c '•: I i IAle Or vV: 7f!ic oro 9 i ;•: •:•• j.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. MANUEL R. RAMIREZ, Appellant. No. 72246-8-1 DIVISION ONE

UNPUBLISHED OPINION FILED: September21, 2015 Becker, J. — Manuel Ramirez appeals hisjudgment and sentence, challenging the calculation of his offender score and the imposition of a 12-month term ofcommunity custody. Because the findings offact on criminal history do not support Ramirez's offender score, we reverse and remand for resentencing. On December 7, 2012, the King County Superior Court entered an order 

### prohibiting Ramirez from coming within 1,000 feet of his mother or her residence. Two months later, on February 13, 2014, two King County Sheriff's deputies saw Ramirez standing inthe road at the end of his mother's driveway, which was "well within" 1,000 feet of her house. 

### Following this incident, the State charged Ramirez with domestic violence 

### felony violation of a court order. Ramirez waived his right to counsel and his right to a jury trial. After a bench trial,the court found Ramirez guiltyas charged.No. 72246-8-1/2 The case proceeded to sentencing. The courtfound that Ramirez's criminal history included four prior convictions. Itdetermined that his offender score was 7, with a total standard range of51-60 months. The State recommended an exceptional sentence below the standard 

### range. The court agreed withthe recommendation and imposed an exceptional sentence of 36 months incustody and 12 months ofcommunity custody. It 

### entered findings of fact and conclusions of law with respect to the exceptional sentence. Ramirez appeals. 

### Ramirez first argues thatthe trial court's findings offact do not support his offender score. We agree. 

### Adefendant may challenge his offender score forthe first time on appeal. State v. Mendoza, 165 Wn.2d 913, 919-20, 205 P.3d 113 (2009). 

### The State has the burden of proving a defendant's criminal history by a 

### preponderance of the evidence. RCW 9.94A.500(1); Mendoza, 165 Wn.2d at 920. "The State does not meet its burden through bare assertions, unsupported 

### by evidence." State v. Ford, 137 Wn.2d 472, 482, 973 P.2d 452 (1999). Here, the trial court determined that Ramirez's offender score was 7. This score was based on four prior convictions. These convictions were itemized in 

### appendix B ofthe judgment and sentence. The earliestconvictionwas ajuvenile felony conviction with a 1996 sentencing date. The next two convictions were adultfelony convictionswith 2007 sentencing dates. The fourth conviction was an adult felony conviction with a 2012 sentencing date.No. 72246-8-1/3 

### Significantly, the State agrees thatthe criminal history as listed in appendix B does not support the offender score. The State points to three additional misdemeanor convictions to explain how itcalculated the offender 

### score of 7. Nonetheless, the State argues that itmet its burden to prove criminal 

### history because Ramirez "affirmatively agreed inwriting that his offender score

was 7.'" 

### We reject this argument. The Supreme Court has emphasized "the need for an affirmative acknowledgement bythe defendant offacts andinformation 

### introduced for the purposes ofsentencing" before the State will be excused from its burden of providing criminal history. Mendoza, 165 Wn.2d at 928. There was no such affirmative acknowledgement inthis case. The State cites a document inthe record titled "Findings of Fact and 

### Conclusions of Law for Exceptional Sentence" to supportthis claim. One of the 

### findings of factstates that Ramirez's offender score is 7. Contraryto the State's representation, thisfinding is not a "stipulation" between the parties as to Ramirez's offender score. Rather, it is a finding of fact made bythe trial court. 

### Further, the fact that Ramirez signed this documentdoes notestablish that he 

### affirmatively acknowledged hiscriminal history. In short, the State's reliance on this document is unpersuasive. 

### The remaining question is the appropriateremedy. The State argues that 

### the proper remedy is to remand"forthe sole purpose ofcorrecting Appendix Bto reflect the correctcriminal historyused to calculate Ramirez's offender score as 

### 7.'" Itpoints to the Presentence Statement ofKing County Prosecuting AttorneyNo. 72246-8-1/4


### to explain that Ramirez's offender score was calculated by also including three misdemeanorconvictions. Incontrast, Ramirez asserts thatthe proper remedy is to reverse the sentence. We agree with Ramirez. The State seeks to limitwhat can happen on remand, but itprovides no authority to support its position. Because Ramirez did not affirmatively agree to the criminal history as represented inthe Presentence Statement of King County Prosecuting Attorney, we decline to impose the limitation suggested by the State. The proper remedy is to reverse and remand for resentencing. Ramirez next argues that the trial court erred in imposing a 12-month term ofcommunity custody. He relies on RCW 9.94A.701 (9). Underthat statute, the term ofcommunity custody "shall be reduced by the court whenever an 

### offender's standard range term ofconfinement incombination withthe term of community custody exceeds the statutory maximum for the crime as provided in RCW9A.20.021." In re Pers. Restraint of McWilliams, 182 Wn.2d 213, 340 P.3d 223 (2014), 

### forecloses Ramirez's argument. Inthat case, the Supreme Court expressly held that RCW9.94A.701(9) applies only to terms ofconfinement imposed within the standard range. Ramirez received a term ofconfinement below the standard range, and thus, the statute is inapplicable in this case.No. 72246-8-1/5 

### We reverse and remand for resentencing.

WE CONCUR: 

# a fctoL&n, 

# t