STATE v. SWIRCZYNSKI, 25783-1-II (Wash.App. 11-21-2001)

No. 25783-1-II.The Court of Appeals of Washington, Division Two.
Filed: November 21, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 99-1-04290-7, Hon. John A. McCarthy, March 10, 2000, Judgment or order under review.

Counsel for Appellant(s), Mary K. High, Attorney At Law, 109 Tacoma Ave N, Tacoma, WA 98403.

Counsel for Respondent(s), Michael L. Sommerfeld, Pierce Co Dep Pros Atty, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.

J. ROBIN HUNT, J.

Michael Swirczynski appeals his sentence for first degree robbery, arguing that the trial court miscalculated his offender score because it failed to consider some of his prior offenses as the same criminal conduct. We affirm.

Facts
On January 27, 2000, a jury found Swirczynski guilty of first degree robbery. During his sentencing hearing, the trial court noted that it had received a copy of the presentence report. That report listed nine prior felonies, three of which had sentencing dates of July 10, 1997. One of the three was second degree possession of stolen property committed on March 5, 1997. The second was a first degree theft committed on March 24, 1997.

The third was a residential burglary committed on March 26, 1997. The presentence report calculated Swirczynski’s offender score as 9 and his standard sentence range as 129 to 171 months.

During sentencing, both parties acknowledged having reviewed the report. When asked whether he had any corrections to make, defense counsel replied, `I don’t believe so, Your Honor. I can’t really address the background information but. . . .’ The court then asked whether the offender score had been calculated correctly, to which defense counsel replied, `I believe that’s accurate, Your Honor, based on history, yes.’ The State asked for a high-end sentence of 171 months; the defense requested a low-range sentence of 129 months. The court imposed a mid-range sentence of 150 months.

Swirczynski now appeals that sentence.

Analysis
Swirczynski contends that the trial court erred in failing to consider whether his prior offenses, for which he had been sentenced on July 10, 1997, could count as the same criminal conduct and thus reduce his offender score and his standard sentence range.

The statute governing treatment of prior offenses for sentencing purposes provides as follows:

In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

(i) Prior offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. 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.400(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used.

RCW 9.94A.360(5)(a)(i). Under RCW 9.94A.400(1)(a), two or more crimes are considered the same criminal conduct if they require the same criminal intent, are committed at the same time and place, and involve the same victim. State v. Channon, 105 Wn. App. 869, 876-77, 20 P.3d 476 (2001).

The absence of any one of these elements prevents a finding of `same criminal conduct.’ Channon, 105 Wn. App. at 877.

The State contends that Swirczynski waived any claim of error based on the trial court’s failure to conduct a `same criminal conduct’ analysis because he never asked for such an analysis and because he agreed to an offender score that counted his prior offenses separately.

The Washington Supreme Court recently considered similar arguments and agreed with the State that once a defendant agrees to an offender score that counts his prior offenses separately, he cannot subsequently challenge the sentencing court’s failure to consider some of those prior offenses as the same criminal conduct. In re Personal Restraint of Connick, 144 Wn.2d 442, 28 P.3d 729 (2001). The court noted that under the SRA, defense acknowledgment allows a judge to rely on unchallenged facts and information introduced for the purposes of sentencing. Connick, 28 P.3d at 740 (citing State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999)). By agreeing to an offender score of nine, the petitioner adopted the presentence report’s offender score calculation and agreed to count his prior offenses as separate criminal conduct. Accordingly, he waived the right to challenge the sentencing court’s reliance upon his own representations. Connick, 28 P.3d at 740; see also State v. Nitsch, 100 Wn. App. 512, 521, 997 P.2d 1000, review denied, 11 P.3d 827 (2000) (defendant’s explicit statement of standard range was implicit assertion that his crimes did not constitute the same criminal conduct and was properly relied upon by the sentencing court).

Of importance to the finding of waiver in Connick was that there was insufficient evidence in the record to establish that the petitioner’s offender score was calculated incorrectly. Connick, 28 P.3d at 741. There is no such deficit here. Moreover, the record also shows that Swirczynski expressly accepted an offender score that counted his prior offenses separately.

Even without a finding of waiver, there would be no grounds for reversal based on the trial court’s failure to conduct a same-criminal-conduct analysis on the record. The trial court’s use of the offender score of nine is an implicit determination that Swirczynski’s offenses did not constitute the same criminal conduct. See Nitsch, 100 Wn. App. at 525; see also Channon, 105 Wn. App. at 481
(although trial court did not articulate its reason for counting prior offenses separately, their occurrence on different dates served as `implicit determination’ that they did not constitute the same criminal conduct). Here, the record clearly shows that Swirczynski committed his 1997 offenses on different days, thereby precluding their consideration as the same criminal conduct. State v. Young, 97 Wn. App. 235, 241, 984 P.2d 1050 (1999). There can be no error where the trial court fails to volunteer on the record that prior offenses committed on different days do not constitute the same criminal conduct.

Affirmed.

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: ARMSTRONG, C.J., HOUGHTON, J.