                                                                           FILED
                                                                        JUNE 22, 2017
                                                                 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. 34175-5-111
                     Respondent,              )
                                              )
      V.                                      )
                                              )
LORENZO ALEX CAMPOS,                          )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

      FEARING, C.J. -Lorenzo Campos appeals his sentence resulting from convictions

for felony violation of a protection order, tampering with a witness, and three gross

misdemeanor violations of a protection order. He contends that the trial court errantly

refused to consider an exceptional sentence downward, and the trial court erroneously

imposed community custody beyond his maximum sentence. We reject his first

argument, but accept his second argument. We remand for resentencing.

                                         FACTS

      The issues on appeal only concern the sentencing of appellant Lorenzo Campos.
No. 34175-5-III
State v. Campos


We briefly describe, however, the crimes for which the jury found him guilty.

       Brenda Dominguez, the crime victim, is the mother of Lorenzo Campos' daughter.

On February 14, 2014, Campos received service of a no-contact order prohibiting contact

with Dominguez for two years. On December 12, 2015, Dominguez rested at her

apartment with Campos and Dominguez's roommate, Gloria DelAngel, present.

DelAngel is the sister of Campos. Dominguez and Campos argued about a cell phone.

Olivia Rocha, the neighbor living in the apartment upstairs, heard yelling, fighting,

screaming, and Dominguez repeating "Stop. You are hurting me." Report of

Proceedings (RP) (Feb. 22, 2016) at 43. Rocha called the police.

      Kennewick Police Officer Scott Peterson responded to Brenda Dominguez's

apartment as a result of the domestic disturbance call. Officer Peterson observed a

crying, visibly shaken, and frightened Dominguez. Dominguez told Peterson that she

fought with Lorenzo Campos, the altercation escalated, and Campos "put his hands on"

her. RP (Feb. 22, 2016) at 65. Dominguez suffered multiple large bruises. Officer

Peterson arrested Campos and placed him in jail. At the time of the altercation, Campos

was age nineteen, and Dominguez was age twenty-two.

                                      PROCEDURE

      The State of Washington charged Lorenzo Campos with one felony violation of a

postconviction protection order. While in jail, Campos phoned Brenda Dominguez on at

least three occasions. During one call, Campos directed Dominguez not to speak with

                                             2
No. 34175-5-III
State v. Campos


anyone at the court. The State added charges against Campos of tampering with a

witness and three gross misdemeanor violations of a postconviction protection order

based on the phone calls. A jury found Campos guilty on all counts.

       Lorenzo Campos filed a presentence report and memorandum wherein he

calculated the standard sentencing range at sixty months, but requested an exceptional

sentence downward of twenty-four months of incarceration and twelve months of

community custody. Campos contended that Brenda Dominguez willingly participated in

the fight, and he emphasized that his youth interfered with his ability to understand the

consequences of his conduct.

       During the sentencing hearing, the trial court announced that it read Lorenzo

Campos' presentence report and memorandum. Campos reiterated his argument that

mitigating factors applied including his age, immaturity, lack of experience, and

Dominguez's willing participation. The trial court sentenced Campos to sixty months'

incarceration for the felony violation of the protection order, twenty-two months for

tampering with a witness, and three hundred and sixty-four days each for the three counts

of gross misdemeanor violation of a protection order, with the sentences running

concurrently.

                                 LAW AND ANALYSIS

                            Exceptional Sentence Downward




                                             3
No. 34175-5-III
State v. Campos


       Lorenzo Campos contends the trial court abused its discretion when failing to

meaningfully consider youthfulness as a mitigating factor justifying an exceptional

downward sentence. The State responds that the trial court considered and denied the

defendant's request for an exceptional sentence. We agree with the State.

       The trial court sentenced Lorenzo Campos within the standard range. RCW

9.94A.585(1) declares: "A sentence within the standard sentence range ... for an offense

shall not be appealed." Based on this statute, a sentence within the standard range is not

subject to appellate review. State v. Ammons, 105 Wn.2d 175, 182, 713 P.2d 719, 718

P .2d 796 ( 1986). The requirement that a trial court "set forth the reasons for its decision

in written findings of fact and conclusions of law" is limited by the legislature to

sentences outside the standard sentence range. RCW 9.94A.535. The effect of a standard

range sentence is to create a presumption that the court properly exercised its discretion.

State v. Ammons, 105 Wn.2d at 183.

       Despite this nearly uncompromising rule, a defendant may appeal the procedure

the trial court followed when imposing a sentence. State v. Knight, 176 Wn. App. 936,

957, 309 P.3d 776 (2013). While no defendant is entitled to an exceptional sentence

below the standard range, every defendant is entitled to ask the trial court to consider

such a sentence and to have the alternative considered. State v. Grayson, 154 Wn.2d 333,

342, 111 P.3d 1183 (2005). Failure to consider an exceptional sentence is reversible

error. State v. Grayson, 154 Wn.2d at 342.

                                              4
No. 34175-5-III
State v. Campos


       The trial court may impose an exceptional sentence below the standard range if it

finds mitigating circumstances by a preponderance of the evidence. RCW 9.94A.535(1).

A defendant's youth is a possible mitigating factor for a court to consider when deciding

whether to impose an exceptional sentence. State v. O'Dell, 183 Wn.2d 680, 689, 358

P.3d 359 (2015).

       When a defendant requests an exceptional sentence, our review is limited to

circumstances when the trial court refused to exercise discretion at all or relied on an

impermissible basis for refusing to impose an exceptional sentence below the standard

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

Impermissible bases for declining a request for an exceptional sentence include race, sex,

or religion. State v. Garcia-Martinez, 88 Wn. App. at 330. A court refuses to exercise its

discretion if it refuses categorically to impose an exceptional sentence below the standard

range under any circumstances. State v. Garcia-Martinez, 88 Wn. App. at 330.

       State v. Grayson, 154 Wn.2d 333 (2005) illustrates a trial court's categorical

refusal to impose an exceptional sentence. John Grayson requested a drug offender

sentencing alternative (DOSA) as part of his sentence for delivery of crack cocaine, but

the trial court denied the request stating:

              The motion for a DOSA ... is going to be denied. And my main
       reason for denying [the DOSAJ is because of the fact that the State no
       longer has money available to treat people who go through a DOSA
       program.
              So I think in this case if I granted him a DOSA it would be merely to

                                              5
No. 34175-5-III
State v. Campos


       the effect of it cutting his sentence in half. I'm unwilling to do that for this
       purpose alone. There's no money available. He's not going to get any
       treatment; it's denied.

State v. Grayson, 154 Wn.2d at 337 (alterations and emphasis in original). Our Supreme

Court held that the trial court abused its discretion when it refused to impose a DOSA

sentence because the lower court failed to consider a statutorily authorized sentencing

scheme, regardless of its suitability for the particular defendant.

       Lorenzo Campos' sentencing court did not categorically refuse to exercise its

discretion by sentencing Campos within the standard range. The trial court gave no

indication it would deny all requests for exceptional sentences below the standard range.

The court did not rely on an impermissible basis in denying his request for an exceptional

sentence. The trial court considered the request for an exceptional sentence when it read

Campos' presentence report and heard argument from Campos during sentencing.

Campos does not provide any evidence that the trial court refused to consider his request

for an exceptional sentence. We may encourage the trial court to expressly state reasons

for denying a request for an exceptional sentence downward, but the law does not require

such. The trial court implicitly denied the request when the court imposed a standard

range sentence of sixty months.

                                    Community Custody

       Lorenzo Campos contends that the trial court erred in imposing twelve months of

community custody because his sentence, including community custody, exceeded the

                                              6
No. 34175-5-III
State v. Campos


statutory maximum for the crime. The State concedes this issue, and this court accepts

the State's concession.

       A trial court may impose only sentences that statutes authorize. State v. Albright,

144 Wn. App. 566, 568, 183 P.3d 1094 (2008). RCW 9.94A.701(9) provides:

              The term of community custody specified by this section shall be
      reduced by the court whenever an offender's standard range term of
      confinement in combination with the term of community custody exceeds
      the statutory maximum for the crime as provided in RCW 9A.20.021.

      An assault violation of a protection order is a class C felony with a sixty month

maximum sentence. RCW 26.50.110(4); RCW 10.99.050(2); RCW 9A.20.021(1)(c).

The trial court ordered Lorenzo Campos to serve sixty months of incarceration and

twelve months of community custody. The trial court should have reduced the

community custody term to zero months so that the combined term of incarceration and

community custody did not exceed sixty months. Although the jury convicted Campos of

additional crimes, his confinement cannot exceed sixty months because the trial court did

not order exceptional consecutive sentences. RCW 9.94A.589. This court should

remand to the trial court to strike the term of community custody.

                                     CONCLUSION

      We remand this appeal to the trial court to strike the requirement of community

custody. Otherwise, we affirm Lorenzo Campos' sentence.




                                            7
No. 34175-5-III
State v. Campos


      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, C.J.

WE CONCUR:


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