No. 27119-2-IIThe Court of Appeals of Washington, Division Two.
Filed: October 18, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 98-1-01681-9, Hon. Karen L. Strombom, March 9, 2001, Judgment or order under review.
Counsel for Appellant(s), Brett A. Purtzer, Law Offices of Monte E. Hester, Ste 302, 1008 S Yakima Ave, Tacoma, WA 98405.
Counsel for Respondent(s), John M. Neeb, Pierce Co. Deputy Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
QUINN-BRINTNALL, A.C.J.
Joe Butler pleaded guilty to one count of second degree assault. He appeals his sentence, arguing that the court incorrectly calculated his offender score. The State correctly concedes that his prior felony convictions “washed out,” and were improperly included in his offender score. We remand for resentencing.
FACTS
On April 12, 1998, Butler and his wife were arguing outside the home of an acquaintance. Tensions escalated and Butler shot his wife in the leg as she ran toward the house. Butler fled. But the police tracked and arrested him. On October 2, 2000, Butler pleaded guilty to a charge of second degree assault with a deadly weapon. RCW 9A.36.021(1)(c). At sentencing, the State proposed an offender score of “4” based on Butler’s four prior felony convictions.[1] Relying on that offender score, the trial court sentenced Butler to a standard range sentence of 15 months in prison.[2] Butler appeals his sentence.
ANALYSIS
Butler argues, and the State concedes, that his prior felony convictions should not have been considered in calculating his offender score based on State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001). Thus Butler contends that his offender score should be a “0.” A sentencing court’s calculation of a defendant’s offender score is a question of law and is reviewed de novo. State v. McCraw, 127 Wn.2d 281, 289, 898 P.2d 838
(1995).
A challenge to the calculation of an offender score may be raised for the first time on appeal. State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999). Butler’s prior convictions were Class B and C felonies and should not have been included in Butler’s offender score. Prior to 1995, Class B felony convictions other than sex offenses were not included in the offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of judgment and sentence, the offender had spent 10 consecutive years in the community without being convicted of any felonies.
Similarly, Class C felony convictions other than sex offenses were not included in the offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies. See LAWS OF 1995, ch. 316, sec. 1. The 1995 amendment changed the “without being convicted of any felonies” clauses of RCW 9.94A.360(2) to read “without committing any crime that subsequently results in a conviction.”[3] The amendment, which constituted a substantive change in the law, only applies prospectively and does not revive previously washed out offenses. See State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999). (holding 1990 amendments to RCW 9.94A.360(2), which provide that sex crimes do not wash out, did not revive previously washed out crimes). See also State v. Dean, Wn. App., 54 P.3d 243 (2002); Smith, 144 Wn.2d 665.
Because Butler was released from prison in 1982 or 1983 and was not convicted of any felony in the 10 years following his release, his prior convictions “washed out” for the purposes of offender score calculation under former RCW 9.94A.360(2).[4] Butler’s sentence is vacated and the matter is remanded for resentencing. 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.
HOUGHTON and BRIDGEWATER, JJ., concur.