IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                             No. 74205-1-1                     c:::~i   ^o
                    Appellant,
                                                                                        7~',~:
                                             DIVISION ONE                      m
                                                                               C~5
             v.
                                                                               ro
                                             UNPUBLISHED OPINION
MICHAEL TODD FERNANDEZ,                                                        33.      GO (-r;

                                             FILED: December 27, 2016
                                                                               5        7 '7p.
                    Respondent.
                                                                               CO       o   • --
                                                                               CO




       Becker, J. — This is the State's appeal from a downward exceptional

sentence for second degree escape. Because the factors identified as

supporting a downward departure were necessarily considered by the legislature

in establishing the standard range, we reverse and remand for resentencing.

       Respondent Michael Fernandez was serving a sentence for cocaine

possession and identity theft. Two months into his sentence, he was placed in

work release. His first full day in the work release program was April 30, 2015.

He received a pass allowing him to leave for three hours to search for

employment. He did not return.

       Fernandez was arrested on a warrant two months later. He was returned

to the Department of Corrections. The department terminated his work release

placement and revoked good time credits he had earned on the sentence he was

serving for cocaine possession and identity theft.
No. 74205-1-1/2



       The State charged Fernandez with first degree escape, later amended to

second degree escape pursuant to plea negotiations. He pled guilty. The

presumptive sentencing range was 22 to 29 months based on the charge and

Fernandez's offender score of six.

       At a sentencing hearing, Fernandez told the court, "I made a mistake. The

day I got to work release, I got high.... And once they let me out on a pass, I

didn't come back." The State and defense counsel recommended 22 months,

the sentence they had agreed to during plea negotiations. The court was

reluctant to sentence Fernandez at even the lowest end of the standard range.

The court expressed concern about how sentencing statutes treat nonviolent

offenders afflicted with substance addiction or mental illness:

       And so what I have here is somebody who walked away from work
       release now looking at another two year sentence. For what
       purpose? To warehouse him?
               I'm just, I am, I got this gut reaction at this point in time that
       what we're doing is misguided. Our Sentencing Reform Act is
       taking this model that says repeat offenders who have substance
       abuse mental health issues, which I think historically when you look
       at the record, many of the underlying offenses, at least one or two,
       appear to be related to that. But we're not addressing those issues
       because when you go to Monroe, Walla Walla, there's no
       treatment. It's warehousing. And they let you out and they say,
       they give you no skills.... So I'm having this visceral response.

The court told Fernandez "were I to sentence you to 22 to 29 months, I couldn't

look in the mirror."

       The court reviewed RCW 9.94A.535(1), which sets forth a nonexclusive

list of mitigating circumstances to support a downward exceptional sentence. At
No. 74205-1-1/3



the court's request, defense counsel agreed to draft proposed findings of fact and

conclusions of law in support of a reduced sentence.1

       After a second sentencing hearing, the court decided to impose an

exceptional sentence of 30 days. The court adopted proposed findings of fact

and conclusions of law in an order issued on October 26, 2015. The court

identified three substantial and compelling reasons for an exceptional sentence.

The offenses Fernandez was held on (identity theft and cocaine possession)

were nonviolent; Fernandez's escape did not endanger the work release facility,

its employees, or other inmates; and Fernandez lost "good time" as a result of

escaping and lost his eligibility for future work release placements.

       The State appeals and argues that none of these reasons justify the

sentence.


       Courts are generally required to impose a sentence within the standard

range. RCW 9.94A.505(2)(a)(i); State v. Law, 154 Wash. 2d 85, 94, 110 P.3d 717

(2005). The standard range is determined by the seriousness of the offense and

the defendant's criminal history. See RCW 9.94A.510. The range represents the

legislature's determination regarding appropriate sentencing. A court's

disagreement with the legislature's determination cannot justify a departure from

the standard range. Law, 154 Wash. 2d at 101. Rather, a departure must be

supported by substantial and compelling reasons related to the crime, the

defendant's culpability for the crime, or the defendant's criminal record. RCW




        1 Defense counsel did not request an exceptional sentence or otherwise
violate the plea agreement.
No. 74205-1-1/4



9.94A.340; RCW 9.94A.535; Law, 154 Wash. 2d at 89. The court must state its

reasoning in written findings of fact and conclusions of law. RCW 9.94.A.535.

       Reviewing courts use a two-part test to determine whether a factor legally

supports a departure from the standard range: (1) a trial court may not base an

exceptional sentence on factors necessarily considered by the legislature in

establishing the standard range and (2) the asserted aggravating or mitigating

factor must be sufficiently substantial and compelling to distinguish the crime in

question from others in the same category. State v. Ha'mim. 132 Wash. 2d 834,

840, 940 P.2d 633 (1997), citing State v. Alexander, 125 Wash. 2d 717, 725, 888
P.2d 1169 (1995).

       We will reverse an exceptional sentence that relies on improper mitigating

factors. RCW 9.94A.585(4). Our review is de novo. Law, 154 Wash. 2d at 93.

       The primary factor the court relied on was that Fernandez's escape did not

endanger the work release facility, its employees, or other inmates. This is the

only factor Fernandez defends in his briefing as a proper mitigating

circumstance. The State contends this factor is improper because it was

necessarily considered by the legislature.

       The legislature ranks the seriousness of crimes based on their relative

violence to society. State v. Calvert, 79 Wash. App. 569, 581, 903 P.2d 1003

(1995), review denied. 129Wn.2d 1005(1996). First degree escape is

categorized as a class B felony with a seriousness level of IV. RCW 9.94A.515;

RCW 9A.76.110. Second degree escape is categorized as a class C felony with

a seriousness level of III. RCW 9.94A.515; RCW 9A.76.120. These crimes fall
No. 74205-1-1/5



on the low end of the seriousness list, which ranges from level I to level XVI.

RCW9.94A.515.

       Because the legislature considers comparative violence when ranking

seriousness, the nonviolent nature of a crime does not constitute a proper

mitigating factor. Calvert, 79 Wash. App. at 581. Thus, in Calvert, the trial court's

conclusion that "a forger should not be sentenced the same as a violent offender"

was inadequate to support a downward exceptional sentence. Calvert, 79 Wn.

App. at 574, 581; see a|so State v. Fowler. 145 Wash. 2d 400, 404, 38 P.3d 335

(2002), citing State v. Nordbv. 106Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986).

       We adhere to the reasoning of Calvert and Fowler. The legislature

considered whether and to what extent escape is a violent crime when ranking its

seriousness and determined it is a relatively nonviolent crime. Fernandez's

offender score, not the seriousness of the crime of escape, is the primary reason

why the standard range was 22 to 29 months in his case. If second degree

escape had been his first conviction, he would have faced a standard range of

only one to three months. Clerk's Papers at 29.

       The legislature did not have only prison breakouts in mind when it set the

standard range for escape. As the result of an amendment enacted in 2001,

failing to return to work release was subsumed into the statutes defining first and

second degree escape. RCW 9A.76.110(1); RCW 9A.76.120(1). These statutes

penalize escape from a "detention facility," a term defined to include work release

as well as other places of confinement. RCW 9A.76.010(3).
No. 74205-1-1/6



       Fernandez quotes comments made during a 2001 meeting of the House

Committee on Criminal Justice and Corrections when the committee was hearing

testimony on the proposal to amend the escape statute. He states that a

representative "expressed his concern that failing to return would be treated 'the

same or nearly the same as a violent escape.'" An individual legislator's

comments from the floor do not necessarily reveal legislative intent. Spokane

County Health Dist. v. Brockett. 120 Wash. 2d 140, 154-55, 839 P.2d 324 (1992).

To the extent this particular comment is relevant, it indicates that the legislature

did consider whether the crime of escape should encompass a failure to return to

work release.

       All escapes have the potential to cause violence, either during the escape

or later when the fugitive is arrested. If an offender commits a violent offense in

the course of escaping, the violent offense may be charged separately. For

instance, if Fernandez had attacked an employee of the work release facility or

another inmate to facilitate his escape, he could have been charged and

punished for assault in addition to escape. In that case, his presumptive

sentence would have been longer.

       The escape statutes distinguish between the three degrees of escape

based on circumstances unrelated to whether a defendant used violence. See

RCW 9A.76.110 to .130. Fernandez argues that because the three degrees are

not differentiated on the basis of the level of violence used to escape,

nonviolence is an appropriate mitigating factor. This conclusion does not

necessarily follow. The State's argument is just as logical: There is no
No. 74205-1-1/7



differentiation by levels of violence because the legislature viewed violence as

irrelevant to evaluating culpability for an escape.

       To conclude, the fact that Fernandez walked away from work release

without committing a violent act does not justify mitigation of his sentence. It fails

the first prong of the test for mitigating factors. The legislature ranked second

degree escape as a relatively nonviolent crime. Therefore, the standard range

already assumes that second degree escape is nonviolent.

       Another reason given by the court for imposing an exceptional sentence is

the nonviolence of the offenses that Fernandez was serving time for when he

escaped, identity theft and cocaine possession. The nonviolence of a
defendant's past crimes "does not qualify as a mitigating circumstance" because

criminal history is one of the components used to compute the presumptive

range. Calvert, 79 Wash. App. at 581; see ajso Fowler, 145 Wash. 2d at 406 ("a lack
of a criminal history is not a mitigating factor because criminal history is already

encompassed in the sentencing guidelines").

       The court's third reason for mitigating the sentence was that Fernandez,

as a result of escaping, lost "good time" credits and will not be eligible for future

work release placements. This court has rejected loss of "good time" and other

institutional sanctions as proper mitigating factors in escape cases. State v.

Akin. 77 Wash. App. 575, 586, 892 P.2d 774 (1995).

       At oral argument before this court, Fernandez suggested that the
exceptional sentence is justified by his need for substance abuse treatment. He
cited State v. O'Dell, 183 Wash. 2d 680, 358 P.3d 359 (2015), for the proposition
No. 74205-1-1/8



that a sentencing court may consider as a mitigating circumstance a personal

characteristic, such as drug addiction, if it drives a defendant's criminal behavior.

While addiction is not mentioned in the written findings and conclusions, the

order signed by the trial court incorporated the court's oral statements. In the

oral ruling, the court lamented institutional failures and criticized the sentencing

scheme for requiring a "draconian" and purely punitive response to a person

"who is suffering from a medical condition."

       A court must support its decision to impose an exceptional sentence with

written findings and conclusions. RCW 9.94.A.535. Even if oral findings may be

incorporated by reference, the court's oral statements did not include concrete,

reviewable findings about drug use. There is scant evidence in the record

demonstrating Fernandez suffers from an addiction, aside from speculative

inferences based on his criminal history. It is unclear why, if Fernandez wanted

to be treated for substance abuse, he did not seek and the court did not consider

a treatment-based sentencing alternative. We conclude the record is insufficient

both factually and legally to support affirming the exceptional sentence on the

basis of a reason unspecified in the written order.

       Having decided that the factors do not meet the first prong of the two-part

test, we do not address the second prong of the test. See Alexander, 125 Wash. 2d

at 731. In addition to deciding whether the reasons for a mitigated sentence are

adequate, reviewing courts also consider whether the reasons are supported by

the record and if the sentence is clearly too lenient. RCW 9.94A.585(4). Given




                                          8
No. 74205-1-1/9



our conclusion that the reasons in this case are inadequate, we do not address

whether the other two standards are satisfied.

       Fernandez's sentence is reversed. We remand for resentencing.



                                                 fjpeo^g
WE CONCUR:




  X)f^/V^\V