Opinion
Nos. 57286-5-I; 57343-8-I.
November 24, 2008.
Petitions for relief from personal restraint.
Granted and remanded by unpublished per curiam opinion.
Edmond Cummings filed these consolidated personal restraint petitions challenging the judgments and sentences entered on his convictions for escape in the first degree and filing a fraudulent insurance claim in King County Nos. 05-1-05023-0 and 03-1-09611-0. By order dated November 3, 2008, this court dismissed all but one of the claims raised in the petitions. The sole remaining issue concerns whether the trial court miscalculated his offender score by separately counting pre-July 1, 1986 concurrently-served convictions and thus imposed a sentence not authorized by the Sentencing Reform Act of 1981 (SRA). The State concedes that Cummings needs to be resentenced on his escape conviction in 05-1-05023-0. We accept the State's concession and remand for resentencing.
On May 4, 2004, Cummings pleaded guilty to the crime of filing a fraudulent insurance claim in King County No. 03-1-09611-0. He was ordered to serve a term of 12 months "in King County Work/Education Release" subject to certain conditions of conduct.
After Cummings failed to return from work release on January 14, 2005, he was charged with and convicted of escape in the first degree in King County No. 05-1-05023-0. Using an offender score of eight, the trial court sentenced Cummings to 53 months of total confinement, which was at the low end of the standard range.
Cummings argues that the trial court miscalculated his offender score by counting his two prior concurrently-served convictions for rape in the first degree and robbery in the second degree as two offenses rather than one. We agree.
A trial court acts without authority when it imposes a sentence that is contrary to law. State v. Paine, 69 Wn. App. 873, 882, 850 P.2d 1369 (1993). "An offender score quantifies criminal history for sentencing purposes." State v. Mehaffey, 125 Wn. App. 595, 599, 105 P.3d 447 (2005). Under the SRA, sentence ranges are based upon the seriousness of the offense and the defendant's criminal history as reflected in the offender score. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).
Here, the State correctly concedes that Cummings' offender score was miscalculated. At the time of sentencing, Cummings' criminal history consisted of eight prior adult felony convictions. The sentencing court counted all eight separately, giving Cummings an offender score of eight. But Cummings' two pre-July 1986 convictions were ordered to be served concurrently. Under RCW 9.94A.525(5)(a)(ii), multiple convictions committed before July 1, 1986 which were ordered to be served concurrently count as one offense for sentencing purposes. Cummings' offender score thus should have been seven, not eight. Because the sentencing court did not have the proper offender score or sentencing range before it, the court should be given the opportunity to determine the appropriate sentence based on accurate information.
Remanded for resentencing.