No. 45518-4-I.The Court of Appeals of Washington, Division One.
Filed: December 24, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County, No. 99-1-01136-2, Hon. Kenneth L. Cowsert, October 27, 1999, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Elaine L. Winters, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), James H. Krider, Snohomish County Prosecutor, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
PER CURIAM.
Under former RCW 9.94A.310(4), a firearm enhancement may not run concurrently with any other sentencing enhancement. But whether a firearm enhancement runs consecutively or concurrently with another firearm enhancement is governed by RCW 9.94A.400. When a sentencing court runs base sentences concurrently on multiple offenses, the firearm enhancements attached to those sentences must also run concurrently with each other, but consecutive to the underlying base sentences. The sentencing court therefore erred in running Farler’s firearm enhancement concurrent with another base sentence and consecutively with the firearm enhancement attached thereto. Farler also argues that the sentencing court erred by including his three juvenile class B felonies in the calculation of his offender score. Based on our Supreme Court’s holdings in State v. Cruz[1] and State v. Smith,[2] we agree. Remanded for resentencing.
FACTS
On February 24, 1998, Scott Farler and two other men were involved in a burglary in Snohomish County. One of his co-defendants was armed with a gun. As a result, Farler was charged with and pled guilty to second degree burglary with a firearm enhancement.
In his plea agreement, Farler agreed with the prosecutor’s understanding of his criminal history and offender score. His criminal history consisted of ten prior convictions including four juvenile convictions, two 1989 adult convictions for second degree burglary, one 1996 adult conviction for residential burglary, two 1996 convictions for second degree theft, and a 1998 adult conviction for second degree assault with a firearm enhancement.
At sentencing on the instant charge, Farler was sentenced simultaneously on another Snohomish County burglary. In calculating his offender score, the sentencing court counted Farler’s three prior and one current adult burglaries as two points each, and his other seven prior offenses as one point each, for a total offender score of fifteen.
At the time of his sentencing in Snohomish County, Farler was serving a 115-month sentence on his 1998 second degree assault conviction out of Spokane County. That sentence included a 36-month firearm enhancement, and a 79-month base sentence.[3] Because Farler had previously received a sentence that included a firearm enhancement, the sentencing court here doubled the firearm enhancement to 72 months pursuant to RCW 9.94A.310(3)(d). For a defendant with an offender score of 9 or more, the low end of the standard range for second degree burglary is 51 months. The sentencing court imposed the low end of the standard range, but reduced Farler’s total sentence to 120 months, the statutory maximum. Defense counsel argued at sentencing that this sentence should run concurrently with Farler’s Spokane County sentence. The trial court believed that this would result in a sentence of only a few months for the Snohomish County burglaries, and did not consider this to be an appropriate punishment. On the other hand, the court found that running the entire 120-month sentence consecutively with the Spokane County sentence would be “a little harsh.” The court therefore attempted a compromise by running the base sentences concurrently with the Spokane County sentence, and the 72-month firearm enhancement consecutively with the Spokane County enhancement.[4] Farler appeals.
DISCUSSION
Farler first argues that because the sentencing court ordered the Snohomish County base sentence to run concurrently with the Spokane County base sentence, it was without authority to run the two firearm enhancements consecutively, relying on In re Charles, 135 Wn.2d 239, 955 P.2d 798 (1998). In that case, as here, the defendant was sentenced under former RCW 9.94A.310(4),[5] which provided:
Notwithstanding any other provision of law, any and all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provisions.
The Court found that the statutory language (“any other sentencing provisions”) was ambiguous with regard to whether enhancements must always run consecutively with each other. Charles, 135 Wn.2d at 249-50. The rule of lenity required the Court to resolve the statutory ambiguity in favor of criminal defendants. Charles, 135 Wn.2d at 253. The Court therefore held that although RCW 9.94A.310(3)(e) mandates that firearm enhancements run consecutively to their underlying sentences, former RCW 9.94A.310(3)(e) did not mandate that multiple firearm enhancements run consecutively with each other. Charles, 135 Wn.2d at 253. Whether the enhancements run consecutively or concurrently with each other is governed by RCW 9.94A.400 Charles, 135 Wn.2d at 254. When a sentencing court imposes sentence enhancements under former RCW 9.94A.310(4) and orders the base sentences to run concurrently under RCW 9.94A.400, the sentence enhancements must run consecutive to the underlying sentences, but concurrently with each other. Charles, 135 Wn.2d at 253-54.
The State argues that Charles is not controlling because it dealt with multiple current offenses, while the enhancements in this case were imposed by separate courts in separate proceedings. We do not believe that Charles is distinguishable on this basis. The ambiguity in former RCW 9.94A.310(3)(e) is present in both instances, and must be resolved in each instance by reference to RCW 9.94A.400.
We do, however, agree with the State that the proper remedy is remand for resentencing. Pursuant to RCW 9.94A.400, the sentencing court on remand may choose to run Farler’s entire Snohomish County 120-month sentence consecutive to his 115-month Spokane County sentence, or it may choose to run the base sentences concurrently, in which case the firearm enhancements must also run concurrently under Charles. However, the 72-month Snohomish County enhancement must run consecutively to both the Snohomish County base sentence, and the 79-month Spokane County base sentence. While former RCW 9.94A.310(3)(e) was ambiguous as to whether enhancements must run consecutively with each other, there is no ambiguity in the statute as to whether enhancements must run consecutive to any other sentencing provisions.
Therefore, the Snohomish County enhancement may not run concurrently with its own underlying base sentence, or with any other base sentence.
Farler also argues that the trial court erred by including his three class B juvenile felony adjudications in its calculation of his offender score. Based on our Supreme Court’s decisions in Cruz and Smith, we are compelled to agree. Prior to 1997, class B juvenile felonies were only included in an adult defendant’s offender score until he or she turned twenty-three years of age. Former RCW 9.94A.030(8)(b). In 1997, the Legislature amended RCW 9.94A.030(12)(b) to provide that all juvenile felonies would be included in a defendant’s offender score. Farler argues that because he turned twenty- three prior to the effective date of the 1997 amendments, his juvenile class B felonies had “washed out” and cannot now be revived.
The Supreme Court considered a similar issue in Cruz. At issue in Cruz was whether the 1990 amendments to the Sentencing Reform Act (SRA) could be applied retroactively to revive a previously washed out juvenile sex offense. Those amendments could be applied retroactively only if the Legislature so intended, the amendments were “curative, or if the amendments were remedial.” Cruz, 139 Wn.2d at 193. The Supreme Court concluded that none of these factors existed, and that the 1990 amendments applied prospectively only. The Court therefore held that Cruz’ previously washed out sex offense could not be included in the calculation of his offender score.
In response to Cruz, in 2000 the Legislature enacted RCW 9.94A.345, which provides: “Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.” In the statutory notes to RCW 9.94A.345, the Legislature provided:
RCW 9.94A.345 is intended to cure any ambiguity that might have led to the Washington supreme court’s decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual’s offender score should be determined by the law in effect on the day the current offense was committed. RCW 9.94A.345 is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.
In Smith, our Supreme Court analyzed whether RCW 9.94A.345 demonstrated a clear legislative intent that the 1997 amendment to the SRA be applied retroactively. The Court concluded that, while the statute may indicate “general legislative discontent” with the holding in Cruz, the legislature did not demonstrate an intent that the 1997 amendment be applied retroactively. Smith, 144 Wn.2d at 672. The Court also found that the 1997 amendment was neither curative nor remedial. The Court therefore held that the appellants’ previously washed out felonies had not been revived by the 1997 amendment.
Likewise, Farler’s class B juvenile felonies had washed out prior to 1997. Under Cruz and Smith, those adjudications were not revived by the 1997 amendments to RCW 9.94A.030(12)(b). The sentencing court therefore erred in including those offenses in Farler’s offender score.
Sentence vacated. Remanded for resentencing. For the court: