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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Appellant,

v.

ABEBE RICHARD HEHN,

Respondent.

No. 80864-8-I 

DIVISION ONE

UNPUBLISHED OPINION

CHUN, J. — The trial court found Abebe Hehn guilty of bail jumping and 

failure to register as a sex offender. Because of a purported multiplier effect from 

Hehn’s prior convictions and the effect of the bail jumping charge on his

presumptive sentence, the trial court imposed an exceptional downward 

sentence. It also reduced his term of community custody. The State appeals, 

saying the trial court erred in imposing an exceptional downward sentence. For 

the reasons discussed below, we remand for resentencing and to impose the full 

term of community custody, though the trial court may again impose an 

exceptional downward sentence.

I. BACKGROUND

In 2011, while 17 or 18 years old, Hehn pleaded guilty to third degree rape 

of a child, requiring him to register as a sex offender for 10 years. In 2015, Hehn 

pleaded guilty to failure to register. In March 2017, Hehn again pleaded guilty to 

failure to register, requiring him to register as a sex offender for another 10 years 

and resulting in 36 months of community custody following his conviction.
No. 80864-8-I/2

2

In September 2017, apparently homeless, Hehn registered his address at 

the Everett Gospel Mission. If a person subject to sex offender registration 

requirements lives in “temporary homeless housing” or lives outdoors, they must 

check in weekly with the sheriff’s office. Hehn was in the Department of 

Corrections’ custody for three weeks following October 28, 2017 and again on 

January 7, 2018. But otherwise, between September 18, 2017, and January 9, 

2018, he did not check in with the Snohomish County Sheriff’s office or check in 

or register with any other jurisdiction.

On January 17, 2018, in this case, the State charged Hehn with failure to 

register. In March 2018, Hehn failed to appear for an omnibus hearing and the

court issued a bench warrant.

The State amended the information to charge Hehn with an additional 

failure to register charge and four counts of bail jumping. It later filed a second 

amended information that charged Hehn with only one count of failure to register

and one count of bail jumping.

After a bench trial, the trial court found Hehn guilty of bail jumping and 

failure to register.

Because of Hehn’s prior convictions for third degree rape of a child, two 

counts of failure to register, possession of a controlled substance,1 and third 

degree assault, Hehn’s offender score for failure to register was nine. Hehn 

received three points for his rape of a child charge because of a multiplier for sex 

 

1

In light of our Supreme Court’s decision in State v. Blake, 197 Wn.2d 170, 481 

P.3d 521 (2021), we expect that, on remand, the trial court will address the validity of 

this conviction.
No. 80864-8-I/3

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offenses, one point for each failure to register, one point for each other felony 

conviction, one point for the current offense of bail jumping, and another point 

because he failed to register while on community custody. Hehn’s offender score 

for bail jumping was seven; one point for each felony conviction, one point for the 

current offense of failure to register, and another point because he bail jumped 

while on community custody. As a result, the standard range for failure to 

register was 43 to 57 months and the standard range for bail jumping was 33 to 

43 months. The State requested 50 months’ confinement for the failure to 

register charge, running concurrently with 38 months for the bail jumping charge. 

Hehn requested an exceptional downward sentence of 18 months with no 

community custody.

Before sentencing, the trial court considered a portion of a documentary 

by journalist Dan Rather titled “Unwanted in America” that, in part, tracked 

Hehn’s life story. Hehn was adopted from Ethiopia into a family of about 30 other 

adopted children and after an allegation that he sexually contacted one of his 

adopted siblings, pleaded guilty to rape of a child in the third degree. After his 

release from prison, Hehn became homeless. At the sentencing hearing, the trial 

court stated that it appreciated the opportunity to view the video and for the 

parties’ attention to it in their sentencing memoranda.

The trial court imposed an exceptional downward sentence for the 

charges, with 25 months’ confinement for failure to register running concurrently 

with 25 months’ confinement for bail jumping. The trial court reasoned that if it 
No. 80864-8-I/4

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ignored the multiplier effect for the third degree rape of a child charge, Hehn’s 

offender score for failure to register would be 7, and the new standard range

would be 22 to 29 months. As a part of its exceptional downward sentence, it 

imposed 12 months of community custody for failure to register. The court wrote 

in its findings of fact and conclusions of law about its departure from standard 

sentencing guidelines that Hehn’s 

duty to register stems from a conviction as an adult for criminal 

conduct which occurred when he was youthful (either [17] or [18] 

years of age). Mr. Hehn has subsequently been affected by poverty, 

homelessness, and other collateral consequences which may be 

traced, at least in part, to his status as a registered sex offender and 

the unique circumstances of his life history.

The court has considered the purpose of the Sentencing 

Reform Act, which sets forth seven factors for courts to consider in 

imposing a sentence. On the facts and issues presented in this case, 

the court struggles to reconcile the following factors: to ensure that 

the punishment for a criminal offense is proportionate to the 

seriousness of the offense and the offender’s criminal history; to 

promote respect for the law by providing punishment which is just; to 

be commensurate with the punishment imposed on others 

committing similar offenses; to offer the offender an opportunity to 

improve himself; and to make frugal use of the governments’ 

resources.

This case involves a massive jump in terms of potential 

incarceration from his prior offenses to the current standard range. 

After his initial prison sentence for the underlying initial offense (an 

adult conviction for youthful conduct), on his first offense for Failure 

to Register the defendant served 30 days in jail. He subsequently 

served a sentence of 12-months-and-one-day for a subsequent 

conviction for another combination of offenses which were imposed 

concurrently, including another conviction for Failing to Register.

For his third Failure to Register conviction, under the standard 

range, he now faces a sentence that is roughly three times greater 

than his most recent previous sentence due largely to the multiplier 

effects of his prior convictions.

The sentence in this matter also involves a conviction for the 

crime of bail jumping, which adds to the defendant’s offender score 
No. 80864-8-I/5

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and increases his standard range. The court struggles to reconcile 

the underlying purpose of the crime of bail jumping. Arising from the 

problem of cases where the state can no longer prove an underlying 

case due to a defendant’s absence from proceedings, the law 

addressing Bail Jumping is meant to provide a way to hold the 

defendant accountable. Yet in this case Bail Jumping, although 

proven, did not impact the state’s case or [its] ability to prove the 

underlying charge.

. . . 

However, the court finds that the standard range for 

Mr. Hehn’s current offense, resulting from the multiplier effects of his 

prior convictions, including convictions unrelated either to his sex 

offense or his registration requirements, and also including a Bail 

Jumping conviction for conduct that did not affect the state’s ability 

to prove its case, results in a sentence which is clearly excessive, 

and does not result in a sentence which promotes respect for the law 

by providing a sentence which is just.

If not for these multiplier effects he would have an offender 

score of 7 or lower; at an offender score of 7 his sentence range 

would be 22-29 months. A midrange of 25 months would be double 

his prior sentence for Failure to Register, which is an appropriate 

sentence for these facts and circumstances.

The court further finds that 36 months of community custody 

is not necessary to protect the public and does not make frugal use 

of government resources, given the defendant’s DOC supervision for 

his prior convictions. However some further DOC supervision in the 

community is appropriate upon his release. The court imposes 12 

months of Community Custody in this matter.

2

(Emphasis added.)

The State appeals the exceptional downward sentence and the trial court’s 

reduction of Hehn’s community custody term.

II. ANALYSIS

The State says that substantial evidence does not support the trial court’s 

findings of facts about the multiplier effect of prior convictions and the effect of 

 

2 The State assigns error to the underlined portions of these findings of fact and 

conclusions of law.
No. 80864-8-I/6

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Hehn’s bail jumping. It also says the trial court’s rationale for the exceptional 

downward sentence does not justify a departure from the standard range, and 

that the trial court erred in reducing Hehn’s community custody term. Hehn 

disagrees and says the State waived its claims.

We conclude the State did not waive its claims. And we conclude 

substantial evidence supports the trial court’s finding about the effect of bail 

jumping. We also conclude that even if substantial evidence supported the trial 

court’s multiplier effect finding, this effect does not constitute a mitigating factor 

justifying an exceptional downward sentence, but the effect of bail jumping does. 

Last, we conclude the court erred in reducing the community custody term.

A court may impose a sentence outside the standard range if it finds, 

considering the purpose of chapter 9.94A RCW, that there are substantial and 

compelling reasons justifying an exceptional sentence. RCW 9.94A.535. 

RCW 9.94A.535(1) allows a court to impose an exceptional downward sentence 

if it finds that mitigating circumstances are established by a preponderance of the 

evidence. The statute provides an illustrative and nonexclusive list of mitigating 

factors. RCW 9.94A.535(1). To reverse an exceptional sentence, we must 

conclude that:

(1) under a clearly erroneous standard, there is insufficient evidence 

in the record to support the reasons for imposing an exceptional 

sentence; (2) under a de novo standard, the reasons supplied by the 

sentencing court do not justify a departure from the standard range; 

or (3) under an abuse of discretion standard, the sentence is clearly 

excessive or clearly too lenient.
No. 80864-8-I/7

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

RCW 9.94A.585(4). A finding is clearly erroneous “‘only if no substantial 

evidence supports its conclusion. Substantial evidence has been defined as 

evidence in sufficient quantum to persuade a fair-minded person of the truth of 

the declared premises.’” State v. Ferguson, 142 Wn.2d 631, 647 n.76, 15 P.3d 

1271 (2001) (internal quotation marks omitted) (quoting State v. Jeannotte, 133 

Wn.2d 847, 856, 947 P.2d 1192 (1997)). 

A. Waiver

Hehn says the State waived its claim of error related to his sentence 

because it did not object below to any of the trial court’s factual or legal grounds 

for it. We disagree.

Before the trial court entered its sentence, the State recommended a 

standard range sentence, objected to the court considering Hehn’s unique history 

when imposing a sentence, contended that the court had no grounds for an 

exceptional downward sentence, and asserted that any justification for such a 

sentence must go beyond reciting the purposes of the Sentencing Reform Act

(SRA).

3

 After the court made its oral ruling, the State offered to assist the trial 

 

3 RCW 9.94A.010 lists the purposes of the SRA and provides:

The purpose of this chapter is to make the criminal justice system 

accountable to the public by developing a system for the sentencing of 

felony offenders which structures, but does not eliminate, discretionary 

decisions affecting sentences, and to:

(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;
No. 80864-8-I/8

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court in drafting its ultimate findings; but “[a] party who clearly presents its factual 

and legal position at trial, but loses, does not waive error by cooperating when a 

trial court asks that its lawyer provide draft findings and conclusions that reflect

the court’s announced decision.” Gamboa v. Clark, 180 Wn. App. 256, 266, 321 

P.3d 1236 (2014).

We thus consider the State’s claims of error.

B. Findings of Fact

The State says substantial evidence does not support the trial court’s 

finding that, “For his third Failure to Register conviction, under the standard 

range, he now faces a sentence that is roughly three times greater than his most 

recent previous sentence due largely to the multiplier effects of his prior 

convictions.” Because we conclude below that the multiplier effect cannot serve 

as a mitigating factor justifying an exceptional downward sentence, we do not 

address whether substantial evidence supports such a finding. 

The State also says substantial evidence does not support the trial court’s

finding that “in this case Bail Jumping, although proven, did not impact the state’s 

case or [its] ability to prove the underlying charge.” Hehn counters that his bail 

jumping did not prevent the State from obtaining a conviction on the failure to 

 

(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.
No. 80864-8-I/9

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register charge, so it is supported by substantial evidence. Because a fairminded person could conclude that this finding is supported by a preponderance 

of the evidence, we agree with Hehn.

Before Hehn failed to appear for the March 2018 omnibus hearing, the

court had set his trial date for the failure to register charge in May 2018. The 

court did not hold a trial on the failure to register charge until October 2019. At 

trial, certain witnesses were unable to recall details with varying relation to the 

allegations against Hehn, including whether they had checked if Hehn was in 

state custody during the time he allegedly failed to register.

But as the State acknowledges, even if Hehn had not failed to appear at 

the omnibus hearing, the trial could have been delayed for other reasons, and 

witnesses could have failed to recall details regardless of when the trial occurred. 

The State says that because Hehn bears the burden of proving mitigating 

circumstances, we must hold against him the lack of any evidence suggesting 

that the trial could have been delayed for other reasons or that witnesses might 

have failed to recall details for other reasons. But as Hehn notes, the State 

proved its failure to register charge, and the State cannot obtain more than a 

conviction. Given the conviction, a fair-minded person could conclude a 

preponderance of the evidence shows that Hehn’s bail jumping did not affect the 

State’s ability to prove his failure to register.
No. 80864-8-I/10

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B. Reasons Supplied for an Exceptional Sentence

The State says the reasons the trial court supplied for an exceptional 

sentence do not justify a departure from the standard range and characterizes 

the trial court’s reasoning as a disagreement with the legislature’s scoring rules. 

Hehn responds that the trial court’s recognition of his unique circumstances 

justified his exceptional downward sentence. The State replies that the 

recognition of Hehn’s circumstances did not constitute a part of the trial court’s 

rationale for imposing a lesser sentence. We conclude that the claimed multiplier 

effect cannot serve as a mitigating factor here, the impact of the bail jumping 

charge can, and the trial court did not articulate a connection between Hehn’s 

unique circumstances and the crime such that they constitute a mitigating factor.

Multiplier effect

The trial court concluded that, in part, Hehn’s presumptive sentence was 

clearly excessive because it resulted “from the multiplier effects of his prior 

convictions, including convictions unrelated either to his sex offense or his 

registration requirements.” The State says this cannot serve as a mitigating 

factor justifying an exceptional sentence. We agree.

When calculating an offender score for a failure to register conviction, a 

court must count a prior sex offense conviction as three points; except, a 

previous failure to register conviction counts as one point. RCW 9.94A.525(18).

In issuing an exceptional sentence, a court may not take into account 

factors already considered in computing the presumptive range for the offense, 
No. 80864-8-I/11

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such as an offender’s criminal history. State v. Pascal, 108 Wn.2d 125, 137–38, 

736 P.2d 1065 (1987) (“The presumptive sentence ranges established for each 

crime represent [how] the [purposes of the SRA] shall best be accommodated. 

The trial court’s subjective determination that these ranges are unwise, or that 

they do not adequately advance [those purposes], is not a substantial and 

compelling reason justifying a departure.” (internal citation omitted)); State v. 

Nordby, 106 Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986). It follows that the trial 

court should not have departed from the legislature’s determination that prior sex 

offenses count as three points or that most other felonies, including Hehn’s 

possession and assault convictions, count as one point in computing the offender 

scores for a failure to register conviction. RCW 9.94A.525(18). Even if we 

concluded that substantial evidence supported the trial court’s finding about 

multiplier effects, it cannot serve as a mitigating factor justifying an exceptional 

downward sentence.4

Bail jumping and multiple offense policy

The trial court also concluded in part that Hehn’s sentencing range was 

clearly excessive because it includes “a Bail Jumping conviction for conduct that 

did not affect the state’s ability to prove its case.” The State says that since the

court did not make a finding that the effect of bail jumping was not trivial or 

 

4 The trial court also concluded in part that Hehn’s sentencing range was clearly 

excessive because it “does not result in a sentence which promotes respect for the law 

by providing a sentence which is just.” In State v. Powers, this court held that the 

rationale of “[promoting] respect for the law by providing just punishment” did not 

constitute a mitigating circumstance justifying an exceptional downward sentence. 78 

Wn. App. 264, 270–71, 896 P.2d 754 (1995). We likewise conclude this cannot 

constitute a mitigating factor justifying an exceptional downward sentence.
No. 80864-8-I/12

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trifling, this cannot serve as a mitigating factor justifying an exceptional sentence. 

Hehn says that the trial court had no obligation to do so. We agree with Hehn.

The most applicable mitigating factor to the trial court’s finding is set forth 

in RCW 9.94A.535(1)(g): “The operation of the multiple offense policy of 

RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in 

light of the purpose of this chapter.” RCW 9.94A.589(1)(a) provides that 

“whenever a person is to be sentenced for two or more current offenses, the 

sentence range for each current offense shall be determined by using all other 

current and prior convictions as if they were prior convictions for the purpose of 

the offender score.” And here, the trial court sentenced Hehn for two offenses—

failure to register and bail jumping.

In State v. Hortman, this court held that, “Whether a given presumptive 

sentence is clearly excessive in light of the purposes of the SRA is not a 

subjective determination dependent upon the individual sentencing philosophy of 

a given judge. Rather, it is an objective inquiry based on the Legislature’s own

stated purposes for the act.” 76 Wn. App. 454, 463, 886 P.2d 234 (1994). It also 

held that “a presumptive sentence calculated in accord with the multiple offense 

policy is clearly excessive if the difference between the effects of the first criminal 

act and the cumulative effects of the subsequent criminal acts is nonexistent, 

trivial or trifling.” Id. at 463–64. It reasoned that the multiple offense policy does 

not serve the purposes of the SRA “when the difference between the effects of 

the first act and the cumulative effects of the subsequent acts is de minimis.” Id.
No. 80864-8-I/13

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at 464. The State says that because the trial court did not find the effect of the 

bail jumping charge was trivial or trifling, and because there was no basis for 

such a finding, RCW 9.94A.535(1)(g) cannot serve as a mitigating factor 

justifying an exceptional downward sentence.

But in State v. Graham, our Supreme Court, when asked to “clarify the 

factual finding a sentencing judge must make to invoke the multiple offense 

policy mitigating factor of .535(1)(g),” declined to do so on the ground that the 

statute is clear as to what it requires. 181 Wn.2d 878, 886–87, 337 P.3d 319 

(2014). It recited the statute’s directive to consider whether the presumptive 

sentence is “‘clearly excessive in light of the purpose of this chapter, as 

expressed in RCW 9.94A.010’” and stated that sentencing judges should 

examine each of the policies from subsection .010 when imposing an exceptional 

sentence under subsection .535(1)(g). Id. (quoting RCW 9.94A.535(1)(g)). 

Given Graham’s holding, it does not appear a trial court must conclude that the 

difference between the effects of the first criminal act and the cumulative effects 

of the subsequent criminal acts is nonexistent, trivial, or trifling.5 We also note 

that Hortman does not appear to require a court make a “trivial, trifling, or 

nonexistent” finding, and appears to rule only that such a finding is sufficient to 

 

5 See State v. Elliott, No. 52564-0-II, slip op. at 7-9 (Wash. Ct. App. Mar. 17, 

2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2052564-0-

II%20Unpublished%20Opinion. (noting that Graham refused to adopt the “nonexistent, 

trivial, or trifling” standard and holding that a court mitigating a sentence under 

RCW 9.94A.535(1)(g) must only consider the SRA policy goals expressed by 

RCW 9.94A.010); see GR 14.1(c) (“Washington appellate courts should not, unless 

necessary for a reasoned decision, cite or discuss unpublished opinions in their 

opinions.”). 
No. 80864-8-I/14

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conclude a mitigating factor under subsection (1)(g) exists. 76 Wn. App. at 463–

64.

The trial court’s findings of fact and conclusions of law weigh the statutory 

factors from RCW 9.94A.010.

6

 The court also noted that a purpose of the bail 

jumping statute is to hold a defendant accountable in instances where the state 

can no longer prove an underlying case because of the defendant’s absence 

from proceedings, and that Hehn’s bail jumping did not affect the State’s ability to 

prove its case. The trial court did not err in concluding that Hehn’s presumptive 

sentence was clearly excessive on the ground that the bail jumping charge

lengthened it.

But the State correctly notes that, if the application of the multiple offense 

policy serves as a mitigating circumstance, the trial court reduced Hehn’s 

sentence below what it should have if it merely disregarded the effect of the bail 

jumping conviction on Hehn’s offender score for the failure to register conviction. 

Without the bail jumping conviction, Hehn’s offender score for the failure to 

register charge would be eight, and the standard range 33 to 43 months; but the 

court imposed a 25-month sentence, which lies between the standard range of 

22 and 29 months for an offender score of seven. Hehn counters that the court

 

6 From the findings of fact and conclusions of law:

On the facts and issues presented in this case, the court struggles to 

reconcile the following factors: to ensure that the punishment for a criminal 

offense is proportionate to the seriousness of the offense and the offender’s 

criminal history; to promote respect for the law by providing punishment 

which is just; to be commensurate with the punishment imposed on others 

committing similar offenses; to offer the offender an opportunity to improve 

himself; and to make frugal use of the governments’ resources.
No. 80864-8-I/15

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imposed its exceptional downward sentence not just in consideration of the effect 

of bail jumping, but also in combination with his unique characteristics and 

upbringing. But as addressed below, the trial court did not articulate a 

connection between Hehn’s life circumstances and the crimes at issue here in a 

manner justifying an exceptional downward sentence. Thus, even though the 

trial court properly ruled that the application of the multiple offense policy serves 

as a mitigating circumstance, it improperly applied that mitigating circumstance.

Hehn’s unique circumstances

Hehn counters the State’s assertion that the trial court relied on improper 

considerations in justifying his exceptional downward sentence by saying that it 

considered his unique history as an adopted and abandoned child as a mitigating 

circumstance. The State replies that these considerations did not form a part of 

the trial court’s justification for its sentence. We conclude that because the trial 

court did not explain how Hehn’s unique characteristics related to the nature of 

his crime, its recognition of those circumstances did not constitute a mitigating 

factor.

At the outset of the trial court’s findings of fact and conclusions of law, it 

stated that 

Hehn’s duty to register stems from a conviction as an adult for 

criminal conduct which occurred when he was youthful (either [17] or 

[18] years of age). Mr. Hehn has subsequently been affected by 

poverty, homelessness, and other collateral consequences which 

may be traced, at least in part, to his status as a registered sex 

offender and the unique circumstances of his life history.
No. 80864-8-I/16

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In its oral ruling, it stated that it had viewed the Dan Rather report and that it 

appreciated the opportunity to do so. It also stated that its sentence was “based 

on the history, as well as the facts of these particular cases.”

A mitigating factor must relate to the crime and distinguish it from others in 

the same category. State v. Law, 154 Wn.2d 85, 97–98, 110 P.3d 717 (2005). 

The trial court recognized that Hehn’s circumstances were unique, but it did not 

explicitly connect his poverty, homelessness, status as a sex offender, and his 

life history to the failure to register and bail jumping convictions. In effect, this 

finding does not address “how the circumstances of [Hehn’s] crime distinguish it 

from crimes in the same category” as it must. State v. Murray, 128 Wn. App. 

718, 725, 116 P.3d 1072 (2005). Because the trial court did not explain how 

these unique characteristics related to the nature of Hehn’s crime, this portion of 

the trial court’s findings and conclusions do not justify its imposition of an 

exceptional downward sentence.7

C. Community Custody

The State says the trial court erred in reducing Hehn’s term of community 

custody from 36 months to 12 months. We agree.

Failure to register constitutes a “sex offense” on a defendant’s second or 

subsequent charge of failure to register. RCW 9.94A.030(47)(a)(v). For sex 

 

7 Hehn also says the trial court’s recognition of his youthfulness, on its own, can 

justify his exceptional downward sentence, citing State v. O’Dell, 183 Wn.2d 680, 358 

P.3d 359 (2015). But the trial court recognized that Hehn was youthful when he 

committed the underlying third degree rape charge, not when he committed the crimes 

at issue in this appeal. Hehn was 27 years old when he committed the crimes at issue 

here.
No. 80864-8-I/17

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offenses not sentenced under RCW 9.94A.507, such as failure to register, a 

court “shall, in addition to the other terms of the sentence, sentence the offender 

to community custody for three years.” RCW 9.94A.701(1). A sentencing court 

may reduce this 36-month period of community custody only if necessary, when 

combined with the defendant’s prison term, to avoid exceeding the statutory 

maximum for the charge. RCW 9.94A.701(1), (9); State v. Bruch, 182 Wn.2d 

854, 867, 346 P.3d 724 (2015). 

Hehn cites no law allowing a departure from the mandatory language 

provided by RCW 9.94A.701(1), and the trial court did not reduce his community 

custody term to avoid exceeding the statutory maximum. Hehn says the trial 

court properly relied on the same grounds for reducing his community custody 

term as it did his prison sentence, but RCW 9.94A.535 does not purport to allow 

a court to reduce a period of community custody. The trial court erred in 

reducing the term of community custody. 

D. Remedy

Hehn says that if we decide the trial court erred in sentencing him, we 

should remand with instructions that state the trial court may impose a mitigated 

sentence that is legally supportable. 

Our Supreme Court has held that if an appellate court determines 

that all of the factors relied upon by the trial court are insufficient to 

justify an exceptional sentence, the court will remand for 

resentencing within the standard range. However, where the 

appellate court determines that the trial court misconstrued and 

misapplied the law, aside from the question of the sufficiency of the 

reasons given for an exceptional sentence, the court may reverse 

and remand for resentencing in accord with the legal principles 

stated in the court’s opinion.
No. 80864-8-I/18

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State v. Ha’mim, 132 Wn.2d 834, 847, 940 P.2d 633 (1997) (internal 

citation omitted) (overruled in part on other grounds by O’Dell, 183 Wn.2d

at 698–99). 

In light of the foregoing, we remand for the trial court to resentence Hehn, 

though it may apply an exceptional downward sentence in accord with the legal 

principles stated in this opinion. We also remand for the trial court to impose the 

full term of community custody required by RCW 9.94A.701(1).

WE CONCUR: