Opinion
No. 51713-9-I, consolidated w/No. 51714-7-I.
Filed: June 1, 2004.
Appeal from Superior Court of King County. Docket No: 02-1-04400-6. Judgment or order under review. Date filed: 12/23/2002. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA, 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA, 98104.
In this consolidated appeal, Cornell Benson, Jr., challenges his convictions for attempting to elude a pursuing police vehicle and taking a motor vehicle without permission. We conclude that the information alleging attempting to elude was not defective and that the sentencing court did not miscalculate Benson's offender scores.
Accordingly, we affirm.
On October 31, 2002, Benson entered Alford guilty pleas in two unrelated cause numbers. Under King County No. 02-1-04400-6, Benson pleaded guilty to one count of attempting to elude a pursuing police vehicle and one count of first degree driving while license suspended or revoked. Under King County No. 02-1-07210-7, Benson pleaded guilty to one count of taking a motor vehicle without permission.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Benson was sentenced on both cause numbers on December 20, 2002. On the attempting to elude charge, the parties agreed that Benson's offender score was six, and the court imposed a 14-month sentence. On the taking a motor vehicle charge, the parties agreed that Benson's offender score was eight, and the court imposed a 22-month sentence.
The court imposed a suspended sentence on the driving while license suspended charge.
No. 02-1-04400-6 (Attempting to Elude)
For the first time on appeal, Benson contends that the information charging him with attempting to elude a pursuing police vehicle was constitutionally deficient because it failed to allege that he did not immediately bring his vehicle to a stop. But this court recently rejected an identical argument, holding that the term `immediately' is not an element of attempting to elude. State v. Tandecki, 120 Wn. App. 303, 84 P.3d 1262 (2004). Accordingly, the information was not defective.
Benson next contends that the sentencing court miscalculated his offender score. He argues that the court should have independently determined whether his 2001 convictions for two counts of taking a motor vehicle without permission and one count of attempting to elude a pursuing police vehicle, all committed on the same day, constituted the same criminal conduct. See RCW 9.94A.525(5).
But at sentencing, defense counsel affirmatively acknowledged that Benson's offender score was correctly calculated as six and that the 2001 convictions did not constitute the same criminal conduct. Because Benson affirmatively acknowledged that his offender score was correctly calculated and did not ask the sentencing court to determine whether the prior convictions constituted the same course of criminal conduct, he cannot raise the issue for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 525, 997 P.2d 1000 (2000); see also State v. Wilson, 117 Wn. App. 1, 21, 75 P.3d 573, review denied, 150 Wn.2d 1016 (2003). Moreover, contrary to Benson's suggestion, nothing in RCW 9.94A.525 reflects the Legislature's intent that the sentencing court reject a stipulated offender score and sua sponte determine the same criminal conduct issue. See State v. Nitsch, 100 Wn. App. at 525.
Benson's contention that he was denied effective assistance when defense counsel stipulated to his offender score is equally misplaced. Because the sentencing court was not asked to decide the issue, nothing in the record suggests that Benson's 2001 convictions constituted the same criminal conduct. Accordingly, Benson has failed to make any showing that defense counsel's stipulation to an offender score of six constituted deficient performance or that the alleged deficiency prejudiced him. The sentencing court did not err in counting Benson's 2001 convictions separately.
No. 02-1-07210-7 (Taking a Motor Vehicle Without Permission)
Benson also challenges the offender score for the taking a motor vehicle conviction. At sentencing, defense counsel stipulated that Benson's offender score was properly calculated as eight for this offense.
Relying on State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001), Benson contends that his prior juvenile felonies, committed before he turned 15, `washed out' prior to 1997 and that he therefore had a `vested right' to have those adjudications excluded from the offender score for his current adult offense. This issue is controlled by the recent Supreme Court decision in State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004), in which the court held that 2002 amendments to the SRA `properly and unambiguously require that sentencing courts include defendants' previously `washed out' prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.' State v. Varga, 86 P.3d at 141. Because Benson committed his current offense on August 6, 2002, after the June 13, 2002 effective date of the 2002 SRA amendments, the sentencing court properly included his juvenile adjudications in the offender score. See State v. Varga, 86 P.3d at 142; In re Personal Restraint of Jones, Wn. App., 88 P.3d 424 (2004).
Benson also argues that the sentencing court should have determined whether his 2001 convictions constituted the same criminal conduct. But for the reasons set forth above, Benson has waived the right to raise this argument for the first time on appeal and has failed to make any showing that he was denied effective assistance of counsel. Accordingly, the sentencing court did not err in calculating Benson's offender score.
Affirmed.
KENNEDY, COLEMAN, APPELWICK, JJ., concur.