IN RE PERSONAL RESTRAINT OF LABENSKY, 48955-1-I (Wash.App. 10-15-2001)

No. 48955-1-I.The Court of Appeals of Washington, Division One.
Filed: October 15, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Date first document (petition, etc) was filed in Court of Appeals: 08/20/2001.

Counsel for Petitioner(s), Darrel L. Lahtinen, Law Offices of Jean Schiedler-Brown, 606 Post Ave #101, Seattle, WA 98104.

Gerald V. Labensky (Appearing Pro Se), #735978 1830 Eagle Crest, Clallam, WA 98326.

Counsel for Respondent(s), Deborah A. Dwyer, King County Prosecutors Office, Appellate Unit, 1850 Key Tower 700 5th Av, Seattle, WA 98104-2312.

PER CURIAM.

Gerald Labensky has filed this personal restraint petition challenging the sentence imposed following his convictions of numerous offenses. Labensky contends the sentencing court exceeded its statutory authority by ordering multiple firearm enhancements to run consecutively to each other and the base sentences. We accept the State’s concession of error, grant the petition, and remand for resentencing.

To prevail here, a petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a `complete miscarriage of justice.’ In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In re Personal Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983). `A trial court’s sentencing authority is limited to that expressed in the statutes.’ State v. Skillman, 60 Wn. App. 837, 838, 809 P.2d 756 (1991).

In 1996, Labensky was convicted of three counts of first degree robbery, two counts of second degree assault, and one count of taking a motor vehicle without permission. Labensky was also found to be armed with a firearm at the time he committed two of the robberies. In sentencing Labensky on the robbery counts, the trial court imposed a standard range sentence of 129 months on Count 2, and sentences of 129 months on Counts 5 and 7, in addition to 60-month firearm enhancements, for a total of 189 months. Labensky contends, and the State concedes, that the sentencing court exceeded its authority by ordering the firearm enhancements to be served consecutively to the underlying sentences on Counts 5 and 7, and to each other. We accept the State’s concession of error.

In In re Sentence of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998), the court interpreted RCW 9.94A.310(3)(e) along with various other portions of the SRA and concluded that RCW 9.94A.310(3)(e) is ambiguous with regard to whether enhancements are to always run consecutively to each other or whether RCW 9.94A.400 is to be used to determine whether they are consecutive or concurrent.

In re Sentence of Charles, 135 Wn.2d at 250. The court went on to hold that multiple weapon enhancements do not necessarily run consecutively to each other and that the determination of whether multiple current sentences with weapons enhancements are to run concurrently or consecutively is determined by applying the rules in RCW 9.94A.400. In re Sentence of Charles, 135 Wn.2d at 254. Under Charles, the trial court erred in running Labensky’s enhancements consecutively.

We therefore grant the personal restraint petition and remand to King County Superior Court for resentencing with instructions to run the deadly weapon enhancements consecutive to the base sentences, but to determine whether the enhancements are to run consecutively or concurrently to each other in accordance with the relevant provisions of RCW 9.94A.400.