State of Washington v. John Thomas Edward Clark

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
JOHN THOMAS EDWARD CLARK,
Appellant.
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No. 39710-6-III
UNPUBLISHED OPINION
FEARING, J. — At the request of the State of Washington, we previously remanded
appellant John Clark’s sentence because the superior court considered impermissible
circumstances when granting an exceptional downward sentence. Clark now asks that we
remand again for a second resentencing. We grant Clark’s request because of uncertainty
as to whether the superior court properly exercised its discretion during the first
resentencing.
FACTS
A no-contact order prohibited John Clark from any contact, even through a third
party, with his ex-wife Jane, a pseudonym. Between February and April 2020, Clark
violated the order four times. The superior court simultaneously sentenced Clark for
these four violations on May 19, 2020.
FILED
December 19, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III

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During July and August 2020, John Clark contacted Jane numerous times through
Facebook and through Jane’s mother, H.T. John sent H.T. pictures via Facebook
messenger of handwritten letters addressed to Jane and signed by him. He asked H.T. to
forward the messages to Jane.
On December 8, 2020, the State of Washington charged John Clark with a felony
violation of a no-contact order. The offense rose to the level of a felony due to Clark
having at least two earlier convictions of violating the order.
On January 14, 2022, John Clark pled guilty to the felony charge of violating a
court order. Because Clark’s offender score was 8, the standard range sentence for his
offense began and ended at 60 months. In exchange for Clark pleading guilty, the State
agreed to recommend, at sentencing, a prison-based Drug Offender Sentencing
Alternative (DOSA) consisting of thirty months of incarceration and thirty months of
community custody. The statement of plea of guilty read, in part:
(j) The prosecuting attorney will make the following
recommendation to the judge: Agreed recommendation for Prison DOSA.
Clerk’s Papers (CP) at 7.
At John Clark’s sentencing hearing, the State requested imposition of the DOSA
sentence reflected in the plea agreement. In response, defense counsel remarked:
The day I met Mr. Clark probably about eight or nine months ago he
told me he wanted to take responsibility for his actions, told me he was
ready to plead guilty, but the offer on the table was this; it was prison
DOSA where he would have to derail the past two years of his

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rehabilitation, his getting sober, getting his life on track to go to prison for
20 months at best with good time. And so for the past nine months I’ve
been working with the State in attempt to find a resolution that would allow
Mr. Clark to potentially not spend nearly two years in custody followed by
DOC [Department of Corrections community custody].
DOC isn’t his concern. He knows he’ll be able to be compliant with
that. It’s really going to prison, taking two years off work, child support
payments, all of those things and having to kind [of] get back out of
custody and start his life over again for however many-th (sic) time.
. . . [H]e knows that he violated this no contact order back in
November of 2020, but he’s gotten sober, he's gotten clean. Since
November of 2020 as far as I’m aware there haven’t been any allegations of
violations of a no-contact order. I’m sure the State would have informed
me if there were. So he’s been good, and he’s done what he needs to do.
It’s unfortunate that the [SRA] is structured the way it is. The law is
the law and no-contact orders are such a procedural charge that it’s easy for
the State to prove at trial. Mr. Clark didn’t want to put the community
through that; he didn’t want to put his family and friends through that, or
the victim through that. So he’s taking responsibility and he’s ready to
enter his guilty plea.
I think the only way and I told Mr. Clark this, the only way I would
have been able to help him is to go back in time, never leave the
prosecutor’s office, be the assigned DPA [deputy prosecuting attorney] on
this case, and have a little empathy for the journey that he’s gone on, and
the changes that he’s made in his life. This is a hard one for me, Your
Honor, to sit here and have Mr. Clark booked into custody today knowing
that for the next two years he’s going to have to sit still, and as an addict
he’s going to have to be really, really structured when he gets out of
custody and be very focused. He knows he can do it; I know he can do it,
but it’s hard to sit here and know that transport is coming to take him away
for two years.
CP at 56-57 (some alterations in original).
The sentencing court imposed an exceptional sentence below the standard range,
which sentence consisted of six months of incarceration and twelve months of
community custody. The court also imposed a five-year no-contact order. The

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sentencing court found that four factors warranted a departure from the standard range
sentence: (1) John Clark engaged in post-arrest rehabilitation, (2) Clark’s earlier no-
contact order violations were sentenced on the same date with the offenses having been
committed in a narrow period of time, (3) since Clark’s violative communications were in
writing, the State and the court knew all the substance of his improper communications,
and (4) Clark’s communications to his ex-wife and her mother were not threatening,
intimidating, or violent.
The State appealed John Clark’s sentence to this court. The State asked for
resentencing because the law did not approve of any but one of the sentencing court’s
bases for a downward sentence and because defense counsel implicitly breached the plea
agreement at sentencing by undermining the parties’ recommendation for a prison-based
DOSA.
On February 21, 2023, this court issued its opinion that remanded John Clark’s
prosecution for resentencing. In discussing whether Clark’s minimal misconduct
justified an exceptional sentence on its own, this court wrote:
While the legislature has recognized some different degrees of
offense conduct in setting the penalties for violations of no-contact orders,
the conduct sufficient to qualify as a felony under the statute of conviction,
former RCW 26.50.110(5) (felony based on two or more prior convictions),
can vary widely. On the aggravating side, a defendant with two or more
prior convictions might violate the no-contact order by assaulting the
protected party. On the mitigating side, a defendant with two prior
convictions might violate the statute by a peaceful interaction that was
initiated by the protected party. Our case law recognizes that if the

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defendant’s conduct falls on the extreme end of the proscribed behavior, a
departure may be warranted. See, e.g., State v. Fisher, 108 Wn.2d 419, 739
P.2d 683 (1987).
Mr. Clark’s offense conduct included both aggravating and
mitigating circumstances. In aggravation, Mr. Clark had more than two
prior no-contact order violations and, according to the factual basis for Mr.
Clark’s guilty plea, Mr. Clark contacted his ex-wife on numerous occasions
as part of the current offense. The State could have charged Mr. Clark for
each separate violation, but chose not to do so. In mitigation, Mr. Clark’s
prior no-contact order violations were all part of the same criminal case.
Mr. Clark’s instant violations occurred in writing rather than in person, and
the content of Mr. Clark’s written communication appeared not to have
contained any threatening content.
Given the existence of both aggravating and mitigating
circumstances, we doubt whether Mr. Clark’s conduct can be fairly
characterized as de minimis. Furthermore, the record lacks any input on
these issues from Mr. Clark’s ex-wife. It is therefore impossible to assess
whether, given Mr. Clark’s relationship with his ex-wife, his
communications with her were interpreted as upsetting or threatening.
We need not definitely decide whether the facts in this case are
insufficient to justify an exceptional sentence downward. Because, as set
forth above, the sentencing court incorrectly relied on several
impermissible factors in imposing an exceptional sentence downward
remand is required as we cannot discern whether the court would have
opted for an exceptional sentence downward based solely on the de
minimis nature of Mr. Clark’s offense. See, e.g., State v. Henshaw, 62 Wn.
App. 135, 140, 813 P.2d 146 (1991) (Remand is necessary where the
sentencing court placed considerable weight on invalid factors, even if
other factors were valid.). On remand, the record may be enhanced by
additional information. If on remand the sentencing court finds Mr.
Clark’s offense conduct was de minimis in a manner not contemplated by
the legislature, and both compelling and substantial, an exceptional
sentence downward may be warranted.
CP at 65-67 (some emphasis added) (footnote omitted).
In addressing the second issue on appeal, this court determined defense counsel’s
actions at sentencing did not constitute a breach of the plea agreement. Nevertheless, it

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cautioned defense counsel about how to proceed on remand:
We note that on remand defense counsel’s posture will be much
different. Now that there is a well-defined basis for an exceptional sentence
downward, defense counsel must take care not to undermine the parties’
plea agreement and suggest the court impose anything other than the agreed
DOSA.
CP at 69.
In anticipation of resentencing, DOC filed a Request for a Discharge on March 14,
that read:
Mr. Clark adjusted well to Community Custody Supervision with the
Department of Corrections (DOC). He obtained a full-time job with Faith
Man Handy Man Services, within a week from being released from serving
his Original Jail Time and is currently employed with the same company.
Mr. Clark completed his Court Ordered Substance Abuse Evaluation, and
no further treatment was recommended. Mr. Clark has remained violation
free during his time with DOC, all his drug tests have been negative, and he
paid his legal financial obligations in full. He not only successfully
completed all the Court’s and DOC requirements, but he also bettered his
personal life. He attends Church regularly, he got married, secured a home
for him and his wife, and obtained a driver’s license. Mr. Clark is one of
the few who have demonstrated that he can be a prosocial member in the
community.
CP at 102.
PROCEDURE
On April 7, 2023, the superior court resentenced John Clark. In the meantime,
Jane, the crime victim, filed an impact statement that described Clark’s emotional and
mental abuse of her and their three children, his alcohol and drug abuse, Clark’s
abandonment of the family, his stalking of Jane after the abandonment, his theft of Jane’s

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car, and the trauma suffered by her and the children.
The State, before the resentencing hearing, delivered a letter from the victim of the
crime, John Clark’s ex-wife. During the resentencing hearing, the following colloquy
occurred before the court and the prosecuting attorney:
MR. MARTIN [the State's attorney] . . . I did want to let the Court
know that the victim in the case is present here today, and I wanted to
inquire if the Court got the—the just about page-and-a-half victim
statement?
THE COURT: I did not.
MR. MARTIN: Judge, I’ve got—I’ve got a copy here.
THE COURT: Thank you.
MR. MARTIN: I believe it’s been provided to defense.
. . . .
THE COURT: Let me—let me verify that. I went through — oh,
Counsel, I take it back. I did get that and I did read it. I’m sorry, I did read
that.
. . . .
THE COURT: Given that at a resentencing the court can consider
pertinent information that’s occurred subsequent to the sentencing, is there
anything I should be aware of?
MR. MARTIN [the State's attorney]: Judge, the only comment that I
would make in those regards is on the one hand, obviously we want to see a
defendant, especially a defendant that’s got, you know, a significant
criminal history and a number of DV convictions, we want to see that
defendant do something that makes it less likely that he is going to
reoffend, less likely he's going to put other people in danger and become a
productive member of the community. And those things are all
commendable, and I understand that the Court’s going to look at those. But
I think it’s also important to remember that a lot of defendants who go
straight from plea, to sentencing, to prison on a negotiated settlement don’t
get a chance to be out in the community and to make the improvements and
take the actions that they could come back on at the time of resentencing to
show, “Hey, you know, I’m not the person you think I am. This is what’s
been going on in my life these last couple years.” And I'm not saying that
it's unfair that the defendant had that chance where other defendants didn’t

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have it, but I do think that it’s something that should weigh in the Court’s
mind when you’re assessing what the appropriate approach is.
The parties did work on this case. They did come to an agreed
settlement. I understand all of Ms. Coic’s arguments, and I—I believe
they’re all made in good faith and they all point to relevant information.
But at the end of the day, this was an agreed settlement. It is a settlement
that—it not only has some accountability in it but also takes the midpoint of
the standard range and cuts it in half. So there is a palpable benefit that was
achieved by Ms. Coic’s negotiations with Mr. Welde. It reduced the
sentence the defendant otherwise would have been looking at almost by
half, maybe more than half if he would have gotten the high end. And it
also gives him the opportunity to have the state pay for his treatment, which
should be something that benefits him in the long term.
So again, it's just a lot for the Court to keep in mind, but I think all
those things—
THE COURT: But no—
MR. MARTIN: ought to weigh in.
THE COURT: No known facts to the state regarding probation
violations or not following up with—with the court’s original sentence or
violations of a no contact?
MR. MARTIN: I am not aware of any—
THE COURT: Okay.
MR. MARTIN:—new violations or—
THE COURT: No new crimes?
MR. MARTIN: And from what I understood from the materials
provided by Ms. Coic, it sounds like he was discharged from Department of
Corrections. So I’m assuming that they didn’t have an issue with him or
they wouldn’t have discharged him.
THE COURT: Thank you very much, Mr. Welde—not
Report of proceedings (RP) at 4-9.
During the resentencing hearing, defense counsel next spoke and the
resentencing court asked more questions. MS. COIC [defense counsel]:
Your Honor, I would like to inquire if the state has anyone that is—I know
he—Mr. Martin mentioned that the victim did not want to speak. Was there
anyone else that, Mr. Martin, that you wanted to speak today before I start?
THE COURT: Did the victim advocate or anyone wish to address
the court? I have reviewed the letter, and I’m aware of her position.

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VICTIM ADVOCATE ANNETTE INGHAM: Nobody else from
the state, your Honor. Thank you.
. . . .
MS. COIC: And, your Honor, Mr. Clark would like, if the Court
would entertain it, for his wife to make a statement on his behalf before I
speak.
THE COURT: That’s appropriate in the sentencing, no problem.
. . . .
THE COURT: What’s his sobriety been like?
MS. CLARK: What’s his sobriety been like? Um, he—I mean, he’s
—I’ve watched him grow over the last three years, and he has been
completely sober except for he—sometime a couple years ago he had a
one-day—it was a year and a half ago he had a one-day relapse and that
was it. And he does Celebrate Recovery. We go to church every Sunday.
He goes every Saturday to a men’s Bible study, and he has a huge support
system. And he is really confident in his sobriety now, yeah.
RP at 9-12.
Defense counsel spoke, at the hearing, about John Clark’s behavior while in DOC
custody. Although both parties requested that the resentencing court impose the agreed-
upon DOSA outlined in the original plea agreement, defense counsel noted:
I’m aware that I am bound by the joint recommendation that was
recommended to this court back in January of 2020 to—for a 30/30 prison
DO SA. I think it's important—like the Court noted to Mr. Martin, the
Court is allowed to consider subsequent evidence information that has
come forward since sentencing.
. . . .
I know he wants to speak to the Court as well but -for his actions
prior to him gaining his sobriety. But this chance that the Court gave him
back in January of last year panned very—very well for him and for this
Court as a success story. So while I am bound by the recommendation, I
think those are very important things for the Court to note.
In my reading of the Court of Appeals’ opinion, they did not state
that an exceptional down sentence is inappropriate in this situation. They

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did not say that the Court cannot do an exceptional down sentence on its
own accord. It just appeared that the findings needed to be a little clearer
that a de minimis violation was the cause for the exceptional down and that
the charges or the—the facts in this case were de minimis enough to justify
an exceptional down.
. . . .
MS. COIC: That’s all I have for the Court today. But I know that
Mr. Clark does want to speak on his own behalf.
THE COURT: All right, thank you.
And, Mr. Clark, you have a right to make any statement you’d like
the court to consider before the final sentencing is imposed. You’re not
required to make a statement, but you have every right to do so. Feel free
to share anything you’d like.
THE DEFENDANT: Okay, thank you, your Honor.
RP at 14-15. Clark then spoke about his recovery during the last
three years.
The sentencing court imposed the parties’ agreed-upon DOSA. The court then
offered an exhaustive explanation outlining the reasons for its decision. Because of the
State’s request to reassign any resentencing to another judge, we quote much of the oral
ruling:
The court will make its ruling at this time. I read the mandate, and I
wish that I would have made more clear on the record a couple of things.
First of all, when the court does impose an exceptional down, the court is
required by statute, is my understanding, to take into account the purposes,
the underlying purposes of the SRA [Sentencing Reform Act]. And that
comes from 9.94 A.010 and then also .535. It directs the court to consider
the purposes of the SRA. Those purposes are as follows: ensure that
punishment for a criminal offense is proportionate to the seriousness level
of the offense and the offender’s criminal history. The Court of Appeals
considered and addressed the criminal history, so I can’t step on stare
decisis. But I do want to make clear on the record, which apparently didn’t
get through in the arguments to the Court of Appeals, the court took into

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account not just the offender criminal history, which is a numeric SRA
score, but the circumstances for compiling and acquiring that criminal
history.
So I turn to his criminal history now to articulate for this record what
the court meant originally, which is when you look at his criminal history
and the reason that his offender score is so high, is because he has one, two,
three, four -four prior convictions for domestic violence no-contact order.
What the court found important about that or the circumstance that was
somewhat compelling to the court, all of them have the same sentencing
date. And so when the court is tasked with distinguishing between
defendants and attempting to be just, the circumstances of criminal history
composition and acquisition does distinguish defendants. Having been a
former prosecutor and having been a judge, there is no question that when
you look at criminal history and the fact that when a person is sentenced for
numerous offenses on one sentencing date versus acquiring criminal history
sporadically over time, it is a factor the court should be able to use as a
distinguishing factor. I recognize out of respect for stare decisis that the
Court of Appeals considered this and they found that my ruling—because
the legislature took into account criminal history when creating the ranges,
that I was prohibited as a sentencing judge from using that as a
distinguishing factor for purposes of an exceptional sentence, because it
was considered by the legislature. I frankly disagree with that, respectfully.
I understand it’s not a trial court’s place to second-guess a higher court.
But I put on the record that it was my analysis that having all his prior
history that contributed to his offender score or rather a substantial portion
of it on the DV no-contact orders being on one sentencing date is a
distinguishing factor. And I don’t think the legislature contemplated that
aspect. I would urge that our higher courts take the circumstances of
criminal history acquisition into account and allow sentencing courts to use
as at least one of the factors. However, given that the Court of Appeals
already considered this issue, I will not rely on it today out of respect for
stare decisis. But the record should reflect that if I could use that, I would,
because it is—it is insightful to sentencing courts to know when and how a
person acquired their criminal history, when or how procedurally they
acquired their criminal history based on the circumstances they find
themselves in at sentencing, if that makes sense. I hope that it does.
Apparently—I believe that I mentioned it in the record at the first hearing.
But it did not come through, and I don’t believe the parties discussed it in
front of the Court of Appeals regarding what the court was thinking there.

No. 39710-6-III
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Again, I want the record to be clear. Just for example, if someone is
convicted of a crime, they’re sentenced, they conclude their sentence and
they’re later convicted of another crime, they finish their sentence and then
they continue to commit more periodic ongoing crimes, that is a
circumstance that is more indicative of a likelihood for continued patterns
of criminal behavior, versus a situation where someone has acquired past
charges all on one sentencing date, has then been sentenced at one hearing
and has a resulting high offender score from a single date. The court
should be able to account for that. But under current case law, that does not
appear to be an appropriate factor for consideration for purposes of
exceptional sentencing. And so out of respect for stare decisis, I will not
consider it. But I do want the court’s thought process to be reflected on the
record in case there is another appeal on this case.
So the question is, it looked to the court as if the court could only
exclusively rest its head on de minimis conduct or conduct related to the
crime in order to impose an exceptional sentence. I do sentencings day in,
day out. I literally do them almost every day, sometimes all day. I could
count the number of times that I have gone below the state’s
recommendation on four fingers in my entire judicial career where I’ve
imposed an exceptional sentence below the standard range. Literally, it’s
been four times where I have—in my six years on the bench where I’ve
imposed an exceptional down sentence contrary to parties’ agreements. I
cannot ignore my professional wisdom. I had the sense back at that original
sentencing and I have the sense now that Mr. Clark has truly rehabilitated
himself, which I know defendants come in all the time and say that and I
hardly ever believe them. I genuinely believe Mr. Clark. I believed him
then. I believe him now. And I can’t ignore my professional judgment.
Nevertheless, the Court of Appeals indicated that because rehabilitation
was not related to the criminal conduct as addressed in their mandate, I
should not include that in my calculation for purposes of imposing an
exceptional sentence. And out of respect for stare decisis, I therefore
won’t. But if I could, I would, and I think it should be a relevant factor.
By the way, it was this court’s interpretation that the legislature
passed the statute in order to give sentencing courts discretion, and in doing
so, there’s an express directive to consider the underlying purposes of the
SRA when considering an exceptional sentence. So just because the
legislature considered something or considered—just because the
legislature considered a particular body of criteria and then expressly
instructed the court to consider that same criteria when deciding whether or

No. 39710-6-III
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not to impose an exceptional sentence, I’m still struggling and troubled,
even though I understand it exists in case law and by stare decisis I’m
bound. But to me, the more appropriate interpretation is that the legislature
has instructed the sentencing courts to look at the same criteria that the
legislature looked at, because they want to give courts discretion to
implement exceptional sentences but they also want the courts to ensure
that when deviating from guidelines, that the purposes of the SRA are
heavily considered and that the same considerations they looked at are
reexamined by the sentencing court upon any exceptional sentence. And
that would be my interpretation. But I also understand that I am not a
higher court. And out of respect for stare decisis, I will not follow the
express language of that statue. But if I could, I would.
What I would be able to hang my hat on, it looks like, is the de
minimis nature of the—of the crime alone. And here, it appears to be an
apology letter. But there is dicta in the Court of Appeals’ mandate that they
also looked at that. And Division III expressed doubt that de minimus
conduct alone would likely not support an exceptional down. Of course
they sent it back down for me to determine.
I was not presented at this sentencing hearing, nor at the original
sentencing hearing, with any information with respect to any other
threatening-type messages. It appeared that the communication was
benign. Of course, that’s still prohibited by law and it still is a crime,
because it’s communication in violation of a no-contact order. But again,
distinguishing factor here. If I’m being intellectually consistent and honest,
I’m not able to consider as part of the exceptional sentence the factors that
the legislature already considered. I can’t honestly say, then, that I would
impose an exceptional down sentence solely on de minimus conduct. And
so I believe that I’m bound by stare decisis based on the higher case law.
For that reason and in deference to the higher courts, I’m reluctantly going
to impose the prison-based DOSA sentence. I very reluctantly do so and
hope the higher courts change the law to allow for greater justice.
RP at 16-22 (alterations added).
After announcing John Clark’s sentence, the resentencing court further stated:
The following cumulative factors in this court’s mind give rise to
substantial and compelling reasons, but most of them are admittedly not

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crime-related conduct. The substantial and compelling aspects arise from
the aggregate and collective presence of all the following factors:
(1) procedural history and circumstance of how criminal history was
acquired as opposed to simply countable offender score;
(2) de minimus conduct of crime, which is crime-related but not
sufficient to impose an exceptional down in isolation;
(3) judicial confidence in credibility of defendant’s rehabilitation at
time of sentencing with confidence of future law compliance;
(4) judicial confidence in victim’s future safety;
(5) following a long and sustained period of sobriety, concern over
misuse of state funds for a DOSA program that is not needed to address this
particular person’s substance abuse issues which seem to have been
remedied; thus, conservation of limited local and state resources;
(6) adjusting for fairness based on unusually aggressive disposition
of the particular assigned DPA at original sentencing. If Mr. Martin was
handling this case, I have no doubt this case would have resulted in a
different recommendation, because Mr. Martin is a wise and reasonable
attorney who evaluates the totality of case dynamics rather than simply a
mere calculation of evidentiary potential. The wide variation in prosecutor
dispositions should be accounted for by the sentencing court and adjusted
for fairness. This factor is very difficult for sentencing courts to address on
the record, as they draw disqualifications and can appear as unfair
comments;
(7) concern for unduly vindictive or unduly sensitive victims who
heavily influence negotiations. The victim impact statement spoke to the
victim being upset with past relationship dynamics rather than impact from
the charged crimes themselves. The court formed the impression from
courtroom observation that the victim was motivated by vindictiveness and
jealousy that defendant had found a new wife. These factors are extremely
difficult to speak to on the record and cause victims understandable anger
towards the court if spoken about.
RP at 22-24 (emphasis added).

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LAW AND ANALYSIS
John Clark appeals his resentencing, which consists of a DOSA sentence of prison
for three years and community custody for three years. Clark contends the superior court
misread this court’s 2023 ruling as limiting, if not removing, from him discretion to
impose an exceptional downward sentence. According to Clark, the resentencing court
abused its discretion when determining it could not consider the nature of Clark’s earlier
restraining order violations and his post-offense rehabilitation at resentencing. Clark asks
for a third sentencing.
In response the State asks us to decline reviewing the merits of John Clark’s
appeal because Clark allegedly did not preserve error. Clark did not ask for a downward
exceptional sentence at resentencing. In the alternative, assuming Clark asked for an
exceptional sentence, the State asks that we decline to review the appeal because Clark
violated the plea agreement. Assuming we reach the merits of Clark’s appeal, the State
argues that the trial court correctly understood the depth and height of its discretion and
correctly considered the factors given by the legislature for a downward sentence.
Finally, the State asks that, if we remand again for resentencing, we assign the
resentencing to a different superior court judge.
Issue 1: Whether this court should decline to review John Clark’s arguments?
Answer 1: No.

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The State argues that, under RAP 2.5, this court should refuse to review John
Clark’s assignment of error because Clark did not present his current theory of relief to
the resentencing court. Clark did not argue for an exceptional downward sentence based
on his four earlier offenses being adjudicated on the same day, the minimal nature of his
offense conduct, or his rehabilitation after his current conviction.
RAP 2.5(a) provides that this court “may refuse to review any claim of error which
was not raised in the trial court.” (Emphasis added.) We note that the rule employs the
permissive term “may,” not the mandatory word “shall.” Since territoryhood,
Washington courts have construed the word “may” when used in a statute as permissive
and as conferring discretion on the court. Rios v. Department of Labor & Industries, 145
Wn.2d 483, 508, 39 P.3d 961 (2002); In the Matter of the Guardianship of Johnson, 112
Wn. App. 384, 387, 48 P.3d 1029 (2002). Accordingly, RAP 2.5(a)’s use of the term
“may” indicates the appellate court enjoys discretion as to whether to refuse or permit
review. Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005); State v. Ford, 137
Wn.2d 472, 477, 484–85, 973 P.2d 452 (1999). Stated differently, nothing in RAP 2.5(a)
expressly prohibits an appellate court from accepting review of an issue not raised in the
trial court. State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011).
We agree with the State that John Clark did not argue for an exceptional sentence
at resentencing, but we accept review because of the unusual circumstances behind this
appeal. Those circumstances include the superior court’s justified frustration about the

No. 39710-6-III
State v. Clark
17
byzantine nature of and constrictions imposed by the SRA, his wishing to order an
exceptional sentence based on Clark’s rehabilitation, the absence of any threatening
communications, and four prior violations being sentenced on the same day.
John Clark did not expressly ask for a downward sentence because of the plea
agreement and because of this court’s warning in our February 21, 2023 decision. We
wrote:
Now that there is a well-defined basis for an exceptional sentence
downward, defense counsel must take care not to undermine the parties’
plea agreement and suggest the court impose anything other than the agreed
DOSA.
CP at 69.
Issue 2: Whether John Clark violated the plea agreement?
Answer 2: No.
On the assumption that we rule that John Clark preserved error by arguing before
the resentencing court in favor of an exceptional downward sentence, the State contends
that Clark violated the plea agreement. As already indicated, however, we agree with the
State that Clark did not argue such a position before the superior court.
A plea agreement is a contract. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d
1199 (1997). Because plea agreements concern an accused’s fundamental rights, due
process considerations are also at play. State v. Harris, 102311-1, 2024 WL 4902512, at
*1 (Wash. Nov. 27, 2024). Due process requires the prosecutor to act in good faith and

No. 39710-6-III
State v. Clark
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prohibits undercutting the terms or by conduct evidencing an intent to circumvent the
terms of a plea agreement. State v. Harris, 102311-1, 2024 WL 4902512, at *1 (Wash.
Nov. 27, 2024). Defendants owe the same duty of good faith. See In the Matter of Pers.
Restraint of Breedlove, 138 Wn.2d 298, 307, 979 P.2d 417 (1999). A breach can occur
when a party offers unsolicited information through a report, testimony, or argument that
undercuts the party’s obligation under the agreement. State v. Harris, 102311-1, 2024
WL 4902512, at *1 (Wash. Nov. 27, 2024). The State, and presumably the defendant, is
not obligated to enthusiastically make a sentencing recommendation, but it must
participate in sentencing proceedings, answer the court’s questions with candor, and
cannot withhold relevant information regarding the plea agreement. State v. Sledge, 133
Wn.2d 828, 840, 947 P.2d 1199 (1997). Whether a plea agreement is breached is an
objective inquiry. State v. Van Buren, 101 Wn. App. 206, 213, 2 P.3d 991 (2000).
The State emphasizes the rule that a breach can occur when a party offers
unsolicited information through a report, testimony, or argument that undercuts the
party’s obligation under the agreement. John Clark did not violate this rule. The
resentencing court asked for input from both sides at to events that occurred since the
original sentencing. The court specifically asked about Clark’s sobriety. The court
invited witnesses on behalf of the State and witnesses on behalf of Clark to speak. Much
of what Clark uttered responded to comments made by the victim in her letter to the
court. If John Clark violated the plea agreement, the State violated the agreement first.

No. 39710-6-III
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Before resentencing even began, the State handed a letter to the court from the ex-wife.
The State asked the court to consider the letter when resentencing Clark.
We find an ambiguity in the plea agreement. The agreement read: “The
prosecuting attorney will make the following recommendation to the judge: Agreed
recommendation for Prison DOSA.” CP at 7. We are uncertain whether this language
required both parties to recommend a DOSA, as opposed to only the prosecution.
Defense counsel, during resentencing, commented that this court did not preclude
an exceptional downward sentence, but instead ruled that the court should clarify any
finding of a negligible violation of the no-contact order. Counsel, however, recognized
being bound by the parties’ original joint recommendation for the prison and community
custody DOSA sentence.
Finally, we note that the State argues on appeal that John Clark did not preserve
error because he did not ask for a downward sentence during resentencing. The State
takes contradictory positions when arguing that Clark violated the plea agreement.
Issue 3: Whether the trial court abused its discretion in holding it did not have the
authority to impose an exceptional sentence below the standard range because of the
minimal nature of the violations of the no-contact order?
Answer 3: Yes.
John Clark argues this court should remand for resentencing because the superior
court misunderstood its sentencing discretion. Clark maintains the trial court wanted to

No. 39710-6-III
State v. Clark
20
impose an exceptional sentence below the standard range based on the circumstances of
his prior no-contact order violations and his post-offense rehabilitation. He argues the
court abused its discretion in determining that these factors did not constitute substantial
and compelling reasons to warrant such a departure. In making this argument, he asserts
that this court, in our 2023 opinion, approved as mitigating factors supporting a
downward sentence both the nature of his prior no-contact order violations and his post-
offense rehabilitation.
The lengthy RCW 9.94A.535 governs exceptional sentences. The statute begins:
The court may impose a sentence outside the standard sentence
range for an offense if it finds, considering the purpose of this chapter, that
there are substantial and compelling reasons justifying an exceptional
sentence. . . .
(1) Mitigating Circumstances—Court to Consider
The court may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a
preponderance of the evidence. The following are illustrative only and are
not intended to be exclusive reasons for exceptional sentences.
None of the listed circumstances apply to John Clark’s crimes. Clark does not contend
that any listed circumstance applies.
Of course, as indicated in the opening sentence of RCW 9.94A.535(1), the
sentencing court may base an exceptional downward sentence on a factor other than one
listed. Nevertheless, to be legally valid, an unlisted mitigating factor must be one that has
not already been contemplated by the legislature, and it must be one that relates to the

No. 39710-6-III
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21
defendant’s offense conduct, not simply the defendant’s personal character or
circumstances. State v. Law, 154 Wn.2d 85, 101, 103, 110 P.3d 717 (2005).
Contrary to John Clark’s contention, this court did not, in its 2023 decision, rule
that the sentencing court could base an exceptional sentence on rehabilitation. We
instead wrote that post-offense rehabilitation is a factor specific to Clark, not his offense
conduct. A sentencing court’s determination that a standard range sentence would not
advance the offender’s need for rehabilitation does not suffice for a departure from the
standard range. State v. Amo, 76 Wn. App. 129, 133, 882 P.2d 1188 (1994). Thus, we
precluded rehabilitation as a factor justifying an exceptional downward sentence.
John Clark argues that our decision in State v. Dunbar, 27 Wn. App. 2d 238, 532
P.3d 652 (2023), permitted the superior court to consider his rehabilitation. We did rule
in State v. Dunbar that the court could consider rehabilitation on resentencing, but we
issued such a ruling only in the context of sentencing inside the standard range. We
issued no ruling on rehabilitation justifying an exceptional sentence.
The superior court, when resentencing John Clark, wanted to take into account the
purposes underlying the SRA as found in RCW 9.94A.010. In particular, the court
wished to conserve state resources expended if the court returned Clark to incarceration.
RCW 9.94A.010 declares:
The purpose of this chapter is to make the criminal justice system
accountable to the public by developing a system for the sentencing of

No. 39710-6-III
State v. Clark
22
felony offenders which structures, but does not eliminate, discretionary
decisions affecting sentences, and to:
(1) Ensure that the punishment for a criminal offense is
proportionate to the seriousness of the offense and the offender’s criminal
history;
(2) Promote respect for the law by providing punishment which is
just;
(3) Be commensurate with the punishment imposed on others
committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state’s and local governments’ resources;
and
(7) Reduce the risk of reoffending by offenders in the community.
We agree with the superior court that, although a court may consider the statutory
purposes once it finds a sufficient mitigating circumstance, the court may not base an
exceptional downward sentence solely on one of the purposes. The purposes of the SRA
enumerated in RCW 9.94A.010 are not in and of themselves mitigating circumstances.
State v. Alexander, 125 Wn.2d 717, 730 n.22, 888 P.2d 1169 (1995). Rather, they may
provide support for the imposition of an exceptional sentence once a mitigating
circumstance has been identified by the trial court. State v. Alexander, 125 Wn.2d 717,
730 n.22 (1995); State v. Rice, 159 Wn. App. 545, 573, 246 P.3d 234 (2011), aff’d on
other grounds, 174 Wn.2d 884, 279 P.3d 849 (2012).
The superior court also wished to consider not only John Clark’s numeric criminal
history, but the circumstances behind the compilation of the history. The court
emphasized that a prior court sentenced Clark for four no-contact order violations on the

No. 39710-6-III
State v. Clark
23
same day. The court distinguished between an offender who commits four crimes and
after each crime goes to jail and then is released before the next crime. According to the
superior court, this hypothetical offender will more likely reoffend than will Clark. We
agree, however, with the superior court that the SRA does not permit employment of this
circumstance because the legislature already considered such when crafting the SRA.
The superior court wished to, but deemed the law prohibited it to, ground an
exceptional downward sentence on confidence in the victim’s future safety, the
aggressiveness of the first prosecuting attorney, and the possible vindictiveness of the
victim. We agree because RCW 9.94A.535(1) does not list those circumstances or
factors as mitigating and they fail to relate to John Clark’s criminal behavior.
The superior court commented that our earlier decision allowed him to base an
exceptional sentence only on the minimal nature of his offenses. We agree absent any
new reason forwarded by John Clark at a resentencing. The negligible nature of the
crime, although not an enumerated reason in RCW 9.94A.010, relates to the offense’s
conduct. In Clark’s prosecution the minimal conduct could include all contact being in
writing, no utterance of a threat, and an apology. As indicated in our 2023 decision,
Clark’s conduct differs from the conduct of many other persons violating a no-contact
order. Other offenders typically issue threats, stalk, or cause injury. Of course, the
superior court must also deem the factor of minimal offense conduct to be a substantial
and compelling reason justifying an exceptional sentence. RCW 9.94A.535(1).

No. 39710-6-III
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24
At one point in the superior court’s oral ruling, the court commented: “I can’t
honestly say that I would impose an exceptional down sentence solely on de minimis
conduct.” RP at 22. Later, the superior court remarked: “But there is dicta in the Court
of Appeals’ mandate that they also looked at that. And Division III expressed doubt that
de minimis conduct alone would likely not support an exceptional down.” RP at 21.
Based on these two passages, we remain uncertain whether the superior court would grant
an exceptional downward sentence solely on minimal conduct. A trial court errs when it
operates under the mistaken belief that it did not have the discretion to impose a
mitigated exceptional sentence for which the offender may have been eligible. State v.
McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017).
After reviewing the superior court’s resentencing ruling and the guiding law, we
affirm that the superior court may grant an exceptional downward sentence based solely
on the possible negligible nature of John Clark’s order violations. We remand to the
superior court to explicitly determine whether it will grant an exceptional downward
sentence based solely on the minimal offense conduct and to determine whether any
minimal conduct constitutes a substantial and compelling reason to depart from standard
range sentencing. We encourage the court, as we did in our 2023 opinion, to take
testimony about the impact on Jane because of the violations of the no-contact orders.
Issue 4: Whether we should remand to a different superior court judge?
Answer 4: No.

No. 39710-6-III
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25
The State asks us to assign the resentencing to a different superior court judge in
the event that we remand for another sentencing. We decline to do so.
Generally, a party seeking a new judge files a motion for recusal in the trial court,
which allows the challenged judge to evaluate the grounds for recusal and permits the
parties to develop a record adequate to determine whether the judge’s impartiality might
reasonably be questioned. State v. McEnroe, 181 Wn.2d 375, 386, 333 P.3d 402 (2014).
But a party may seek reassignment for the first time on appeal, which is usually done
when the trial judge will exercise discretion on remand regarding the very issue that
triggered the appeal and has already been exposed to prohibited information, expressed
an opinion as to the merits, or otherwise prejudged the issue. State v. Solis-Diaz, 187
Wn.2d 535, 540, 387 P.3d 703 (2017). We grant the remedy of reassignment on appeal
only in limited circumstances. State v. McEnroe, 181 Wn.2d 375, 386 (2014). Even
when a trial judge has expressed a strong opinion as to the matter appealed, the reviewing
court does not reassign the case if an appellate opinion offers sufficient guidance to
effectively limit trial court discretion on remand. State v. Solis-Diaz, 187 Wn.2d 535,
540 (2017). Erroneous rulings do not form grounds for recusal. State v. Solis-Diaz, 187
Wn.2d 535, 538 (2017). But when review of facts in the record shows the judge’s
impartiality might reasonably be questioned, the appellate court should remand the matter
to another judge. Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995).

No. 39710-6-III
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We conclude that a reasonable person would not question the impartiality of the
assigned superior court judge. Instead, the record shows a cautious, conscientious, and
intelligent judge attempting to execute a just and fair sentence within the restraints of the
SRA. The superior court assessed credibility of parties and commented on steps taken by
one of the prosecuting attorneys in the case. A trial court must constantly adjudge the
credibility of the parties and witnesses. Sometimes the prosecuting attorney’s office
needs counsel from the superior court. None of these actions disqualify the judge. The
court also complimented one of the prosecuting attorneys. As recognized by the superior
court, commenting on a witness or an attorney can appear as unfair comments when they
are not. We commend the judge for his forthrightness.
The State also suggests that the superior court criticized this court during the
resentencing oral ruling. We are not offended or harmed by critical comments of a
superior court judge. Regardless, the superior court’s comments related more to
frustration with the SRA rather than with this court.
CONCLUSION
We remand for another sentencing of John Clark consistent with our opinion.

No. 39710-6-III
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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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, C.J. Cooney, J.