FILED 

### COURT OF APPEALS DIVISION 11 

### 2915 

### AUG 18 

### AM 9- 04 IN THE COURT OF APPEALS OF THE ST

# ATEOF 5 81 TTON DIVISION II BY _ DEIPUTY STATE OF WASHINGTON, No. 46106 - 4 -II

V. RUSSEL A. FORD, Respondent,

Appellant. UNPUBLISHED OPINION

SUTTON, J. — 

### Russel A.Ford appeals his sentences following his guilty pleas totwo counts
of 

### felony eluding and three counts of theft of a motor vehicle. 

### The sentencing court imposed sentences below the standard range for the three counts of theft of a motor vehicle, and also 

### sentenced Ford to consecutive sentences, without entering findings offact or conclusions oflaw supporting such sentences, as required 

### by RCW 9. 94A.535 and RCW 9.94A.589. The 'State concedes this error, but argues that we should remand for resentencing to allow the sentencing
court to consider an exceptional sentence. Ford asks us to strike the improper consecutive sentences and allow him to serve the exceptional downward sentence of24 months. Because the 

### sentencing court erred by failing to enterfindings supporting consecutive sentences or downward 

### departures on any of Ford's counts, and because Ford raises issues on appeal that require a full resentencing, we reverse Ford' s sentence and remand for a full resentencing.No. 46106 - 4 -II FACTS Russel Ford pled guilty to counts 1 and 2 - 

### felony eluding, and counts 3, 4, and 5 - theft of

a motor vehicle, as alleged in the Second Amended Information. The Second Amended Information did not allege any aggravating facts for the charges. 

### Ford' s sentencing range was 

### 14to 18 months forthe felony eluding charges and 43 to 57 months forthetheftofamotorvehicle charges. 

### At the sentencing hearing, the State, according to the plea agreement, recommended 8 months on counts 1 and 2 and a total of 50 months on counts 3, 4, and 5 with all sentences to run 

### concurrently. The sentencing court instead imposed sentences of8 months each on counts 1 and 2, consecutive to each other, but concurrent to the sentences in the remaining counts; and 24 months each on counts 3, 4, and 5 consecutive to each other, but concurrent to the sentences in 

### counts 1 and 2. Thus, the sentencing court imposed a sentence of72 months oftotal confinement. 

### The sentencing court made the following comments during the hearing: COURT]: 

### I'm going to give the lawyers a little quiz here, unless they change the statute. You know,the difference between whatthey call concurrent sentences 

### and consecutive is if they happen to be the same crime, the same time, with the same thought process going on. 

### Okay. You have three separate matters on three 

### separate days. They' re not the same crimes. And so the issue ofconcurrent is not in myvocabularywhen it comes down to him. Verbatim Report of Proceedings (VRP) (March 24, 2014) at 8. The prosecutor tried to dispute the court' s interpretation ofthe statute:

PROSECUTOR]: , As far as consecutive or concurrent, because I am - they are all separate.... As far as consecutive or concurrent, because they count againstone 

### another, in other words because he' s getting an extra point for every count that I - that I added on to this - to this charge, they are presumptively concurrent.

2No. 46106 - 4 -II COURT]: I' m not bound 

### by that. On each one ofthe eludings, eight months consecutive. On the other charges, 24 months consecutive. VRP (March 24, 2014) at 9. 

### Ford appeals the sentencing court's decision to run his . sentences consecutively. The State did not appeal the sentencing court' s exceptional sentences downward on counts 3, 4, and 5. ANALYSIS Ford argues that the sentencing court violated RCW 9. 94A.589( 1)( a) when it ordered 

### consecutive terms formultiple current offenses. The State concedes thatthe sentencing courterred 

### when it imposed an aggravated exceptional sentence without making findings supporting such a 

### sentence. Ford arguesthat,because the State did not appeal the sentence, the proper remedy is for this court to " vacate that portion of the judgment and sentence that orders the counts to run 

### consecutively and remand for entry of an order clarifying .that the sentences shall run concurrently." 

### Br. ofAppellant at 10. The State arguesthat Ford's remedy is for usto remand for 

### afull resentencing. We agree with the State. 1. THE SENTENCING COURT IMPOSED AN ILLEGAL SENTENCE Under RCW 9. 94A.589( 1)( a), 

### a sentencing court must impose concurrent terms for multiple felony offenses sentenced on the same day unless the court declares an exceptional
sentence under RCW 9.94A.535. And under RCW 9.94A.535, whenever a sentencing court imposes a sentence outside the standard sentence range, " the court shall set forth the reasons for its decision in written findings offact and conclusions of law." We review the legal justification for a sentence de novo. State v. Stubbs, 170 Wn.2d 117, 124, 240 P.3d 143 ( 2010).

3No. 46106 - 4 -II 

### Here, the sentencing court did not claim to be imposing a sentence under RCW 9.94A.535
and did not enter findings or conclusions in support of an exceptional sentence. Rather, the 

### sentencing court's statement at thetime ofsentencing reveals thatthe court did not consider itself 

### bound by that provision, and was likely confusing the law regarding concurrent sentences with that of same criminal conduct. 

### Because the sentencing court violated the plain language of RCW 9.94A.535 and RCW 9.94A.589( 1)( a) when it imposed consecutive sentences in this case, we accept the State' s 

### concession thatthe sentencing court erred by imposing an exceptional sentence.

II. THE PROPER REMEDY IS REMAND FOR A FULL RESENTENCE 

### Ford arguesthatbecausethe State neverappealed the sentencing court' s decision to impose sentences that were below the standard range, it is precluded from arguing such error on appeal. RAP 2.4( a) (

### a respondent in an appeal may seek affirmative relieffrom portions ofatrial court's decision only ifthe respondenttimely files a notice ofappeal).

Ford contends that we must strike his consecutive sentences and impose a 24 - month sentence. We disagree. RAP 2.4(a) limits the circumstances underwhich a respondent may seek affirmative relief: 

### The appellate court will grant a respondent affirmative relief by modifying the 

### decision which is the subject matter ofthe review only (1) ifthe respondent also seeks review ofthe decision bythetimely filing ofa notice ofappeal or a notice of 

### discretionary review, or (2) ifdemanded bythe necessities ofthe case.

MNo. 46106 - 4 -II The State seeks affirmative relief because it asks for partial reversal of the sentencing 

### court's court order, rather than merely advancing an alternative argument for affirming the court. State v. Sims, 171 Wn.2d 436, 443, 256 P. 3d 285 ( 2011). 

### Thus, our inquiry turns to whether the necessities ofthis case demand a full resentence.

Ford relies on Sims to support his argument that we must remand to strike the consecutive
sentences and allow him to serve a 24 - month sentence. In Sims, the defendant argued, and the State conceded, that a banishment condition in his special sex offender sentencing alternative SSOSA) sentence was unconstitutional. Sims, 171 Wn.2d at 440. The Court of Appeals agreed 

### but held that the trial court on remand would have discretion to either impose or deny a SSOSA. Sims, 171 Wn.2d at 441. 

### The State Supreme Court reversed the Court ofAppeals in part, ruling 

### that because Sims only challenged a condition ofthe SSOSA sentence, and because the State did
not cross- appeal the SSOSA, the State could not seek denial of the SSOSA on remand. Sims, 171 Wn.2d at 449. Although the Supreme Court acknowledged that such reliefwould be available 

### underRAP 2.4(a) ifdemanded bythe necessities ofthe case, itconcluded that such necessities had not been shown, particularly given the chilling effect that such relief would have on Sims' constitutional right to appeal. Sims, 171 Wn.2d at 449. Here, the necessities ofthe case demand a full resentence. Ford has raised issues on appeal 

### that call his entire sentence into question and require a full resentence, notjust a striking of the
consecutive sentences. 

### Because the sentencing court failed to enter findings of fact and conclusions oflawto support eitheran upward or downward deviation,and because the sentencing 

### court expressed no legallyjustifiable reasons to impose an exceptional sentence, afull resentence

5No. 46106 - 4 -II 

### hearing is the only appropriate remedy. Accordingly,we reverse Ford's sentence and remand for afull resentencing before a differentjudge. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed forpublic record in accordance with RCW2.06.040, it is so ordered.

We concur:
MAXA; P.J. 

### J —

LLE, J.

0 

# A- r+

# hMJ. SUTTON, J.