                                                                          FILED
                                                                       JUNE 23, 2020
                                                               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. 36807-6-III
                                             )         (consolidated with
                    Respondent,              )         No. 36808-4-III)
                                             )
      v.                                     )
                                             )         UNPUBLISHED OPINION
BRANDON WILLIAM CATE,                        )
                                             )
                    Appellant.               )

      PENNELL, C.J. — Brandon William Cate appeals exceptional sentences imposed at

resentencing. We again remand for resentencing.

                                         FACTS

      Mr. Cate committed a series of burglaries, thefts, and acts of malicious mischief

over the course of late 2016 and early 2017. The State grouped Mr. Cate’s prosecutions

into two separate cause numbers. Cause number 17-1-00039-4 pertained to the 2016

offenses. Cause number 17-1-00040-8 pertained to the 2017 offenses.

      The two cause numbers were adjudicated by different juries, both of which issued

guilty verdicts. Sentencing for both cases occurred on the same day. At sentencing, the

2016 and 2017 crimes were not treated as current offenses under RCW 9.94A.589(1)(a).

The sentencing data reflected on Mr. Cate’s two original judgments were as follows:
Nos. 36807-6-III; 36808-4-III
State v. Cate


2016 offenses, Cause No. 17-1-00039-4

Count       Offender Seriousness Standard              Maximum Confinement
No.         Score    Level       Range                 Term
1: 2nd      8        3           51-68 months          10 years 38 months
Deg.
Burglary1
2: 2nd      6          1              12-14 months     5 years       13 months
Deg.
Malicious
Mischief
3: 2nd      6          1              12-14 months     5 years       13 months
Deg.
Theft



2017 offenses, Cause No. 17-1-00040-8

Count       Offender Seriousness        Standard         Maximum Confinement
No.         Score    Level              Range            Term
1: 2nd      8        3                  43-57 months     10 years 50 months
Deg.
Burglary
2: 2nd      6           1               12-14 months     5 years      13 months
Deg.
Theft
3: 3rd      N/A         Gross       0-364 days           364 days     364 days
Deg.                    misdemeanor
Malicious
Mischief

       1
         At Mr. Cate’s original sentencing, the court indicated it had adjusted the offender
score to 7 and the standard range to 33-43 months. see RCW 9.94A.510 (sentencing grid).
This correction was not reflected in the written judgment, though the court relied on the
lowered standard range when sentencing Mr. Cate to 38 months confinement.

                                             2
Nos. 36807-6-III; 36808-4-III
State v. Cate


2017 offenses, Cause No. 17-1-00040-8

4: 2nd      8          3               43-57 months     10 years     50 months
Deg.
Burglary
5: 3rd      N/A        Gross       0-364 days           364 days     364 days
Deg.                   misdemeanor
Theft

      The total confinement in cause number 17-1-00039-4 was 38 months; in cause

number 17-1-00040-8 it was 50 months. The court ordered the two terms to run

consecutively. Because the court treated the two cause numbers separately, it reasoned it

had discretion to impose consecutive sentences without going through the process of

imposing exceptional sentences. Mr. Cate’s total term of incarceration was 88 months.

      Mr. Cate appealed his two original judgments to this court. We reduced Mr. Cate’s

theft conviction in cause number 17-1-00040-8 from second degree to third degree. In

addition, both cause numbers were remanded for resentencing. Remand was necessary

because all the crimes in Mr. Cate’s two cause numbers should have been treated as

current offenses. As such, concurrent sentences were required unless the trial court made

adequate findings justifying imposition of exceptional sentences. Our prior decisions

recognized that if, at resentencing, Mr. Cate were deemed to have multiple current




                                            3
Nos. 36807-6-III; 36808-4-III
State v. Cate


offenses with an offender score of 9+, consecutive sentences would be permissible, so

long as accompanied by applicable findings.2

      Resentencing took place in 2019. Because all the crimes before the court were

treated as current offenses, Mr. Cate’s offender scores and standard sentencing increased.

The sentencing data reflected on Mr. Cate’s 2019 judgments were:

2016 offenses, Cause No. 17-1-00039-4

Count       Offender Seriousness Standard              Maximum Confinement
No.         Score    Level       Range                 Term
1: 2nd      9+       3           51-68 months          10 years 59.5 months
Deg.
Burglary
2: 2nd      8          1             17-22 months3 5 years          19.5 months
Deg.
Malicious
Mischief
3: 2nd      8          1             33-43 months4 5 years          38 months
Deg.
Theft



      2
           This court addressed Mr. Cate’s 2016 convictions in State v. Cate, No. 35230-7-
III, slip op. at 1 (Wash. Ct. App. Jan. 22, 2019) (unpublished), http://www.courts.wa.gov/
opinions/pdf/352307_unp.pdf, and his 2017 convictions in State v. Cate, No. 35231-5-III,
slip op. at 1 (Wash. Ct. App. Feb. 26, 2019) (unpublished), http://www.courts.wa.gov/
opinions/pdf/352315_unp.pdf.
         3
           The trial court entered a total standard range of 22-29 months for Mr. Cate’s
second degree malicious mischief conviction.
         4
           The court entered a total standard range of 22-29 months for Mr. Cate’s second
degree theft conviction.

                                            4
Nos. 36807-6-III; 36808-4-III
State v. Cate


2017 offenses, Cause No. 17-1-00040-8


Count        Offender Seriousness        Standard          Maximum Confinement
No.          Score    Level              Range             Term
1: 2nd       9+          3               51-68 months      10 years     59.5 months
Deg.
Burglary
2: 3rd       N/A         Gross       0-364 days            364 days     364 days
Deg.                     misdemeanor
Theft
3: 3rd       N/A         Gross       0-364 days            364 days     364 days
Deg.                     misdemeanor
Malicious
Mischief
4: 2nd       9+          3               51-68 months      10 years     59.5 months
Deg.
Burglary
5: 3rd       N/A         Gross       0-364 days            364 days     364 days
Deg.                     misdemeanor
Theft

        Mr. Cate did not object to any of the new calculations. He instead requested

concurrent terms of incarceration. The trial court rejected this approach. Noting that Mr.

Cate had three offenses with an offender score of 9+, the trial court reasoned that

imposition of concurrent sentences would result in some of Mr. Cate’s offenses

effectively going unpunished.

        In explaining its sentencing decision, the trial court advised Mr. Cate that it was

simply formalizing the previous sentencing decision. According to the court, nothing was


                                               5
Nos. 36807-6-III; 36808-4-III
State v. Cate


really changed from Mr. Cate’s perspective. “The sentence stays the same.” Report of

Proceedings at 39.

       As was done at the prior sentencing, the court imposed mid-range sentences to run

consecutively. Unlike the prior proceeding, the court justified this disposition as an

exceptional sentence upward, accompanied by written findings. The court issued 59.5

month sentences for both of Mr. Cate’s cases, resulting in a total term of 119. Contrary to

the court’s earlier comments, Mr. Cate’s sentence had not stayed the same. It was 31

months longer than what was previously imposed.

       Mr. Cate timely appeals.

                                        ANALYSIS

Incorrect standard range

       As Mr. Cate and the State agree, the judgment incorrectly lists Mr. Cate’s standard

range sentence for second degree theft in cause number 17-1-00039-4 as 33-43 months.

With an offender score of 8 and a seriousness level of I, the range was actually 17-22

months. RCW 9.94A.510. The court imposed 38 months on the second degree theft

conviction, which was outside the standard range. The court did not cite any reason for

selecting a sentence outside the standard range for Mr. Cate’s theft offense. As a result,




                                              6
Nos. 36807-6-III; 36808-4-III
State v. Cate


the sentence imposed was unlawful. Resentencing is required. In re Pers. Restraint of

Call, 144 Wn.2d 315, 333-34, 28 P.3d 709 (2001).

Exceptional sentence

       An exceptional sentence upward may be reversed if either (a) the court’s reasons

for imposing an exceptional sentence are unsupported or do not justify a sentence outside

the range, or (b) the sentence imposed was “clearly excessive.” RCW 9.94A.585(4).

       Here, the trial court had a sufficient legal and factual basis to impose an

exceptional sentence upward. Because Mr. Cate has multiple current offenses with an

offender score of 9+, a standard range sentence would result in some of his current

offenses going unpunished. RCW 9.94A.535(2)(c). As we held in our prior decisions, an

exceptional sentence upward is legally permissible in such circumstances.

       Nevertheless, the court’s decision to impose consecutive mid-range sentences was

clearly excessive. Our analysis of this issue is governed by the abuse of discretion

standard of review. State v. McClure, 64 Wn. App. 528, 530, 827 P.2d 290 (1992).

Discretion is abused if a decision is based on “untenable grounds or untenable reasons.”

State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013) (quoting In re Marriage of

Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)). As previously noted, the total

sentence imposed by the court increased Mr. Cate’s term of imprisonment by 31 months.


                                              7
Nos. 36807-6-III; 36808-4-III
State v. Cate


This outcome was contrary to the court’s stated intent. The court explained it meant to

impose the same sentence as what Mr. Cate had received prior to his successful appeal.

Given the disconnect between the court’s comments and the sentence imposed, and in

light of the fact that resentencing is necessary for Mr. Cate’s second degree theft

conviction, we remand for a full resentencing.5

                                     CONCLUSION

       This matter is remanded for resentencing consistent with our opinion.

       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.

                                          _________________________________
                                          Pennell, C.J.
WE CONCUR:


______________________________            _________________________________
Siddoway, J.                              Fearing, J.

       5
         We note that while imposition of consecutive sentences is one way of crafting an
exceptional sentence under RCW 9.94A.535(2)(c), it is not the only option. A court may
impose an exceptional sentence by lengthening concurrent sentences, imposing
consecutive sentences, or by imposing a sentence which is “both beyond the standard
range and consecutive.” State v. Smith, 123 Wn.2d 51, 58, 864 P.2d 1371 (1993),
overruled on other grounds by State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192
(2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 222, 126
S. Ct. 2546, 165 L. Ed. 2d 466 (2006).

                                             8
