                                                                                              FILED
                                                                                     COURT OF APPEALS
                                                                                            DIVISION 11

                                                                                    2915 AUG 18     AM 9- 04
      IN THE COURT OF APPEALS OF THE ST                                                         A
                                                                                                81 TTON
                                                                                  ATE OF
                                                       DIVISION II                  BY _
                                                                                              DEIPUTY
STATE OF WASHINGTON,                                                                       No. 46106 -4 -II


                                             Respondent,


             V.




RUSSEL A. FORD,                                                                   UNPUBLISHED OPINION


                                             Appellant.




         SUTTON, J. —            Russel A. Ford appeals his sentences following his guilty pleas to two counts

of   felony       eluding   and   three counts    of   theft   of a motor vehicle.         The sentencing court imposed

sentences below the standard range for the three counts of theft of a motor vehicle, and also


sentenced Ford to consecutive sentences, without entering findings of fact or conclusions of law

                   such   sentences,    as   required   by     RCW 9. 94A.535        and    RCW 9. 94A. 589.   The ' State
supporting


concedes this error, but argues that we should remand for resentencing to allow the sentencing

court   to    consider      an    exceptional    sentence.      Ford asks us to strike the improper consecutive


sentences and allow him to serve the exceptional downward sentence of 24 months. Because the

sentencing court erred by failing to enter findings supporting consecutive sentences or downward

departures on any of Ford' s counts, and because Ford raises issues on appeal that require a full

resentencing,        we reverse      Ford'   s sentence and remand      for   a   full resentencing.
No. 46106 -4 -II




                                                              FACTS


         Russel Ford         pled   guilty to   counts   1   and   2-   felony   eluding,   and counts   3, 4,   and   5 - theft of


a    motor   vehicle,    as    alleged       in the Second Amended Information.                    The Second Amended


Information did     not allege         any aggravating facts for the             charges.    Ford' s sentencing range was

14 to 18 months for the felony eluding charges and 43 to 57 months for the theft of a motor vehicle

charges.




         At the sentencing hearing, the State, according to the plea agreement, recommended 8

months on counts 1 and 2 and a total of 50 months on counts 3, 4, and 5 with all sentences to run


concurrently. The sentencing court instead imposed sentences of 8 months each on counts 1 and

2,   consecutive    to   each       other,   but   concurrent       to the   sentences      in the remaining       counts;     and




24 months each on counts 3, 4, and 5 consecutive to each other, but concurrent to the sentences in

counts 1 and 2. Thus, the sentencing court imposed a sentence of 72 months of total confinement.

         The sentencing court made the following comments during the hearing:

             COURT]:           I' m going to give the lawyers a little quiz here, unless they change
         the statute. You know, the difference between what they call concurrent sentences
         and consecutive is if they happen to be the same crime, the same time, with the
         same thought process going on. Okay. You have three separate matters on three

         separate days. They' re not the same crimes. And so the issue of concurrent is not
         in my vocabulary when it comes down to him.

Verbatim Report         of   Proceedings ( VRP) ( March 24, 2014) at 8. The prosecutor tried to dispute the


court' s interpretation of the statute:


             PROSECUTOR]: ,              As far    as consecutive or concurrent,            because I am - they are
         all separate....As far as consecutive or concurrent, because they count against one
         another, in other words because he' s getting an extra point for every count that I -
         that I   added on      to this -    to this charge, they are presumptively concurrent.




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No. 46106 -4 -II



          COURT]:             I' m   not   bound   by    that.   On each one of the eludings, eight months
         consecutive. On the other charges, 24 months consecutive.


VRP ( March 24, 2014) at 9.


         Ford appeals the sentencing court' s decision to run his .sentences consecutively. The State

did not appeal the sentencing court' s exceptional sentences downward on counts 3, 4, and 5.

                                                          ANALYSIS


         Ford     argues    that the sentencing          court violated   RCW 9. 94A.589( 1)( a) when it ordered


consecutive terms for multiple current offenses. The State concedes that the sentencing court erred

when it imposed an aggravated exceptional sentence without making findings supporting such a

sentence. Ford argues that, because the State did not appeal the sentence, the proper remedy is for

this   court   to " vacate that portion of the judgment and sentence that orders the counts to run


consecutively and remand for entry of an order clarifying . that the sentences shall run

concurrently."         Br. of Appellant at 10. The State argues that Ford' s remedy is for us to remand for

a full resentencing. We agree with the State.

                          1. THE SENTENCING COURT IMPOSED AN ILLEGAL SENTENCE


         Under RCW 9. 94A.589( 1)(                a),   a sentencing court must impose concurrent terms for

multiple felony offenses sentenced on the same day unless the court declares an exceptional

sentence       under    RCW 9. 94A. 535.          And under RCW 9. 94A.535, whenever a sentencing court

imposes    a sentence outside         the standard       sentence range, "   the court shall set forth the reasons for


its decision in    written    findings     of   fact   and conclusions of    law." We review the legal justification


for a sentence de novo. State v. Stubbs, 170 Wn.2d 117, 124, 240 P. 3d 143 ( 2010).




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No. 46106 -4 -II




        Here, the sentencing court did not claim to be imposing a sentence under RCW 9. 94A.535

and   did    not enter    findings   or   conclusions   in   support of an   exceptional   sentence.   Rather, the


sentencing court' s statement at the time of sentencing reveals that the court did not consider itself

bound by that provision, and was likely confusing the law regarding concurrent sentences with

that of same criminal conduct.



        Because the sentencing court violated the plain language of RCW 9. 94A.535 and

RCW 9. 94A. 589( 1)( a) when it imposed consecutive sentences in this case, we accept the State' s


concession that the sentencing court erred by imposing an exceptional sentence.

                        II. THE PROPER REMEDY IS REMAND FOR A FULL RESENTENCE


        Ford argues that because the State never appealed the sentencing court' s decision to impose

sentences that were below the standard range, it is precluded from arguing such error on appeal.

RAP 2. 4( a)    (   a respondent in an appeal may seek affirmative relief from portions of a trial court' s

decision only if the respondent timely files a notice of appeal).

        Ford contends that we must strike his consecutive sentences and impose a 24 -month


sentence. We disagree.


            RAP 2. 4( a) limits the circumstances under which a respondent may seek affirmative relief:

            The appellate court will grant a respondent affirmative relief by modifying the
            decision which is the subject matter of the review only ( 1) if the respondent also
            seeks review of the decision by the timely filing of a notice of appeal or a notice of
            discretionary review, or (2) if demanded by the necessities of the case.




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No. 46106 -4 -II




             The State seeks affirmative relief because it asks for partial reversal of the sentencing

court' s court order, rather than merely advancing an alternative argument for affirming the court.

State   v.   Sims, 171 Wn.2d 436, 443, 256 P. 3d 285 ( 2011).            Thus, our inquiry turns to whether the

necessities of this case demand a full resentence.

             Ford relies on Sims to support his argument that we must remand to strike the consecutive


sentences and allow         him to   serve a   24 -month   sentence.    In Sims, the defendant argued, and the


State conceded, that a banishment condition in his special sex offender sentencing alternative

 SSOSA)        sentence was unconstitutional.      Sims, 171 Wn. 2d       at    440. The Court of Appeals agreed


but held that the trial court on remand would have discretion to either impose or deny a SSOSA.

Sims, 171 Wn.2d        at   441.   The State Supreme Court reversed the Court of Appeals in part, ruling

that because Sims only challenged a condition of the SSOSA sentence, and because the State did

not cross- appeal     the SSOSA, the State        could not seek       denial   of   the SSOSA   on remand.   Sims,


171 Wn.2d at 449. Although the Supreme Court acknowledged that such relief would be available


under RAP 2. 4( a) if demanded by the necessities of the case, it concluded that such necessities had

not been shown, particularly given the chilling effect that such relief would have on Sims'

constitutional right to appeal. Sims, 171 Wn.2d at 449.


             Here, the necessities of the case demand a full resentence. Ford has raised issues on appeal


that call his entire sentence into question and require a full resentence, not just a striking of the

consecutive        sentences.      Because the sentencing court failed to enter findings of fact and

conclusions of law to support either an upward or downward deviation, and because the sentencing

court expressed no legally justifiable reasons to impose an exceptional sentence, a full resentence




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No. 46106 -4 -II




hearing is the only appropriate remedy. Accordingly, we reverse Ford' s sentence and remand for

a full resentencing before a different judge.

        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.



                                                        A-r+



                                                     SUTTON, J.
                                                               hMJ.
 We concur:




 MAXA; P. J.        J—




 LLE, J.




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