No. 44114-1-I.The Court of Appeals of Washington, Division One.
Filed: January 28, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-1-02670-3, Hon. Sharon Armstrong, January 25, 1999, Judgment or order under review.
Counsel for Appellant(s), Andrew J. Ries, King County Pros. Atty Ofc. W554, 516 3rd Ave, Seattle, WA 98104-3212.
Counsel for Respondent(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
PER CURIAM.
Eric James Carney was charged with violation of the Uniform Controlled Substances Act[1] (VUCSA) for delivery of cocaine and assault in the third degree. He pled guilty to each charge. The sentencing court excluded all of Carney’s juvenile felony convictions when calculating his offender score. The sentencing court, relying on language in the juvenile plea form, based its decision on promissory estoppel. The State argues that it never promised Carney that his juvenile adjudications would not count in his adult criminal record. We agree, and reverse.
Carney was 23 years old when he committed the offenses. At the time of his guilty plea, the State and defense calculated his offender score for the VUCSA delivery as a three, with a standard range of 36 to 48 months. On the assault, the parties believed the offender score was three, with a standard range of 9 to 12 months. Carney’s offender score was based on an adult conviction for VUCSA possession and two juvenile felony adjudications for burglary in the second degree and taking a motor vehicle without permission. Prior to the sentencing, the Department of Corrections (DOC) discovered five additional juvenile felony adjudications for Carney: two for taking a motor vehicle without permission, one for possession of stolen property in the second degree, and one for VUCSA delivery. The DOC then concluded that Carney’s offender score for the VUCSA delivery should have been seven points: one for his adult felony conviction, two for his juvenile VUCSA delivery adjudication, three for his six other juvenile felony adjudications, and one for the assault in the third degree.
At sentencing, Carney argued that his offender score was two because his juvenile pleas could not be counted based on his prior plea agreements. Juvenile plea forms after 1987 contained the following language:
I have been informed and fully understand that my plea of guilty and the court’s acceptance of my plea will become part of my criminal history. I have also been informed and fully understand that if the offense is a felony and I was 15 years of age or older when the offense was committed, then the plea will remain part of my criminal history when I am an adult if I commit another offense prior to my twenty-third birthday. I have been informed and fully understand that if I plead guilty and the court accepts my plea, my criminal history may cause the court to give me a longer sentence for any offenses that I commit in the future.
Carney contends that these statements created a binding plea agreement that the State would not count his juvenile adjudications once he turned 23.
The sentencing court analogized the alleged promise and its enforcement to form a promissory estoppel, finding that the State had promised the pleas would never be used when Carney became an adult:
I find that the easiest way to think of this or analyze this, for me, is to view it as a form or promissory estoppel, whereby both the Court and State represent to the juvenile offender, if he pleads guilty, his crime will be scored in a certain manner in the future. . . . [W]hat you have to have is a promise and later action is inconsistent with that promise, of course, reliance by the promise. And I think, really, all those elements are present here.
As a result, the court set Carney’s offender score at two.
We review the calculation of an offender score de novo.[2]
Initially, we conclude that the trial court wrongly relied on promissory estoppel in holding that Carney’s juvenile felony adjudications did not count in his offender score. In order to establish promissory estoppel, the party must show (1) a promise which (2) the promisor should reasonably expect to cause the promise to change his position and (3) which does cause the promise to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise.[3] However, even if there had been a promise made, a defendant cannot commit future crimes in reliance upon the promise.
The issue raised by Carney is whether his juvenile adjudications must be excluded from his adult offender scores based on the bargains he reached in his juvenile pleas. This issue is controlled by our decision in State v. McRae.[4] In McRae we held that the language cited by the defendants in standard 1991 juvenile plea forms, the same language relied on by Carney, did not constitute bargained-for assurances offered by the State in return for the juvenile’s plea.[5] Thus, under McRae the State’s use of the pleas in calculating the offender score does not constitute a breach of the prior agreements. Accordingly, we conclude that the sentencing court incorrectly excluded the defendant’s juvenile adjudications.
(2000).