                                                                                                             FILED
                                                                                                             OF APPEALS
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                                                                                                         of i"

                                                                                                  2014 APR               8: 43
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                          rs




                                                                                                                     r     ON
                                                DIVISION II

STATE OF WASHINGTON,                                                         No. 43593 -4 -II
                                                                     Consolidated w/ No. 43596 -9 -II)
                                     Respondent,


         v.                                                            UNPUBLISHED OPINION


SHAWN SHELBY TEETER,


                                     Appellant.


         BJORGEN, J. —Shawn         Shelby Teeter appeals his jury convictions and sentences for

unlawful possession of a controlled substance ( methamphetamine), attempted witness



intimidation, and custodial assault. The trial court imposed concurrent sentences for unlawful

possession and attempted witness intimidation, but ordered those concurrent sentences and the


sentence for custodial assault to run consecutively with each other. In this consolidated appeal,

Teeter argues that the trial court erred ( 1) by imposing exceptional sentences without first

entering the statutorily required findings of fact and conclusions of law in support, and ( 2) by
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denying his   request   for   a   Drug   Offender   Sentencing   Alternative ( DOSA)    sentence on untenable



grounds.


         In his statement of additional grounds for review (SAG), Teeter repeats his appellate

counsel' s challenges to his exceptional sentences. He also challenges his sentences and


convictions, asserting that ( 1) his trial counsel was ineffective for failing to object to the trial

court' s imposition of an exceptional sentence, and (2) the trial court erred by failing to declare a

mistrial after the State violated the trial court' s order in limine. Additionally, Teeter' s SAG

raises a number of issues that we do not address in this opinion because they require us to



1
    RCW 9. 94A. 660.
No. 43593 -4 -II
 Consolidated w/ 43596 -9 -I1)



reweigh the evidence, evaluate the credibility of witnesses, or are not sufficiently developed to

merit judicial review.


       We affirm Teeter' s convictions. We conclude also that the trial court erred by ordering

the concurrent sentences for unlawful possession and attempted witness intimidation to run


consecutively to the sentence for custodial assault, without entering the statutorily required

written findings and conclusions in support of exceptional sentences. Therefore, we remand for


entry of the required findings and conclusions or vacation of Teeter' s consecutive sentences in

the absence of such entry.

                                              FACTS


                                   I. CAUSE NUMBER 43593 -4 -II


        On May 11, 2011, the State charged Teeter with one count of residential burglary and one

count of second degree theft for allegedly breaking into and taking items from the home of his

aunt. The State filed an amended information on July 11, 2011, which additionally charged

Teeter with one count of unlawful possession of a controlled substance, based on


methamphetamine found during his search incident to arrest. Also in July, Teeter sent a letter to

his aunt threatening to harm her if she testified against him. Based on this letter, on August 2,

2011 the State filed a second amended information adding a charge of witness intimidation. .

        On April 30, 2012, the jury returned verdicts finding Teeter not guilty of first degree




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No. 43593 -4 -II
 Consolidated w/ 43596 -9 -II)


                                                                                                  2
criminal   trespass, a    lesser -included   offense of   the   charged residential   burglary;       not guilty of


second degree theft; guilty of unlawful possession of a controlled substance; and guilty of

attempted witness intimidation.

                                         II. CAUSE NUMBER 43596 -9 -II


          Teeter .was detained at the Pierce County Jail while awaiting trial in the above cause. On

September 17, 2011, Teeter threw a cup of urine on Corrections Officer Dana Lynam, resulting

in a charge of custodial assault. This case was called for trial on April 25, 2012, but was


continued until May 7, following the conclusion of Teeter' s trial in cause number 43593 -4 -II for

unlawful possession and attempted witness intimidation. On May 9, the jury returned a verdict

finding Teeter guilty of custodial assault.

                                                 III. SENTENCING


          On May 25, 2012, the trial court held a sentencing hearing on both causes. The State

asked the trial court to deny Teeter' s request for a DOSA sentence and to run Teeter' s custodial

assault sentence consecutively to his unlawfulpossession and attempted witness intimidation

sentences under      RCW 9. 94A. 589( 3), stating:


          I' m asking the Court to take a look at the totality of [Teeter' s] criminal history to
          do what is in the best interests of the community and impose consecutive
          sentences in this case, and the Court does have discretion to do that.
                 If the Court takes a look at RCW 9. 94A.589, whenever a person is
          sentenced for a felony that was committed while the person was not under

2
    The jury left the residential burglary verdict form blank and filled out the lesser -included first
degree criminal trespass verdict form, which stated:
                We, the jury, having found the defendant not guilty of the crime of
          Residential Burglary in Count I as charged, or being unable to unanimously agree
          as   to that   charge,   find the defendant Shawn Shelby Teeter [] Not            Guilty[]      of the
          crime of Criminal Trespass in the First Degree.
Clerk' s Papers ( CP) at 168 -69.
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         sentence for a conviction of a felony, the sentence shall run concurrently with any
         felony sentence unless the Court pronouncing the current sentence expressly
         orders   that    they be   served    consecutively.         So it is within the Court' s discretion to
         impose consecutive sentences, especially given the fact that the custodial assault
         occurred while he was awaiting trial on a residential burglary and intimidating a
         witness charge.



Report   of   Proceedings ( RP)      at   561 - 63.   The State also asserted that the trial court could impose


consecutive sentences under           former RCW 9. 94A. 535 ( 2011), stating:


          RCW]       9. 94A. 5.35( 2)[]     talks about aggravating circumstances that are both
         considered by the courts and imposed by the courts, so they do not require that a
         jury find        them    beyond     a   reasonable      doubt.     But one of those aggravating
         circumstances        under       subsection (   2) (   c)   is that the defendant has committed
         multiple current offenses and the defendant' s high offender score results in some
         of the current offenses going unpunished.

RPat563.


         After hearing arguments from counsel, the trial court ruled as follows:

                   Well, one of the unfortunate consequences of tightening governmental
         budgets, not just in the recent few years but over the last many years is that we,
         the judges, have lost any kind of presentence reports from the Department. of
         Corrections. We used to get them when I first was a judge. We only get those on
         sex offender cases now. They don' t give them on anything else, so that' s the very
         unfortunate consequence.

                   Mr. Teeter does have behavioral               problems.     Without the thorough analysis
         that a presentence report might give the Court, it' s hard to tell whether the basis of
         these —and I       acknowledge          there' s those competency          evaluations   in the — in the
         court    file.   The focus of those competency evaluations is not to give guidance to
         the    Court     about     what    would     be the best       sentence.     So without a thorough
         evaluation of whether Mr. Teeter' s behavior is as an unfortunate result of his drug
         use or an unfortunate result of other mental health problems that he might have,
         it' s hard for rime to tell whether a DOSA sentence would be of any use to him in
         controlling his behavior in the future.
                 So, based on that lack of being able to get a real thorough report from
         anybody      about   his —the root causes of his behavioral problems, based on the




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       statutes and case    law   cited   by [ the   State], based on the evidence set forth at the
       trials, I find that these sentences in these cases should run consecutively.

RP at 573 -74.


       In cause 43593 -4 -II, the trial court sentenced Teeter to 24 months of incarceration for

unlawful possession of a controlled substance and 60 months of incarceration for attempted


witness intimidation. The judgment and sentence in cause 43593 -4 -II ordered these two


sentences to run concurrently with each other, but " consecutive to" his sentence for custodial

assault. CP at 184. In cause 43596 -9 -II, the trial court sentenced Teeter to 60 months of

incarceration for custodial assault. The judgment and sentence in this cause ran its sentence for


custodial assault consecutively to Teeter' s two concurrent sentences in cause 43593 -4 -II for

unlawful possession and attempted witness intimidation. Thus, the sentence in each cause was


expressly made consecutive to the sentence in the other cause. Teeter timely appeals.

                                                     ANALYSIS


                                                I. SENTENCING


        Teeter first contends that the trial court erred by imposing an exceptional consecutive

sentence without entering the required findings of fact and conclusions of law in their support.

In response, the State asserts that the trial court was not required to enter written findings in

support of its imposition of consecutive sentences because it sentenced Teeter under RCW

9. 94A.589( 3),   which requires only that a trial court " expressly order" a defendant to serve

consecutive sentences. Because the trial court imposed Teeter' s sentences in both causes on the

same date, the provisions of RCW 9. 94A.589( 3) did not apply, and the trial court consequently




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No. 43593 -4 -II
 Consolidated w/ 43596 -9 -II)




erred by failing to enter findings and conclusions in support of Teeter' s exceptional consecutive

sentence as required under RCW 9. 94A.589( 1) and former RCW 9. 94A. 535.


        RCW 9. 94A.589( 3) provides:


                W] henever a person is sentenced for a felony that was committed while
        the person was not under sentence for conviction of a felony, the sentence shall
        run concurrently with any felony sentence which has been imposed by any court
        in this or another state or by a federal court subsequent to the commission of the
        crime being sentenced unless the court pronouncing the current sentence
        expressly orders that they be served consecutively.

This statute provides sentencing courts with discretion "to impose either a concurrent or a

consecutive sentence for a crime that the defendant committed before he started to serve a felony

sentence   for   a   different   crime."   State v. King, 149 Wn. App. 96, 101, 202 P. 3d 351 ( 2009).

Consecutive sentences under RCW 9. 94A.589( 3) are not exceptional sentences that require


aggravating factor findings.          King,   149 Wn.   App.       at   101.   Rather, a trial court imposing

consecutive sentences under RCW 9. 94A.589( 3) need only " expressly order" that the

defendant' s sentences be served consecutively. State v. Champion, 134 Wn. App. 483, 488, 140

P. 3d 633 ( 2006).


          A sentencing court does not, however, have discretion to impose consecutive sentences

under   RCW 9. 94A.589( 3)          when   sentencing   a   defendant for        multiple " current offenses."   By its

express   terms, RCW 9. 94A.589( 3) is          subject     to the      provisions of   RCW 9. 94A.589( 1),   which




states in relevant part:


           W] henever 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....         Sentences imposed under this subsection shall be served
          concurrently.



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No. 43593 -4 -II
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Emphasis      added.)    Convictions " sentenced on the same date" are " deemed ` other current


offenses'   within   the meaning        of   RCW 9. 94A.589." Former RCW 9. 94A. 525( 1) ( 2011).                Here, it


is undisputed that the trial court sentenced Teeter for his unlawful possession and attempted


witness tampering convictions in cause 43593 -4 -II and for his custodial assault conviction in

cause 43596 -9 -II on the same date. Accordingly, the trial court lacked authority to impose

consecutive sentences for these " current offenses" under RCW 9. 94A.589( 3).

         Although      lacking    authority under RCW 9. 94A.589( 3),               the trial court did have authority to

impose consecutive sentences as an exceptional sentence under RCW 9. 94A.589( 1) and former

RCW 9. 94A.535. Under former RCW 9. 94A.535( 2)(                      c),   the trial court may impose an

exceptional sentence upon a finding that Teeter " committed multiple current offenses and [ his]

high   offender score results      in   some of      the   current offenses      going   unpunished."   To justify such

an exceptional sentence, former RCW 9. 94A.535 requires the trial court to " set forth the reasons

for its decision in     written   findings     of   fact   and conclusions of      law," which it did not do.


         Even though the requirement that a trial court enter written findings in support of an


exceptional sentence imposed under former RCW 9. 94A.535 is mandatory, we have held that a

trial court' s failure to enter written findings is harmless where " the trial court' s oral opinion and


the hearing record are sufficiently comprehensive and clear that written facts would be a mere

formality."    State    v.   Hickman, 157 Wn.         App.    767, 771   n. 2,   238 P. 3d 1240 ( 2010). Here,


however, the trial court' s oral opinion did not sufficiently disclose whether it based the

exceptional sentence on a finding that Teeter' s high offender score resulted in some of his crimes
going unpunished. Therefore, we cannot hold that its failure to enter written findings supporting

its imposition of an exceptional sentence was harmless.

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No. 43593 -4 -II
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          Accordingly, we remand to the trial court either to vacate Teeter' s consecutive sentences

or to enter written findings of fact and conclusions of law supporting those sentences,

consistently with State v. Woodruff, 137 Wn. App. 127, 135, 151 P. 3d 1086 ( 2007).

                                                         II. DOSA


          Next, Teeter contends that the trial court abused its discretion by denying his request for a

DOSA sentence on untenable grounds. We disagree.


          In general, a trial court' s decision denying a defendant' s request for a DOSA sentence is

not reviewable on appeal. State v. Grayson, 154 Wn.2d 333, 338, 111 P. 3d 1183 ( 2005).

However, " every    defendant is entitled to ask the trial court to consider such a sentence and to

have the   alternative   actually   considered"       and,   thus, a trial court abuses     its discretion   when "'   it


refuses   categorically to impose     a [   DOSA      sentence] under         any   circumstances. '   Grayson, 154


Wn.2d at 342 ( quoting State v. Garcia -Martinez, 88 Wn. App. 322, 330, 944 P. 2d 1104 ( 1997)).

          Teeter argues that the trial court abused its discretion in denying his DOSA request

because it based its decision       on "   the   fact that [ it] did   not   have   a presentence report."   Br. of


Appellant at 10. Teeter asserts that the lack of a presentence report is an untenable reason for

denying his DOSA request because it amounts to a categorical refusal to consider his request.

Teeter does not cite any authority for the proposition that a trial court is required to consider a

presentence report prior to denying a defendant' s DOSA request, and the DOSA statute contains

no such requirement.      3 RCW 9. 94A.660. More to the point, the trial court in fact considered a




3 Teeter asserts that the trial court had statutory authority to order a risk assessment report or a
chemical    dependency     screening       report under      RCW 9. 94A.660( 4).         Although RCW 9. 94A.660( 4)
gives a trial court discretion to order such reports, the statute neither requires the trial court to
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No. 43593 -4 -II
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DOSA sentence, noting in its oral ruling Teeter' s status, the type of information supplied by a

presentence report, and the difficulty in determining whether a DOSA would help Teeter without

that information.


        Finally, even accepting for the sake of argument that a trial court abuses its discretion by

basing its DOSA denial solely on the lack of a presentence report, the trial court here considered

other factors, including " the evidence set forth at the trials" when it denied Teeter' s request for a

DOSA sentence. RP at 574. Accordingly, Teeter does not demonstrate that the trial court

categorically refused to consider his DOSA request. We therefore affirm the trial court' s

decision to decline Teeter' s DOSA request.

                                           III. SAG IssuES


A.      Issues Raised by Appellate Counsel

        In his SAG, Teeter first repeats his counsel' s arguments regarding the trial court' s denial

of his DOSA request and its imposition of consecutive sentences. Because we have addressed

these claims above as argued by Teeter' s appellate counsel, we do not address the claims again

here.


B.      Ineffective Assistance of Counsel


        Next, Teeter contends that his trial counsel was ineffective for failing to object to the trial

court' s imposition of an exceptional sentence. We decline to address this claim in light of our

decision remanding Teeter' s sentence to the trial court for further proceedings.




order such reports, nor does it require the trial court to consider such reports prior to denying a
defendant' s DOSA request.
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No. 43593 -4 -II
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C.        Mistrial


          Teeter contends also that the trial court erred by failing to declare a mistrial after the State

described Teeter'        s aunt as a " victim,"     contrary to the trial court' s pretrial ruling on Teeter' s

motion in limine. RP at 48 -49. Teeter does not indicate in his SAG when the State used the

word " victim" at trial in violation of the trial court' s ruling. Although RAP 10. 10( c) does not

require Teeter to include citations to the trial record, he must " inform the court of the nature and

occurrence of alleged errors" to be considered on appeal. Although we are " not obligated to


search    the   record   in   support of claims made          in [ Teeter'   s   SAG]," RAP 10. 10( c), we have found


nothing in the record to indicate that the State violated the trial court' s ruling by referring to

Teeter' s aunt as a victim in the presence of the jury.

D.        Remaining SAG Issues

          Finally, Teeter raises a number of issues in his SAG that we do not address because they

would require us         to   reweigh     the evidence   or   to   evaluate      the credibility   of witnesses4 or are not




sufficiently developed to merit judicial review. See State v. Walton, 64 Wn. App. 410, 415 -16,

824 P. 2d 533 ( 1992) (         appellate courts defer to the trier of fact on issues of conflicting testimony,

witness    credibility,       and   the   weight of evidence);      RAP 10. 10( c).


                                                       CONCLUSION


           We affirm Teeter' s convictions. We conclude also that Teeter' s consecutive sentences


are not authorized under RCW 9. 94A.589( 3) and,may only be authorized as exceptional

sentences under former RCW 9. 94A.535 if the findings of fact and conclusions of law required


by that provision are entered. Therefore, we remand to the trial court either to vacate Teeter' s

4
     For example, Teeter claims that several of the witnesses in both of his trials lied on the stand.
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consecutive sentences or to enter written findings of fact and conclusions of law supporting those

as exceptional sentences.




        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.




We concur:




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