### FILED JUNE 29, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 34108-9-111 Respondent, ) ) v. ) 

### ) DEMETRIO PAZ, 

### ) UNPUBLISHED OPINION 

### ) Appellant. ) FEARING, C.J. -DemetrioPaz asks this courtto remandhis prosecutionto the trial courtto enterwritten findings offact addressing a CrR3.5 confessionhearing and to decrease his sentence for community custody from eighteen months totwelve months. We deny bothrequests. FACTS OnJanuary 14, 2015, DemetrioPaz severely beat Tyson Heath, a fellow inmate at the Okanogan County Jail. Thebeating resulted in blood drippings onthejail floor. PROCEDURE The State ofWashington chargedDemetrio Pazwith assault in the second degree. Onthe morning oftrial, the trial courtheld a CrR 3.5 hearing to determine the admissibility ofstatements Paz made to Okanogan County Sherriffs DeputyJoshuaNo. 34108-9-III State v. Paz

Brown. Deputy Brown was the onlywitness to testify at the hearing. The Stateprovided scant argument, and Pazprovided no responsive argument. Thetrial court orally ruled: Court is finding that the inquiry was custodial in nature. Court's further finding thatthere's an undisputed fact thatthe defendant was advised ofhis Mirandawarnings. He was also advised ofthe waiver. He waived his right freely and voluntarily, he spoke with the officer. There was [sic] no threats orpromises made ofany kind or nature bythe officer. The statement as indicated, he had no knowledge ofthe assault. He did give a statement with respect to being confronted by Mr. Heath as to issues ofstolen commissary products. Therefore the court will allow the statement,-finds it was freely and voluntarily given, without any duress, and no requestto berepresented by counsel during any inquiry. Therefore he voluntarily waived his rights. Any question? Report ofProceedings (RP) at 32-33. The trial court did not enterwritten findings offact and conclusions oflaw for the CrR 3.5 hearing until January 13, 2017. Ajury convicted Demetrio Paz ofassault in the second degree. The trial court sentencedPazto seventy months ofincarceration and eighteen months ofcommunity custody. Paz did not objectto the sentence. LAWAND ANALYSIS Written CrR 3.5 Findings ofFact Demetrio Paz contends the trial court erred in failing to enter findings offact and conclusions oflaw following the CrR 3.5 confession hearing. Paz argues the late submission offindings does not comport with RAP 7.2(e) and requests remand for entry

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### State v. Paz

offindings and conclusions. The State responds that the issue is mootbecause the trial court entered written findings on January 13, 2017. CrR 3.5 controls the procedures for determining admissibility ofstatements by criminal defendants. CrR 3.5(c) provides: Duty ofCourt to Make a Record. Afterthe hearing, the court shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whetherthe statement is admissible and the reasons therefor. Despite the mandatory language ofCrR 3.5, a trial court's failure to enterwritten findings required by CrR 3.5 is harmless error ifthe court's oral findings are sufficientto permit appellate review. 

### State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 (2008), 

### adheredto on remand, 158 Wn. App. 272, 246 P.3d 196 (2010). This court does not need to address whetherthe late submission ofwritten findings suffices because the trial court's oral ruling rendered harmless any absence ofwritten findings. Atthe conclusion ofthe CrR 3.5 hearing, the trial court entered its findings and rulings on the record. The court found Demetrio Paz received his 

### Miranda warnings, understood his rights, waived his right to remain silent, and voluntarily spoke with Deputy Brown. This on-the-record ruling addressed any concern regarding the admissibility ofPaz's statement to Deputy Brown. Since Demetrio Paz did not testify, the hearing did not pose any dispute offacts for resolution by the court.

3No. 34108-9-111 State v. Paz Sentencing Demetria Paz argues the trial court erred in imposing eighteen months of community custody because RCW 9.94A.701(2) and (3) conflict. In tum, according to Paz, this court must resolve this ambiguity in his favor. RCW 9.94A.701 reads, in relevant part: (1) Ifan offender is sentenced to the custody ofthe department for one ofthe following crimes, the court shall, in addition to the-other terms of the sentence, sentence the offenderto community custody for three years: (a) A sex offense not sentenced under RCW 9.94A.507; or (b) A serious violent offense. (2) A court shall, in addition to the other terms ofthe sentence, sentence an offenderto community custody for eighteen months when the court sentences the person to the custody ofthe department for a violent offense that is not considered a serious violent offense. (3) A court shall, in addition to the otherterms ofthe sentence, sentence an off enderto community custody for one yearwhen the court sentences the person to the custody ofthe department for: (a) Any crime against persons underRCW 9.94A.411(2) RCW 9.94A.701(2) mandates an eighteen-month term ofcommunity custody for a violent offense, not considered a serious violent offense. The law does not consider Demetria Paz's assault on Tyson Heath a serious violent offense. RCW 9.94A.701(3) requires a twelve monthterm ofcommunity custody for a crime against a person. Paz contends that, because second degree assault is both a violent offense and crime against a person, the statute presents conflicting community custody sentences for his crime. We agree. Assault in the second degree is both a violent offense and a crime against a person. RCW 9.94A.030(55)(a)(viii); RCW 9.94A.411(2). Paz asks us to employ the 4

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rule oflenity and require the trial courtto impose the more lenient twelve-month term. The State responds that RCW 9.94A.701(2) and (3) do not create any ambiguity because the two community custody time periods comprise a part ofa tiered sentencing scheme that increases community custody terms as culpability increases. The State asserts that the higher tiers ofculpability, such as violent offenses, may also fit on a lower tier, but the accused remains subject to the lengthier custody term. We agree with the State. A trial court may only impose sentences that statutes authorize. 

### State v. Albright, 144 Wn. App. 566, 568, 183 P.3d 1094 (2008). A defendant may challenge a sentence that is contrary to law for the first time on appeal. 

### State v. Hood, 196 Wn. App. 127, 138, 382 P.3d 710 (2016), 

### review denied, 187 Wn.2d 1023, 390 P.3d 331 (2017). 

### State v. Hood, 196 Wn. App. 127 controls our decision. Christopher Hoodraised the same argument when convicted ofburglary. Like second degree assault, first degree burglary qualifies as both a violent crime and a crime against aperson. Hood contended that the legislature created an ambiguity by placing the crime offirst degree burglary in two different categories and that the court must resolve the ambiguity, under the rule of lenity, by shortening his term ofcommunity custody to twelve months. This court disagreed. The 

### Hoodcourtreasoned that the statute establishes a tiered step-down sentencing structure depending on the seriousness ofthe crime: three years ofcommunity custody is imposed for serious violent offenses; eighteen months for a violent offense not 

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considered a serious violent offense; and twelve months for crimes againstpersons. The court held the defendant may be sentenced to the lengthiertime period. CONCLUSION We decline Demetria Paz's request to remand for the trial courtto enter findings offact in response to the CrR 3.5 hearing. We affirm Paz's sentence. We deny the State costs on appeal because ofthe indigency ofDemetria Paz. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Pennell, J.

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