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This case presented a statutory construction issue of first impression: whether a sentencing court has authority to impose a firearm sentence enhancement on a defendant’s sentence for conviction of an unranked felony. The Court concluded that RCW 9.94A.533, which provides for firearm and other sentence enhancements, applies only to ranked offenses. Or stated another way, you cannot add a sentencing enhancement to an unranked felonies.

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 18-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.

The statute at issue was 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 of RCW 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.

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 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.510, the Table 1 sentencing grid, or from RCW 9.94A.517, the drug offense sentencing grid.

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.

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 of law and reviewed de novo. State v. Elmore, 154 Wn. App. 885,904-05, 228 PJd 760 (2010).

Although expressed in dicta (dicta is a statement of opinion or belief considered authoritative though not binding) the court noted that at least one justice of the 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)].”).

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