STATE v. COLLINS, 46727-1-I (Wash.App. 11-5-2001)

No. 46727-1-I.The Court of Appeals of Washington, Division One.
Filed: November 5, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 99-1-03754-1, Hon. Ronald Kessler, May 26, 2000, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Oliver R. Davis, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

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.

A jury found Roger Collins found guilty of forgery. Using an offender score of 6, the trial court sentenced Collins to 13 months, the middle of the standard range for this offense and offender score. In calculating the offender score, the trial court counted several juvenile adjudications. Because these adjudications were improperly included, we remand for resentencing in light of State v. Smith, 144 Wn.2d 665, P.3d (2001).

Prior to 1997, under former RCW 9.94A.030, criminal history did not include juvenile adjudications if the present offense was committed after the juvenile turned 23. Collins turned 23 on August 30, 1994. Had he committed an offense after that date and before RCW 9.94A.030 was amended, his prior juvenile adjudications would not have counted in his offender score because they washed out.

In 1997, the legislature amended the statute so that prior juvenile adjudications are now counted in the offender score. In 2000, the legislature provided that, `Any 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. In Smith, the Supreme Court determined that this law was not retroactive and that juvenile offenses that washed out prior to the change in the law could not be revived.

Under Smith, Collins’ offender score was improperly calculated and he must be resentenced. We recognize that resolution of the offender score issue may not inure to Collins’ benefit because this case was stayed pending Smith, but conclude that the judgment and sentence should be corrected to reflect the proper offender score.[1]

The judgment and sentence is vacated and the matter is remanded for resentencing. FOR THE COURT: