                                                                                                                    FILED
                                                                                                        sCOuRT OF APPEALS
                                                                                                            DIVISfON 11
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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

CITY OF OLYMPIA,                                                                   No. 43059 -2 -II


                                     Respondent,


          v.



AARON HULET;                                                               UNPUBLISHED OPINION


                                      Petitioner.




          LEE, J. —    Aaron Hulet was convicted and sentenced for driving under the influence

DUI) after the municipal court revoked his deferred prosecution for violating the terms of the

order.    Upon filing a notice of appeal, Hulet discovered that the municipal court had destroyed

the   recordings of   the   arraignment and         deferred   prosecution   hearings.     Hulet then filed a RALJ


5. 4 motion for a new trial, arguing that the missing records were significant or material to his

appeal.    The municipal court denied Hulet' s RALJ 5. 4 motion, and the superior court affirmed


the municipal   court' s order.      The superior court also affirmed the revocation of Hulet' s deferred


prosecution, conviction       for DUI,         and sentence.    This court granted discretionary review of the

superior court' s   denial   of   Hulet'   s   RALJ 5. 4   motion and   Hulet'   s sentence.   We   affirm.
No. 43059 -2 -II



                                                      FACTS


         On June 12, 2006, Hulet was charged with DUI by citation in Olympia Municipal Court.

The docket       shows    that Hulet    was   arraigned   and   entered   a   plea   of not   guilty.   Hulet then


petitioned for deferred prosecution under chapter 10. 05 RCW, which the municipal court


granted.     The order deferred the prosecution for five years and provided that the deferral may be

revoked if Hulet committed any alcohol -related violations within that period.

         On August 4, 2010, Hulet was charged with DUI in Thurston County District Court.

Hulet pleaded guilty, and the district court entered a judgment and sentence. 1
         As a result of the new DUI conviction, the City of Olympia filed a motion in municipal

court   to   revoke   the deferred   prosecution of   the 2006 DUI   charge.     The municipal court reviewed


the docket for the Thurston County matter and was satisfied that Hulet had been convicted of

DUI in 2010.          Based on that 2010 Thurston County conviction, the municipal court found that

Hulet had violated his deferred prosecution conditions for the 2006 DUI charge and revoked the

deferred     prosecution order.      The municipal court then reviewed the police report for the 2006


DUI charge and concluded that the driving pattern, allegations, and breath test results constituted

a sufficient    factual basis for the 2006 DUI        charge.   Accordingly, the municipal court entered a

finding of guilty on the 2006 DUI charge.




1
    The Thurston County District Court made a finding that Hulet qualified for the medical
exemption (      discussed below)       and reduced the amount of mandatory minimum jail time.
Thurston County appealed the district court' s finding and that appeal was pending at the time of
Hulet' s revocation hearing. However, because the fact of an appeal does not invalidate Hulet' s
conviction, the municipal court revoked Hulet' s deferred prosecution.




                                                          2
No. 43059 -2 -II



          The municipal court imposed the mandatory minimum sentence for a second offense with

a breath test above 0. 15, which required 45 days in custody and 90 days on Electronic Home
                            2
Monitoring ( EHM).                  See RCW 46. 61. 5055( 2)( b)( i).            Hulet requested the municipal court


convert the 45 days' imprisonment to additional EHM under an exception allowing suspension

of the mandatory minimum if the court makes findings that incarceration would pose a

substantial risk to the offender' s physical or mental well- being. See RCW 46. 61. 5055( 2)( b)( i).

          Hulet submitted an affidavit from his physician to support his claim that serving jail time

would pose a substantial risk               to his   physical or mental well-      being.     Hulet' s physician discussed,


in detail, the stressors that caused Hulet' s relapse on alcohol and resulted in the most recent DUI.


According       to   Hulet'     s   physician,       Hulet suffers from chronic degeneration of lumbar disc.

Although     Hulet'    s    physician         made     several    arguments       why      he   believed "   leniency"   was




appropriate, only one was related to Hulet' s medical condition:

          A harsh sentence / ail time could jeopardize all he has worked for by causing
                             j
          humiliation and impairment of his reputation in his work .place; would likely
          result in aggravation of his lumbar disability from sleeping on a poor quality
          bed/ cot; could give his dysfunctional impaired wife legal grounds for seeking
          custody of her daughter ( which I attest would be a tragedy for him and his
          daughter) and may cause further emotional despair resulting in decompensation of
          his anxiety / epression condition.
                      d

Clerk' s Papers ( CP) at 35 -36.


          The    municipal          court   found Hulet' s       physician   to    be     credible.   However, while the


municipal court had " a lot of respect" for Hulet' s physician, it could not find that the medical




2
    The   municipal        court     structured      the   sentence   as   365    days'     imprisonment with 230 days
suspended with 45 of those days in served in custody and 90 days on EHM, with credit for one
day served in custody.


                                                                  3
No. 43059 -2 -II



exemption applied             to Hulet based     on   the documentation           provided    to the   court.    CP at 480. The


municipal court also            denied Hulet' s    request    for   work release.         Hulet moved for reconsideration


of the municipal court' s sentence regarding work release, which was also denied.

             Hulet then filed a notice of appeal to the superior court of all decisions in the municipal


court case.       When Hulet attempted to designate the municipal court record for appeal purposes,


he discovered that the municipal court did not have the audio recordings of the 2006 arraignment

                                                                                  43

and    deferred    prosecution         hearings. Hulet filed        a   RALJ 5.         motion for a new trial based on the


loss of a significant or material portion of the record. The municipal court denied Hulet' s RALJ

5. 4 motion. Hulet appealed to the superior court.


             On   appeal      to the    superior   court, Hulet         argued (   1)    the arraignment proceeding was

procedurally       and    factually     deficient, ( 2)   the order granting the deferred prosecution was invalid,

    3) the   revocation was      based    on   insufficient   evidence, (    4) Hulet' s     sentence was       improper, ( 5) he


received ineffective assistance of counsel, and ( 6) the municipal court erred by denying his

RALJ 5. 4         motion.       Specifically, Hulet argued that the deferred prosecution was defective

because the trial court failed to make a finding that Hulet was advised of his rights, and




3
    RALJ 5. 4 provides:
                     In the event of loss or damage of the electronic record, or any significant
             or material portion thereof, the appellant, upon motion to the superior court, shall
             be entitled to a new trial, but only if the loss or damage of the record is not
             attributable     to the   appellant' s malfeasance.          In lieu of a new trial, the parties may
             stipulate   to   a nonelectronic record as provided            in   rule   6. 1( b). The court of limited

             jurisdiction shall have the authority to determine whether or not significant or
             material portions of the electronic record have been lost or damaged, subject to
             review by the superior court upon motion.

                                                                    4
No. 43059 - -II
          2




Hulet did not enter the petition knowingly and voluntarily because he was misinformed about the

sentencing        consequences          of   violating the deferred              prosecution.         Hulet also challenged his


sentence,     arguing that the           City     failed to      prove     his    prior   conviction          for DUI in 2003, the


municipal court erred by finding the medical exemption did not apply, and the municipal court

imposed an improper sentence based on Hulet' s " third DUI" in Thurston County. CP at 515.

           The    superior        court affirmed     the trial       court.     Hulet sought discretionary review in this

court,     and     a    commissioner         of   this     court     denied      review.       On a motion to modify the

commissioner' s ruling, we granted Hulet' s motion to modify in part, limiting our review to two

specific     issues: "( 1)        the denial      of [   Hulet' s] RALJ 5. 4            motion   for      a   new   trial,    and (   2) his


sentencing."           Order   Granting Motion to Modify in Part, ( July 3,                   2012), Spindle.


                                                               ANALYSIS


A.         HULET' S RALJ 5. 4 MOTION


           Under RALJ 5. 4, an appellant is entitled to a new trial if a significant or material portion


of   the   record       is lost   or   damaged.          This requires the municipal court to actually make three

separate     determinations: ( 1) the          content of        the   record    that   was   lost   or   damaged, ( 2) whether the


record     was     lost   or   damaged,      and (   3)    whether the lost or damaged record was significant or


material. State v. Osman, 168 Wn.2d 632, 638 -39, 229 P. 3d 729 ( 2010).


           On appeal of the trial court' s order on a RALJ 5. 4 motion, an appellate court reviews the


municipal court' s          factual determinations ( i.e., the content of the record and whether the record


was   lost   or   damaged) for sufficiency                of   the   evidence.     Osman, 168 Wn.2d 639.                     However, we


review     the    determination        of whether    the    records are significant or material                de   novo.     Osman, 168




                                                                       5
No. 43059 -2 -II



Wn.2d             at    639.    For the lost or damaged record to be significant or material, the missing record
                                                                                                4
must     be " important to                 or warrants consideration         in   an appeal."       Osman, 168 Wn.2d at 645.


                  1.    Arraignment


              Hulet argues that the missing audio recording of his arraignment is significant or material

to the        appeal of             the validity   of   his   arraignment.        He argues that without the record, there is no


evidence that the municipal court properly arraigned him or provided him with any citation that

informed him                   of   any   of the charges as required under           CrRLJ 4. 1.     We disagree.


                  Any irregularity at Hulet' s arraignment hearing can be waived by his attorney'.s entering

a notice of appearance and plea of not                            guilty   after   the   arraignment   hearing.   See former CrRLJ


4. 1(   e)(   1), (      3) ( 2006) (     appearance by defendant' s lawyer " constitutes a waiver of any defect in the

complaint or                 the    citation and notice except           for failure to   charge a crime ...      and except for any



4 We note that, from the record before this court, both the municipal court and the superior court
misunderstood the appropriate way to address a RALJ 5. 4 motion.         Rather than making the
required findings of fact and conclusions of law required by RALJ 5. 4 and Osman, the municipal
court appeared to believe that the lost or damaged records were not significant or material
because the appropriate procedure for requesting a new trial is through CrRLJ 7. 5 ( motion for a
new      trial)         or   CrRLJ 7. 8 (     relief   from final judgment). The municipal court is incorrect. RALJ 5. 4
is a unique rule that grants an appellant a new trial based solely on the loss or damage of
significant               or   material      records,     without       challenging the underlying judgment.            Further, the

superior court apparently reached its determination that the lost or damaged records were
immaterial because Hulet' s claims failed on the merits. In Osman, our Supreme Court was clear
that whether a lost or damaged record is significant or material does not warrant consideration of
the     merits of            the    appellate   issue.     168 Wn.2d at 645 ( " The
                                                           issue is whether the missing record is
important to or warrants consideration in an appeal; a party need not show at this stage that the
appeal will prevail, nor is that issue yet ripe for the court to decide. ").
                  However, the municipal court' s and superior court' s misunderstanding of the application
is immaterial for                    us   to decide this      matter.   It is undisputed that the records are lost or damaged,
and that lost or damaged records contain the hearings for Hulet' s arraignment and the entry of
Hulet'        s        deferred     prosecution.        Because our review of whether the lost or damaged records are
significant or material is de novo, we can determine whether the records are significant or
material to Hulet' s appeal.



                                                                             6
No. 43059 -2 -II



other defect that is specifically stated in writing or on the record at the time the appearance is

entered ").    The notice of appearance is in the record before this court and clearly was entered

after Hulet' s arraignment. Further, Hulet has not made any allegations that records related to his

attorney' s notice of appearance are lost or damaged. Therefore, the missing arraignment hearing

record is not substantial or material to Hulet' s appeal.


         2. Order Granting Deferred Prosecution

         Hulet has raised two specific challenges to his deferred prosecution. First, he argues that


the order entering the deferred prosecution was defective because the municipal court failed to

make a finding that Hulet was advised of his rights as required by the statute authorizing deferred

prosecutions.        RCW 10. 05. 020( 4).   Second, Hulet argues that he did not enter the petition


knowingly and voluntarily because he was improperly informed of the sentencing consequences

if the deferred prosecution was revoked. The question before this court is not whether the issues

raised   by   Hulet have   merit or require reversal.    Osman, 168 Wn.2d    at   645.   Rather, the issue is


whether the lost or damaged records are significant or material to resolving Hulet' s appeal if it

were to be considered on the merits. We conclude that they are not.

         First, Hulet argues that the order entering the deferred prosecution is invalid because the

municipal court never made a finding that Hulet was advised of his rights. Deferred prosecutions

are   specifically   created and authorized   by   statute.   Ch. 10. 05 RCW; Abad v. Cozza, 128 Wn.2d


575, 580, 911 P. 2d 376 ( 1996).        RCW 10. 05. 020( 4) sets out the requirements for a deferred

prosecution order:




                   Before entering an order deferring prosecution, the court shall make
          specific findings that: ( a) The petitioner has stipulated to the admissibility and
          sufficiency of the facts as contained in the written police report; ( b) the petitioner




                                                        7
No. 43059 -2 -II



        has acknowledged the admissibility of the stipulated facts in any criminal hearing
        on the underlying offense or offenses held subsequent to revocation of the order
        granting deferred           prosecution; (       c) the petitioner has acknowledged and waived the
        right to testify, the right to a speedy trial, the right to call witnesses to testify, the
        right to present evidence in his or her defense, and the right to a jury trial; and (d)
        the petitioner' s statements were made knowingly and voluntarily. Such findings

        shall be included in the order granting deferredprosecution.

RCW 10. 05. 020( 4) explicitly requires that the trial court make a finding that the petitioner for a

deferred prosecution was advised of his rights and to include this finding in the order of deferred

prosecution.




        We can determine whether the trial court has fulfilled this statutory requirement based

exclusively    on   the face        of   the    order    granting deferred        prosecution.           Here, the order granting

deferred prosecution is in the record. On its face, the order granting deferred prosecution fails to

include a finding that " the petitioner has acknowledged and waived the right to testify, the right

to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her

defense,   and   the   right   to   a   jury   trial."   Therefore, the lost or damaged portions of the record are

                                                                                                                                       5
not significant or material          to resolving Hulet'       s appeal       if it   were   to   be   considered on   the   merits.




        Second, Hulet argues that he did not enter the petition knowingly or voluntarily because

he was misinformed about the sentencing consequences of entering a deferred prosecution.

RCW 10. 05. 020( 4) requires that the trial court make a finding that the petitioner' s statements

were   knowing         and    voluntary,        including    the   waiver        of    constitutional       rights.    A waiver of


constitutional rights is not made knowingly if the defendant is unaware or misinformed of the



5 We do not decide whether the lost or damaged records would be significant or material to
Hulet' s appeal had the order entering deferred prosecution contained the statutorily required
findings   and   Hulet       challenged        the sufficiency     of   the   evidence       supporting those findings.          Those
facts are not before us.



                                                                    8
No. 43059 -2 -II



direct consequences of the waiver. See In re Pers. Restraint ofIsadore, 151 Wn.2d 294, 298, 88

P. 3d 390 ( 2004) ( holding        guilty plea is not entered knowingly if it is based on misinformation of

sentencing         consequences).      Hulet points to a specific section of his petition for deferred


prosecution which states:



           I understand that if I proceed to trial and I am found guilty, I may be allowed to
           seek suspension of some or all of the fines and incarceration if 1 seek treatment. I
           understand that I may seek treatment from a public or private agency at any time,
           whether or not I have been found guilty or placed on deferred prosecution.

CP    at   108.    According to Hulet, this is a misstatement of the law because the municipal court

may not suspend mandatory minimum jail time based on the defendant seeking treatment.

           The lost     or   damaged    record    is   not   significant       or    material      to this issue.        Whether a


statement     is   an accurate statement of      the law is     a question          that   we review      de   novo.     See State v.


Becklin, 163 Wn.2d 519, 525, 182 P. 3d 944 ( 2008) (                          reviewing whether jury instructions are

accurate statements of         the law de     novo).    The language which Hulet alleges was a misstatement


of   the law is in his       own petition    for deferred     prosecution and              is in the    record on appeal.      Thus,


the record would allow us to determine whether the statement in Hulet' s petition is misleading or

an   inaccurate      statement of   the law regarding sentencing               consequences.            Accordingly, the lost or

damaged records are not significant or material to Hulet' s appeal.


            In addition to the specific assertions addressed above, Hulet also appears to claim that the

trial court should have granted his RALJ 5. 4 motion based on a bald assertion that the minimum


due   process principles         identified in Abad were            violated.       Hulet is correct in his assertion that


Abad       requires   the defendant'    s   waiver     of rights     in   a   deferred       prosecution       to be "   affirmative,




voluntary,        knowing,    intelligent   and on   the   record."       128 Wn.2d         at   583.   To the extent that Hulet




                                                                9
No. 43059 -2 -II



argues   that his due     process requirements are vested                in RALJ 5. 4, he is incorrect. Abad requires


that the waiver .
                occur on the record; it does not create a due process right guaranteeing a new trial

in any   case where       that   record    is lost   or   damaged.       Absent a legitimate argument that the due


process requirements were not met in a particular case, Abad does not mandate granting a RALJ

5. 4 motion.


         Hulet has failed to make any specific allegation or showing that his due process

requirements were violated            here. Under RALJ 5. 4, an allegation that the content of the lost or


damaged record is unknown is insufficient to demonstrate that the missing record is significant

or material.    To hold otherwise would render the significant or material language in RALJ 5. 4


superfluous, reducing RALJ 5. 4 to a per se rule providing defendants with a new trial anytime a

record is lost or damaged.


          Moreover, Osman' s requirement that the trial court make findings of fact regarding the

content of   the   lost   or   damaged     record would        likewise be        rendered meaningless.   Here, outside of


the specific allegations raised by Hulet and addressed above, Hulet has never alleged that the

entry of the deferred prosecution order occurred off the record nor has he identified how the

hearing    failed to comply           with   due     process        requirements.      Without such an allegation and

                                                                              6
subsequent     finding     there is   no   issue for      us   to   review.       Because Hulet made no other specific


allegations and did not request a finding regarding the municipal court' s failure to comply with



6 We also note that, had Hulet made such an allegation, it would be appropriate to remand for the
municipal court to make the relevant findings of fact regarding the content of the record.
However, because Hulet failed to make such an allegation, remand is unnecessary, and for the
reasons explained in footnote 4, the municipal court' s failure to make appropriate findings of fact
does not require reversal or remand.




                                                                    10
No. 43059 -2 -II



the due process requirements, any decision we would make regarding the significance and

materiality of the missing record would be based on speculation. We will not base a decision on

hypothetical         or speculative     facts.   See Walker v. Munro, 124 Wn.2d 402, 414, 879 P. 2d 920


    1994) (    opinions based on hypothetical or speculative facts are purely advisory and we do not

issue advisory            opinions).    Accordingly, any argument purportedly based on the due process

requirements of Abad is not properly before us.

B.            SENTENCING


             Hulet argues that his sentence must be reversed because the City failed to prove the

existence of a 2003 DUI, the municipal court relied on the 2010 DUI conviction even though it


was not a prior offense, the municipal court abused its discretion in denying his medical

exception that would have relieved him from the mandatory minimum amount of imprisonment,
                                                                                                                     7
and    the    municipal court abused       its discretion   by   considering the availability   of " good   time."       Br.


of   Appellant       at   38, 41.   We disagree.


              1.   2003 DUI Conviction


              Hulet argues that the municipal court erred by sentencing him based on a prior 2003 DUI

conviction that the City failed to prove. We disagree.

              Absent an affirmative acknowledgement by the defendant of .facts and information

introduced for the purposes of sentencing, the City must establish the criminal history by a



7
  Apparently, Hulet' s sentence is stayed pending this appeal. The record does not contain an
order staying the execution of his sentence, but the superior court indicated in its oral ruling that
it would be willing to grant a stay pending appellate review, and it appears that the superior court
signed the order at the end of the proceeding. Neither Hulet nor the City discusses the stay of

sentence, so we proceed under the assumption that Hulet has not already served his sentence and
that this court may still grant Hulet effective relief for any alleged sentencing errors.


                                                                 11
No. 43059 -2 -II



preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 928 -29, 205 P. 3d 113 ( 2009).


A   prosecutor' s   summary,     without more,            is insufficient to satisfy due         process.        State v. Hunley,

175 Wn.2d 901, 915, 287 P. 3d 584 ( 2012).                   Furthermore, a defendant' s mere failure to object to


such a statement is not sufficient to support a finding that the defendant has prior conviction.

Hunley, 175 Wn.2d at 913 -14; Mendoza, 165 Wn.2d at 928 -29.

         Here, Hulet provided the municipal court with a letter in support of his sentencing

memorandum.         Hulet began his         statement      by   writing: " My        first two DUI' s I was a young adult

with no    responsibility    and no       fear   of   loss ( I had nothing to lose)."           CP   at   46.   In this statement,


Hulet affirmatively       acknowledged           that he had    a prior      DUI     conviction .    Therefore, the City was

not required to provide certified documentation proving the existence of the Hulet' s prior

conviction.



         2. 2010 DUI Conviction


         Hulet argues that the municipal court erred by sentencing him based on his recent 2010

DUI conviction because that offense was not a " prior offense" for purposes of sentencing him on

the   earlier   deferred 2006 DUI. Br.            of   Appellant      at   33 -34.   Hulet is   correct    that "[ o] ffenses that


occur after the current offense must not be considered ` prior offenses' for purposes of sentencing

for DUI."        City   of Seattle   v.   Winebrenner, 167 Wn.2d 451, 462, 219 P. 3d 686 ( 2009).                             The


municipal court, however, did not sentence Hulet based on his 2010 conviction.


          Although the municipal court referred to the fact that Hulet had three DUI convictions,


the court considered only the 2003 DUI conviction as a prior offense in sentencing Hulet on the

2006 DUI charge. The court sentenced Hulet to 45 days in j ail and 90 days EHM consistent with

RCW 46. 61. 5055( 2)( b)( i), which provides that a person convicted of a second DUI within seven




                                                                 12
No. 43059 -2 -II



years whose alcohol concentration was at least 0. 15 shall be punished by imprisonment for not

less than 45 days    nor more      than 364 days      and   90 days of EHM.          On the other hand, a person


convicted of a third or fourth DUI within seven years whose alcohol concentration was at least


0. 15 shall be punished by imprisonment for not less than 120 days nor more than 364 days and

150 days     of   EHM.    RCW 46. 61. 5055( 3)( b)( i).          It is clear that the municipal court sentenced

                                                                                 8
Hulet based   on   only   one prior offense,     the 2003 DUI      conviction.



        3.   Medical Exemption


        Hulet argues that the municipal court abused its discretion by using the wrong standards

in rejecting his   request not     to   serve   jail time due to     physical and mental    health issues.   First,


Hulet argues that the municipal court applied the wrong legal standard to determine whether

Hulet' s sentence could be suspended under the medical exemption in RCW 46.61. 5055. 9



8 Hulet also argues that this court should reverse his sentence because the municipal court
violated RCW 46.61. 513, which requires that immediately before the court defers prosecution
under RCW 10. 05. 020, dismisses a charge, or orders a sentence for DUI, the court shall verify
the defendant' s criminal history and driving record . Even if the court violated the statute, Hulet

cites no authority for the proposition that such a violation should result in his sentence being
vacated.   Assuming the court violated RCW 46. 61. 513, there is no prejudice warranting a
vacation of his sentence because Hulet had an opportunity to fully litigate his criminal history at
his sentencing hearing.
9
  RCW 46. 61. 5055( 2)( b) provides that the sentence for a person with one prior offense, and a
blood alcohol concentration of at least 0. 15, the person should be sentenced to:


         i) By imprisonment for not less than forty -
                                                    five days nor more than three hundred
              four days
        sixty -              and   ninety days      of electronic     home monitoring.      In lieu of the

        mandatory minimum term of ninety days electronic home monitoring, the court
        may order at least an additional four days in jail. . . . Forty -five days of
        imprisonment and ninety days of electronic home monitoring may not be
        suspended or deferred unless the court finds that the imposition of this mandatory
        minimum sentence would impose a substantial risk to the offender' s physical or
        mental well -being. Whenever the mandatory minimum sentence is suspended or

                                                            13
No. 43059 - -II
          2




Second, Hulet argues that the municipal court abused its discretion by considering the medical

exemption in RCW 46. 61. 5055 as an all or nothing proposition. Third, Hulet argues that the trial

court disregarded the merits and refused to suspend his sentence because he was a three time


offender.




        Based on the evidence presented at sentencing, the record does not support applying the

medical exemption    in RCW 46. 61. 5055 to Hulet' s         case.   Therefore, the trial court did not err by

refusing to suspend the mandatory minimum jail time.

        Whether the medical exemption in RCW 46. 61. 5055 applies is a mixed question of fact


and law. We review the municipal court' s findings of fact to determine if they are supported by

substantial   evidence.    State   v.   Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994).         We will not

disturb the   municipal    court' s     credibility determinations    on   appeal.   State v. Camarillo, 115


Wn.2d 60, 71, 794 P. 2d 850 ( 1990).          We review the application of a statute to a specific set of


facts de novo. State v. Dupuis, 168 Wn. App. 672, 674, 278 P. 3d 683, review denied, 175 Wn.2d

1024 ( 2012).


        To determine whether the medical exemption in RCW 46. 61.5055 applies, the trial court


would need to make factual findings regarding the defendant' s medical conditions and the

consequences of serving jail time. We recognize that the municipal court did not explicitly make

such   factual findings.     However, the trial court did expressly find that Hulet' s doctor was




        deferred, the court shall state in writing the reason for granting the suspension or
        deferral and the facts upon which the suspension or deferral is based.


                                                        14
No. 43059 -2 -II



credible.    Given the trial court' s credibility determination, the factual assertions in the doctor' s

affidavit    can   be taken   as   the factual basis for the trial            court' s   conclusions.   Therefore, the


affidavit from Hulet' s physician provides a sufficient factual basis to determine whether the trial


court erred in applying the medical exemption in RCW 46. 61. 5055 to Hulet' s case.

         Hulet' s physician' s affidavit, as it relates to Hulet' s medical condition, establishes that


Hulet has    chronic   degeneration     of   lumbar discs, anxiety         and   depression. Based on the affidavit,


the consequences of serving jail time " would likely result in aggravation of his lumbar disability

from sleeping on a poor quality bed /cot" and, through the risk of losing custody of his daughter,

 may cause further emotional despair resulting in decompensation of his anxiety / epression
                                                                                d

condition."     CP at 35 -36. As applied to these facts, the municipal court did not err by concluding

that the medical exemption did not apply in Hulet' s case.

         First, the     likely "   aggravation"     of Hulet' s lumbar disability does not establish a

 substantial risk"     to Hulet' s   physical well-    being. The aggravation that Hulet would likely suffer

could be as minor as a minor increase in pain that could be treated through the jail medical staff.

Hulet failed to     produce   any    evidence   proving   otherwise.         Therefore, the municipal court did not


en by concluding that Hulet' s chronic degeneration of lumbar discs did not warrant suspending

jail time .
          under the medical exemption in RCW 46. 61. 5055.


          Second, the effect of serving jail time on Hulet' s mental well -
                                                                          being is a secondary, not

direct   consequence of     serving jail time.     Any " emotional despair resulting in decompensation of

his anxiety / epression condition" would be caused by the risk of losing custody of his daughter
            d

to his daughter'     s mother.     The effect of jail time on a defendant' s custody of his child is a risk

always      associated with
                              being    required   to   serve    a   jail   sentence.     Nothing in RCW 46. 61. 5055



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provides an exemption to the mandatory minimum sentences for DUI based on the potential

effect   of a    defendant'    s   custody   of   his   child.    Therefore, the municipal court did not err in


concluding that Hulet' s anxiety and depression did not warrant suspending j ail time under the

medical exemption in RCW 46. 61. 5055.


         Hulet also argues that the municipal court did not apply the correct statutory language.

To   suspend or     defer the jail time, the       municipal court        had to " find[ ] that the imposition of this


mandatory minimum sentence would impose a substantial risk to the offender' s physical or

mental well-     being."      RCW 46. 61. 5055( 2)( b)( i).         At the sentencing hearing, the municipal court

stated, "   I have to find in order to allow Mr. Hulet to serve j ail time elsewhere other than in the

jail is that   substantial    harm   would come         to Mr. Hulet for serving jail time....        I do not find that


substantial     harm   will come     to Mr. Hulet from serving jail time...."              CP   at   480.   Hulet argues


that the court' s statement is a misstatement of the law, which requires only a finding of risk not

actual harm.


            There is a difference between substantial risk and certainty of harm, but any prediction of

future harm is necessarily            an   assessment       of risk.     Although the municipal court stated the


standard       differently,    the   difference between           finding    that' incarceration " would      impose   a


substantial risk     to the    offender' s ...    well-   being,"     and that incarceration would cause substantial


harm is insignificant. Br. of Appellant at 39. There is no indication that the municipal court was


operating under the misunderstanding that it could grant the medical exception only if it could

predict future harm with certainty.

            Hulet further argues that the municipal court erred in refusing to convert part of his

sentence to EHM under the medical exception based on an incorrect belief that a partial



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suspension       of   the   sentence     for    medical reasons was          not permissible.           Referring to the earlier

proceeding in         which      Hulet   was     sentenced        for his 2010 DUI, the            municipal        court     stated, "   I


understand that Thurston County District Court fashioned something indicating that seven days

was appropriate and          the balance        was not,       I don' t believe I      can   do it that way. So, I do not find


that that   is   valid."    CP   at   480.      Hulet argues that the municipal court incorrectly assumed that a

partial   conversion        or   suspension       of     the   sentence (   as ordered by Thurston County) was not

allowed, and that it operated only as an all or nothing exception.

          However, it does not appear that the municipal court sentenced Hulet based on the


incorrect    all   or    nothing      approach.      Instead, the municipal court' s explanation was merely an

expression of its disagreement with the Thurston County District Court' s decision that the

medical exception was satisfied                 by   the   evidence provided        by   Hulet. The municipal court twice


stated    that the documentation             provided      by    Hulet did   not    satisfy the    medical exception.             If the


municipal court ruled that the exception was not met ( the mandatory minimum sentence did not

create a substantial risk of physical or medical                      harm), no amount of the mandatory minimum


sentence could be suspended.


           Finally, Hulet contends that the municipal court rejected the medical exemption not on

the merits       but because Hulet             was   a         time DUI
                                                         three -              offender.         The record does not support


Hulet'    s contention.       Hulet takes the court' s statement that " I can' t have somebody with a third

DUI   and with        serving    no   jail time"     out of context.        Br.   of   Appellant   at   42;   see   CP   at   483.   The


court made         the   statement      after   the sentencing        was   completed.         The court properly sentenced

Hulet based on only one prior DUI notwithstanding the court' s reference to Hulet having three

DUIs.




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             4. Consideration of Good Time


             Hulet next argues that the municipal court abused its discretion by " impos[ ing] what the

court       considers       the `   most    likely'   sentence   based       on   the availability   of `good       time.'      Br. of


Appellant        at   41.    We agree that a sentencing court may not calculate good time credit in setting

the length of the sentence; good time plays no role until confinement begins and credits are


earned, and there is no guaranty credits will be earned. State v. Fisher, 108 Wn.2d 419, 429 n.6,

739 P. 2d 683 ( 1987) (                  holding that it was improper for the court to impose an exceptional

sentence because credit for good behavior would make the length of the sentence inadequate for

the offenses committed).



             However, we disagree with Hulet that the municipal court considered good time in setting

his   sentence.         After the municipal court announced the sentence, Hulet inquired whether there


was    any possibility for               work release.    In response, the municipal court refused to allow work


release and reiterated that Hulet must serve the remaining 44 days of his sentence in custody

followed         by   90 days       on   EHM. The      court   then   remarked     that if Hulet behaves himself in jail, "he



will get [ one -third] off of that for good time, but that is between him and the jail, so most likely,

it   will   be 30 days,      rather      than 44."    CP at 481.


             A   court      abuses       its discretion   when     it   relies    on   good   time to   set   the   sentence.     The


municipal court did not do that here. We hold that the municipal court' s mere reference to good


time and the possibility that Hulet may serve less time than ordered was not improper.

Accordingly, Hulet' s argument fails.

             We granted discretionary review of Hulet' s appeal on two specific, limited issues: his

RALJ 5. 4 motion and his sentencing. Because the lost or damaged records are not significant or



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material   to his   appeal,     Hulet   was   not   entitled   to   a new   trial   under   RALJ 5. 4.   Further, the


municipal court did not err in imposing Hulet' s sentence.

        We affirm.


        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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