FILED
August 22, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30121-4-III Respondent, ) ) v. ) ) OPINION PUBLISHED DAVID AARON SOTO, ) IN PART ) Appellant. )
SIDDOWAY, A.C.J. - This case presents a statutory construction issue of first
impression: whether a sentencing court has the statutory authority to impose a firearm
sentence enhancement on a defendant's sentence for conviction ofan unranked felony.
We conclude that RCW 9.94A.S33, which provides for firearm and other sentence
enhancements, applies only to ranked offenses.
We therefore reverse the firearm sentence enhancement and remand to the trial
court for resentencing. With respect to the second issue raised by Mr. Soto, we direct the
court to exclude from the judgment and sentence any finding of Mr. Soto's present or
future ability to pay legal financial obligations and other expenses, since the record
lacked support for such findings. No. 30121-4-111 State v. Soto
FACTS AND PROCEDURAL BACKGROUND
David Soto was found guilty following a bench trial of animal cruelty in the first
degree and unlawful possession of a firearm in the first degree. The court found that in
committing the animal cruelty offense, Mr. Soto was armed with a firearm. It imposed an
I8-month firearm enhancement to run consecutive to its concurrent sentences of 12
months for the animal cruelty conviction and 48 months for the firearm possession
conviction.
Mr. Soto challenged the trial court's authority to impose a firearm enhancement on
a conviction for animal cruelty, which is an unranked crime. The trial court rejected his
argument, construing RCW 9.94A.533, which provides for the enhancement, as applying
to all felonies, ranked or unranked.
The judgment and sentence imposed legal financial obligations in the amount of
$3,700. The court found that Mr. Soto had the present or likely future ability to pay the
financial obligations imposed and the means to pay for the costs of incarceration and any
costs of medical care incurred while incarcerated. Mr. Sotoappeals.
ANALYSIS
I
We first address the statutory construction issue raised by Mr. Soto in the trial
court: Must the sentence for an unranked offense be increased based upon a finding that
the offender was armed with a firearm in committing the offense?
No.30121-4-II1 State v. Soto
The statute at issue is RCW 9.94A.533, entitled "Adjustments to standard
sentences." It provides for additional time to be added to the standard sentence ranges for
certain crimes in the event of aggravating circumstances identified by the statute.
Subsection (3) of the statute addresses additional time to be added to the standard
sentence range for felony crimes if the offender was armed with a firearm.
The first subsection ofRCW 9.94A.533 provides that "[t]he provisions of this
section apply to the standard sentence ranges determined by RCW 9.94A.510 or
9.94A.517." RCW 9.94A.510 is the "Table I" sentencing grid. Using the grid, a
sentencing court determines the sentencing range and sentencing midpoints for an
offender's conviction of a crime by finding the intersection of the offender's "offender
score" (based on criminal history) and the "seriousness level" of his or her crime (from I
to XVI). The "seriousness level" for most crimes recognized by Washington statutes is
set forth in "Table 2," codified at RCW 9.94A.515.
RCW 9.94A.517 is the drug offense sentencing grid. It similarly identifies the
sentencing range for an offender's conviction of a drug offense based on an offender's
offender score and the seriousness level of the drug offense.
The offense of animal cruelty in the first degree is defined by RCW 16.52.205(1)
(3). It is a class C felony. RCW 16.52.205(4). Mr. Soto was charged with animal
cruelty by intentionally inflicting substantial pain on an animal, causing physical injury to
an animal, and/or killing an animal by a means that caused undue suffering, a violation of
No. 30121-4-111 State v. Soto
RCW 16.52.205(1). No seriousness level has been assigned to that means of committing
first degree animal cruelty. See RCW 9.94A.515. A standard sentence range therefore
cannot be determined for that means of committing the offense from RCW 9.94A.51 0,
the Table 1 sentencing grid, or from RCW 9.94A.517, the drug offense sentencing grid. l
Where no seriousness level has been assigned to an offense the court determines
the sentence by applying RCW 9.94A.505(2)(b), which provides:
If a standard sentence range has not been established for the offender's crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; a term of community custody under RCW 9.94A.702 not to exceed one year; and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement and a community custody term under RCW 9.94A.701 if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535.
"Unranked offense" is the term commonly applied to offenses that have not been
assigned a seriousness level and whose standard sentencing range therefore cannot be
determined on the Table I sentencing grid or drug offense sentencing grid. As observed
by Division One of the Court of Appeals, "[t]he Sentencing Guidelines Commission
recommends rankings to the legislature and does not recommend that all offenses be
ranked: 'The Commission decided not to rank certain felonies which seldom occur .... If,
in the future, a significant number of persons are convicted of offenses not included in the
1A different means of committing first degree animal cruelty, involving sexual conduct or contact with an animal, see RCW 16.52.205(3), is given a seriousness rank of III by RCW 9.94A.5l5.
No.30121-4-I11 State v. Soto
Seriousness Level Table, the Commission will recommend appropriate seriousness levels
to the Legislature for those crimes. '" In re Pers. Restraint ofAcron, 122 Wn. App. 886,
890,95 P.3d 1272 (2004) (quoting WASH. STATE SENTENCING GUIDELINES COMM'N,
ADULT SENTENCING GUIDELINES MANUAL at II-57 (1993». Several hundred crimes are
presently unranked. Most are class C felonies. See WASH. STATE CASELOAD FORECAST
COUNCIL, 20 12 WASHINGTON STATE ADULT SENTENCING GUIDELINES MANUAL § 5, at
92-101 (version 20121231).
Mr. Soto, relying on the expressly limited scope ofRCW 9.94A.533 provided by
its subsection (1), argues that the statute has no application to unranked offenses.
Looking solely at subsection (1), he appears to be correct. The State successfully argued
below and argues on appeal, however, that language appearing elsewhere in the statute
creates an ambiguity that we should resolve by deferring to what it argues was legislative
intent to increase the penalty for firearm use by an offender committing any felony.
The State points to subsection (3) of the statute, which deals in particular with
firearm enhancements. It states in pertinent part:
(3) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23,1995, if the offender or an accomplice was armed with a firearm ... (a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (1) of this subsection; (b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (1) of this subsection;
(c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection.
RCW 9.94A.533 (emphasis added). The State argues that these repeated references to
"any felony defmed under any law as a ... felony" compels the conclusion that the
legislature intended the enhancements to apply to all felonies, ranked or unranked.
The State next points out that a few crimes are exempted from the mandatory
application ofRCW 9.94A.533(3) by paragraph (3)(f), which provides:
(f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony.[2]
(Emphasis added.) Here again, the State argues, the statutory language "all felony
crimes" must be read to apply uniformly to felonies.
The State finally points to subsection (6) of the statute, which provides increased
time for controlled substances offenses that take place in the presence of children or near
schools, public parks, or on or in certain public transit vehicles or facilities. Subsection
(6) provides that additional time "shall be added to the standard sentence range for any
ranked offense involving a violation of chapter 69.50 RCW if the offense was also a
2 It has been pointed out that the exempted felonies are those in which using a firearm is an element of the offense. State v. Brown, 139 Wn.2d 20, 25, 983 P.2d 608 (1999) (quoting WASH. STATE SENTENCING GUIDELINES COMM'N, ADULT SENTENCING GUIDELINES MANUAL cmt. at 11-67 (1997».
No.30l2l-4-III State v. Soto
violation ofRCW 69.50.435 or 9.94A.827." RCW 9.94A.533(6) (emphasis added). The
State argues that the reference to "ranked offense" would be superfluous if the scope of
the statute was already limited to ranked offenses.
Sentencing is a legislative power, not a judicial power. State v. Bryan, 93 Wn.2d
177, 181,606 P.2d 1228 (1980). A trial court's discretion to impose sentence is limited
to that granted by the legislature. State v. Ammons, 105 Wn.2d 175,713 P.2d 719,718
P .2d 796 (1986). If the trial court exceeds its sentencing authority, its actions are void.
State v. Phelps, 113 Wn. App. 347, 354-55, 57 PJd 624 (2002). Statutory construction is
a question oflaw and reviewed de novo. State v. Elmore, 154 Wn. App. 885,904-05,
228 PJd 760 (2010).
When interpreting a statute, "if the statute's meaning is plain on its face, then the
court must give effect to that plain meaning as an expression of legislative intent." Dep't
o/Ecology v. Campbell & Gwinn, L.L.c., 146 Wn.2d 1,9-10,43 PJd 4 (2002). "All
words must be read in the context of the statute in which they appear, not in isolation."
State v. Lilyblad, 163 Wn.2d 1, 9, 177 P Jd 686 (2008). A statute is deemed ambiguous
when the language is susceptible to more than one interpretation. State v. Jacobs, 154
Wn.2d 596, 600-01, 115 P.3d 281 (2005).
Reading all subsections ofRCW 9.94A.533 in the context of the statute, we
conclude that the statute does not apply to unranked offenses. Subsection (1) of the
statute exists for one reason: to define the scope of the statute's application. It limits that
No.30121-4-III State v. Soto
scope to "standard sentence ranges determined by RCW 9.94A.51O or 9.94A.517."
"Under expressio unius est exclusio alterius, a canon of statutory construction, to express
one thing in a statute implies the exclusion of the other. Omissions are deemed to be
exclusions." In re Det. o/Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (citation
omitted).
Nothing in subsection (1) suggests that the language "standard sentence ranges
determined by RCW 9.94A.51 0 or 9.94A.517" is illustrative. We construe a statute's
identification of crimes or other items to be illustrative when the legislature states that the
identification is "illustrative," or provides "examples," or extends to "similar" or "like"
offenses; absent such a signal, we read the legislature's list as exclusive and complete. In
re Postsentence Review o/Leach, 161 Wn.2d 180, 185-86, 163 P.3d 782 (2007). We
cannot amend an exclusive list of sentencing ranges subject to enhancement with others
we believe the legislature omitted; our Supreme Court has reminded us of its "'long
history of restraint in compensating for legislative omissions.'" Id. at 186 (quoting State
v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982».
By giving subsection (1) of the statute its plain meaning, we do not render the
references to "all felonies" elsewhere in the statute meaningless; they are rationally
understood to extend the sentencing enhancement to all felonies falling within the scope
of the statute as defined by subsection (1).
No. 30121-4-III State v. Soto
Only subsection (6), providing that the statute applies to all "ranked offenses" of
chapter 69.50 RCW, is superfluous if subsection (1) already limits the statute's scope to
standard range sentences determined for ranked offenses. But it is more reasonable to
read subsection (6) as containing surplusage than to read subsection (I) as having no
meaning at all. And in light of subsection (6), it is beyond debate that the legislature
intended its 24-month increase in confinement to apply only to the relatively serious and
commonly occurring crimes that the Sentencing Guidelines Commission had seen fit to
rank-not to relatively uncommon, unranked crimes that are punishable, at most, by a
year of confinement, community restitution work, or a term of community custody. It is
more likely that the legislature intended for this distinction to apply to all of the
enhancements provided by the statute-which it does, given our construction of
subsection (1)---than to apply only to the enhancement provided by subsection (6).
Although expressed in dicta, we note that at least one justice ofthe Washington
Supreme Court and a panel of Division Two of the Court of Appeals have assumed that
the sentencing enhancements provided by RCW 9.94A.533 do not apply to unranked
felonies. See State v. Gurske, 155 Wn.2d 134, 152 n.l5, 118 P.3d 333 (2005) (Chambers,
J., concurring) ("The statute exempts certain firearms offenses and does not address
unranked felonies. RCW 9.94A.533(3)(f)."); State v. Rainford, 86 Wn. App. 431,441
n.6, 936 P.2d 1210 (1997) ("RCW 9.94.041 [possession of controlled substances by
prisoners] is an unranked felony under the Sentencing Reform Act of 1981 and is not
subject to enhancement for possession within a correctional facility under [RCW
9 .94A.S33(S)(c)]. ").
If the legislature made an error in drafting the statute, as the State assumes, we
must leave it to the legislature to correct the error. Taylor, 97 Wn.2d at 728; see also
State v. Mendoza, 63 Wn. App. 373, 378,819 P.2d 387 (1991). Appellate courts do not
supply omitted language even when the legislature's omission is clearly inadvertent,
unless the omission renders the statute irrational. Acron, 122 Wn. App. at 891. "To do
so would [be] to arrogate to ourselves the power to make legislative schemes more
perfect, more comprehensive and more consistent." Taylor, 97 Wn.2d at 729.
Because we conclude that RCW 9.94A.S33(3) does not apply to unranked
offenses, the trial court's I8-month increase of Mr. Soto's sentence imposed for the
animal cruelty conviction was unauthorized and void.
We reverse the firearm sentence enhancement and remand for resentencing
consistent with this opinion.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
II
Mr. Soto next contends that the trial court had no basis for its findings 2.7, 4.D.4,
and 4.D.5 in the judgment and sentence that he has the current or future ability to pay
legal financial obligations (LFOs) and the means to pay costs of incarceration and
medical care. Under RCW 9.94A.760(1), the trial court may impose LFOs as part of the
sentence, designating the total amount and segregating that amount according to separate
assessments for restitution, costs, fines, and other required assessments. Under RCW
9.94A.760(2), it may require the offender to pay for the costs of incarceration up to the
maximum authorized by the statute. But a defendant cannot be ordered to pay costs
unless he or she is or will be able to pay them. RCW 10.01.160(3).
A trial court is not required to enter formal findings of fact about a defendant's
present or future ability to pay LFOs. State v. Bertrand, 165 Wn. App. 393, 404, 267
P.3d 511 (2011) (citing State v. Baldwin, 63 Wn. App. 303,311,818 P.2d 1116,837 P.2d
646 (1991)). However, "the record must be sufficient for us to review whether 'the trial
court judge took into account the financial resources of the defendant and the nature of
the burden' imposed by LFOs." ld. (quoting Baldwin, 63 Wn. App. at 312). We review
a trial court's findings as to a defendant's resources and ability to pay under the clearly
erroneous standard. ld. at 403-04 & n.B.
The record of Mr. Soto's sentencing reveals that nothing was said about his ability
or likely future ability to pay his LFOs. Here, as in Bertrand, the findings are clearly
erroneous by virtue of the lack of support in the record. The appropriate remedy would
ordinarily be to reverse the finding of ability to pay and remand to the trial court with
directions to strike the findings from the judgment and sentence. In this case we reverse
the findings but, since the case is otherwise being remanded for resentencing, we direct
the trial court to omit findings as to ability to pay that are not supported by evidence in
the record.
The State concedes that the trial court lacked a basis for its finding but suggests a
different remedy: that we direct the trial court on remand to develop a record supporting
the findings. We disagree and decline the suggestion. As Baldwin holds, "the
meaningful time to examine the defendant's ability to pay is when the government seeks
to collect the obligation." Baldwin, 63 Wn. App. at 310.
We reverse the firearm sentence enhancement and remand for resentencing
-~.tlCt Siddoway, A.C.J.
WE CONCUR:
Brown, J.
Kulik, J.