STATE v. STONEBERG, 29528-8-II (Wash.App. 8-12-2003)

No. 29528-8-IIThe Court of Appeals of Washington, Division Two.
Filed: August 12, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County Docket No: 02-1-00751-0 Judgment or order under review Date filed: 06/25/2002

Counsel for Appellant(s), Joanne E. Dantonio, Social Security Administration, Msc 901, 701 5th Ave Ste 2900, Seattle, WA 98104.

Counsel for Respondent(s), Kathryn R Portteus, Kitsap County Prosecutors Office, Ms 35, 614 Division St, Port Orchard, WA 98366-4681.

Randall Avery Sutton, Kitsap Co Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.

QUINN-BRINTNALL, A.C.J.

On May 29, 2002, Donald Stoneberg was charged with one count of delivery of a controlled substance heroin. Stoneberg entered a guilty plea and was sentenced to the middle of the standard range to be served as a drug offender sentencing alternative (DOSA). The court found Stoneberg’s offender score to be nine based on the representations of the State and defense counsel. The court made no further inquiry into Stoneberg’s criminal history to determine whether the convictions were of the same criminal conduct.

On July 26, 2002, Stoneberg moved, pro se, to modify or correct judgment and sentence and filed a Notice of Appeal, asserting that his offender score had been incorrectly calculated. The superior court did not take action on that motion. The State concedes that the trial court erred in failing to consider whether Stoneberg’s nine prior forgery convictions constitute the same criminal conduct and on May 27, 2003, Stoneberg and the State filed a Joint Motion on the Merits to Reverse. We reverse and remand for resentencing.

FACTS
The court sentenced Stoneberg based on an offender score of nine. Stoneberg’s offender score included nine points for nine prior convictions for forgery and one prior conviction on a violation of the controlled substance act. The convictions for forgery arose out of the same incident for all counts. The forgery charges derived from the passing of one counterfeit bill at a store and Stoneberg’s possession of eight other bills. Stoneberg was found in possession of the bills on the same day the counterfeit bill was passed when the store clerk called the police. The only victim was the Oysterbay Thriftway store in Bremerton. At the time of sentencing for the forgery charges, the nine counts were scored as one point in calculating Stoneberg’s offender score because the initial sentencing court found that they encompassed the same criminal conduct.

ANALYSIS
When calculating an offender score from multiple prior convictions the current sentencing court shall determine, with respect to other prior adult offenses for which sentences were served concurrently, whether those offenses shall be counted as one offense or as separate offenses using the `same criminal conduct’ analysis found in RCW 9.94A.589(1)(a). RCW 9.94A.525(5)(a)(i). Sentences served for offenses that encompass the same criminal conduct and counted as one crime are served concurrently. RCW 9.94A.589(1)(a). The legislative mandate is clear that the current sentencing court must determine whether to count prior offenses, served concurrently, as separate offenses. State v. Reinhart, 77 Wn. App. 454, 459, 891 P.2d 735, review denied, 127 Wn.2d 1014 (1995). The trial court failed to determine whether Stoneberg’s prior forgery offenses were the same criminal conduct. While a same criminal conduct finding is discretionary, the decision to undertake the analysis and determination is not. The trial court erred as a matter of law in failing to undertake the statutorily mandated same criminal conduct determination.[1]

Applying the analysis set forth in RCW 9.94A.589(1)(a), the State also concedes that Stoneberg’s nine forgery counts are the same criminal conduct because they required the same criminal intent, were committed at the same time and place, and involved the same victim. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014 (2001). We accept the State’s concessions and grant the parties’ motion on the merits to reverse and remand for resentencing with an agreed offender score of two.

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.

BRIDGEWATER and HOUGHTON, JJ., concur.