BROWN

Kenneth H. Kato, Attorney at Law, Spokane, WA, for Appellant. Timothy Rasmussen, Stevens County Prosecutor, Colville, WA, for Respondent.
BROWN, J.

¶ 1 Christian Vern Williams appeals the sentencing court's decision to count his prior burglary and robbery convictions separately in calculating his offender score. He contends the court abused its discretion and misapplied the law by relying on the burglary antimerger statute, RCW 9A.52.050, and overlooking the same criminal conduct test, RCW 9.94A.525(5) (a)(i) and .589(1)(a). We hold as a matter of first impression that a current sentencing court lacks discretion to count prior convictions separately under the burglary antimerger statute and must do so, if at all, under the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. Accordingly, we reverse and remand for resentencing.

FACTS

¶ 2 In October 2010, a jury found Mr. Williams guilty of residential burglary and first degree trafficking in stolen property. The sentencing court calculated his offender score as seven by separately counting his April 2004 convictions for first degree burglary and first degree robbery, each of which he committed in December 2003. The court applied the burglary antimerger statute, apparently viewing it as mandatory, instead of applying the same criminal conduct test. Mr. Williams appealed. The sole remaining dispute after our commissioner's motion-on-the-merits ruling concerns Mr. Williams's offender score calculation. Because the trial court failed to conduct a same criminal conduct analysis as required by RCW 9.94A.525(5)(a)(i) and .589(1)(a), we reverse and remand for the trial court to perform that analysis.

ANALYSIS

¶ 3 The issue is whether the sentencing court erred by deciding to count Mr. Williams's prior burglary and robbery convictions separately in calculating his offender score. He contends the court abused its discretion and misapplied the law in relying on the burglary antimerger statute to the exclusion of the same criminal conduct test.

¶ 4 We review a discretionary sentencing decision made under the SRA for abuse of discretion or misapplication of law. State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440 (1990). A trial court abuses its discretion if its decision is “manifestly unreasonable,” based on “untenable grounds,” or made for “untenable reasons.” State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971); see State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (“A decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take, and arrives at a decision outside the range of acceptable choices.” (citations omitted) (internal quotation marks omitted)). We interpret a statute de novo. State v. Bright, 129 Wash.2d 257, 265, 916 P.2d 922 (1996). In doing so, we “ascertain and carry out” our legislature's intent. State v. Neher, 112 Wash.2d 347, 350, 771 P.2d 330 (1989).

¶ 5 A current sentencing court must calculate an offender score based on an offender's “other current and prior convictions.” RCW 9.94A.589(1)(a). If a prior sentencing court found multiple offenses “encompass the same criminal conduct,” the current sentencing court must count those prior convictions as one offense. RCW 9.94A.525(5)(a)(i). If the prior sentencing court did not make this finding, but nonetheless ordered the offender to serve the sentences concurrently, the current sentencing court must independently evaluate whether those prior convictions “encompass the same criminal conduct” and, if they do, must count them as one offense. Id.; RCW 9.94A.589(1)(a); State v. Torngren, 147 Wash.App. 556, 563, 196 P.3d 742 (2008) (“A sentencing court ... must apply the same criminal conduct test to multiple prior convictions that a court has not already concluded amount to the same criminal conduct). The court has no discretion on this.” (citation omitted) (citing RCW 9.94A.525(5)(a)(i); State v. Reinhart, 77 Wash.App. 454, 459, 891 P.2d 735 (1995); State v. Lara, 66 Wash.App. 927, 931–32, 834 P.2d 70 (1992)), abrogated on other grounds by State v. Graciano, 176 Wash.2d 531, 295 P.3d 219 (2013). The offender bears the burden of proving offenses encompass the same criminal conduct. Graciano, 176 Wash.2d at 539, 295 P.3d 219.

¶ 6 Here, the prior sentencing court did not find Mr. Williams's 2004 burglary and robbery convictions encompass the same criminal conduct. But it nonetheless ordered him to serve his sentences concurrently. Under these circumstances, the current sentencing court needed to apply the same criminal conduct test. SeeRCW 9.94A.525(5)(a)(i), .589(1)(a); Torngren, 147 Wash.App. at 563, 196 P.3d 742. It did not. While we think it doubtful that Mr. Williams met his burden of proof, we cannot decide this issue because the trial court failed to exercise discretion required under the same criminal conduct test. See Lara, 66 Wash.App. at 932, 834 P.2d 70 (remanding for resentencing because the trial court failed to exercise discretion required under the portion of former RCW 9.94A.360(6)(a) (1988) our legislature later amended to incorporate the same criminal conduct test); State v. Wright, 76 Wash.App. 811, 829, 888 P.2d 1214 (1995) (same); Reinhart, 77 Wash.App. at 459, 891 P.2d 735 (same); State v. McCraw, 127 Wash.2d 281, 287–88, 898 P.2d 838 (1995) (approving Lara,Wright, and Reinhart ).

¶ 7 Instead of applying the same criminal conduct test, the current sentencing court relied solely on the burglary antimerger statute, which provides, “Every person who, in the commission of a burglary shall commit any other crime, may be punished therefore as well as for the burglary, and may be prosecuted for each crime separately.” RCW 9A.52.050. In State v. Lessley, 118 Wash.2d 773, 779–82, 827 P.2d 996 (1992), our Supreme Court held this statute grants a current sentencing court discretion, in calculating an offender score, to count current burglary and non-burglary convictions separately even if they encompass the same criminal conduct. We are unaware of any reported decision extending this holding to a current sentencing court's treatment of prior convictions. Therefore, we must interpret the statute.

¶ 8 Certainly, if a person commits a burglary simultaneously with another crime, the statute allows the State to separately “prosecute[ ]” both current offenses. RCW 9A.52.050. If a judge or jury then finds the defendant guilty, the statute allows a current sentencing court to separately “punish [ ]” both current convictions, including by counting them separately in calculating an offender score. Id.;Lessley, 118 Wash.2d at 779–82, 827 P.2d 996. But the statute provides no direction to a later sentencing court regarding how it may treat prior convictions.

¶ 9 We hold the burglary antimerger statute's plain language applies solely to current offenses before a current sentencing court. Our interpretation comports with logic. While sentences must be proportionate to criminal history, our legislature has designed them to punish current, not prior offenses. SeeRCW 9.94A.010(1); Laws of 2002, ch. 107, § 1 (“ [T]he provisions of the [SRA] act upon and punish only current conduct; the [SRA] does not act upon or alter the punishment for prior convictions.” (citing In re Pers. Restraint of Williams, 111 Wash.2d 353, 362–64, 759 P.2d 436 (1988))). And, our legislature has established the SRA, not the burglary antimerger statute, as the proper means for ensuring sentences are proportionate to criminal history. CompareRCW 9.94A.010(1), withRCW 9A.04.020. See generallyRCW 9.94A.030(11), .500(1), .525–.530; Laws of 2008, ch. 231, § 1.

¶ 10 Applying this interpretation, we conclude the current sentencing court erred by relying on the burglary antimerger statute to count Mr. Williams's 2004 burglary and robbery convictions separately in calculating his offender score. Instead, the court needed to apply the same criminal conduct test. Because the court applied the wrong legal standard,it exercised its discretion on untenable grounds or reasons. Therefore, the court abused its discretion and misapplied the law.

¶ 11 Reversed and remanded for resentencing. I CONCUR: SIDDOWAY, A.C.J.

KORSMO, C.J. (dissenting).

¶ 12 The majority opinion runs afoul of State v. Lessley, 118 Wash.2d 773, 827 P.2d 996 (1992), which is an adequate basis to reject appellant's position. More fundamentally, even while properly acknowledging that it was his burden to establish that the 2004 crimes constituted the same criminal conduct, the opinion overlooks the fact that Mr. Christian Williams never attempted to meet the burden. The sentence should be affirmed.

¶ 13 As to the latter point first, State v. Graciano, 176 Wash.2d 531, 539, 295 P.3d 219 (2013), clearly places the burden on Mr. Williams to establish that the 2004 crimes constituted the same criminal conduct. At sentencing, the prosecutor presented the 2004 judgment and sentence for the purpose of showing that Judge Baker had not found the burglary and robbery convictions to be the same criminal conduct and had used an offender score of “ 3” for each offense even though there were only two prior convictions. Mr. Williams thereafter did not present argument suggesting that the two crimes occurred at the same time and place or that they involved the same victim(s) and the same criminal intent; rather, he argued that it was unclear how Judge Baker had treated them. There simply was no evidence presented, nor any argument made, that the two offenses somehow satisfied the RCW 9.94A. 589(1) standard.

¶ 14 Since the defense failed to meet its burden, Graciano requires rejection of the argument and there is no need to discuss the burglary anti-merger statute and its application to this case. Nonetheless, since the majority desires to address the statute, I, will do so too, although in a rather cursory manner. The short answer to the majority's position is that Lessley faced the same ultimate task as what the trial court faced here—application of the same criminal conduct test of State v. Dunaway, 109 Wash.2d 207, 215, 749 P.2d 160 (1987), and RCW 9.94A.589(1). The fact that the test has to be applied to the prior offenses in this case does not make it significantly different than Lessley, which had to apply that statute to current offenses. The trial judge in both instances had the same duty to look at whether the offenses constituted the same criminal conduct issue. In Lessley our court decided that the anti-merger statute could be applied to essentially trump the need to look at same criminal conduct as it related to the burglary offense. There is no way to meaningfully distinguish this case. If it was permissible in Lessley, it had to be permissible here. Since this court lacks the power to overturn Lessley, the trial judge could properly apply the anti-merger statute to the 2004 crimes.

¶ 15 This case should be affirmed for the simple reason that Mr. Williams never attempted to meet his burden under Graciano and therefore the alleged legal error is simply not relevant. If we reach the same criminal conduct issue, however, this case cannot be meaningfully distinguished from Lessley and the trial judge did not err in applying the anti-merger statute to the prior offenses.

¶ 16 For both reasons, I respectfully dissent.