STATE v. BOOTH,, 27284-9-II (Wash.App. 6-14-2002)

No. 27284-9-II.The Court of Appeals of Washington, Division Two.
Filed: June 14, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Lewis County, No. 99-1-00565-6, Hon. H. J. Hall, April 30, 2001, Judgment or order under review.

Counsel for Appellant(s), David W. Brown, Enbody Dugaw, 107 S Tower Ave, Centralia, WA 98531.

Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1900.

J. ROBIN HUNT, C.J.

John Allen Booth, Jr. appeals his sentence for first degree burglary and second degree assault, arguing that the trial court miscalculated his offender score. In his pro se supplemental brief, he contends that the court erred in failing to hold an evidentiary hearing and failing to apply the `law of the case’ doctrine. With regard to Booth’s offender score: (1) we affirm the sentencing court’s counting Booth’s current offenses separately and counting his community placement status; and (2) we remand for a determination of whether the prior juvenile sentencing court counted Booth’s prior juvenile offenses as separate offenses or the same criminal conduct.

FACTS
Booth entered Gary Hornkohl’s residence while Hornkohl and friends were replacing a water heater. Booth announced that he was there to `gank’ them, meaning, to steal their drugs. Hornkohl replied that he did not have any dope. Booth then grabbed a 20′ claw hammer and swung it at Hornkohl, hitting him on the left side of his face, next to his ear. The State charged Booth with first degree burglary and second degree assault.

He pleaded guilty as charged and the trial court sentenced him to 77 months in prison. Booth appealed his sentence, arguing that his previous four convictions for stolen firearm possession in 1998 should have been counted as the same criminal conduct, rather than separate offenses, for sentencing purposes. We remanded for resentencing.

The trial court resentenced Booth to 75 months in prison. Thereafter, the trial court allowed Booth to withdraw his plea of guilty and reset the matter for trial. Rather than go to trial, however, Booth again pleaded guilty to the same charges as before. He moved to continue sentencing because he was having difficulty obtaining his prior juvenile disposition orders from Grays Harbor County.

Booth advised the court that he had called Grays Harbor County `probably 10 times now,’ and the clerk had indicated that she would provide the information, but that he had not yet received it. Booth argued that in order to receive a fair sentence, it was necessary to compute the standard range properly, which required knowing whether the original sentencing court had specifically found that Booth’s three concurrent juvenile offenses involved the `same criminal intent’ so that they would count as only one point for sentencing purposes.

The trial court denied Booth’s motion, ruling that for purposes of computing his offender score, (1) the current charges did not encompass the same criminal conduct; (2) it would not treat the three 1993 juvenile offenses as encompassing the same criminal conduct where that original sentencing court had made no such finding; and (3) the current offense occurred while Booth was on community placement.

The trial court set Booth’s offender score on the first degree burglary charge at seven, computed as follows: one point for each of the prior juvenile burglary convictions (points one and two); one-half point each for the prior juvenile theft and eluding convictions (point three); one point for the combined, adult, stolen-firearm-possession convictions (point four); two points for the other current second-degree assault conviction (points five and six); and one point because the current offense was committed while Booth was on community placement (point seven). The trial court again sentenced Booth to 75 months in prison.

ANALYSIS I. Same Criminal Conduct
Booth claims that the trial court erred in finding that his current offenses were separate crimes, rather than the same criminal conduct under RCW 9.94A.400(1)(a) and that his concurrent prior juvenile offenses counted as separate offenses, rather than the same criminal conduct under RCW 9.94A.360(5)(a)(i).

The sentencing court must first calculate the correct standard range before imposing sentence within that range; failure to do so is legal error, subject to review. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575
(1997). Nonetheless, we will not reverse a trial court’s determination of what constitutes the same criminal conduct[1] for purposes of calculating an offender score `absent an abuse of discretion or misapplication of the law.’ State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999) (citation omitted).

A. Current Offenses
The burglary antimerger statute, RCW 9A.52.050, provides: `Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.’ Thus, even where the trial court determines that a defendant’s crimes constitute the same criminal conduct, it has discretion to impose a separate punishment for each crime. State v. Davis, 90 Wn. App. 776, 784, 954 P.2d 325 (1998) (citing State v. Lessley, 118 Wn.2d 773, 827 P.2d 996 (1992)); State v. Kisor, 68 Wn. App. 610, 618, 844 P.2d 1038, review denied, 121 Wn.2d 1023
(1993).

Kisor, for example, asserted that a burglary and a vehicle theft encompassed the same criminal conduct because both crimes occurred at the same time and place, both crimes involved the same victim, and his criminal intent did not change. We ruled:

We need not devote a great deal of attention to this assignment of error because . . . the law is contrary to Kisor’s position . . . in light of the recent case of State v. Lessley, 118 Wn.2d 773, 827 P.2d 996
(1992), in which our Supreme Court indicated that the burglary antimerger statute permits a sentencing judge the discretion to punish, separately, a crime committed during a burglary regardless of whether it and the burglary encompassed the same criminal conduct. Because, as Kisor concedes, the theft of the Blazer occurred in the commission of the burglary, the sentencing judge did not abuse her discretion in refusing to merge the burglary with the theft of the Blazer.

Kisor, 68 Wn. App. at 617-18 (footnote omitted) (emphasis added).

Similarly, here, even if Booth’s current convictions for burglary and assault could be said to constitute the `same criminal conduct,’ the trial court had the discretion under the burglary antimerger statute to treat them as separate offenses for offender-scoring purposes. Kisor, 68 Wn. App. at 617-18; RCW 9A.52.050.

B. Prior Juvenile Offenses
As a general rule, multiple prior convictions are counted separately. RCW 9.94A.360(5)(a). But RCW 9.94A.360(6)(a) required the current sentencing court to determine whether to count prior offenses served concurrently as separate offenses. State v. Reinhart, 77 Wn. App. 454, 459, 891 P.2d 735 (1995); see former RCW 9.94A.360(6)(a) (1996). Prior offenses found to encompass the `same criminal conduct’ count as one offense, under former RCW 9.94A.360(5)(a)(i) (1996), if the prior sentencing court so found. State v. Blakley, 61 Wn. App. 595, 811 P.2d 965 (1991).

Booth concedes that the current sentencing court properly ruled that in order for it to count his prior convictions as one offense, the prior sentencing court would have to have found that Booth’s prior convictions involved the same criminal conduct. (Br. of Appellant at 8.) Nonetheless, Booth contends that the current sentencing court erred in counting the prior offenses separately `without [first] producing a disposition order from the juvenile offense under which Mr. Booth was arguing the prior offenses should count as same criminal conduct.’ Br. of Appellant at 8. For sentencing purposes, the State bears the burden of proving criminal history by a preponderance of the evidence. RCW 9.94A.110; State v. Ammons, 105 Wn.2d 175, 186, 718 P.2d 796 (1986).

The best evidence of a prior conviction is a certified copy of the judgment. But the State may introduce other comparable documents of record, transcripts of prior proceedings, or evidence of some kind to support the alleged criminal history. State v. Ford, 137 Wn.2d 472, 480-81, 973 P.2d 452 (1999). Here, the State did not meet its burden of production. Without first providing the prior sentencing court’s rulings, the State could not have met its burden of proving that Booth’s prior offenses were not the same criminal conduct.[2]

Generally, where the parties have fully argued disputed issues to the sentencing court, we hold the State to the existing record, excise any unlawful portion of the sentence, and remand for resentencing without allowing further evidence to be adduced. Ford, 137 Wn.2d at 485 (citing State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997). But here, the issue of how Booth’s juvenile offenses should be counted was not fully argued because the necessary record was not before the current sentencing court.

Therefore, we remand for the State to produce Booth’s juvenile court sentencing record. If the record shows that the prior sentencing court treated Booth’s prior juvenile offenses as the same criminal conduct, then the trial court must recalculate Booth’s offender score and resentence him. If, however, the prior juvenile court did not make such a finding, then Booth’s prior juvenile offenses shall remain countable as separate offenses and his current sentence shall stand.

II. Community Placement
Booth argues that the trial court erred in factoring into his offender score his community placement status at the time he committed the current offenses, which resulted an additional offender score point. See RCW 9.94A.360(17). He does not argue that he was not on community placement; rather, he argues that he should not have been on community placement because his offender score was improperly calculated on his prior firearm offenses, which wrongly precipitated his prison sentence and consequent community placement. Br. of Appellant at 13.

Specifically, Booth alleges that he served 18 months on the firearm conviction when he should have served one year of confinement, plus one year of community placement. Report of Proceedings (RP) at 9. Therefore, he calculates that if he had correctly served one year in prison, plus one year of community placement, then he would have been released from community placement approximately two months before he committed his current crimes. Thus, he argues, his offender score should not include the community placement sentencing point.

But the record does not support Booth’s contention that the firearm conviction was improper. Nor does it provide proof that Booth took any action to correct the alleged resulting error in his community placement status or that he was actually `credit[ed] for 18 months,’ RP at 9, on that charge. Absent some offer of proof, the sentencing court could not consider Booth’s claims. Nor must we consider such issues on appeal when Booth has not provided an adequate record for review. RAP 9.2(b).

Therefore, we do not consider Booth’s argument that he should not have been on community placement.

III. `Law of The Case’ Doctrine
Booth asserts, pro se, that the trial court erred in failing to apply the `law of the case,’ namely, that the court must `follow its previous ruling that his current burglary and assault encompassed the same criminal conduct.’ Br. of Appellant, at 9. The finding to which Booth alludes is in the August 9, 1999 Judgment and Sentence. Clerk’s Papers (CP) at 25. That judgment did state that Booth’s current offenses counted as one crime. But Booth appealed that sentence, arguing that his previous four convictions for possession of a stolen firearm should not have been counted separately for sentencing purposes and, therefore, he was sentenced under the wrong range. We agreed and remanded for resentencing. Booth was resentenced to a term of 75 months in prison. CP at 17-24. The amended judgment and sentence, however, reflects that Booth’s current burglary and assault charges count as separate offenses in calculating his offender score. CP at 18.[3] But after Booth was allowed to withdraw his previously entered plea of guilty, the matter was reset for trial, Booth again pleaded guilty, CP at 1, and he was again sentenced to a term of 75 months in prison. CP at 5.

Booth attributes his `law of the case’ error claim to United State v. Robinson, 690 F.2d 869, 874-75 (11th Cir. 1982). The Robinson court stated, `Under the law of the case doctrine, both the district court and the court of appeals generally are bound by findings of fact and conclusions of law made by the court of appeals in a prior appeal of the same case.’ Robinson, 690 F.2d at 872. The Robinson doctrine does not apply here. But even if it did, Booth abandoned any binding effect of the August 9, 1999 judgment and sentence when he withdrew his guilty pleas, which had been the basis for these sentences.

We hold that the sentencing court did not err in counting Booth’s current offenses separately or in counting Booth’s community placement status. We remand, however, for a determination of whether the prior juvenile sentencing court counted Booth’s prior juvenile offenses as separate offenses or the same criminal conduct, after which resentencing shall occur if necessary.

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, J., QUINN-BRINTNALL, J.