                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 17, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46421-7-II

                                Appellant,

         v.

 RODREA VONSHON BRADLEY,                                       UNPUBLISHED OPINION

                                Respondent.


       MAXA, J. − Rodrea Bradley was convicted of first degree escape, and the trial

court imposed an exceptional sentence below the standard range. The State appeals

Bradley’s exceptional sentence, assigning error to three of the trial court’s findings of fact

and two of the trial court’s conclusions of law relating to the sentence. Specifically, the

State argues that the trial court erred in relying on reasons already encompassed by the

purposes of the Sentencing Reform Act (SRA), chapter 9.94A RCW, to justify Bradley’s

downward exceptional sentence.

       We hold that (1) the State waived its assignment of error that the record did not support

findings of fact 3, 4, and 5 because the State failed to present argument in its brief on these

assignments, (2) findings of fact 3 and 4 provide adequate legal justification to support the trial

court’s imposition of Bradley’s downward exceptional sentence, and (3) although finding of fact

5 would be invalid as a stand-alone reason for imposing the exceptional sentence because it

relates to the SRA’s purposes, we interpret that finding as merely providing support for the

exceptional sentence. Accordingly, we affirm Bradley’s exceptional sentence.
No. 46421-7-II


                                             FACTS

       In December 2013, the trial court ordered Bradley to serve a sentence for a conviction for

attempted unlawful possession of a controlled substance at the Alternative to Confinement

Program (ATC) in Pierce County. The ATC program permitted Bradley to serve his sentence

outside confinement, but the program imposed certain reporting obligations and requirements.

Bradley started the program on January 2, 2014, but failed to report or comply with any of the

program’s requirements after that date. Bradley was convicted of first degree escape based on

his failure to report to the ATC program.

       At sentencing, the parties agreed that Bradley’s offender score was 10, and that his

standard sentence range was 63 to 84 months. Bradley requested a downward exceptional

sentence. He argued that his ability to conform his conduct to the requirements of the law was

significantly impaired because he had been evicted from his residence, did not have access to

transportation to report to the ATC program, was unemployed with no income, was the sole

provider for his two minor daughters, and spent his time attempting to find safe and stable

housing for his family. In addition, Bradley argued that his conduct fell at the low end of the

offending behavior that was contemplated by the first degree escape statute. The State argued

that Bradley should be sentenced to the low end of the standard range.

       The trial court made the following findings of fact:

       (3) The defendant’s ability to conform his conduct to the requirements of the law,
       [sic] was significantly impaired due to uncontrollable circumstances that he was
       presented with upon his initial release into the ATC program.
       (4) The defendant’s offending conduct falls at the low end of the range of
       offending behavior contemplated by the escape first degree statute.
       (5) The standard range for Defendant’s conviction would result in a sentence
       much too long for his actual conduct, would not be a just but overly harsh result,
       would not make wise use of the State’s resources[,] and would not promote
       respect for Pierce County’s system of justice.



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No. 46421-7-II


Clerk’s Papers (CP) at 49. The trial court entered the following conclusions of law:

       (1) The court concludes that the foregoing mitigating factors constitute substantial
       and compelling reasons to justify an exceptional sentence BELOW the standard
       range in this case.
       (2) The underlying purposes of the SRA would be furthered by the imposition of a
       downward departure in this case, ie [sic] punishment proportionate to the
       seriousness of the crime.
       (3) The defendant RODREA BRADLEY shall be sentenced to an exceptional
       sentence – downward departure of 14 months in the Department of Corrections
       with [credit for time served of] 43 days. All other conditions of the sentence are
       outlined in the Judgment and Sentence issued under this cause.
       (4) A 63 month sentence is too excessive for the offending conduct committed.
       The public would still be protected by an exceptional sentence, downward
       departure.

CP at 49-50.

       The trial court sentenced Bradley to 14 months in confinement, which was well below the

standard sentence range. The State appeals Bradley’s sentence.

                                            ANALYSIS

A.     LEGAL PRINCIPLES

       Under RCW 9.94A.535, a trial court “may impose a sentence outside the standard

sentence range for an offense if it finds, considering the purpose of [the SRA], that there are

substantial and compelling reasons justifying an exceptional sentence.” The legislature enacted

the exceptional sentence provision of the SRA to authorize courts to tailor the sentence to the

facts of the case, recognizing that not all individual cases fit the predetermined sentencing grid.

State v. Davis, 146 Wn. App. 714, 719-20, 192 P.3d 29 (2008).

       RCW 9.94A.535(1) provides a list of mitigating factors that can support a trial court’s

imposition of an exceptional sentence below the standard range if established by a

preponderance of the evidence. The statute states that the factors are “illustrative only and are

not intended to be exclusive reasons for exceptional sentences.” RCW 9.94A.535(1). However,



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No. 46421-7-II


nonstatutory factors supporting an exceptional below-range sentence must “relate to the crime,

the defendant’s culpability for the crime, or the past criminal record of the defendant.” State v.

Law, 154 Wn.2d 85, 89, 110 P.3d 717 (2005).

        Under RCW 9.94A.585(4), to reverse an exceptional sentence a reviewing court must

find:

        (a) Either that the reasons supplied by the sentencing court are not supported by
        the record which was before the judge or that those reasons do not justify a
        sentence outside the standard sentence range for that offense; or (b) that the
        sentence imposed was clearly excessive or clearly too lenient.

The standard of review is different for each of these three reasons. A reviewing court applies

(1) a clearly erroneous standard for whether there is insufficient evidence in the record to support

the reasons for imposing an exceptional sentence, (2) a de novo standard for whether the reasons

supplied by the sentencing court do not justify a departure from the standard range, and (3) an

abuse of discretion standard for whether the sentence is clearly excessive or clearly too lenient.

State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013).

B.      WAIVER OF CHALLENGE TO FINDINGS OF FACT

        The trial court stated its reasons for imposing an exceptional sentence in findings of fact

3, 4, and 5. The State assigns error to these findings of fact, and apparently claims that there is

insufficient evidence in the record to support these reasons. We hold that the State waived its

assignments of error to the trial court’s findings of fact because the State failed to present any

argument regarding these assignments and therefore we treat the trial court’s findings of fact as

verities on appeal.

        A party that offers no argument in its opening brief on an assignment of error to a finding

of fact waives the assignment of error. State v. Radcliffe, 139 Wn. App. 214, 220, 159 P.3d 486

(2007). And we treat waived findings of fact as verities on appeal. See State v. Alexander, 125


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No. 46421-7-II


Wn.2d 717, 723, 888 P.2d 1169 (1995) (because State failed to properly contest findings of fact,

they were treated as verities on appeal).

        As stated above, one basis for reversing an exceptional sentence is that the record does

not support the reasons supplied by the sentencing court. RCW 9.94A.585(4). We apply a

clearly erroneous standard of review for this basis. France, 176 Wn. App. at 469. The State’s

assignment of error to findings of fact 3, 4, and 5 – the trial court’s reasons for imposing the

exceptional sentence – apparently relates to this basis.

        However, the State fails to provide any argument that the record does not support

findings of fact 3, 4, and 5. The State’s only reference to the evidentiary support for any of these

findings comes in the last paragraph of the argument section of its brief. In discussing finding of

fact 3, the State asserts that “a review of the record shows there is no support for such a finding.”

Br. of Appellant at 15. But the State fails to actually argue why the record does not support

finding of fact 3. In fact, the State never refers to the record or to the clearly erroneous standard

of review. Further, the State never even mentions findings of fact 4 and 5 in the argument

section of its brief.

        The State does provide some argument regarding finding of fact 3. The State argues that

the trial court did not actually rely on finding of fact 3 in imposing the exceptional sentence, but

instead relied on other improper factors. However, this argument (discussed below) does not

address whether the record supports finding of fact 3. Instead, the argument seems to relate to

the second basis for reversing an exceptional sentence: whether the trial court’s reasons justify a

sentence outside the standard sentence range.




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No. 46421-7-II


       Because the States provides no meaningful argument that the record does not support

findings of fact 3, 4, and 5, we hold that the State waived its challenge to these findings of fact.

Therefore, we treat findings of fact 3, 4, and 5 as verities on appeal.1

C.     REASONS JUSTIFYING AN EXCEPTIONAL SENTENCE

       The State argues that the trial court’s reasons for Bradley’s exceptional sentence do not

justify a sentence outside the standard range for first degree escape. We disagree.

       1.    Legal Analysis

       A second basis for reversing an exceptional sentence is that the trial court’s reasons for

imposing an exceptional sentence do not support that sentence. RCW 9.94A.585(4). We apply a

de novo standard of review for this basis. France, 176 Wn. App. at 469.

       As stated above, RCW 9.94A.535(1) provides a non-exclusive, “illustrative” list of

mitigating factors that can support a trial court’s imposition of an exceptional sentence below the

standard range if established by a preponderance of the evidence. Reliance on one of the

statutory factors supports an exceptional sentence as a matter of law.

       Because RCW 9.94A.535(1) expressly states that the list of mitigating factors is not

intended to be exclusive, trial courts also can rely on nonstatutory mitigating factors. See Law,

154 Wn.2d at 94. To determine whether a factor legally supports departure from the standard

sentencing range, we apply a two-part test. State v. O’Dell, 183 Wn.2d 680, 690, 358 P.3d 359




1
  In addition, the State failed to provide an adequate record on review. The record suggests that
the trial court relied on the trial evidence to make its findings. However, on appeal the State did
not designate for the record a transcript of Bradley’s trial. Without that record, we cannot
determine whether or not the evidence supported the trial court’s findings of fact. If an appellant
fails to provide an adequate record to review findings of fact, those findings are treated as
verities and are binding on the appellate court. Morris v. Woodside, 101 Wn.2d 812, 815, 682
P.2d 905 (1984).


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No. 46421-7-II


(2015). First, the legislature must not have necessarily considered the factor when it established

the standard sentencing range. Id. Second, the factor must be sufficiently substantial and

compelling to distinguish the defendant’s crime from others in the same category. Id.

         The purposes of the SRA are factors necessarily considered by the legislature in

establishing the standard sentencing range.2 Law, 154 Wn.2d at 95. Therefore, the SRA’s stated

purposes, standing alone, cannot justify a downward exceptional sentence. Id. at 96. Further,

the trial court’s subjective determination that the standard sentencing range is unwise or does not

advance the SRA’s purposes is not a substantial and compelling reason to depart from the

standard range. Id.

         2.   Capacity to Conform Conduct to the Law

         One of the statutory mitigating factors that supports a downward exceptional sentence is

that “[t]he defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to

conform his or her conduct to the requirements of the law, was significantly impaired.” RCW

9.94A.535(1)(e). The trial court relied on this factor for imposing Bradley’s exceptional

sentence as stated in finding of fact 3: “The defendant’s ability to conform his conduct to the




2
    The SRA identifies seven purposes for determining standard range sentences:

         (1) Ensure that the punishment for a criminal offense is proportionate to the
         seriousness of the offense and the offender’s criminal history;
         (2) Promote respect for the law by providing punishment which is just;
         (3) Be commensurate with the punishment imposed on others committing similar
         offenses;
         (4) Protect the public;
         (5) Offer the offender an opportunity to improve himself or herself;
         (6) Make frugal use of the state’s and local governments’ resources; and
         (7) Reduce the risk of reoffending by offenders in the community.

RCW 9.94A.010.


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No. 46421-7-II


requirements of the law, [sic] was significantly impaired due to uncontrollable circumstances

that he was presented with upon his initial release into the ATC program.” CP at 49. The trial

court’s reliance on the factor stated in RCW 9.94A.535(1)(e) supports an exceptional sentence as

a matter of law.

        However, the State argues that finding of fact 3 does not support the exceptional sentence

because the trial court did not actually rely on this factor. Based on the trial court’s comments at

the sentencing hearing,3 the State argues that “the trial court viewed [the] defendant’s inability to

comply with the ATC rules as excuses, not circumstances beyond his control as the findings of

fact would like to make it appear.” Br. of Appellant at 14. The State argues that the trial court’s

real reason for imposing the exceptional sentence was its disagreement with the presumptive

sentencing range. The State points to the trial court’s statement that “63 months in prison, I

think, for what he did is way out of line. It isn’t a just punishment. It’s very harsh.” Report of

Proceedings (RP) at 16.

        The State’s argument seems to assume that the trial court’s oral statements should prevail

over its written findings of fact and conclusions of law. The law is the opposite. A trial court’s

oral opinion has no final or binding effect unless formally incorporated into written findings,

conclusions, and judgment. State v. Friedlund, 182 Wn.2d 388, 394-95, 341 P.3d 280 (2015).

To the extent that the trial court’s oral ruling conflicts with its written order, the written order




3
  At the sentencing hearing, the trial court questioned Bradley’s asserted reasons for his inability
to comply with the law and concluded, “[I]t makes it a little hard to warm up to his excuses,
frankly.” RP at 9.



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No. 46421-7-II


controls. 4 State v. Skuza, 156 Wn. App. 886, 898, 235 P.3d 842 (2010). Similarly, where

written findings are unambiguous, they are not susceptible to being given a different meaning on

appeal through resort to an examination of the lower court’s oral ruling. State v. A.M., 163 Wn.

App. 414, 424, 260 P.3d 229 (2011).

       Here, the trial court’s finding of fact 3 clearly and unambiguously states that one reason

for the trial court’s exceptional sentence was that Bradley’s ability to conform his conduct to the

requirements of the law was significantly impaired due to uncontrollable circumstances.

Therefore, whether the trial court’s oral ruling was inconsistent with finding of fact 3 is

immaterial.5

       We hold that because finding of fact 3 is based on the statutory factor stated in RCW

9.94A.535(1)(e) that finding supports an exceptional sentence as a matter of law.

       3.      Conduct at Low End of Range of Offending Behavior

       In finding of fact 4, the trial court stated a nonstatutory reason for imposing the

exceptional sentence: “The defendant’s offending conduct falls at the low end of the range of

offending behavior contemplated by the escape first degree statute.” CP at 49. In the trial court,

Bradley argued that this factor was supported by Alexander, 125 Wn.2d 717. In Alexander, the

Supreme Court held that the small amount of the controlled substance possessed and the

defendant’s low level of involvement in the crime were valid nonstatutory factors. Id. at 726-29;

see also State v. Hodges, 70 Wn. App. 621, 625-26, 855 P.2d 291 (1993) (a below range



4
  This is particularly true in the context of an exceptional sentence, because RCW 9.94A.535
requires a trial court to set forth the reasons for an exceptional sentence in written findings of
fact and conclusions of law. See Friedlund, 182 Wn.2d at 394.
5
 In addition, there is a portion of the trial court’s oral ruling that appears consistent with finding
of fact 3.


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No. 46421-7-II


sentence should be justified by “factors or circumstances related to the defendant’s commission

of a crime that make the commission of the crime less egregious”).

       We need not address whether finding of fact 4 states a valid reason for imposing an

exceptional sentence because the State never argues that this reason is invalid. In fact, the State

never mentions finding of fact 4 in the argument section of its brief. Therefore, the State has

waived any argument that finding of fact 4 does not state a valid reason for imposing an

exceptional sentence. State v. Miller, 181 Wn. App. 201, 219, 324 P.3d 791, review granted,

182 Wn.2d 1028 (2015). Accordingly, we hold that finding of fact 4 supports the trial court’s

imposition of an exceptional sentence.

       4.   SRA Purposes

       In finding of fact 5, the trial court stated a number of the SRA’s purposes for imposing

the exceptional sentence: “The standard range for Defendant’s conviction would result in a

sentence much too long for his actual conduct, would not be a just but overly harsh result, would

not make wise use of the State’s resources[,] and would not promote respect for Pierce County’s

system of justice.” CP at 49. The trial court’s first stated reason – that Bradley’s sentence would

be too long for his conduct – seems to echo the first stated purposes of the SRA: that “the

punishment for a criminal offense is proportionate to the seriousness of the offense.” RCW

9.94A.010(1). Similarly, providing a just punishment, making frugal use of government

resources, and promoting respect for the law are all purposes identified by the SRA for

determining standard range sentences. RCW 9.94A.010(2), (6).

       The trial court’s conclusions of law also expressly reference the SRA’s purposes.

       (2) The underlying purposes of the SRA would be furthered by the imposition of a
       downward departure in this case, ie [sic] punishment proportionate to the
       seriousness of the crime.



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No. 46421-7-II


       ....

       (4) A 63 month sentence is too excessive for the offending conduct committed.
       The public would still be protected by an exceptional sentence, downward
       departure.

CP at 49-50. Protection of the public is one of the SRA’s stated purposes. RCW 9.94A.010(4).

       As noted above, the SRA’s stated purposes, standing alone, cannot justify a downward

exceptional sentence. Law, 154 Wn.2d at 96. However, once a trial court identifies a valid

mitigating factor justifying the imposition of an exceptional sentence, the trial court may

consider the SRA’s enumerated purposes in fashioning an appropriate exceptional sentence.

Alexander, 125 Wn.2d at 730. In other words, the SRA’s purposes “may provide support for the

imposition of an exceptional sentence once a mitigating circumstance has been identified by the

trial court.” Id. at 730 n.22. This approach is consistent with RCW 9.94A.535, which states that

a trial court “may impose a sentence outside the standard sentence range for an offense if it finds,

considering the purposes of [the SRA], that there are substantial and compelling reasons

justifying an exceptional sentence.” (Emphasis added.)

       We interpret finding of fact 5 and the related conclusions of law as providing support for

the exceptional sentence rather than providing a stand-alone reason for imposing an exceptional

sentence. Under this interpretation, the trial court’s consideration of the SRA’s purposes in

conjunction with its valid reasons for imposing the exceptional sentence was appropriate.

Therefore, we hold that finding of fact 5 does not represent an invalid basis for imposing an

exceptional sentence.

       Findings of fact 3 and 4 support the trial court’s imposition of an exceptional sentence,

and finding of fact 5 provides additional support for the exceptional sentence. Accordingly, we

affirm Bradley’s exceptional sentence.



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No. 46421-7-II


        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.



                                                      MAXA, J.



 We concur:




 WORSWICK, J.




 JOHANSON, C.J.




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