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State v. Friedlund

Supreme Court of Washington, En Banc

January 15, 2015

The State of Washington, Respondent,
v.
John Herbert Friedlund, Petitioner. The State of Washington, Respondent,
v.
Casmer Joseph Volk, Petitioner

Argued September 16, 2014

Marie J. Trombley, for petitioners.

Gregory L. Zempel, Prosecuting Attorney for Kittitas County, and Christopher T. Herion, Deputy ; and Timothy D. Rasmussen, Prosecuting Attorney for Stevens County, and Lech Radzimski, Deputy, for respondent.

AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.

OPINION

Page 281

[182 Wn.2d 390]  Wiggins, J.

¶ 1 We must determine whether an on-the-record oral ruling may substitute for written findings when a trial court imposes an exceptional sentence--that is, a sentence that is outside the standard sentence range for an offense. We conclude that oral findings do not satisfy the requirements of the Sentencing Reform Act of 1981 (SRA) and remand these matters to the trial court for entry of written findings of fact and conclusions of law (hereinafter written findings). Ch. 9.94A RCW.

¶ 2 This consolidated appeal consists of two criminal cases. In each case, the jury convicted the defendant and found that aggravating circumstances were present. At sentencing, the trial courts deviated from the standard sentencing range and imposed exceptional sentences. While both trial courts explained on the record their reasons for deviating from the standard range, neither court entered written findings as required by statute. [1] See RCW 9.94A.535. Both sentences were affirmed by the Court of Appeals in unpublished opinions. State v. Friedlund, noted at 178 Wn.App. 1039, 2014 WL 94322, State v. Volk, noted at 179 Wn.App. 1024, 2014 WL 465452.

¶ 3 The language of RCW 9.94A.535 is clear: " Whenever a sentence outside the standard sentence range is imposed, [182 Wn.2d 391] the court shall set forth the reasons for its decision in written findings of fact and conclusions of law." (Emphasis added.) Because neither court entered written findings prior to appeal, we remand both cases to the trial court for entry of written findings.

FACTS

I. State v. Friedlund

¶ 4 The State charged John Friedlund with first degree theft, alleging that he misappropriated over $ 800,000 belonging to the victim, Frances Swan, by converting the money to his own use. Swan was an old family friend of Friedlund. In 2001, after her husband passed away, Swan requested that Friedlund move into her house and designated him as her primary attorney-in-fact. At the time Friedlund moved in, Swan was 96 years old. Over the following decade, Friedlund gradually took control of Swan's life and finances. In addition to misappropriating Swan's money, Friedlund willfully neglected Swan herself. In 2011, 10 years after Friedlund moved into Swan's house, law enforcement officers responded to a report that no one had seen Swan for several months. Investigating officers found the house in a state of horrific disrepair and observed that Swan (by then 106 years old) was on the brink of starvation.

¶ 5 The State charged Friedlund with first degree theft. The information alleged two aggravating factors: (1) Friedlund had abused a position of trust to facilitate the crime and (2) his victim had been particularly vulnerable or incapable of resistance. A jury convicted Friedlund on the theft charge and found both aggravating circumstances present. The trial court sentenced Friedlund to 120 months in prison, above the standard sentence range of 3 to 9 months. The trial court explained the reasons for imposing an exceptional sentence on the record at Friedlund's sentencing hearing. But when the trial court entered its judgment and sentence, no written findings were entered.

[182 Wn.2d 392] ¶ 6 Friedlund appealed. The Court of Appeals affirmed, holding that because " [t]he trial court's oral opinion clearly and sufficiently articulates the exceptional sentence was imposed based on the jury's finding of the aggravating circumstances," the absence of written findings was " harmless" and remanding for written findings would be a " mere formality." Friedlund, 2014 WL 94322, at *3. We ...


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