STATE v. HAND, 27571-6-II (Wash.App. 11-1-2002)

Nos. 27571-6-II, 27598-8-II, 27601-1-II, 27608-9-II.The Court of Appeals of Washington, Division Two.
Filed: November 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 011016735, Hon. Frederick W. Fleming, June 19, 2001, Judgment or order under review.

Counsel for Appellant(s), Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.

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.

J. ROBIN HUNT, C.J.

In this consolidated appeal, Anthony Gene Hand appeals concurrent sentences for convictions in four separate causes. He argues that his offender score was miscalculated because (1) his prior juvenile adjudications `washed out,’ (2) the trial court failed to determine whether his prior concurrently sentenced juvenile adjudications were the same criminal conduct, and (3) the State did not establish that a prior out-of-state conviction was equivalent to a felony in Washington. He further asserts that his counsel was ineffective for failing to object to the incorrect offender score calculation. We remand for recalculation of Hand’s offender score, without his prior washed out juvenile adjudications.

FACTS I. Guilty Pleas
Taking advantage of the State’s plea offers, Hand entered consecutive Alford-Newton[1] guilty pleas on June 19, 2001, in four separate causes (for crimes occurring in March 2000 and February, March, and April 2001). In the first cause,[2] the State initially charged Hand with first degree theft and unlawful possession of methamphetamine. As provided in a plea agreement, the State amended the information to second degree theft and unlawful possession of methamphetamine, and Hand pleaded guilty.

In the second cause,[3] the State initially charged Hand with unlawful possession of methamphetamine, unlawful possession of drug paraphernalia, and third degree driving with license suspended or revoked. As provided in a plea agreement, the State amended the information to unlawful possession of methamphetamine, and Hand pleaded guilty.

In the third cause,[4] the State initially charged Hand with second degree theft, second degree possession of stolen property, and unlawful possession of methamphetamine. As provided in a plea agreement, the State amended the information to second degree theft and unlawful possession of methamphetamine, and Hand pleaded guilty.

In the fourth cause,[5] the State charged Hand with two counts of second degree theft and one count of second degree vehicle prowling. Hand pleaded guilty as charged.

In each of his plea statements, Hand averred, `I plead guilty to take advantage of the prosecutor’s recommendation. I have reviewed the police reports. I believe there is a substantial likelihood I could be convicted if I went to trial.’ Clerk’s Papers (CP) Vol. I at 12; Vol. II at 12; Vol. III at 12; Vol. IV at 10, 14.

For each of the four causes, the trial court questioned Hand and determined that he understood (1) his guilty pleas, (2) the maximum sentences allowed, (3) the constitutional rights he forfeited by pleading guilty, and (4) that no party’s recommendation bound the court. Hand responded that he understood these questions. The court further determined that Hand entered each plea freely and voluntarily and that he agreed that the court could consider the State’s probable cause statements as factual bases for his guilty pleas. The court then accepted Hand’s guilty pleas.

II. Sentencing: Offender Score
The court sentenced Hand immediately. For each of the four causes, Hand signed the following stipulation to his criminal history and offender score:[6]

TMVOP 06/24/79 Pierce 06/27/78 Juv. .5

Burg 2 06/24/78 Pierce 06/27/78 Juv. .5

Burg 2 Pierce 06/27/78 Juv. .5

Burg 2 Pierce 01/15/79 Juv. .5

Burg 2 Pierce 05/14/80 Juv. .5

UPCS 03/16/94 Pierce 09/18/93 Adult 1

Res Burg 12/15/94 Pierce 09/30/94 Adult 1

Burg 2 12/15/94 Pierce 10/21/94 Adult 1

Hand also stipulated that his prior juvenile adjudications did not wash out and that they were not the same criminal conduct for sentencing purposes. CP Vol. I at 16-17, Vol. II at 15-16, Vol. III at 15-16, Vol. IV at 16-17.

Hand further stipulated that the following out-of-state conviction was equivalent to a Washington State felony conviction of the same class (RCW 9.94A.360(3)):

Burg Lil 01/04/88 Adult 1
Rock, Ar.

CP Vol. I at 16-17, Vol. II at 15-16, Vol. III at 15-16, Vol. IV at 16-17.

Hand stipulated that the correct offender score was 12.5 based on his agreed criminal history. He also stipulated that he would not appeal. In return, the State reduced the charges, recommended the low end of the standard sentencing range, and recommended concurrent sentences. After a colloquy with the trial court about the four stipulations’ accuracy, Hand agreed that the information in the documents was complete and accurate, and he signed them. Hand further stipulated:

1) That if any additional criminal history is discovered, the State of Washington may resentence the defendant using the corrected offender score without affecting the validity of the plea of guilty;
2) That if the defendant pled guilty to an information which was amended as a result of plea negotiation, and if the plea of guilty is set aside due to the motion of the defendant, the State of Washington is permitted to refile and prosecute any charge(s) dismissed, reduced or withheld from filing by that negotiation, and speedy trial rules shall not be a bar to such later prosecution;
3) That none of the above criminal history convictions have `washed out’ under RCW 9.94A.360(2) unless specifically indicated. If sentenced within the standard range, the defendant further waives any right to appeal or seek redress via any collateral attack based upon the above stated criminal history and/or offender score calculation.

CP Vol. I at 16-17; Vol. II at 15-16; Vol. III at 15-16; Vol. IV at 16-17.

For each of his convictions, the court sentenced Hand within the standard range. For each count in the first, second, and third causes, the court sentenced Hand to 22 months confinement, to run concurrently with each other and with the sentences imposed in the other cause numbers. In the fourth cause, the court sentenced Hand to 22 months on each felony count and 365 days on the misdemeanor count, to run concurrently with each other and with the sentences imposed in the other three causes.

ANALYSIS I. Offender Score
Hand contends that the trial court made several errors in calculating his offender score. With the exception of one cause, #00-1-01381-9, in which Hand committed the crimes between March 18 and 19, 2000, the State counters that Hand cannot appeal because (1) he stipulated to his criminal history and the accuracy of the resulting offender score; and (2) he specifically waived his right to appeal. See State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000, review denied, 141 Wn.2d 1030
(2000) (defendant’s stipulation to offender score that counts prior convictions separately operates as waiver of right to challenge offender score calculation).

A. Guilty Plea Stipulations
1. Prior Adult Convictions

As we recently held in State v. Hickman, where a defendant knowingly, voluntarily, and affirmatively stipulated to his offender score to gain the benefit of the plea bargain, he waived the right to appeal his offender score calculation and/or invited any error in that calculation. Hickman, 112 Wn. App. 187, 191, 48 P.3d 383, 385 (2002). Thus, Hand is bound by his stipulation that his offender score properly included his prior adult criminal history.

Hand cannot now complain that the trial court failed to determine whether prior convictions were `same criminal conduct’ or that an out-of-state conviction is not equivalent to a felony in Washington. See Nitsch, 100 Wn. App. at 522. His arguments concerning these factual and discretionary matters fail. See In re the Personal Restraint of Goodwin, 146 Wn.2d 861, 874-75, 50 P.3d 618, 625-26 (2002) (defendant can stipulate to miscalculated offender score based on erroneous facts, or trial court discretion, as contrasted with a sentence in excess of sentencing court’s statutory authority).

2. Prior Juvenile Adjudications

But Hand’s argument succeeds with respect to his juvenile adjudications. Before 1997, when calculating an offender score, the sentencing court counted prior juvenile class B or C felonies only if the defendant committed the current offense (for which he was being sentenced) before the age of 23. Former RCW 9.94A.030(12)(b)(iii) (1996). Here, however, Hand’s prior juvenile offenses are not includable: Hand was born on August 8, 1965; he committed his prior juvenile offenses at ages 13, 14, and 15; and he was 35 when he committed the current crimes.

In 1997, the Legislature amended RCW 9.94.A.030(12)(b) to eliminate these wash out provisions so that all prior juvenile adjudications counted for calculating an offender score. But in State v. Smith, 144 Wn.2d 665, 674-75, 30 P.3d 1245, 39 P.3d 294 (2001), the Supreme Court held that the 1997 SRA amendment was not retroactive and did not revive prior washed out offenses. The Court, therefore, held that a juvenile adjudication that washed under former RCW 9.94A.030(12)(b) was permanently and `virtually expunged for future sentencing purposes.’ See State v. Dean, ___ Wn. App. ___, 54 P.3d 243, 245 (2002).

In 2002, the Legislature once again enacted a sentencing process, purporting to include all prior offenses and expressly criticizing the Supreme Court’s Smith decision. The Legislature enacted Substitute Senate Bill (SSB) 6423 to require that an offender score include an offender’s criminal history based on the statutory provisions in effect on the day the current offense was committed. SSB 6423, Ch. 107 § 1 (2002). See Dean, 54 P.3d at 244. But, the Supreme Court rejected this attempted preemption in Goodwin (after oral argument in Hand’s case). Relying on Smith, the Court held that a defendant’s washed out, juvenile, class B and C felonies cannot count toward an offender score and that a defendant cannot stipulate away or waive an offender score that includes prior adjudications the sentencing court had no authority to include. Goodwin, 146 Wn.2d at 867, 876.

The State concedes that under Goodwin, 146 Wn.2d at 861, inclusion of the washed out juvenile adjudications in cause #00-1-01381-9 made Hand’s sentence invalid on its face. Supp. Br. of Resp. at 7. The State does not, however, concede this point with respect to Hand’s other juvenile adjudications.[7] Nonetheless, under Goodwin and Smith[8] Hand’s prior juvenile adjudications in 1978, 1979, and 1980, washed out permanently on August 8, 1988, when Hand turned 23, and later legislative enactments could not revive them.

Accordingly, Hand’s offender score erroneously included his prior washed out juvenile offenses, and we must remand all the causes for resentencing.

II. Ineffective Assistance of Counsel
Hand also claims that he received ineffective assistance of trial counsel because counsel failed to object to Hand’s offender score. But the record, Hand’s stipulation, and the law in effect at the time of sentencing supported Hand’s offender score as calculated.[9] Moreover, the record shows that Hand benefitted greatly from his plea bargains with the State, receiving reduced charges and reduced sentences as compared to the potential incarceration time he would otherwise have faced.

We presume counsel’s performance to have been effective unless a defendant demonstrates otherwise. State v. Goodin, 67 Wn. App. 623, 639, 838 P.2d 135, 140 (1992), review denied, 121 Wn.2d 1019 (1993). Here, Hand has not shown that his counsel’s performance was deficient or that it prejudiced him.

Accordingly, we remand for recalculation of Hand’s offender score, without his 1978, 1979, and 1980 prior juvenile adjudications, and 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.

WE CONCUR: BRIDGEWATER, J., ARMSTRONG, J.