Opinion
No. 53106-9-I
Filed: December 6, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County, Docket No: 03-1-04181-1, Judgment or order under review. Date filed: 09/08/2003. Judge signing: Hon. Paris K. Kallas.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Kelly Fletcher/Doc# 254960 (Appearing Pro Se), M.C.C., P.O. Box 777, Monroe, WA 98272-0777.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Kelly Fletcher appeals his judgment and sentence imposed following his 2003 conviction for second degree burglary. He challenges the computation of his offender score arguing that his previously washed out convictions from 1977, 1979 and 1985 could not be revived by the 2002 amendments to RCW 9.94A.525 and RCW 9.94A.030 of the Sentencing Reform Act (SRA). But the same argument has been rejected in State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004), where the court held the 2002 amendments were prospective and a defendant does not have a vested right in the washed out status of a prior conviction. Id. at 195. The 2002 amendments require that sentencing courts include previously washed out prior convictions when determining defendants' criminal histories and offender scores for crimes committed after the amendments' effective date. Id. at 183. Fletcher's current offense was committed in February, 2003, well after the effective date of the amendments. The 2002 amendments thus apply to the calculation of Fletcher's offender score and his 1977, 1979 and 1985 convictions were properly scored.
Because all of his prior convictions were properly scored under the 2002 amendments, we need not address Fletcher's argument that the State failed to obtain adequate findings establishing that the wash out period for his 1977 conviction was extended by time served for intervening misdemeanors.
Fletcher also contends RCW 43.43.754 and the portion of his sentence requiring him to provide a biological sample for DNA identification violate his Fourth Amendment right against unreasonable searches and article I, section 7 right against searches without well founded suspicion. These arguments were rejected in, and are controlled by, our decisions in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004) (holding that State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993), is controlling on the Fourth Amendment issue). The Ninth Circuit has also recently rejected a Fourth Amendment challenge to a requirement to provide a biological sample for DNA identification. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004).
We affirm.
COLEMAN, J., AGID, J. and APPELWICK, J.