STATE v. JONES, 132 Wn. App. 1054 (2006)

No. 55861-7-I.The Court of Appeals of Washington, Division One.
May 8, 2006.

Appeal from a judgment of the Superior Court for King County, No. 04-1-01286-1, Nicole MacInnes, J., entered March 1, 2005.

Affirmed by unpublished per curiam opinion.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Eric J. Nielsen, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.

Sean Patrick O’ Donnell, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

PER CURIAM.

When a defendant affirmatively acknowledges his prior convictions and the resulting standard range, the State is relieved of its burden to prove the existence and comparability of the prior convictions. Because Daniel Jones agreed to the prosecutor’s scoring and recitation of his criminal history, never challenged the inclusion of his Illinois forgeries in his offender score, and stated at sentencing that he was not challenging those prior convictions, the State was relieved of its burden of proving the existence and comparability of those convictions. Accordingly, we reject Jones’ challenge to his offender score and affirm.

FACTS
In November, 2004, Jones pleaded guilty to second degree robbery and first degree theft. The plea agreement, which was signed by Jones, contained a section entitled `Criminal History and Offender Score.’ That section contained two check boxes. The first box was checked and was located next to the following statement:

The defendant agrees to the foregoing Plea Agreement and that the attached sentencing guidelines scoring form(s) (Appendix A)[1] and the attached Prosecutor’s Understanding of Defendant’s Criminal History (Appendix B)[2] are accurate and complete and that the defendant was represented by counsel or waived counsel at the time of prior conviction(s).

The second box, which was not checked, was next to the statement that `[t]he defendant disputes the Prosecutor’s Statement of the Defendant’s Criminal History.’

Jones also signed a `Statement of Defendant on Plea of Guilty’ that included the following paragraphs:

(b) The standard sentence range is based on the crime charged and my criminal history. Criminal history includes prior convictions and juvenile adjudications or convictions, whether in this state, in federal court, or elsewhere.
(c) The prosecuting attorney’s statement of my criminal history is attached to this agreement. Unless I have attached a different statement, I agree that the prosecuting attorney’s statement is correct and complete.[3] If I have attached my own statement, I assert that it is correct and complete.

Jones did not attach a different statement of criminal history to the Statement on Plea of Guilty. At the plea hearing, Jones indicated he understood the criminal history and standard ranges in the plea documents. At sentencing, Jones told the court he believed his offender score was incorrect because it included an Illinois felony theft conviction that was not a felony. After clarifying that Jones was only challenging the prior theft conviction, the court continued sentencing. At the next hearing, the State presented documents relating to the Illinois theft conviction. The court found by a preponderance of the evidence that the theft conviction was a felony. Jones at no point challenged the inclusion of his Illinois forgery convictions in his offender score.

DECISION
Jones’ sole contention on appeal is that his offender score was miscalculated because `the State never introduced any evidence . . . that Jones . . . had been convicted of committing either the 1993 or 2003 forgery crimes.’ Jones concedes that the State was relieved of this burden if he affirmatively acknowledged below that the Illinois forgeries were properly included in his criminal history and offender score.[4]
He further concedes that he agreed in his Statement of Plea of Guilty that the prosecutor’s recitation of his criminal history was correct. He argues, however, that this portion of the plea was modified by language in the plea agreement stating that `Defendant may seek any sentence except exceptional down.’ We disagree.

The language allowing Jones to seek `any sentence’ other than an exceptional down was immediately followed by a paragraph in which Jones agreed that the prosecutor’s scoring and recitation of criminal history were accurate. That paragraph was followed by a check box, which Jones did not check, for disputing the prosecutor’s recitation of his criminal history. In context, the `any sentence’ language cannot reasonably be read as altering or modifying Jones’ agreement to criminal history. Rather, it is more reasonably read as simply allowing him to argue for any sentence within, but not below, the agreed standard range.

Because Jones agreed to the prosecutor’s scoring and recitation of his criminal history, never challenged the inclusion of his Illinois forgeries in his offender score, and told the sentencing court he was not challenging those convictions, the State was relieved of its burden of proving the existence and comparability of those prior convictions.[5]

Affirmed.

APPELWICK, ELLINGTON and GROSSE, JJ.