FILED

COURT OF APPEALS

DIVISION 11

2915 AUG 18 AM 9- 04

IN THE COURT OF APPEALS OF THE STATEOF

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UNPUBLISHED OPINION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 to two 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 of fact or conclusions of law

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 of 24 months. Because the

sentencing court erred by failing to enter findings 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

14 to 18 months for the felony eluding charges and 43 to 57 months for the theft of a motor vehicle

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 of 8 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 of 72 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 what they 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 of concurrent is not

in my vocabulary when it comes down to him. 

Verbatim Report ofProceedings (VRP) (March 24, 2014) at 8. The prosecutor tried to dispute the

court' s interpretation of the statute: 

PROSECUTOR]: , As far as consecutive or concurrent, because I am - they are

all separate.... As far as consecutive or concurrent, because they count against one

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. 

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No. 46106 -4 -II

COURT]: I' m not bound by that. On each one of the 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 for multiple current offenses. The State concedes that the sentencing court erred

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

sentence. Ford argues that, 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. of Appellant at 10. The State argues that Ford' s remedy is for us to remand for

a full 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 of fact 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). 

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No. 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 the time of sentencing reveals that the 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 that the sentencing court erred by imposing an exceptional sentence. 

II. THE PROPER REMEDY IS REMAND FOR A FULL RESENTENCE

Ford argues that because the State never appealed 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 relief from portions of a trial court' s

decision only ifthe respondent timely files a notice of appeal). 

Ford contends that we must strike his consecutive sentences and impose a 24 -month

sentence. We disagree. 

RAP 2.4( a) limits the circumstances under which a respondent may seek affirmative relief: 

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

decision which is the subject matter of the review only ( 1) if the respondent also

seeks review of the decision by the timely filing of a notice of appeal or a notice of

discretionary review, or (2) if demanded by the necessities of the case. 

M
No. 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 of this 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 of Appeals in part, ruling

that because Sims only challenged a condition of the 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

under RAP 2. 4( a) if demanded by the necessities of the case, it concluded 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, not just a striking of the

consecutive sentences. Because the sentencing court failed to enter findings of fact and

conclusions of law to support either an upward or downward deviation, and because the sentencing

court expressed no legally justifiable reasons to impose an exceptional sentence, a full resentence

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No. 46106 -4 -II

hearing is the only appropriate remedy. Accordingly, we reverse Ford' s sentence and remand for

a full resentencing before a different judge. 

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered. 

We concur: 

MAXA; P. J. J — 

LLE, J. 

0

A-r+ hMJ. 

SUTTON, J.