No. 49858-4-IThe Court of Appeals of Washington, Division One.
Filed: June 24, 2002 UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 01/22/2002
Counsel for Petitioner(s), Robert E. Kuchan (Appearing Pro Se), Washington State Penitentiary, D.O.C. #291932, 1313 N. 13th Ave., Walla Walla, WA 99362.
Counsel for Respondent(s), Charles F. Blackman, Snohomish County Prosecutors Office, 3000 Rockefeller Ave, Everett, WA 98201.
PER CURIAM.
Robert Kuchan pleaded guilty to one count of second degree murder. Using an offender score of three, the sentencing court imposed a sentence at the low end of the standard range. Kuchan has now filed this personal restraint petition in which he challenges the computation of his offender score. The State concedes Kuchan’s offender score was incorrectly calculated at three rather than zero. We agree and grant the petition.
To prevail here, a personal restraint 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.”[1] Because a sentencing court must first correctly calculate the standard range before imposing a standard range sentence, failure to do so may be subject to review in a personal restraint proceeding.[2] Therefore, Kuchan is entitled to have his sentence reviewed in this proceeding.[3]
Kuchan contends the sentencing court exceeded its lawful authority when it computed Kuchan’s offender score as three. “A trial court’s sentencing authority is limited to that expressed in the statutes.”[4] Under the SRA, a defendant’s criminal history is used to determine the offender score, which is then used to establish the applicable standard sentence range.[5]
Before 1995, the “wash out” statute provided in relevant part:
Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies.[6]
In 1995, the Legislature amended the statute to provide that a felony conviction shall not be included in the offender score only if “the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.”[7]
Kuchan contends that the trial court erred by including prior class C felony convictions from 1983, 1985, and 1988 in the offender score based on the 1995 amendments. He argues that once a crime meets the “wash out” test it can never be revived.
The Supreme Court considered a similar issue in both Cruz[8] and Smith[9] .
At issue in Cruz was whether the 1990 amendments to the “wash out” provisions of the SRA could be applied retroactively to revive a previously washed out sex offense. The Supreme Court concluded that the 1990 amendments applied prospectively only and that Cruz’ previously washed out sex offense could not be therefore included in the calculation of his offender score.
In Smith, our Supreme Court held that `washed out’ juvenile offenses could not be revived for the purpose of calculating an offender score. Before 1997, under former RCW 9.94A.030, the criminal history used to calculate an adult’s offender score did not include prior juvenile adjudications unless the defendant either was 15 or older when those prior offenses were committed, or had not yet reached the age of 23. In 1997, the Legislature amended the statute so that these juvenile adjudications are now counted in the offender score. In 2000, the Legislature provided that “[a]ny sentence imposed [under the SRA] shall be determined in accordance with the law in effect when the current offense was committed.” RCW 9.94A.345. But in Smith, the Supreme Court determined that this law was not retroactive and that juvenile offenses that “washed out” under prior law could not be revived.
Citing Cruz and Smith, the State concedes that Kuchan “is entitled to be resentenced pursuant to a recalculated offender score that does not take into account the 1983, 1985, and 1988 prior felony convictions.” Given the holdings in Cruz and Smith, we agree. There is no question that Kuchan spent 5 felony-free years in the community after his release on his last VUCSA conviction in 1988 and before the 1995 amendments to the “wash out” provisions of the SRA. As in Cruz and Smith, Kuchan’s prior class C felony convictions were not revived by the 1995 amendments to the SRA. The sentencing court therefore erred in including them in Kuchan’s offender score.
We grant the personal restraint petition and remand the matter to Snohomish County Superior Court for immediate resentencing.
For the court:
(1994) (“It is axiomatic that a sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score.”)
(1992).