State Of Washington, V Raymond Jay Femling

• Court: Court of Appeals of Washington
• Decided: January 27, 2025
• Docket: 87065-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 87065-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION RAYMOND JAY FEMLING,

Appellant.

DÍAZ, J. — Following our Supreme Court’s decision in State v. Blake, 197

Wn.2d 170, 186, 481 P.3d 521 (2021), a superior court resentenced Raymond Jay

Femling, largely holding him to the original plea agreement, while giving him credit

for the rehabilitation he had shown in prison. He argues that, pursuant to Blake,

the court should not have counted a related bail jumping conviction in his offender

score, nor should it have counted separately two of his convictions, which he

claims constitute the same criminal conduct. Femling also argues the court lacked

authority to impose an exceptional consecutive sentence and failed to exercise its

discretion to impose a mitigated sentence. He also requests to strike the victim

penalty assessment. Finding no error, we affirm, remanding this matter only so

the court may strike the victim penalty assessment. No. 87065-3-I/2

I. BACKGROUND

This case arises from the 2014 kidnapping and assault of James

Braithwaite, and Femling’s subsequent attempt to hire various persons to murder

Braithwaite to prevent him from testifying. The State charged Femling with eight

crimes, including kidnapping in the first degree, robbery in the first degree, assault

in the second degree, and three counts of solicitation to commit murder in the first

degree. In 2016, Femling pled guilty to kidnapping in the second degree,

solicitation to commit assault in the first degree, and two counts of tampering with

a witness.

In his statement on plea of guilty Femling agreed to the State’s settlement

offer in which the parties jointly would ask the court to enter an exceptional

sentence of 216 months of confinement by running the convictions for solicitation

(120 months) and for kidnapping (96 months) consecutively. Both sentences

represented the high end of the standard ranges. Otherwise, Femling faced a

standard term of confinement of up to 411 months for the original solicitation

charge.

At his sentencing hearing, the court asked Femling if knew that he was

stipulating to consecutive sentences and that he could not appeal such a sentence

without being in violation of the plea agreement. Femling acknowledged orally and

in writing that he understood both and also agreed that an exceptional sentence

was in the “interest of justice.” The court followed the parties’ recommendation

and sentenced Femling to 216 months total confinement for these crimes (the

“2016 sentence”).

2 No. 87065-3-I/3

Separately, in 2011, Femling had pled guilty to two crimes and was granted

a drug offender alternative sentencing alternative (DOSA) sentence, which

suspended a portion of his confinement on the condition he obeyed all criminal

laws. Following the conviction in the present case, the DOSA sentences were

revoked and the remaining suspended time imposed, which the court in this case

ordered to run consecutively to the 2016 sentence.

The 2016 sentence was predicated in part on several convictions for

possession of a controlled substance (PCS) under RCW 69.50.4013(1). After our

Supreme Court’s decision in Blake, which held that such convictions were

unconstitutional, Femling moved for resentencing in 2021. 197 Wn.2d at 186. The

State did not oppose his request to correct his offender score so that the three

prior PCS convictions were removed from the calculation and the court did so.

But in several motions for resentencing, Femling also raised several of the

arguments it now raises on appeal, each of which the resentencing court rejected.

The court held the parties to the plea agreement, but found it was not obligated to

follow their recommendation and would base its sentence on all available

information before it. The court resentenced Femling to the same term of

confinement on the solicitation conviction (120 months) but sentenced him to 62

months on the kidnapping conviction, which represented the low end of the

standard range, for a total of 182 months. It held that its sentence accounted for

the work commendations Femling provided and the programs he had completed

in prison since the initial sentencing. And the court ran those sentences, as well

as the DOSA sentence, consecutively, finding there was no need to resentence

3 No. 87065-3-I/4

the DOSA.

Femling timely appeals.

II. ANALYSIS

A. Femling’s Prior Bail Jumping Conviction

The 2016 sentence was predicated in part also on a conviction for bail

jumping, where the PCS conviction was the underlying offense. Femling claims

that the bail jumping conviction should not have counted in his offender score. As

he had asserted in a separate appeal, he argues that, because his bail jumping

conviction was based on his PCS convictions, the former is an invalid judgment

and must be erased from his offender score, as was the latter. Alternatively, he

contends that, because PCS was never an offense, the punishment for bail

jumping where PCS was the underlying crime “remains undefined,” and therefore,

it should only be considered a misdemeanor. We disagree, noting that this court

has already rejected both assertions.

As to the first argument, the fact that charges arose under a constitutionally

valid statute is not required for a valid bail jumping conviction. State v. Paniagua,

22 Wn. App. 2d 350, 357, 511 P.3d 113 (2022). As to the second argument, this

court has already rejected Femling’s claim that we should reclassify his prior

conviction as a misdemeanor. State v. Femling, No. 57512-4-II, slip op. at 2

(Wash. Ct. App. May 29, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2057512-4-

4 No. 87065-3-I/5

II%20Unpublished%20Opinion.pdf. 1 And, our Supreme Court has denied his

petition for review of that decision. State v. Femling, 559 P.3d 497 (2024). We

see no reason to revisit either holding on these facts.

Thus, the trial court did not err by including the bail jumping conviction in

Femling’s offender score.

B. Same Criminal Conduct

Femling argues the court erred when it found that the solicitation and

kidnapping convictions do not constitute the same criminal conduct. He contends

that they do so and, thus, the two convictions should have been scored as one

point.

When a defendant is convicted of two or more crimes the sentencing court

may “enter[] a finding that some or all of the current offenses encompass the same

criminal conduct,” which reduces the offender score. RCW 9.94A.589(1)(a). But

our Supreme Court has held the statute is “generally construed narrowly to

disallow most claims that multiple offenses constitute the same criminal act.” State

v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974, 976 (1997).

“In order for separate offenses to ‘encompass the same criminal conduct’

under the statute, three elements must therefore be present: (1) same criminal

intent, (2) same time and place, and (3) same victim.” Id.; see also RCW

9.94A.589(1)(a). “The absence of any one of these prongs prevents a finding of

same criminal conduct.” Id.

1 We cite this decision pursuant to GR 14.1(a) as it is necessary for a reasoned

opinion. 5 No. 87065-3-I/6

It is a defendant who bears the burden “of production and persuasion” on

the issue. State v. Aldana Graciano, 176 Wn.2d 531, 539-540, 295 P.3d 219

(2013). A trial court’s same criminal conduct determination will be reversed by an

appellate court only when there is an abuse of discretion or misapplication of the

law. Id. at 533, 535-38. “A court abuses its discretion when the record supports

only one conclusion on whether crimes constitute the same criminal conduct.”

State v. Latham, 3 Wn. App. 2d 468, 479, 416 P.3d 725 (2018).

Our Supreme Court recently held that our cases “consistently” have looked

to the statutory definitions of the crimes to determine the objective intent as “the

starting point” in determining “‘same criminal conduct.’” State v. Westwood, 2

Wn.3d 157, 167, 534 P.3d 1162 (2023). “If the objective intent for the offenses

were the same or are similar, courts can then at whether the crimes furthered each

other and were part of a same scheme or plan.” Id. at 168. This analysis prevented

courts from “speculating” over a defendant’s proposed subjective purpose. Id. On

the facts there, the Court also held that—because the State brought and proved

beyond a reasonable doubt distinct charges each alleging a separate necessary

statutory intent element, and because no challenge was raised concerning the

sufficiency of the evidence supporting either charge—the objective analysis

pointed to the conclusion that the crimes did not have the same objective criminal

intent. Id. at 169.

As to the first crime here, a person is guilty of solicitation to commit assault

in the first degree when, “with intent to promote or facilitate the commission of

[assault in the first degree], he or she offers to give or gives money or other thing

6 No. 87065-3-I/7

of value to another to engage in specific conduct which would constitute such crime

or which would establish complicity of such other person in its commission or

attempted commission had such crime been attempted or committed.” RCW

9A.28.030(1); RCW 9A.36.011(1) (specifying that person is guilty of assault in the

first degree if he or she, with intent to inflict great bodily harm, assaults another

and inflicts great bodily harm or death).

As to the second crime here, a person is “guilty of tampering with a witness

if he or she attempts to induce a witness or person he or she has reason to believe

is about to be called as a witness in any official proceeding or a person whom he

or she has reason to believe may have information relevant to a criminal

investigation . . . to [t]estify falsely or . . . [a]bsent himself or herself from such

proceedings.” RCW 9A.72.120(1).

Looking to these statutory definitions, it is plain that the crimes’

corresponding objective intentions are distinct. For instance, a crime that could

satisfy the intent for soliciting first degree assault—by promoting the commission

of action resulting in great bodily harm or death—could then easily exceed the

intent necessary for witness tampering, where a person could keep another from

testifying by simply, say, bribing the witness to testify falsely. Or, a person could

keep another from testifying without any desire to cause any physical harm, e.g.,

by directing the witness to the wrong courthouse on the wrong day.

In response, Femling starts his analysis, relying on State v. Collicott, 118

Wn.2d 649, 668-69, 827 P.2d 263 (1992), by arguing that we look to whether the

two charges “are in regards to the same victim and are during the same timeframe”

7 No. 87065-3-I/8

and whether one offense “was done in furtherance” of another. This argument

ignores the analytic structure of the most recent binding authority, which again sets

as our starting point the objective intent made manifest in the statutory definitions

of the crimes, and mandates for consideration the remaining factors only if needed.

Westwood, 2 Wn.3d at 167-68. Again, the absence of any one prong prevents a

finding of “same criminal conduct.” Id. at 162. We simply need not reach Femling’s

arguments.

In short, Femling fails to carry his burden to show that the court abused its

discretion in finding that the objective intent of the two crimes were distinct and,

thus, we affirm the holding they did not encompass the same criminal conduct.

C. Imposition of Exceptional Consecutive Sentence

Femling argues the resentencing court erred by imposing an exceptional

sentence, which ran the solicitation and kidnapping convictions consecutively as

he had agreed to in his original plea, but not at his resentencing. He asks us to

remand this matter for resentencing and to order the court to run convictions in the

2016 sentence concurrently to each other and with his prior 2010 cases. We

decline these requests first because he has waived his arguments on appeal about

why such remedies are justified.

Appellate courts generally do not entertain issues not raised in the trial

court. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). An exception to

the rule exists, however, for manifest errors affecting a defendant’s constitutional

rights. RAP 2.5(a)(3). But the exception must be construed narrowly. State v.

Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). “‘Manifest’ in RAP 2.5(a)(3)

8 No. 87065-3-I/9

requires a showing of actual prejudice.” State v. O’Hara, 167 Wn.2d 91, 99, 217

P.3d 756 (2009). Prejudice in this context means that the error had “practical and

identifiable consequences in the trial of the case.” State v. J.W.M., 1 Wn.3d. 58,

91, 524 P.3d 556 (2023). That said, this court has declined to even address

whether a claim raised for the first time on appeal survives waiver if a party “fails

to argue that any of the exceptions listed in RAP 2.5(a) apply.” State v. Lindsey,

177 Wn. App. 233, 247, 311 P.3d 61 (2013).

At resentencing, Femling asked for a lower sentence, arguing that he was

no longer bound by the plea agreement’s terms because the Blake decision

rendered the agreement invalid, and running the DOSA sentence consecutively

was generically unjust. At oral argument, he conceded, “[t]here’s, unfortunately, a

lack of direct authority on point.”

In contrast, the gravamen of Femling’s argument on appeal is that, under

the sixth amendment, the court could not impose an exceptional sentence again

without a renewed stipulation or a jury finding. (Citing inter alia Blakely v.

Washington, 542 U.S. 296, 304-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004));

U.S. CONST. amend VI. This argument is simply new. And, in reply, Femling does

not respond to the State’s contention that this argument is waived and, thus, his

claim fails under Lindsey, 177 Wn. App. at 247.

Though we need look no further, we alternatively hold that his arguments

are equally unavailing on their merits. A defendant may argue for a lower

sentence, but a court may bind the defendant to their stipulation that an exceptional

sentence is legally justified. In re Pers. Restraint of Fletcher, 3 Wn.3d 356, 382,

9 No. 87065-3-I/10

552 P.3d 302 (2024). “Ultimately, the appropriate sentence must be determined

by the independent judgment of the resentencing court in accordance with the

[Sentencing Reform Act, chapter 9.94A RCW] SRA.” Id.

Additionally, we have held that an appellant who does not challenge the

validity of his plea agreement in his appeal cannot challenge a stipulation to an

exceptional sentence he had made in that plea—one in which he agreed to a joint

recommendation in exchange for the State not filing additional charges. State v.

Poston, 138 Wn. App. 898, 900, 905, 158 P.3d 1286 (2007). The same is true

here, where Femling stipulated to an exceptional consecutive sentence in

exchange for lesser charges and a number of dismissed charges, significantly

reducing his confinement, but not challenging the plea itself.

Even if Femling had not waived this issue, the fact that Femling did not

stipulate to a consecutive sentence at the resentencing hearing did not preclude

the court holding him to his prior stipulation.

D. The Alleged Refusal to Impose an Exceptional, Mitigated Sentence Concurrent to Femling’s 2010 cases

Under RCW 9.94A.585, a defendant generally may not appeal a standard

range sentence, but this court will still review such a sentence under circumstances

in which the trial court refused to exercise discretion at all or relied on an

impermissible basis for refusing to impose the requested sentence. State v.

Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). “When a court has

considered the facts and concluded there is no legal or factual basis for an

exceptional sentence, it has exercised its discretion, and the defendant cannot

appeal that ruling.” State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173, 176

10 No. 87065-3-I/11

(2002).

Femling assigns error to the court’s failure to impose a mitigated exceptional

sentencing running his 2016 sentence concurrently with the 2010 sentence. To

the extent that Femling argues the court abused its discretion by failing to exercise

discretion, we reject that claim because the record indicates it did, in fact, exercise

discretion, even if not in the manner Femling preferred. The court expressly held

that it did not have to follow the plea agreement. And it ultimately departed from

the prior sentence by deciding to sentence Femling to the low-end of the standard

range on the kidnapping charge, rather than the higher range as the original

sentencing judge had. The court further noted it relied on recent information about

Femling’s rehabilitation in prison. The court clearly exercised its discretion. McGill,

112 Wn. App. at 100. 2

In short, Femling does not demonstrate the court abused its discretion

based on an incorrect belief it lacked a legal ability to do what it actually did, which

2 We also reject Femling’s claim to the extent he asserts the court abused its

discretion based upon an incorrect belief in the law. Femling appears to contend that the court incorrectly believed that it lacked authority to impose the sentence for his 2014 case concurrently to his 2010 case when RCW 9.94A.535 actually enabled it to do so. But he fails to provide sufficiently reasoned or supported argument for this position. Despite alluding to the statute’s “clear wording,” Femling quotes no language from RCW 9.94A.535 nor cites any particular provision of it, let alone explains how it indicated the court had authority to run a sentence for a subsequent case concurrently to a prior one that was already served because the earlier one was alleged to be unfair. Where a party fails to provide authority in support of a specific claim, we may “assume that counsel, after diligently searching, has found none.” In re Pers. Restraint of Campbell, 27 Wn. App. 2d 251, 264, 533 P.3d 144 (2023); RAP 10.3(a)(6). Moreover, this court need not consider arguments that a party does not support with meaningful analysis or citation to pertinent authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 11 No. 87065-3-I/12

is to look at the facts, consider the law, and determine the appropriate sentence

using its independent judgment in accordance with the SRA. Fletcher, 3 Wn.3d at

382.

E. Victim Penalty Assessment Fee

Femling’s judgment and sentence imposed a victim penalty assessment

(VPA) fee. He now requests a remand to strike that legal financial obligation. The

State concedes the matter should be remanded for that purpose. We accept this

concession and remand this case to the trial court to strike the VPA in accordance

with RCW 7.68.035(4) and RCW 43.43.7541(2). 3

III. CONCLUSION

Though we reject Femling’s other assignments of error, we remand this

case to the trial court to strike the VPA fee.

WE CONCUR:

3 Formerly, RCW 7.68.035(1)(a) mandated a $500 victim penalty assessment for

all adults found guilty in superior court of a crime. State v. Mathers, 193 Wn. App. 913, 918, 376 P.3d 1163 (2016). In 2023, our legislature amended RCW 7.68.035 to state that “[t]he court shall not impose the penalty assessment under this section if the court finds that the defendant, at the time of sentencing, is indigent as defined in RCW 10.01.160(3).” LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). Further, courts are required to waive VPAs imposed prior to the 2023 amendments, on the offender’s motion. Id.; RCW 7.68.035(5)(b). 12