitled "Adjustments to standard

sentences." It provides for additional time to be added to the standard sentence ranges for

certain crimes in the event of aggravating circumstances identified by the statute.

Subsection (3) of the statute addresses additional time to be added to the standard

sentence range for felony crimes if the offender was armed with a firearm.

       The first subsection ofRCW 9.94A.533 provides that "[t]he provisions of this

section apply to the standard sentence ranges determined by RCW 9.94A.510 or

9.94A.517." RCW 9.94A.510 is the "Table I" sentencing grid. Using the grid, a

sentencing court determines the sentencing range and sentencing midpoints for an

offender's conviction of a crime by finding the intersection of the offender's "offender

score" (based on criminal history) and the "seriousness level" of his or her crime (from I

to XVI). The "seriousness level" for most crimes recognized by Washington statutes is

set forth in "Table 2," codified at RCW 9.94A.515.

       RCW 9.94A.517 is the drug offense sentencing grid. It similarly identifies the

sentencing range for an offender's conviction of a drug offense based on an offender's

offender score and the seriousness level of the drug offense.

       The offense of animal cruelty in the first degree is defined by RCW 16.52.205(1)­

(3). It is a class C felony. RCW 16.52.205(4). Mr. Soto was charged with animal

cruelty by intentionally inflicting substantial pain on an animal, causing physical injury to

an animal, and/or killing an animal by a means that caused undue suffering, a violation of

                                             3

No. 30121-4-111
State v. Soto


RCW 16.52.205(1). No seriousness level has been assigned to that means of committing

first degree animal cruelty. See RCW 9.94A.515. A standard sentence range therefore

cannot be determined for that means of committing the offense from RCW 9.94A.51 0,

the Table 1 sentencing grid, or from RCW 9.94A.517, the drug offense sentencing grid. l

       Where no seriousness level has been assigned to an offense the court determines

the sentence by applying RCW 9.94A.505(2)(b), which provides:

       If a standard sentence range has not been established for the offender's
       crime, the court shall impose a determinate sentence which may include not
       more than one year of confinement; community restitution work; a term of
       community custody under RCW 9.94A.702 not to exceed one year; and/or
       other legal financial obligations. The court may impose a sentence which
       provides more than one year of confinement and a community custody term
       under RCW 9.94A.701 if the court finds reasons justifying an exceptional
       sentence as provided in RCW 9.94A.535.

       "Unranked offense" is the term commonly applied to offenses that have not been

assigned a seriousness level and whose standard sentencing range therefore cannot be

determined on the Table I sentencing grid or drug offense sentencing grid. As observed

by Division One of the Court of Appeals, "[t]he Sentencing Guidelines Commission

recommends rankings to the legislature and does not recommend that all offenses be

ranked: 'The Commission decided not to rank certain felonies which seldom occur .... If,

in the future, a significant number of persons are convicted of offenses not included in the


       1A different means of committing first degree animal cruelty, involving sexual
conduct or contact with an animal, see RCW 16.52.205(3), is given a seriousness rank of
III by RCW 9.94A.5l5.

                                             4

No.30121-4-I11
State v. Soto


Seriousness Level Table, the Commission will recommend appropriate seriousness levels

to the Legislature for those crimes. '" In re Pers. Restraint ofAcron, 122 Wn. App. 886,

890,95 P.3d 1272 (2004) (quoting WASH. STATE SENTENCING GUIDELINES COMM'N,

ADULT SENTENCING GUIDELINES MANUAL at II-57 (1993». Several hundred crimes are

presently unranked. Most are class C felonies. See WASH. STATE CASELOAD FORECAST

COUNCIL, 20 12 WASHINGTON STATE ADULT SENTENCING GUIDELINES MANUAL § 5, at

92-101 (version 20121231).

       Mr. Soto, relying on the expressly limited scope ofRCW 9.94A.533 provided by

its subsection (1), argues that the statute has no application to unranked offenses.

Looking solely at subsection (1), he appears to be correct. The State successfully argued

below and argues on appeal, however, that language appearing elsewhere in the statute

creates an ambiguity that we should resolve by deferring to what it argues was legislative

intent to increase the penalty for firearm use by an offender committing any felony.

       The State points to subsection (3) of the statute, which deals in particular with

firearm enhancements. It states in pertinent part:

             (3) The following additional times shall be added to the standard
       sentence range for felony crimes committed after July 23,1995, if the
      offender or an accomplice was armed with a firearm ...
             (a) Five years for any felony defined under any law as a class A
      felony or with a statutory maximum sentence of at least twenty years, or
      both, and not covered under (1) of this subsection;
             (b) Three years for any felony defined under any law as a class B
      felony or with a statutory maximum sentence of ten years, or both, and not
      covered under (1) of this subsection;

                                              5

No. 30121-4-111
State v. Soto


              (c) Eighteen months for any felony defined under any law as a class
       C felony or with a statutory maximum sentence of five years, or both, and
       not covered under (f) of this subsection.

RCW 9.94A.533 (emphasis added). The State argues that these repeated references to

"any felony defmed under any law as a ... felony" compels the conclusion that the

legislature intended the enhancements to apply to all felonies, ranked or unranked.

       The State next points out that a few crimes are exempted from the mandatory

application ofRCW 9.94A.533(3) by paragraph (3)(f), which provides:

               (f) The firearm enhancements in this section shall apply to all felony
       crimes except the following: Possession of a machine gun, possessing a
       stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of
       a firearm in the first and second degree, and use of a machine gun in a
       felony.[2]

(Emphasis added.) Here again, the State argues, the statutory language "all felony

crimes" must be read to apply uniformly to felonies.

       The State finally points to subsection (6) of the statute, which provides increased

time for controlled substances offenses that take place in the presence of children or near

schools, public parks, or on or in certain public transit vehicles or facilities. Subsection

(6) provides that additional time "shall be added to the standard sentence range for any

ranked offense involving a violation of chapter 69.50 RCW if the offense was also a


       2 It has been pointed out that the exempted felonies are those in which using a
firearm is an element of the offense. State v. Brown, 139 Wn.2d 20, 25, 983 P.2d 608
(1999) (quoting WASH. STATE SENTENCING GUIDELINES COMM'N, ADULT SENTENCING
GUIDELINES MANUAL cmt. at 11-67 (1997».

                                              6

No.30l2l-4-III
State v. Soto


violation ofRCW 69.50.435 or 9.94A.827." RCW 9.94A.533(6) (emphasis added). The

State argues that the reference to "ranked offense" would be superfluous if the scope of

the statute was already limited to ranked offenses.

       Sentencing is a legislative power, not a judicial power. State v. Bryan, 93 Wn.2d

177, 181,606 P.2d 1228 (1980). A trial court's discretion to impose sentence is limited

to that granted by the legislature. State v. Ammons, 105 Wn.2d 175,713 P.2d 719,718

P .2d 796 (1986). If the trial court exceeds its sentencing authority, its actions are void.

State v. Phelps, 113 Wn. App. 347, 354-55, 57 PJd 624 (2002). Statutory construction is

a question oflaw and reviewed de novo. State v. Elmore, 154 Wn. App. 885,904-05,

228 PJd 760 (2010).

       When interpreting a statute, "if the statute's meaning is plain on its face, then the

court must give effect to that plain meaning as an expression of legislative intent." Dep't

o/Ecology v. Campbell & Gwinn, L.L.c., 146 Wn.2d 1,9-10,43 PJd 4 (2002). "All

words must be read in the context of the statute in which they appear, not in isolation."

State v. Lilyblad, 163 Wn.2d 1, 9, 177 P Jd 686 (2008). A statute is deemed ambiguous

when the language is susceptible to more than one interpretation. State v. Jacobs, 154

Wn.2d 596, 600-01, 115 P.3d 281 (2005).

       Reading all subsections ofRCW 9.94A.533 in the context of the statute, we

conclude that the statute does not apply to unranked offenses. Subsection (1) of the

statute exists for one reason: to define the scope of the statute's application. It limits that

                                               7

No.30121-4-III
State v. Soto


scope to "standard sentence ranges determined by RCW 9.94A.51O or 9.94A.517."

"Under expressio unius est exclusio alterius, a canon of statutory construction, to express

one thing in a statute implies the exclusion of the other. Omissions are deemed to be

exclusions." In re Det. o/Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (citation

omitted).

       Nothing in subsection (1) suggests that the language "standard sentence ranges

determined by RCW 9.94A.51 0 or 9.94A.517" is illustrative. We construe a statute's

identification of crimes or other items to be illustrative when the legislature states that the

identification is "illustrative," or provides "examples," or extends to "similar" or "like"

offenses; absent such a signal, we read the legislature's list as exclusive and complete. In

re Postsentence Review o/Leach, 161 Wn.2d 180, 185-86, 163 P.3d 782 (2007). We

cannot amend an exclusive list of sentencing ranges subject to enhancement with others

we believe the legislature omitted; our Supreme Court has reminded us of its "'long

history of restraint in compensating for legislative omissions.'" Id. at 186 (quoting State

v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982».

       By giving subsection (1) of the statute its plain meaning, we do not render the

references to "all felonies" elsewhere in the statute meaningless; they are rationally

understood to extend the sentencing enhancement to all felonies falling within the scope

of the statute as defined by subsection (1).




                                               8

No. 30121-4-III
State v. Soto


       Only subsection (6), providing that the statute applies to all "ranked offenses" of

chapter 69.50 RCW, is superfluous if subsection (1) already limits the statute's scope to

standard range sentences determined for ranked offenses. But it is more reasonable to

read subsection (6) as containing surplusage than to read subsection (I) as having no

meaning at all. And in light of subsection (6), it is beyond debate that the legislature

intended its 24-month increase in confinement to apply only to the relatively serious and

commonly occurring crimes that the Sentencing Guidelines Commission had seen fit to

rank-not to relatively uncommon, unranked crimes that are punishable, at most, by a

year of confinement, community restitution work, or a term of community custody. It is

more likely that the legislature intended for this distinction to apply to all of the

enhancements provided by the statute-which it does, given our construction of

subsection (1)---than to apply only to the enhancement provided by subsection (6).

       Although expressed in dicta, we note that at least one justice ofthe Washington

Supreme Court and a panel of Division Two of the Court of Appeals have assumed that

the sentencing enhancements provided by RCW 9.94A.533 do not apply to unranked

felonies. See State v. Gurske, 155 Wn.2d 134, 152 n.l5, 118 P.3d 333 (2005) (Chambers,

J., concurring) ("The statute exempts certain firearms offenses and does not address

unranked felonies. RCW 9.94A.533(3)(f)."); State v. Rainford, 86 Wn. App. 431,441

n.6, 936 P.2d 1210 (1997) ("RCW 9.94.041 [possession of controlled substances by

prisoners] is an unranked felony under the Sentencing Reform Act of 1981 and is not

                                               9

No. 30121-4-111
State v. Soto


subject to enhancement for possession within a correctional facility under [RCW

9 .94A.S33(S)(c)]. ").

       If the legislature made an error in drafting the statute, as the State assumes, we

must leave it to the legislature to correct the error. Taylor, 97 Wn.2d at 728; see also

State v. Mendoza, 63 Wn. App. 373, 378,819 P.2d 387 (1991). Appellate courts do not

supply omitted language even when the legislature's omission is clearly inadvertent,

unless the omission renders the statute irrational. Acron, 122 Wn. App. at 891. "To do

so would [be] to arrogate to ourselves the power to make legislative schemes more

perfect, more comprehensive and more consistent." Taylor, 97 Wn.2d at 729.

       Because we conclude that RCW 9.94A.S33(3) does not apply to unranked

offenses, the trial court's I8-month increase of Mr. Soto's sentence imposed for the

animal cruelty conviction was unauthorized and void.

       We reverse the firearm sentence enhancement and remand for resentencing

consistent with this opinion.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with the rules governing unpublished opinions. RCW

2.06.040.

                                             II

       Mr. Soto next contends that the trial court had no basis for its findings 2.7, 4.D.4,

and 4.D.5 in the judgment and sentence that he has the current or future ability to pay

                                             10 

No.30121-4-III
State v. Soto


legal financial obligations (LFOs) and the means to pay costs of incarceration and

medical care. Under RCW 9.94A.760(1), the trial court may impose LFOs as part of the

sentence, designating the total amount and segregating that amount according to separate

assessments for restitution, costs, fines, and other required assessments. Under RCW

9.94A.760(2), it may require the offender to pay for the costs of incarceration up to the

maximum authorized by the statute. But a defendant cannot be ordered to pay costs

unless he or she is or will be able to pay them. RCW 10.01.160(3).

       A trial court is not required to enter formal findings of fact about a defendant's

present or future ability to pay LFOs. State v. Bertrand, 165 Wn. App. 393, 404, 267

P.3d 511 (2011) (citing State v. Baldwin, 63 Wn. App. 303,311,818 P.2d 1116,837 P.2d

646 (1991)). However, "the record must be sufficient for us to review whether 'the trial

court judge took into account the financial resources of the defendant and the nature of

the burden' imposed by LFOs." ld. (quoting Baldwin, 63 Wn. App. at 312). We review

a trial court's findings as to a defendant's resources and ability to pay under the clearly

erroneous standard. ld. at 403-04 & n.B.

       The record of Mr. Soto's sentencing reveals that nothing was said about his ability

or likely future ability to pay his LFOs. Here, as in Bertrand, the findings are clearly

erroneous by virtue of the lack of support in the record. The appropriate remedy would

ordinarily be to reverse the finding of ability to pay and remand to the trial court with

directions to strike the findings from the judgment and sentence. In this case we reverse

                                             11 

No.30121-4-II1
State v. Soto


the findings but, since the case is otherwise being remanded for resentencing, we direct

the trial court to omit findings as to ability to pay that are not supported by evidence in

the record.

       The State concedes that the trial court lacked a basis for its finding but suggests a

different remedy: that we direct the trial court on remand to develop a record supporting

the findings. We disagree and decline the suggestion. As Baldwin holds, "the

meaningful time to examine the defendant's ability to pay is when the government seeks

to collect the obligation." Baldwin, 63 Wn. App. at 310.

       We reverse the firearm sentence enhancement and remand for resentencing

consistent with this opinion.




                                               -~.tlCt
                                               Siddoway, A.C.J.

WE CONCUR:



Brown, J.



Kulik, J.




                                              12 

