Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60227-0-II Respondent, v. UNPUBLISHED OPINION TWO DOGS SALVATORE FASAGA, Appellant. VELJACIC, C.J. — Two Dogs Fasaga appeals his sentence following his convictions for drive-by shooting, assault in the third degree, and unlawful possession of a firearm in the second degree. He argues a jury, not the trial court, should have determined whether his class C prior felony convictions washed out of his offender score. He also argues the trial court erred by imposing an exceptional sentence without a jury finding that substantial and compelling reasons justified the exceptional sentence. Finding no error, we affirm. FACTS I. BACKGROUND In 2018, police responded to a two-vehicle collision involving Fasaga. The driver of the other vehicle, T.F., told officers that Fasaga came up behind him with his headlights on and then Fasaga turned his headlights off, and T.F. pulled over to see what was going on. T.F. stated that he asked Fasaga if there was a problem and he heard a gunshot and the sound of a bullet flying by him. T.F. told police he returned to his vehicle and drove away, but Fasaga followed him. T.F. 60227-0-II said he heard gunshots as he drove away. The vehicles subsequently collided. A firearm was recovered underneath Fasaga’s vehicle. In 2020, Fasaga pleaded guilty in federal court to felon in possession of ammunition. In 2021, the State charged Fasaga with assault in the first degree while armed with a firearm, drive- by shooting, unlawful possession of a firearm in the first degree, and possessing a stolen firearm.1 II. GUILTY PLEA AND SENTENCE In 2024, Fasaga entered an Alford2 plea to drive-by shooting, assault in the third degree, and unlawful possession of a firearm in the second degree.3 The trial court calculated Fasaga’s offender score to be above 9 and imposed an exceptional sentence of 180 months of total confinement based on the free crimes aggravator and because Fasaga took “no responsibility for his actions.” Clerk’s Papers at 285. Fasaga appealed, and the State conceded that failure to take responsibility was an improper basis for an exceptional sentence. A commissioner of this court vacated the sentence and remanded for resentencing. On remand, the trial court calculated Fasaga’s offender score to be above 9 and imposed the same exceptional sentence based solely on the free crimes aggravator. Fasaga’s offender score included five juvenile offenses and the prior class C felonies of unlawful possession of a firearm in the second degree, two counts of attempting to elude a pursuing police vehicle, assault in the third degree, and taking a motor vehicle without permission. The court sentenced Fasaga to an 1 The State charged Fasaga in 2018 with assault in the first degree, drive-by shooting, and unlawful possession of a firearm in the first degree. Those charges were dismissed and refiled in 2021 with the addition of a count of possessing a stolen firearm. 2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). 3 The State filed a third amended information charging Fasaga with these offenses. 2 60227-0-II exceptional sentence of 120 months for the drive-by shooting,4 60 months for assault in the third degree, and 60 months for unlawful possession of a firearm in the second degree. The court ordered the 120 months for the drive-by shooting to be served consecutively to the 60 months for assault in the third degree, for a total of 180 months of confinement. The court also ordered this sentence to be served consecutively to his sentence under a different cause number. Regarding the exceptional sentence, the trial court found that Fasaga had committed multiple current offenses and, because his offender score was above 9, some of the offenses would go unpunished. The court found that this would be the case even if the juvenile adjudications and the federal offense were not included in the offender score.5 The court determined there were substantial and compelling reasons to impose an exceptional sentence. Fasaga appeals. ANALYSIS I. WASH-OUT DETERMINATION For the first time on appeal, Fasaga argues that he had a right to a jury determination of whether his class C prior felony convictions washed out of his offender score under Erlinger v. United States, and that he did not waive this right. 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024). The State argues that Fasaga waived this argument by failing to raise it below and that, even if he did not, Erlinger does not apply. We agree with the State that Fasaga failed to preserve this alleged error.6 4 The standard range for drive-by shooting was 87-116 months. 5 In its oral ruling, the trial court indicated that it was including the federal offense in the offender score calculation as a class C felony pursuant to RCW 9.94A.525. 6 The State also argues that Fasaga cannot raise this issue because he invited the error. Because we affirm on other grounds, we do not address this argument. 3 60227-0-II A. Legal Principles Generally, we do not consider claims raised for the first time on appeal. State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007); see RAP 2.5(a). In other words, “we may decline to review unpreserved errors.” State v. Clare, 30 Wn. App. 2d 309, 315, 544 P.3d 1099, review denied, 3 Wn.3d 1011 (2024). An issue, however, may be raised for the first time on appeal if there is (1) a “lack of trial court jurisdiction,” (2) a “failure to establish facts upon which relief can be granted,” or (3) a “manifest error affecting a constitutional right.” RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). If, however, an appellant fails to address RAP 2.5(a), the issue is considered waived. See State v. Lindsey, 177 Wn. App. 233, 247, 311 P.3d 61 (2013) (declining to address issue raised for the first time on appeal where defendant failed to argue any of RAP 2.5(a)’s exceptions). Fasaga does not address whether any of RAP 2.5(a)’s exceptions apply or argue that the claimed error regarding his offender score calculation can be raised for the first time on appeal. Accordingly, this argument is waived, and we decline to address it further. II. EXCEPTIONAL SENTENCE Fasaga argues that the trial court violated his Sixth and Fourteenth Amendment rights by imposing an exceptional sentence with a judge, rather than a jury, finding that substantial and compelling reasons justified the exceptional sentence. A. Legal Principles The Sixth and Fourteenth Amendments to the United States Constitution provide criminal defendants with a right to a jury trial. State v. Schierman, 192 Wn.2d 577, 622, 438 P.3d 1063 (2018). 4 60227-0-II Whether the imposition of an exceptional sentence violates the Sixth and Fourteenth Amendments to the United States Constitution is a question of law that we review de novo. See State v. Alvarado, 164 Wn.2d 556, 563, 192 P.3d 345 (2008). RCW 9.94A.535 allows a sentencing court to impose an exceptional sentence “if it finds . . . there are substantial and compelling reasons justifying an exceptional sentence. In State v. Sage, the defendant argued that the trial court violated his constitutional right to a jury trial by imposing an exceptional sentence based on the trial court’s conclusion that substantial and compelling reasons existed to justify imposing the sentence. 1 Wn. App. 2d 685, 689, 707, 407 P.3d 359 (2017). Sage argued that a “judge’s determination whether an aggravating circumstance is substantial and compelling necessarily involves factual questions.” Id. at 708. This court disagreed, reasoning that the determination of whether substantial and compelling reasons warrant an exceptional sentence is a legal determination. Id. at 709. B. Analysis Here, the trial court found that Fasaga’s offender score exceeded 9 and under a standard range sentence, some of his current offenses would go unpunished. Based on this aggravating factor, the court concluded that there were substantial and compelling reasons to impose an exceptional sentence.7 We agree with the reasoning in Sage that the sentencing court’s determination that substantial and compelling reasons warranted an exceptional sentence was a legal conclusion, not a factual one and was therefore not required to be found by a jury. See 1 Wn. App. 2d at 709. 7 Pursuant to RCW 9.94A.535(2)(c), a sentencing court can impose the free crimes aggravator without a factual finding by a jury. As the Washington Supreme Court explained in Alvarado, the mathematical “determination under RCW 9.94A.535(2)(c) that ‘some . . . current offenses [go] unpunished” rests solely on criminal history and calculation of the offender score, without the need for additional fact finding by [a] jury.” 164 Wn.2d at 569 (quoting RCW 9.94A.535(2)(c)). 5 60227-0-II Further, to the extent that Fasaga argues that Erlinger also requires this substantial and compelling reasons question to be submitted to the jury, his argument fails. Generally, “[a]ny fact that, by law, increases the penalty for a crime” must be found beyond a reasonable doubt by a jury. Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (emphasis added). In Erlinger, the United States Supreme Court held that “Erlinger was entitled to have a jury resolve [the Armed Career Criminal Act’s (ACCA)] occasions inquiry unanimously and beyond a reasonable doubt.” 602 U.S. at 822. “Under the ACCA, a defendant can receive a greatly increased prison term if it is determined that they had three prior convictions for violent felonies or serious drug offenses that were ‘committed on occasions different from one another.’” State v. Frieday, 33 Wn. App. 2d 719, 747, 565 P.3d 139 (2025) (quoting Erlinger, 602 U.S. at 825). But as explained above, a sentencing court’s determination that substantial and compelling reasons warrant an exceptional sentence is a legal conclusion, not a factual determination like in Erlinger. Therefore, Fasaga’s argument that, under Erlinger, he was entitled to a jury determination of the substantial and compelling reasons question fails. Fasaga also relies on State v. Eller, 29 Wn. App. 2d 537, 541 P.3d 1001 (2024), as support for his argument. But Eller is inapposite, as it concerned RCW 9.94A.535(2)(d). Id. at 543. RCW 9.94A.535(2)(d) allows the sentencing court to impose an exceptional sentence when “[t]he failure to consider the defendant’s prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.” The Eller court held that the subjective determination of a “clearly too lenient finding is required to be made by a jury under RCW 9.94A.535(2)(d).” 29 Wn. App. 2d at 545. But the “clearly too lenient” factual finding under 9.94A.535(2)(d) is not analogous to the legal 6 60227-0-II determination regarding whether substantial and compelling reasons exist to justify an exceptional sentence, that here is predicated solely on a mathematical calculation. Id. at 544-45; Alvarado, 164 Wn.2d at 566-67. Therefore, Eller is unhelpful. Fasaga also relies on Hurst v. Florida, 577 U.S. 92,136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), as support for his assertion that only a jury can find substantial and compelling reasons exist to justify an exceptional sentence. Hurst addressed Florida’s sentencing scheme for capital felonies. 577 U.S. at 95-96. In Florida’s scheme, the jury provided an “advisory sentence” on a life or death sentence without stating the factual basis for its recommendation. Id. Trial courts had to give great weight to the jury’s recommendation but ultimately exercised independent judgment in finding facts regarding whether aggravating factors existed. Id. at 96. The United States Supreme Court held that this sentencing scheme was unconstitutional because it allowed judges, instead of juries, to independently determine whether aggravating circumstances existed to impose a death sentence. Id. at 98-100. This court has distinguished Hurst, however, by explaining that under Washington law, “the jury exclusively resolves the factual question whether [] aggravating circumstances have been proven beyond a reasonable doubt.” Sage, 1 Wn. App. 2d at 710 n.86; see RCW 9.94A.537(3). In Washington, a trial court’s legal determination that substantial and compelling reasons exist is far from Florida courts’ fact findings regarding aggravating factors that increase punishment. Hurst is therefore inapposite, and Fasaga’s argument on this basis fails. 7 60227-0-II CONCLUSION We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. Veljacic, C.J. We concur: Glasgow, J. Price, J. 8