No. 20899-1-III.The Court of Appeals of Washington, Division Three. Panel Eight.
Filed: October 28, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-1-02113-4. Judgment or order under review. Date filed: 02/13/2002. Judge signing: Hon. Gregory David Sypolt.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
BROWN, J.
Shelly M. Ose pleaded guilty to 25 counts of second degree possession of stolen property and one count of first degree theft. Despite a plea agreement recommendation, she was given an above standard range exceptional sentence. Subsequent to her sentencing, this court decided State v. McReynolds, 117 Wn. App. 309, 71 P.3d 663 (2003), which held that the unit of prosecution in cases of possessing stolen property under similar facts created a single possession. Because we hold McReynolds applies here, we vacate Ms. Ose’s stolen property convictions and remand to the trial court for further proceedings. Therefore, we do not discuss or reach other issues raised by Ms. Ose relating to her exceptional sentencing.
FACTS
In January 2002, Ms. Ose entered guilty pleas to one count of first degree theft and 25 counts of second degree possession of stolen property. Ms. Ose was originally charged with 95 counts of second degree possession of stolen property and 2 counts of second degree theft, based on her possession of multiple access devices belonging to multiple individuals. In February 2002, the sentencing court imposed an aggravated exceptional sentence of 108 months. The court imposed a 60-month sentence on each possession count to run concurrently with each other and with a 108-month sentence on the theft count. The standard range for each possession count was 22 to 29 months. The standard range for the theft count was 43 to 57 months.
Defense counsel challenged the sentencing court’s findings of fact and conclusions of law, claiming the court erred in finding a factual basis for imposing an exceptional sentence. The court refused to modify the sentence. Ms. Ose appealed, and while on appeal she raised a double jeopardy argument under State v. McReynolds, 117 Wn. App. 309, 71 P.3d 663 (2003).
ANALYSIS
The issue is whether Ms. Ose’s multiple convictions for second degree possession of stole property violate double jeopardy principles considering the unit of prosecution rule decided in State v. McReynolds, 117 Wn. App. 309, 71 P.3d 663 (2003).
The Fifth Amendment and article I, section 9 of the Washington Constitution protect a defendant from multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). `When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.’ McReynolds, 117 Wn. App. at 334.
In McReynolds, this court held that possession of property stolen from several owners was but a single act constituting one offense and, thus, multiple convictions for first and second degree possession of stolen property violated double jeopardy prohibitions. McReynolds, 117 Wn. App. at 340. Applying that holding to the facts of this case, Ms. Ose argues her 25 convictions for second degree possession of stolen property similarly constituted one offense and, therefore, she should not have been convicted on 25 different charges. In response, the State argues because this case involved a plea bargain, McReynolds does not apply. The State asserts Ms. Ose waived her arguments when she pleaded guilty.
In State v. Cox, 109 Wn. App. 779, 782, 37 P.3d 1240, review denied 147 Wn.2d 1003 (2002), the Court of Appeals held a defendant does not waive his right to challenge a conviction on double jeopardy grounds simply by pleading guilty. In Cox, the court relied on Menna v. New York, 423 U.S. 61, 62, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975). Accordingly, Ms. Ose can raise her double jeopardy claim.
Here, Ms. Ose was charged with possession of property stolen from multiple owners. All the charges stem from a single crime date relating to property owned by a different person. This court has held that `possession of property owned by different persons is only a single crime.’ McReynolds, 117 Wn. App. at 336. Under McReynolds, Ms. Ose’s possession was a single act constituting one offense; thus, her multiple convictions for second degree possession of stolen property violate double jeopardy prohibitions. Id. at 340. Therefore, we vacate Ms. Ose’s sentence and reverse her convictions. Because this holding is dispositive, we need not discuss her claim of exceptional sentencing error.
Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY A.C.J. and KURTZ, J., Concur.