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

v. MICHAEL TODD FERNANDEZ, Respondent. No. 74205-1-1 c:::~i ^o DIVISION ONE m C~5 7~',~: UNPUBLISHED OPINION ro

33. GO (-r; FILED: December 27, 2016 5 7 '7p.
CO CO o • - - 

### Becker, J. — This is the State's appeal from a downward exceptional 

### sentencefor second degree escape. Because the factors identifiedas 

### supporting a downwarddeparture were necessarily considered by the legislature inestablishing the standard range, we reverse and remand forresentencing. Respondent Michael Fernandezwas serving a sentence forcocaine 

### possession and identitytheft. Two months into his sentence, he was placed in workrelease. His firstfull day inthe workrelease program was April 30, 2015. 

### He received a pass allowing him to leave forthree hours to search for employment. He did not return. Fernandez was arrested on a warrant two months later. He was returned 

### to the DepartmentofCorrections. The departmentterminated his workrelease 

### placement and revoked good time credits he had earned on the sentence he was serving forcocaine possession and identity theft.No. 74205-1-1/2
The State charged Fernandez with first degree escape, lateramended to second degree escape pursuant to plea negotiations. He pled guilty. The presumptive sentencing range was 22 to 29 months based on the charge and Fernandez's offender score of six. At a sentencing hearing, Fernandez told the court, "I made a mistake. The day Igotto work release, Igot high.... And once they let me out on a pass, I didn't come back." The State and defense counsel recommended 22 months, the sentence they had agreed to during plea negotiations. The courtwas reluctantto sentence Fernandez at even the lowest end ofthe standard range. The court expressed concern about how sentencing statutes treat nonviolent offenders afflicted with substance addiction or mental illness: And so what Ihave here is somebody who walked away from work release now looking at anothertwo year sentence. Forwhat purpose? To warehouse him? I'mjust, Iam, Igotthis gut reaction atthis point in time that whatwe're doing is misguided. Our Sentencing Reform Act is taking this model that says repeat offenders who have substance abuse mental health issues, which Ithink historically when you look atthe record, many ofthe underlying offenses, at leastone or two, appearto be related to that. Butwe're not addressing those issues 

### because when you go to Monroe, Walla Walla, there's no treatment. It's warehousing. And they let you out and they say, they give you no skills.... So I'm having this visceral response. The court told Fernandez "were Ito sentence you to 22 to 29 months, Icouldn't look in the mirror." The court reviewed RCW 9.94A.535(1), which sets forth a nonexclusive 

### list of mitigating circumstances to support a downward exceptional sentence. AtNo. 74205-1-1/3


### the court's request, defense counsel agreed to draft proposed findings of fact and conclusions of law in support of a reduced sentence.1 After a second sentencing hearing, the court decided to impose an exceptional sentence of 30 days. The court adopted proposed findings offact and conclusions oflaw in an order issued on October 26, 2015. The court identified three substantial and compelling reasons for an exceptional sentence. The offenses Fernandez was held on (identity theft and cocaine possession)
were nonviolent; Fernandez's escape did not endangerthe work release facility, its employees, or other inmates; and Fernandez lost "good time" as a result of escaping and lost his eligibility for future work release placements. The State appeals and argues that none ofthese reasonsjustify the

sentence. Courts are generally required to impose a sentence within the standard range. RCW 9.94A.505(2)(a)(i); State v. Law, 154 Wn.2d 85, 94, 110 P.3d 717 (2005). The standard range is determined by the seriousness ofthe offense and the defendant's criminal history. See RCW 9.94A.510. The range represents the 

### legislature's determination regarding appropriate sentencing. Acourt's 

### disagreementwiththe legislature's determination cannotjustify a departure from the standard range. Law, 154Wn.2d at 101. Rather, a departure must be supported by substantial and compelling reasons related to the crime, the defendant's culpability for the crime, or the defendant's criminal record. RCW



### 1Defense counsel did not request an exceptional sentence or otherwise violate the plea agreement.No. 74205-1-1/4 9.94A.340; RCW 9.94A.535; Law, 154 Wn.2d at 89. The court must state its reasoning in written findings offact and conclusions of law. RCW 9.94.A.535. Reviewing courts use a two-parttestto determine whether a factor legally supports a departure from the standard range: (1) a trial court may not base an exceptional sentence on factors necessarily considered by the legislature in establishing the standard range and (2) the asserted aggravating or mitigating factor must be sufficiently substantial and compelling to distinguish the crime in question from others inthe same category. State v. Ha'mim. 132Wn.2d 834, 840, 940 P.2d 633 (1997), citing State v. Alexander, 125 Wn.2d 717, 725, 888 P.2d 1169 (1995). We will reverse an exceptional sentence that relies on improper mitigating factors. RCW 9.94A.585(4). Our review is de novo. Law, 154Wn.2d at 93. 

### The primary factor the court relied on was that Fernandez's escape did not endangerthe work release facility, its employees, or other inmates. This is the only factor Fernandez defends in his briefingas a propermitigating circumstance. The State contends this factor is improper because itwas necessarily considered by the legislature. 

### The legislature ranks the seriousness ofcrimes based on their relative violence to society. State v. Calvert, 79 Wn. App. 569, 581, 903 P.2d 1003 (1995), review denied. 129Wn.2d 1005(1996). First degree escape is 

### categorized as a class B felony with a seriousness level ofIV. RCW9.94A.515; RCW 9A.76.110. Second degree escape is categorized as a class C felony with

a seriousness level of III. RCW 9.94A.515; RCW 9A.76.120. These crimes fallNo. 74205-1-1/5 

### on the lowend ofthe seriousness list, which ranges from level Ito levelXVI. RCW9.94A.515. 

### Because the legislature considers comparative violence when ranking seriousness, the nonviolent nature of a crime does not constitute a proper mitigating factor. Calvert, 79 Wn. App. at 581. Thus, in Calvert, the trial court's conclusion that "a forger should not be sentenced the same as a violent offender"

was inadequate to support a downward exceptional sentence. Calvert, 79 Wn. App. at 574, 581; see a|so State v. Fowler. 145 Wn.2d 400, 404, 38 P.3d 335 (2002), citing State v. Nordbv. 106Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986). We adhere to the reasoning ofCalvert and Fowler. The legislature considered whetherand to what extent escape is a violent crime when ranking its seriousness and determined it is a relatively nonviolent crime. Fernandez's offender score, notthe seriousness ofthe crime ofescape, is the primary reason why the standard range was 22 to 29 months in his case. Ifsecond degree escape had been his first conviction, he would have faced a standard range of only one to three months. Clerk's Papers at 29. The legislature did not have only prison breakouts in mind when itsetthe standard range for escape. As the result ofan amendment enacted in 2001, 

### failing to return to work release was subsumed into the statutes defining firstand second degree escape. RCW 9A.76.110(1); RCW 9A.76.120(1). These statutes penalize escape from a "detention facility," a term defined to include work release

as well as other places of confinement. RCW 9A.76.010(3).No. 74205-1-1/6 

### Fernandez quotes comments made during a 2001 meeting of the House Committee on CriminalJustice and Corrections when the committee was hearing testimony on the proposal to amend the escape statute. He states that a representative "expressed his concern thatfailing to return would betreated 'the
same or nearly the same as a violent escape.'" An individual legislator's comments from the floor do not necessarily reveal legislative intent. Spokane County Health Dist. v. Brockett. 120 Wn.2d 140, 154-55, 839 P.2d 324 (1992). To the extentthis particular comment is relevant, itindicates thatthe legislature did considerwhetherthe crime ofescape should encompass a failure to return to work release. Allescapes have the potential to cause violence, eitherduring the escape
or laterwhen the fugitive is arrested. Ifan offendercommits a violent offense in the course ofescaping, the violent offense may be charged separately. For instance, ifFernandez had attacked an employee ofthe work release facility or another inmate to facilitate his escape, he could have been charged and punished for assault in addition to escape. Inthat case, his presumptive sentence would have been longer. The escape statutes distinguish between the three degrees ofescape based on circumstances unrelated to whether a defendant used violence. See RCW 9A.76.110 to .130. Fernandez argues that because the three degrees are not differentiated on the basis ofthe level ofviolence used to escape, nonviolence is an appropriate mitigating factor. This conclusion does not necessarily follow. The State's argument isjust as logical: There is noNo. 74205-1-1/7 

### differentiation by levels of violence becausethe legislature viewed violence as irrelevantto evaluating culpability for an escape. To conclude, the fact that Fernandez walked away from work release 

### withoutcommitting a violent act does notjustify mitigation of his sentence. Itfails 

### the first prong ofthe test formitigating factors. The legislature ranked second degree escape as a relatively nonviolentcrime. Therefore, the standard range already assumes that second degree escape is nonviolent. 

### Another reason given by the court forimposing an exceptionalsentence is the nonviolence ofthe offenses that Fernandez was serving time forwhen he 

### escaped, identitytheftand cocaine possession. Thenonviolence ofa defendant's pastcrimes "does notqualify as a mitigating circumstance" because criminal history is one of the components used to compute the presumptive 

### range. Calvert, 79Wn. App. at581; see ajsoFowler, 145Wn.2d at 406("a lack of a criminal history is not a mitigating factorbecause criminal history is already encompassed in the sentencing guidelines"). 

### The court's third reason formitigating the sentencewas that Fernandez,


### as a result of escaping, lost"goodtime" credits andwill not beeligibleforfuture 

### work release placements. This courthas rejected loss of"good time" and other institutional sanctions as propermitigating factors in escape cases. State v. Akin. 77 Wn. App. 575, 586, 892 P.2d 774 (1995). 

### Atoral argument before thiscourt, Fernandez suggested that the 

### exceptional sentence isjustified by his needfor substance abusetreatment. He cited State v. O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), forthe propositionNo. 74205-1-1/8
that a sentencing court may consider as a mitigating circumstance a personal characteristic, such as drug addiction, if itdrives a defendant's criminal behavior. While addiction is not mentioned inthe written findings and conclusions, the 

### order signed bythe trial court incorporated the court's oral statements. Inthe oral ruling, the court lamented institutional failures and criticized the sentencing scheme for requiring a "draconian" and purely punitive response to a person "who is suffering from a medical condition." Acourt must support its decision to impose an exceptional sentence with 

### written findings and conclusions. RCW 9.94.A.535. Even iforal findings may be incorporated by reference, the court's oral statements did not include concrete, reviewable findings aboutdrug use. There is scantevidence inthe record demonstrating Fernandez suffers from an addiction, aside from speculative inferences based on his criminal history. It is unclearwhy, ifFernandez wanted to be treated for substance abuse, he did not seek and the court did not consider


### a treatment-based sentencing alternative. We conclude the record is insufficient both factually and legally to support affirming the exceptional sentence on the basis of a reason unspecified inthe written order. 

### Havingdecided that the factors do not meetthe first prong of the two-part test, we do not address the second prong of the test. See Alexander, 125 Wn.2d at 731. Inaddition to deciding whetherthe reasons for a mitigated sentence are 

### adequate, reviewingcourts also considerwhetherthe reasons are supported by the record and ifthe sentence is clearly too lenient. RCW 9.94A.585(4). Given

8No. 74205-1-1/9



### our conclusion thatthe reasons in this case are inadequate, we do not address whether the other two standards are satisfied. 

### Fernandez's sentence is reversed. We remand for resentencing. 

# fjpeo^g

WE CONCUR: 

# X)f^/V^\V