Opinion
No. 58837-1-I.
September 10, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-00769-7, Christopher A. Washington, J., entered August 17, 2006.
Affirmed In part and remanded by unpublished per curiam opinion.
Ivan Guerrero-Melchor appeals the 20-month sentence entered following remand from this court for resentencing for delivery of cocaine. We affirm the sentence, but remand for correction of the judgment and sentence
In 2005 Guerrero-Melchor was convicted of delivery of cocaine. Based on an offender score of six, the trial court imposed a low-end standard range sentence of 60 months. This court reversed the 60-month sentence because the State failed to prove that two Oregon robbery convictions were comparable to Washington offenses. The court remanded for resentencing without considering the Oregon robbery convictions. On remand the trial court imposed a low-end standard range sentence of 20 months. Having been convicted of a felony, under RCW 43.43.754 Guerrero-Melchor was ordered to provide a biological sample for DNA identification analysis and inclusion in the State's DNA database. Guerrero-Melchor appeals, contending that this requirement violates the Fourth Amendment to the United States Constitution and Article 1, section 7 of the Washington Constitution. The arguments were recently rejected by the Washington Supreme Court in State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007).
State v. Guerrero-Melchor, No. 55637-1-I (Unpublished Opinion, April 24, 2006).
Guerrero-Melchor filed a pro se statement of additional grounds for review raising three arguments. First, Guerrero-Melchor contends that his offender score on resentencing should have been three, not four, because his 2004 conviction for delivery of heroin was reversed on appeal (King County No. 04-1-00546-5). The State concedes error. The concession is well-taken. This court reversed the delivery of heroin conviction because the trial court erred in denying Guerrero-Melchor's request to represent himself and remanded for a new trial. Trial was pending on this charge at the time Guerrero-Melchor was resentenced on the cocaine conviction. Subsequently, Guerrero-Melchor was acquitted of delivery of heroin. The correct offender score is three. But the standard range for the offense is the same, 20 to 60 months. Accordingly, resentencing is not required, but we remand for entry of a corrected judgment and sentence.
State v. Guerrero-Melchor, No. 55064-1-I (Unpublished Opinion, April 24, 2006).
Second, Guerrero-Melchor contends that the trial court improperly imposed a term of nine to twelve months of community custody. He argues that his term of community custody should be shortened because he served a total of 29 months, 9 months more than his 20-month sentence and there is no other way to compensate him for time already served. We decline to address the argument because Guerrero-Melchor has cited no authority in support of his argument. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (appellate court need not consider claims that are insufficiently argued); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999) (appellate court need not consider pro se arguments that are conclusory or unsupported). Moreover, the State and Guerrero-Melchor agree that he has been deported, so the issue of community custody time is moot. See State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995) (an issue is moot when the court can no longer provide effective relief).
In fact, at sentencing the court noted that Guerrero-Melcho had served approximately 28 months. The court could have imposed a sentence anywhere within the standard range of 20 to 60 months and initially was inclined to impose a sentence of 28 months or higher, but decided to impose a 20-month sentence in part to be consistent with the sentence imposed in another matter and to ensure that Guerrero-Melchor would be released. There were other charges pending against Guerrero-Melchor at the time. (Report of Proceedings August 16, 2006 at 22).
Finally, Guerrero-Melchor contends that while his prior appeal and a personal restraint petition were pending, the King County Prosecutor maliciously handed him over to the INS/ICE (Immigration and Naturalization Service/Immigration and Customs Enforcement), which then deported him. The State argues that as Guerrero-Melchor acknowleges, there were two court orders for his immediate release because he had served his sentences and once released, the King County prosecutor's office had nothing to do with INS/ICE or deportation proceedings. We agree.
We affirm, but remand for correction of the judgment and sentence consistent with this opinion.
For the court: