No. 61413-4-I.The Court of Appeals of Washington, Division One.
March 2, 2009.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-1-00316-8, Susan K. Cook, J., entered March 7, 2008.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Juan Gonzalez-Frias pleaded guilty to six counts of delivery of cocaine and one count of conspiracy to deliver cocaine. He appeals, contending that the offender score used to compute his standard range sentences was miscalculated. Gonzalez-Frias argues that his conspiracy and delivery convictions encompass the same criminal conduct and therefore should not have counted separately for sentencing purposes. However, by voluntarily pleading guilty Gonzalez-Frias waived any “same criminal conduct” objection to his offender score. Even if this issue had not been waived, the trial court properly calculated Gonzalez-Frias’ offender score. We affirm.
FACTS
Gonzalez-Frias was identified as a person who had a prominent role in a large scale cocaine trafficking operation in Skagit County. During the month of March 2007 Gonzalez-Frias arranged to sell cocaine to an undercover police officer on six separate occasions. Gonzalez-Frias was arrested after the last transaction, in which the officer purchased a kilo of cocaine for $20,000.
Gonzalez-Frias was originally charged with six counts of delivery of cocaine, one count of alien in possession of a firearm, one count of conspiracy to deliver cocaine, and one count of maintaining a vehicle for drug trafficking. The State also notified Gonzalez-Frias that it would be seeking an exceptional sentence based upon his role as a major drug violator. The State later amended the information to add a school zone enhancement.
Gonzalez-Frias and the State negotiated a plea agreement. As part of that agreement, Gonzalez-Frias agreed to plead guilty to the six counts of delivery and one count of conspiracy to deliver. In exchange for Gonzalez-Frias’ guilty plea, the State agreed to drop the remaining charges and the school zone enhancement, and not to seek an exceptional sentence. In the plea statement, the parties also agreed that they would each be allowed to “make their own recommendations and arguments to the court as to sentence. . . .” (capitalization omitted).
At the plea hearing, held January 10, 2008, Gonzalez-Frais acknowledged that his standard sentence range was 60 to 120 months. The court accepted the plea, finding that it had been made voluntarily and knowingly.
At sentencing on January 16, 2008, the State supplied the police reports in the case along with the live testimony of the undercover officer to support its recommendation that Gonzalez-Frias be sentenced to 120 months total confinement, the top end of the standard range. Defense counsel recommended a low end sentence of 60 months. In doing so, counsel acknowledged that Gonzalez-Frias had stipulated to an offender score of six and a standard sentence range of 60 to 120 months as part of his guilty plea. Towards the end of his argument, however, defense counsel questioned for the first time the calculation of Gonzalez-Frias’ offender score:
And I don’t want my last comments here, closing up, to be interpreted as wavering from that in any way, Your Honor. However, as [Gonzalez-Frias’] attorney and as an officer of the Court, I feel that my obligation is to try to make sure as best I can that the Court is advised of the correct status of the law before you issue a ruling.
Citing State v. Deharo, counsel went on to argue that Gonzalez-Frias’
conspiracy and delivery convictions actually encompass the same criminal conduct. 136 Wn.2d 856, 966 P.2d 1269 (1998).[1] The State objected, stating that counsel’s argument constituted a breach of the plea agreement. Concerned about the possible sentencing and other ramifications of Gonzalez-Frais’ same criminal conduct claim, the court continued the sentencing hearing.
Both parties submitted supplemental briefing. In his brief, Gonzalez-Frias argued that his conspiracy to deliver conviction constituted the same criminal conduct as his other six convictions for delivery and “that the correct calculation of the defendant’s criminal history is a 5, and that the standard range is 20-60 months.” But Gonzalez-Frias ended the discussion in his brief as follows:
In any event, it is expressly not the wish of the defendant to withdraw any of his pleas of guilty, and regardless of the court’s ruling on this issue desires to go forward with sentencing within whatever range the court deems fit.
At the hearing, held March 7, 2008, the State reiterated its position that Gonzalez-Frias had breached the terms of the plea agreement and that the charges were not the same criminal conduct. When the court asked defense counsel to address the same criminal conduct issue, counsel replied:
Your Honor, I appreciate the opportunity to address the Court. I am in a posture where I feel that I am in a delicate position, your Honor, and because of the situation and because of the fact that I handed up the Deharo[, 136 Wn.2d 866,] case at sentencing, I feel that I really am not in the position to be here advocating for this strenuously.
The court, relying on information contained in the police reports, determined that Gonzalez-Frias’ conspiracy and delivery convictions did not constitute the same criminal conduct and therefore would be counted separately for purposes of calculating Gonzalez-Frias’ offender score. In distinguishing the offenses from one another, the court found that the conspiracy that took place between Gonzalez-Frias and various other individuals “did not necessarily occur at exactly the same time or place as the completed deliveries.” Using an offender score of 6, the trial court sentenced Gonzalez-Frias to 120 months on the delivery charges and 12 months on the conspiracy charge. Gonzalez-Frias appeals.
ANALYSIS
The sole issue on appeal is whether Gonzalez-Frias’ offender score was miscalculated, because his conspiracy and delivery convictions were counted separately for sentencing purposes. Gonzalez-Frias argues that, because the conspiracy to deliver charge encompassed the same criminal conduct as the delivery charges they should not have been added together for sentencing purposes. Thus, Gonzalez-Frias insists that, “this court must reverse [his] sentence and remand for resentencing.” We disagree.
To begin with, Gonzalez-Frias waived any objection to his offender score when he pleaded guilty. “A guilty plea generally waives challenges to the defendant’s offender score because a defendant’s agreed standard range sentence is based in part on his criminal history and because guilty plea agreements usually contain a stipulation to criminal history.” State v. Harris, ___ Wn. App. ___, 197 P.3d 1206, 1209 (2008). While it is true that certain sentencing issues can never be waived, a claim of error under the same criminal conduct statute, RCW 9.94A.589(1)(a), is not one of them. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874-75, 50 P.3d 618 (2002); State v. O’Neal, 126 Wn. App. 395, 432-34, 109 P.3d 429 (2005) (by affirmatively acknowledging the calculation of his standard range, the defendant implicitly acknowledged that his prior convictions did not constitute the same criminal conduct), aff’d, 159 Wn.2d 500, 150 P.3d 1121 (2007). “[W]aiver can be found where the alleged error involves an agreement to facts, later disputed. . . .” Goodwin, 146 Wn.2d at 874. We also find it significant here that Gonzalez-Frias has not challenged the voluntariness of his guilty plea. Under the circumstances, Gonzalez-Frias waived any objection to the calculation of his offender score. Nevertheless, the trial court considered the merits of Gonzalez-Frias’ claim that the crimes constituted the same criminal conduct, and so shall we.
Gonzalez-Frais argues that the trial court should not have counted the conspiracy and delivery convictions separately for sentencing purposes. He argues that those offenses encompass the same criminal conduct. The premise underlying this argument, however, is flawed. It is based on Gonzalez-Frias’ mistaken belief that “the trial court was only allowed to rely on the facts acknowledged by Mr. Gonzales-Frias [sic] in his plea statement.”
In his plea statement, Gonzalez-Frias admitted:
On March 29, 2007; March 23, 2007; March 21, 2007; March 16, 2007; March 6, 2007; And March 1, 2007; I did knowingly deliver a controlled substance (cocaine) to an undercover detective; and on or about and between March 1, 2007 and March 29, 2007, I did knowingly and unlawfully conspire with at least one person other than the intended recipient to deliver a controlled substance (cocaine); all in Skagit County, Washington.
(capitalization omitted). That section also contained a check box, which was not checked. The box was next to the statement that “[i]nstead of making a statement, I agree that the court may review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea.”
Gonzalez-Frias relies on the fact that the box was left unchecked to argue that the trial court could not “use the State’s probable cause statement or the police reports for the purposes of sentencing.” This argument is without merit. The language next to the check box cannot possibly be read as placing any restrictions on the type of evidence that the trial court might consider for sentencing purposes. It dealt solely with the evidence available for purposes of establishing the factual basis for a plea, not sentencing matters.
RCW 9.94A.530(2) provides in part:
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgment includes not objecting to information stated in the presentence reports and not objecting to criminal history presented at the time of sentencing.
Here the evidence offered by the State was all admitted at the sentencing hearing without objection. In fact, Gonzalez-Frias offered to stipulate “to any offer of proof” to make sentencing as expeditious as possible. The police reports were therefore properly considered by the trial court in determining whether the conspiracy charge and the six delivery charges encompassed the same criminal conduct. There was no error. For similar reasons, we reject Gonzalez-Frias’ argument that the State breached the plea agreement by arguing facts beyond those contained in Gonzalez-Frias’ plea statement.
Multiple current offenses are counted as one offense in determining the offender score only if they encompass the same criminal conduct. RCW 9.94A.589(1)(a). To constitute the same criminal conduct for sentencing purposes, two or more criminal offenses must involve (1) the same objective intent, (2) the same time and place, and (3) the same victim. RCW 9.94A.589(1)(a). “`If any one element is missing, multiple offenses cannot be said to encompass the same criminal conduct, and they must be counted separately in calculating the offender score. . . .'” State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993) (quoting State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992)). The trial court’s determination on this issue will not be disturbed unless the court abused its discretion or misapplied the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Here, Gonzalez-Frias fails to establish that his conspiracy and delivery offenses fit within the statutory definition of the “same criminal conduct.” The fact that the six deliveries all took place during the course of the ongoing conspiracy does not make them the same criminal conduct. The unlawful agreements between Gonzalez-Frias and the other persons involved in the cocaine trafficking operation occurred at different times, places, and for somewhat different purposes. For example, the record shows that Gonzalez-Frais had to deal with someone to obtain the cocaine he sold on at least two occasions and that those contacts did not occur at the same time as the deliveries themselves. We agree with the trial court that the crimes were not committed at the same time and place. There is no manifest abuse of discretion.
Affirmed.