Opinion
66562-6-I
06-25-2012
STATE OF WASHINGTON, Respondent, v. SEAN T. BAGLEY, Appellant.
UNPUBLISHED OPINION
Schindler, J.
Sean T. Bagley appeals the calculation of his offender score. Bagley asserts the State did not meet its burden of establishing he had a prior conviction for possession of a stolen motor vehicle. Because Bagley affirmatively acknowledged his prior conviction for possession of a stolen motor vehicle under RCW 9.94A.525(19), we affirm.
The State charged Bagley with one count of possession of a stolen motor vehicle. On December 2, 2010, Bagley pleaded guilty. In the "Statement of Defendant on Plea of Guilty to Felony Non-Sex Offense, " Bagley admits that "[o]n August 23, 2010, in King County, WA, I knowingly possessed a stolen motor vehicle, specifically a 1996 Honda Accord, and withheld and appropriated the vehicle to someone other than Wilma Burleigh, the rightful owner."
In the "Felony Plea Agreement, " Bagley expressly agreed to the criminal history set forth in "Appendix A" and the calculation of his offender score in "Appendix B." The Plea Agreement states, in pertinent part:
The State agreed to dismiss a pending drug charge and not file any further charges "under Auburn 10-09926."
CRIMINAL HISTORY AND OFFENDER SCORE:
a. [X] The defendant agrees to this Plea Agreement and that the attached sentencing guidelines scoring form(s) (Appendix A), offender score and the attached Prosecutor's Understanding of Defendant's Criminal History (Appendix B) are accurate and complete.
(Emphasis in original.)
There is no dispute that under RCW 9.94A.525(20), each prior felony conviction for possession of a stolen motor vehicle, theft of a motor vehicle, or taking a motor vehicle without permission counts as 3 points in the offender score.
Appendix A calculates Bagley's offender score as a 5 with a standard range sentence of 14 to 18 months. Appendix A counts a prior felony car theft conviction under RCW 9.94A.525(19) as 3 points. One "other" adult felony conviction counts as 1 point and two "other" juvenile felony convictions count as 1 point. Appendix B, "Prosecutor's Understanding of Defendant's Criminal History, " lists the prior 2005 felony car theft conviction for King County Cause Number 05-1-07796-1 as possession of stolen property in the first degree and notes the score of 3 points.
At the plea hearing, Bagley stated that he understood the calculation of his offender score and that the standard range sentence of 14 to 18 months was based on the prior felony conviction of possession of a stolen motor vehicle and the other prior convictions set forth in the criminal history. After defense counsel addressed the recommendation of the State to impose a high end 16-month sentence, the court asked whether the recommendation was based on an offender score of 5. In response, defense counsel confirmed that the offender score of 5 was a correct calculation. The court accepted the plea and based on an agreed offender score of 5, sentenced Bagley to 16 months.
Bagley argues for the first time on appeal that the trial court erred in calculating his offender score by counting his conviction for possession of stolen property in the first degree as 3 points. Bagley contends the State did not meet its burden of establishing that his 2005 conviction for possession of stolen property in the first degree involved a stolen motor vehicle.
For purposes of sentencing, the State has the burden to show by a preponderance of the evidence the existence and classification of a prior conviction. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). A defendant's affirmative acknowledgment that his prior conviction is properly included in the offender score satisfies the requirements of the Sentencing Reform Act, chapter 9.94A RCW. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004). Bagley claims he did not waive his right to challenge the calculation of his offender score. We disagree.
Bagley affirmatively agreed that he had a prior conviction for "felony car theft . . . as detailed in RCW 9.94A.525(19)." Under RCW 9.94A.525(19), a conviction for possession of stolen property in the first degree of a motor vehicle counts as 3 points. At the plea hearing, Bagley again affirmatively acknowledged that the calculation of the offender score of 5 that was based on his criminal history was correct. Because Bagley affirmatively acknowledged that his conviction for possession of stolen property was for a motor vehicle, we affirm.