FILED MARCH 12, 2024 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STATE OF WASHINGTON, ) No. 39002-1-III ) (consolidated with Respondent, ) No. 39003-9-III) ) v. ) ) UNPUBLISHED OPINION KYLE L. PAYMENT, ) ) Appellant. )
PENNELL, J. — Kyle Payment appeals his convictions for second degree assault
(two counts), third degree assault, and second degree malicious mischief; his 199-month
sentence; and his term of community custody. We reject Mr. Payment’s challenges
to his convictions and his claim that the sentencing court committed legal error in
rejecting his argument for an exceptional sentence downward. However, we agree with
Mr. Payment that he is entitled to relief on the following issues: (1) reduction of the term
of community custody for third degree assault to comport with the statutory maximum;
(2) reconsideration of the State’s request for an exceptional sentence upward; and
(3) reassessment of two legal financial obligations—the crime victim penalty assessment
and interest on restitution—to comply with recent statutory changes. Nos. 39002-1-III; 39003-9-III State v. Payment
FACTS
Kyle Payment is an inmate in the custody of the Department of Corrections
(DOC). In 2020 and 2021, Mr. Payment was involved in two separate incidents in which
he assaulted DOC counselors and another inmate. The incidents resulted in property
damage as well as extensive physical injuries to the victims. The State brought charges
against Mr. Payment and the parties eventually reached an agreement whereby
Mr. Payment would plead guilty to two counts of second degree assault, one count
of third degree assault, and one count of second degree malicious mischief. The
agreement contemplated a contested sentencing, at which both Mr. Payment and the
State would argue for exceptional sentences and the defense would seek a mental health
sentencing alternative (MHSA). The parties stipulated Mr. Payment would be permitted
to call a psychiatrist to testify on his behalf as an expert witness at his sentencing hearing.
As relevant here, the guilty plea statement signed by Mr. Payment advised him that
his third degree assault charge “carrie[d] a . . . Standard Sentence Range” including
51 to 60 months of confinement and a community custody term of 12 months, and that
the maximum sentence was 5 years. Clerk’s Papers, State v. Payment, No. 39003-9-III
(2 CP) at 126 (boldface omitted). During his plea hearing, the court advised Mr. Payment
2 Nos. 39002-1-III; 39003-9-III State v. Payment
that his standard sentencing range was 51 to 60 months and that there was a “possible”
12-month term of community custody. Rep. of Proc. (RP) (Apr. 1, 2022) at 9.
In advance of the plea and sentencing hearing, the State filed a memorandum
arguing for an exceptional sentence upward, citing the so-called “free-crimes” aggravator.
See RCW 9.94A.535(2)(c). 1 The State urged the trial court to impose the high end of
the standard range on each charge and to run the sentences consecutively. The State
further argued Mr. Payment was not a suitable candidate for an MHSA.
In Mr. Payment’s sentencing brief, he asked the court to impose an MHSA and, in
the alternative, to impose an exceptional sentence below the standard range. Mr. Payment
cited two statutorily enumerated mitigating circumstances: first, he claimed his “capacity
to appreciate the wrongfulness of his . . . conduct, or to conform his . . . conduct to the
requirements of the law, was significantly impaired,” RCW 9.94A.535(1)(e), and second,
he argued the “presumptive sentence” was “clearly excessive,” RCW 9.94A.535(1)(g).
Mr. Payment argued that he was caught in a vicious cycle of behavioral problems leading
to continuous incarceration, and he desperately needed help that he was not getting due
1 “The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury [if] . . . [t]he defendant has committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished.” Id.
3 Nos. 39002-1-III; 39003-9-III State v. Payment
to his current prison classification. Mr. Payment further claimed that prolonged solitary
confinement had impaired his ability to conform his conduct to the law. If the court was
not inclined to impose an MHSA, Mr. Payment requested an exceptional sentence
downward of 90 days on each charge, to run concurrently.
At sentencing, the court received lengthy testimony from Mr. Payment’s expert,
a board-certified psychiatrist. The expert testified as to Mr. Payment’s mental health
diagnoses, along with the horrendous circumstances surrounding Mr. Payment’s youth
and time in custody. The expert pointed out that Mr. Payment had been incarcerated
almost continuously since 1999, when he was 13 years old, and that he had spent most
of his adult life in solitary confinement. According to the expert, Mr. Payment’s
vulnerability as a child coupled with his extensive exposure to solitary confinement
significantly impaired his ability to conform his conduct to legal expectations. The
expert expressed concern that Mr. Payment might spend the rest of his life in solitary
confinement.
During the State’s presentation, the prosecutor mentioned Mr. Payment’s history
of “upwards of 475 serious infractions while he’s been incarcerated,” referencing a
DOC presentence investigation report. RP (Jun. 1, 2022) at 78; see Clerk’s Papers,
State v. Payment, No. 39002-1-III (1 CP) at 224-25. The prosecutor also described
4 Nos. 39002-1-III; 39003-9-III State v. Payment
Mr. Payment as a “master manipulator” with a “long-standing history of assaultive
behavior,” arguing that “when he decides he’s going to assault someone, he doesn’t care
who it is. . . . [H]e doesn’t care about them as a person.” RP (Jun. 1, 2022) at 80. The
prosecutor reiterated the State’s opposition to an MHSA and its request for an exceptional
sentence upward. The prosecutor also cited the applicability of the free-crimes
aggravator, contending that “[i]f we run any of this concurrent, he’s getting away with it
for nothing.” Id. at 83-84.
In his statement to the court, Mr. Payment apologized to one of his victims who
was present in the courtroom. Notwithstanding his counsel’s arguments for an exceptional
sentence downward, Mr. Payment further stated, “I would argue that the exceptional
sentence downward is inappropriate because it provides for nothing.” Id. at 120. He
elaborated: “[I]f you’re throwing me to the wolves, I wouldn’t be surprised if I came
back. For me, I think the [MHSA] is the only solution . . . .” Id.
The court then proceeded to its ruling. The judge acknowledged that Mr. Payment
had experienced “horrific things” and that the DOC’s purported mishandling of his
mental health treatment was “a tragedy.” Id. at 124-25. Nevertheless, the court opined the
testimony of Mr. Payment’s psychiatrist expert constituted arguments for broader prison
reform rather than leniency in this specific case.
5 Nos. 39002-1-III; 39003-9-III State v. Payment
The judge rejected Mr. Payment’s request for an MHSA, reasoning that, to
be eligible for such a sentencing alternative, a defendant must be “willing to participate”
in the program. Id. at 125; see RCW 9.94A.695(1)(d). The judge reasoned that:
Mr. Payment is not able to modulate his behavior and be compliant. That is apparent in . . . the 475 violations with DOC while he was incarcerated. And it begs the question, how can you treat somebody if they’re not able to comply. .... I don’t doubt that Mr. Payment needs some mental health treatment. But this sentencing alternative is contingent on compliance coming first.
Id. at 126-27. The judge moved on to Mr. Payment’s term of confinement:
The sentencing that the Court is looking at today is going to be a sentence that keeps in mind that these are very significant crimes against persons that Mr. Payment committed. And I know he’s aware he committed them. He [pleaded] guilty to them. I appreciate very much the apology to [one of the victims] and his family in court today. But it doesn’t diminish the fact that these were significant offenses perpetrated against individuals with really very little thought to what the consequence was going to look like. Mr. Payment is a very intelligent man. And despite the fact that he might suffer from impulse control and a tendency to anger quickly, he understood what the result or the consequences of his behavior was going to be. And in this particular case I cannot turn a blind eye to the fact that there are victims who will suffer significant, long-term effects as a result of Mr. Payment’s actions. .... The State, first of all, is asking me to run those sentences consecutive. And I will indicate that under the [free-crimes aggravator] statute, . . . [Mr. Payment] has committed multiple current offenses, and [Mr. Payment]’s high offender score results in some of the current offenses going unpunished.
6 Nos. 39002-1-III; 39003-9-III State v. Payment
If I were to run these sentences . . . concurrently, it would simply take the highest number of months within the standard range for one count and encompass everything else within it. In essence, as [the prosecutor] indicated, that would be free crimes. What I am choosing to do is recognize that each of these crimes, each of these charges does come with it a consequence that needs to be paid by Mr. Payment for his actions against these individuals in each of their capacities. This does meet the criteria under the statute to find an exceptional upward sentence to order the sentences to run consecutive. And I am going to do that.
Id. at 128-29.
Although the court granted the State’s request to run Mr. Payment’s sentences
consecutively, it opted not to impose the high end of the standard range as to each count.
Instead, the court imposed the low end of the standard range for each charge, to run
consecutively, for a total of 199 months’ confinement. The court found Mr. Payment was
indigent, but noted the $500 crime victim penalty assessment would be imposed in each
of the two cases, along with restitution.
The court subsequently entered a written judgment and sentence in each case,
imposing a total of 199 months’ confinement 2 and noting that it had found substantial
and compelling reasons to justify an exceptional sentence above the standard range.
2 As relevant to this appeal, the court sentenced Mr. Payment to 51 months’ confinement for third degree assault, noting that the maximum sentence for that crime was 5 years.
7 Nos. 39002-1-III; 39003-9-III State v. Payment
The court ordered Mr. Payment to pay $60,881.28 in restitution, including interest at the
rate applicable to civil judgments. The court further sentenced Mr. Payment to 18 months’
community custody pursuant to his convictions for second degree assault, but did not
specify a community custody term for third degree assault.
In addition to the judgment and sentence, the court entered a written document
entitled, “Findings of Fact and Conclusions of Law Re: Exceptional Above Sentence.”
1 CP at 154-56; 2 CP at 275-77. The written findings included details about Mr.
Payment’s criminal history. In addition, there was a finding that Mr. Payment “has had
475 serious infractions while an inmate of the [DOC].” 1 CP at 155; 2 CP at 276. There
was also a finding that Mr. Payment “committed significant crimes against persons with
little thought of the consequences.” Id. In its conclusions of law, the court referenced the
free-crimes aggravator, RCW 9.94A.535(2)(c), as a basis for imposing an exceptional
sentence upward, and incorporated its “oral findings and conclusions” from the
sentencing hearing. 1 CP at 155-56; 2 CP at 276-77.
Mr. Payment separately appealed from each judgment and sentence. 3 Months after
Mr. Payment initiated his appeals, the trial court entered an order clarifying its judgment
and sentence. The order stated Mr. Payment would serve 18 months’ community custody
3 This court later granted Mr. Payment’s motion to consolidate his two appeals.
8 Nos. 39002-1-III; 39003-9-III State v. Payment
given his convictions for second degree assault, but that his third degree assault
conviction carried a term of 12 months’ community custody. 4 This court, citing
RAP 7.2(e), granted the State’s unopposed motion to authorize the superior court to
enter the postappeal order.
ANALYSIS
Length of sentence for third degree assault
Mr. Payment contends, and the State concedes, that the 12-month term of
community custody for third degree assault must be adjusted downward because it causes
the total sentence to exceed the statutory maximum term of 5 years. We accept the State’s
concession and remand to correct this error.
As a crime against persons, a conviction for third degree assault typically
requires a 12-month term of community custody. See RCW 9.94A.701(3)(a);
RCW 9.94A.411(2)(a). But this rule must yield when imposition of the 12-month
term would cause a defendant’s total sentence—incarceration plus community custody—
to exceed the statutory maximum sentence for the crime of conviction. See
RCW 9.94A.505(5); RCW 9.94A.701(10). When imposition of the usually-required
4 The terms of Mr. Payment’s community custody shall run concurrently because the sentencing court did not state otherwise. See RCW 9.94A.589(2)(a).
9 Nos. 39002-1-III; 39003-9-III State v. Payment
community custody term would result in an excessive sentence, the court must reduce
the term of community custody so that the total sentence will fall within the statutory
maximum. RCW 9.94A.701(10).
The maximum sentence for third degree assault is 5 years, or 60 months.
See RCW 9A.36.031(2); RCW 9A.20.021(1)(c). Because the trial court sentenced
Mr. Payment to 51 months’ confinement for third degree assault, it could not impose a
12-month term of community custody for that crime. Instead, the maximum possible term
of community custody was 9 months. We remand with instructions to correct the term of
community custody as to third degree assault.
Validity of guilty plea
Mr. Payment contends his guilty pleas were invalid in violation of his right to due
process because he was misinformed as to a direct consequence of his plea. Specifically,
he faults the trial court for advising him that 12 months of community custody applied to
his third degree assault charge, given that, if the court imposed a standard-range sentence,
the longest term of community custody he could have lawfully received was 9 months.
The State counters that the court correctly informed Mr. Payment that third degree assault
ordinarily carries a term of 12 months’ community custody, a term the court would have
10 Nos. 39002-1-III; 39003-9-III State v. Payment
been bound to impose if it granted Mr. Payment’s impending request for an exceptional
sentence downward. We agree with the State.
Before a court may accept a guilty plea, the defendant must be informed of all
“direct consequences” flowing from the plea, including standard terms of confinement
and community custody. State v. Gregg, 196 Wn.2d 473, 483, 474 P.3d 539 (2020); see
In re Pers. Restraint of Quinn, 154 Wn. App. 816, 820, 836, 841, 226 P.3d 208 (2010).
“Affirmative misinformation as to a direct consequence renders a plea constitutionally
invalid.” Gregg, 196 Wn.2d at 484. Such misinformation renders a plea involuntary
regardless of whether the actual sentence is lower or higher than anticipated. State v.
Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018).
Mr. Payment was not misinformed about the consequences of his third degree
assault conviction. The trial court accurately advised Mr. Payment of the standard term
of community custody that could apply to his third degree assault charge. Although the
record indicated the standard 12-month term would not apply if Mr. Payment received
a standard-range sentence, the plea agreement materials indicated Mr. Payment would
be requesting an exceptional sentence downward. Had the court granted this request,
a 12-month term of community custody would have been possible, if not mandatory,
depending on the extent of the departure. It was therefore appropriate for the trial court
11 Nos. 39002-1-III; 39003-9-III State v. Payment
to advise Mr. Payment of the 12-month term. See Buckman, 190 Wn.2d at 59 (noting due
process requires a defendant be advised of possible sentencing consequences at the time
of plea).
Exceptional sentence downward
Mr. Payment claims the sentencing court abused its discretion in refusing to
consider his request for an exceptional sentence downward. For our court to review this
type of claim, Mr. Payment must show legal error such as a categorical refusal to consider
an exceptional sentence downward, reliance on a constitutionally improper basis, or a
failure to recognize discretion to deviate downward. See State v. McFarland, 189 Wn.2d
47, 56, 399 P.3d 1106 (2017); State v. Garcia-Martinez, 88 Wn. App. 322, 328-29, 944
P.2d 1104 (1997).
Mr. Payment has not established any basis for overturning the sentencing judge’s
denial of an exceptional sentence downward. The court did not categorically refuse to
consider Mr. Payment’s request. It listened to Mr. Payment’s evidence and argument and,
in its discretion, declined to impose a sentence below the standard range. There is no
indication the trial court’s rejection of an exceptional sentence downward rested on legal
error or an improper consideration. We therefore must defer to the sentencing judge’s
decision.
12 Nos. 39002-1-III; 39003-9-III State v. Payment
Exceptional sentence upward
A sentencing judge’s decision to grant an exceptional sentence request is reviewed
with more scrutiny than a denial. See RCW 9.94A.585(4). As always, we will review
claims of legal error de novo. State v. Law, 154 Wn.2d 85, 93-94, 110 P.3d 717 (2005).
But we review the purported excessiveness of an exceptional sentence for abuse of
discretion and the factual findings supporting the trial court’s decision for clear error.
Id. at 93.
The general rule is that a court may impose a sentence above the standard
sentencing range only if aggravating facts have been proven to a jury beyond a reasonable
doubt. RCW 9.94A.535, .537. A narrow exception exists for an upward departure based
on the “fact of a prior conviction.” RCW 9.94A.535; see also State v. Alvarado, 164
Wn.2d 556, 567-68, 192 P.3d 345 (2008).
Because it is based solely on criminal history, a permissible exception to the
requirement of jury findings is the so-called free-crimes aggravator. See Alvarado,
164 Wn.2d at 567-68. This statutorily approved aggravator enables a court to impose a
sentence above the standard range if “[t]he defendant has committed multiple current
offenses and the defendant’s high offender score results in some of the current offenses
13 Nos. 39002-1-III; 39003-9-III State v. Payment
going unpunished.” RCW 9.94A.535(2)(c). The free-crimes aggravator can be effectuated
by ordering multiple offenses to run consecutively. See RCW 9.94A.589(1).
Here, there is no dispute that the sentencing court could have imposed an
exceptional sentence upward without the need for any jury findings based on the
free-crimes aggravator. The parties disagree as to whether the trial court relied on
impermissible facts in reaching its exceptional sentencing decision. Mr. Payment
recognizes the court was allowed to consider facts that flowed directly from his criminal
history. See Alvarado, 164 Wn.2d at 567-68. But he claims the court went beyond this
scope of permissible information and based its exceptional sentencing decision, at least
in part, on factual findings regarding his DOC infraction history and his purported
indifference to the consequences of his actions.
The State acknowledges the sentencing court’s written findings included facts
beyond Mr. Payment’s criminal history that were never proven to a jury, but nevertheless
asks us to affirm. According to the State, the court’s improper findings did not actually
inform its decision to impose an exceptional sentence. The State urges us to look to
the court’s oral ruling. The State observes the sentencing judge’s oral comments about
Mr. Payment’s DOC infractions were made in the context of rejecting his MHSA request,
and claims the finding about Mr. Payment’s indifference to his victims “related to
14 Nos. 39002-1-III; 39003-9-III State v. Payment
the reasons that it was declining an exceptional sentence below the standard range.”
Br. of Resp’t at 35. When issuing its oral ruling, the court did not expressly link
Mr. Payment’s infraction history or indifference to his victims to the exceptional sentence
upward.
We reject the State’s approach. The rule in Washington is that “[t]he written order
is controlling.” State v. Molina, 16 Wn. App. 2d 908, 922, 485 P.3d 963, review denied,
198 Wn.2d 1008, 493 P.3d 731 (2021). “[T]he trial court’s oral statements at sentencing
are no more than a verbal expression of its informal opinion at the time.” Id. To be sure,
we “may resort to the trial court’s oral decision to interpret findings and conclusions.”
State v. Hinds, 85 Wn. App. 474, 486, 936 P.2d 1135 (1997). But “the trial court’s oral
opinion cannot be used to impeach or contradict an unambiguous written finding.”
Shinn v. Thrust IV, Inc., 56 Wn. App. 827, 838, 786 P.2d 285 (1990).
Here, the court entered written factual findings explicitly designated as justifying
the exceptional sentence upward; no other purpose for the findings was specified. Given
the court decided to include findings about Mr. Payment’s infraction history and his
indifference to his victims in its written justification for the exceptional sentence, we are
not satisfied the court “would have imposed the same sentence” without the inclusion
of the impermissible facts. State v. Perry, 6 Wn. App. 2d 544, 558, 431 P.3d 543 (2018).
15 Nos. 39002-1-III; 39003-9-III State v. Payment
It could be, for example, that had the court not considered the extraneous facts, it would
have decided to run at least some of Mr. Payment’s convictions concurrently. We must
therefore remand for resentencing. Based on the nature of our disposition, resentencing
shall be limited to reconsideration of the State’s request for an exceptional sentence
Crime victim penalty assessment and interest on restitution
The parties agree that, on remand, the sentencing court must reconsider two legal
financial obligations. First, imposition of the crime victim penalty assessment must be
stricken based on Mr. Payment’s indigence. See RCW 7.68.035(4), (5)(b). And second,
the sentencing court must exercise its discretion under RCW 10.82.090(2) on whether
to waive interest on Mr. Payment’s restitution obligation. We concur with the parties’
agreement and remand for reconsideration of both financial obligations.
Reassignment on remand
Mr. Payment asks this court to order reassignment of this matter to a different trial
judge on remand, baldly asserting that the appearance of fairness doctrine requires this
remedy. We reject this request. Mr. Payment has not set forth any reason to question the
sentencing judge’s impartiality. Mere displeasure with an erroneous ruling is not a valid
16 Nos. 39002-1-III; 39003-9-III State v. Payment
reason for reassignment. See State v. McEnroe, 181 Wn.2d 375, 388, 333 P.3d 402
(2014).
CONCLUSION
This matter is remanded for resentencing limited to the following issues:
(1) reduction of the term of community custody for third degree assault so that the total
sentence does not exceed the statutory maximum, (2) reconsideration of the State’s
request for an exceptional sentence upward pursuant to the terms of this opinion,
(3) striking of the crime victim penalty assessment, and (4) reconsideration of the
imposition of interest on restitution pursuant to RCW 10.82.090(2).
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Pennell, J.
I CONCUR:
______________________________ Fearing, C.J.
17 No. 39002-1-III (consolidated with No. 39003-9-III)
COONEY, J. (dissenting in part) — I concur with all but one of the majority’s
conclusions. The trial court did not err by including extraneous facts in its “Findings of
Fact and Conclusions of Law Re: Exceptional Above SentenceAppendix 2.4.” Clerk’s
Papers at 275 (emphasis and boldface omitted). Remand for resentencing is both
unnecessary and inordinately burdensome to the trial court.
At sentencing hearings, trial courts often receive and consider a significant amount
of information. RCW 9.94A.500. However, not all of the information is assigned equal
weight, nor does all the information underlie a court’s decision to order an exceptional
sentence. Here, as properly recognized by the majority, the trial court made two findings
that are unrelated to the statutory basis for an unpunished crimes enhancement. 1
However, the trial court gave no weight to the superfluous findings when it ordered Mr.
Payment to serve an exceptional sentence. Indeed, we need look no further than the trial
court’s conclusions of law to ascertain the foundation of its decision. Accordingly, I
dissent in part.
In passing, we recently recognized that under RCW 9.94A.535(2)(c) a trial court
possesses the authority to impose consecutive standard range sentences when it finds
1 The trial court’s extraneous findings of fact included: 10. That the Defendant has had 475 serious infractions while an inmate of the Department of Corrections. 11. That the Defendant has committed significant crimes against persons with little thought of the consequences.
CP at 276. 1 No. 39002-1-III; No. 39003-9-III State v. Payment
“substantial and compelling reasons justifying” an exceptional sentence. State v. Eller,
Wn. App. 2d , 541 P.3d 1001, *1003 (2024). The statute allows a trial court to
“impose an aggravated exceptional sentence without a finding of fact by a jury” if “[t]he
defendant has committed multiple current offenses and the defendant’s high offender
score results in some of the current offenses going unpunished.” RCW 9.94A.535(2)(c).
Provided, however, that “[w]henever a sentence outside the standard sentence range is
imposed, the court shall set forth the reasons for its decision in written findings of fact
and conclusions of law.” RCW 9.94A.535.
The question before us is not whether the record supports the trials court’s
exceptional sentenceindisputably it does. Rather, the question is whether the trial court
assigned any weight to the two superfluous findings when it decided to order consecutive
standard-range sentences. The remedy for superfluous findings of fact can vary based on
the specific circumstances of the case. In certain situations, additional findings may not
necessitate any remedial action at all. See, e.g., State ex rel. Zempel v. Twitchell,
59 Wn.2d 419, 425, 367 P.2d 985 (1962). To date, a bright-line rule has not been
established that would restrict a sentencing court from entering irrelevant findings,
provided one or more of the court’s findings justifies the exceptional sentence.
Consequently, it becomes unnecessary to remand for resentencing when a trial court
demonstrates it imposed an exceptional sentence based on a valid statutory basis.
2 No. 39002-1-III; No. 39003-9-III State v. Payment
However, if the reviewing court deems that the trial court placed “considerable
weight” on invalid factors during sentencing, remanding for resentencing may be
warranted. State v. Fisher, 108 Wn.2d 419, 429-30, 430 n.7, 739 P.2d 683 (1987).
Considerable weight can be inferred from the imposed sentence length and from the
strength of the remaining valid factors. See, e.g., State v. Dunaway, 109 Wn.2d 207, 220,
743 P.2d 1237 (1987); State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993).
Here, the free-crimes aggravator indubitably provided the trial court authority to
order an exceptional sentence. The trial court ordered the low end of the standard-range
sentence for each conviction. The exceptional sentence was presented in the form of
consecutive standard-range sentences. The trial court clearly announced in its
conclusions of law that the exceptional sentence was based on the free-crimes aggravator.
Conspicuously absent from the trial court’s conclusions of law is any reference to the two
extraneous findings of fact.
Under the guise of a resentencing, the majority is essentially directing the trial
court to excise two superfluous findings from its findings of fact. Fisher, 108 Wn.2d at
430 n.7. Because the trial court did not assign any weight to the extraneous findings, as
evidenced by its conclusions of law, remanding for resentencing is both unnecessary and
begets an unwarranted strain on an already overburdened trial court.
Cooney, J.