Opinion
No. 36022-5-II.
August 19, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-02226-6, Richard D. Hicks, Richard A. Strophy, and Chris Wickham, JJ., entered March 9, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Stewart Scott Berglund appeals his convictions of second degree vehicle prowl and four counts of second degree theft. He contends the trial court violated his right to a speedy trial and miscalculated his offender score. We affirm.
Facts
The facts of the underlying crime are not at issue on appeal and we address them only briefly. Just before noon, on December 3, 2006, an eyewitness observed Berglund in a church parking lot in Lacey, Washington, as he reached into the broken window of a car and took a purse from the vehicle. The purse belonged to the car's owner and contained her driver's license and Page 2 four credit cards. Berglund then retreated to a vehicle driven by a woman, who drove from the scene. An eyewitness called the police to report the incident, and gave a description of the getaway car, its occupants, and its license plate number. Lacey police apprehended the vehicle within minutes. After the arresting officer read Berglund his Miranda rights, Berglund admitted taking the purse.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Berglund by amended information with second degree vehicle prowl and four counts of second degree theft — one count for each credit card taken. The State's witnesses and the arresting officer testified to the above facts at trial. The jury convicted Berglund as charged. The trial court sentenced Berglund to a total incarceration period of 29 months, the top of the standard range for an offender score of 9 or more. Berglund filed a timely appeal.
Discussion Speedy Trial
Berglund first contends that we must reverse and dismiss his convictions because the trial court violated his right to a speedy trial under CrR 3.3. We disagree.
CrR 3.3 provides in relevant part that a defendant detained in jail "shall be brought to trial within the longer of" 60 days after arraignment or "the time specified under subsection (b)(5)." CrR 3.3(b)(1)(i) and (ii). See also CrR 3.3(c)(1). Subsection (b)(5) provides that if any time period is excluded under section (e) the allowable time for trial "shall not expire earlier than 30 days after the end of that excluded period." CrR 3.3(b)(5). Section (e) lists nine time periods that are excluded in computing the time for trial, including continuances and unavoidable or unforeseen circumstances. See CrR 3.3(e)(3) and (8).
The facts relevant to this issue are as follows. Berglund was arrested on December 3, 2006. He remained in custody and was arraigned on December 13, thus his initial 60-day speedy trial period ran from December 13 through Sunday, February 11, and included the following Monday. CrR 3.3(b)(i); CrR 8.1; CR 6(a). Trial was initially set for February 5, 2007, a date within the initial 60-day speedy trial period. On January 31, 2007, the State was granted a one-week continuance moving the trial date to February 12, based on the assigned deputy prosecutor's planned absence from the state. Berglund was present and agreed to the continuance.
On February 12, defense counsel appeared before the court and stated that although she was ready to proceed to trial, the assigned prosecuting attorney was requesting a one-week continuance and she had no objection to that continuance. The record indicates that the State's attorney was in another 2-to 3-day trial on February 12. The court granted the continuance, moving the trial date to February 20. The court entered an agreed order noting that the last date for trial under CrR 3.3 was reset to March 22, 2007. The defendant was not present and did not sign the order. On February 20, the assigned deputy prosecutor was again in another trial and remained so engaged through February 26.
On February 27, defendant moved for dismissal asserting a speedy trial violation. In response, the assigned deputy prosecutor explained that each delay was due to his unavailability either because of his absence from the state or his involvement in another trial. The trial court denied the motion to dismiss finding that each delay was for good cause based on the unavailability of the State's attorney.
Berglund focuses on the continuance granted on February 12, 2007, arguing that because he was not present and did not sign an agreed order continuing his trial, the continuance was invalid and the trial court erred in denying his motion to dismiss for the speedy trial violation on the day of trial — February 27, 2007. Berglund is correct that an agreed continuance under CrR 3.3(f)(1) requires his signature. The rule provides that the court may continue the trial date to a specified date upon "written agreement of the parties, which must be signed by the defendant." CrR 3.3(f)(1). But this does not assist him. As noted, in computing the CrR 3.3 time for trial, section (e) not only excludes continuances, but also excludes periods of time attributed to unavoidable or unforeseen circumstances beyond the control of the court or the parties. See CrR 3.3(e)(8). Conflicts in the prosecuting attorney's schedule qualify as "'unavoidable' circumstance justifying an extension of the speedy trial date under CrR 3.3(d)(8)." State v. Krause, 82 Wn. App. 688, 698, 919 P.2d 123 (1996), review denied, 131 Wn.2d 1007 (1997). See also State v. Kelley, 64 Wn. App. 755, 767, 828 P.2d 1106 (1992) (deputy prosecutor's responsibly planned vacation is an unavoidable circumstance within the meaning of CrR 3.3). Thus, when the trial delays, due to the assigned deputy prosecutor's unavailability — from February 12 through February 26 — are excluded from the speedy trial period, there is no speedy trial violation.
Now in CrR 3.3(e)(8).
Moreover, in this circumstance the presence of excluded periods added 30 days to the speedy trial period following the end of the excluded period. See CrR 3.3(b)(5). Accordingly, Berglund's adjusted speedy trial period ended on March 28, 2007, and his February 27 trial did not violate the speedy trial rule. We hold that under these circumstances the trial court did not abuse its discretion in denying Berglund's motion to dismiss based on an alleged CrR 3.3 time for trial violation. Krause, 82 Wn. App. at 698.
Ineffective Assistance
Berglund additionally argues that his counsel was ineffective for failing to object or move to challenge the alleged speedy trial violation. Since there is no speedy trial violation, as we pointed out above, Berglund's argument is meritless.
Offender Score Calculation
Berglund contends that his offender score is miscalculated because it includes his prior criminal history, which the State failed to prove at sentencing. He contends that remand for sentencing is required and that the State should be held to the existing record on remand. We disagree.
"The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence." State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007) (citing In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005); State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002)). "The best evidence to establish a defendant's prior conviction is the production of a certified copy of the prior judgment and sentence." Bergstrom, 162 Wn.2d at 93; See also Lopez, 147 Wn.2d at 519; State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). However, sentencing courts can rely on defense acknowledgment of prior convictions without further proof. Bergstrom, 162 Wn.2d at 94.
Here, based on Berglund's extensive criminal history, the State calculated Berglund's offender score at 22, yielding a standard range of 22 to 29 months — the range applicable to any score of 9 or above. Defense counsel agreed with the State's calculation of the offender score and the commensurate standard range. But Berglund disputed the offender score that defense counsel agreed to at sentencing. Defense counsel acknowledged that fact, stating at sentencing that Berglund believed that his offender score should be "one point less." RP (Mar. 9, 2007) at 5. She also said that Berglund had apparently misunderstood the result of a prior appeal and that she had found no indication that his score should be any less. As noted, the court imposed a 29-month sentence, which was at the top of the standard range; and defense counsel agreed with the State's calculation of that range.
This case is similar to Bergstrom. There, as in the present case, the facts did not fit neatly within one of the usual approaches regarding challenges to offender scores based on insufficient evidence of prior convictions. Here, as in Bergstrom, defense counsel did not object to the State's standard range sentence calculation, and in fact agreed with the State's calculation of the offender score and the appropriate standard range. See Bergstrom, 162 Wn.2d at 94-95. But, as in Bergstrom, Berglund disputed the offender score that defense counsel agreed to at sentencing. See Bergstrom, 162 Wn.2d at 94-95.
Bergstrom discusses the three typical approaches identified in case law addressing challenges to offender score calculations based on insufficient evidence of prior convictions. In the first instance, where the State alleges prior convictions and the defense fails to object before sentence is imposed, the case is remanded for resentencing and the State is allowed to introduce new evidence. In the second instance, where the defense specifically objects, but the State fails to produce any evidence of the defendant's prior convictions, the State may not produce new evidence at resentencing. In the third instance, where the defense agrees with the State's depiction of the defendant's criminal history, the defendant waives the right to challenge the criminal history after sentence is imposed. See Bergstrom, 162 Wn.2d at 93-94. None of these approaches fits precisely the circumstances presented here.
Bergstrom held that the sentencing court could have declined to consider the pro se objection because the defendant was represented by competent counsel at the hearing. Bergstrom, 162 Wn.2d at 97-98 (State was entitled to rely on defense counsel's affirmative acknowledgment of defendant's offender score until defense counsel expressly reversed her position, which she never did). But because the sentencing court did consider and rule on the defendant's pro se motion, the sentencing court erred when it failed to hold an evidentiary hearing and instead sentenced the defendant without determining if his prior convictions were same criminal conduct. Bergstrom, 162 Wn.2d at 97. Bergstrom held that once the defense disputes material facts, the sentencing court either must not consider the facts, or it must grant an evidentiary hearing on the matter. Bergstrom, 162 Wn.2d at 97. The Bergstrom court remanded for resentencing and permitted both parties to introduce additional evidence on criminal history. Bergstrom, 162 Wn.2d at 98.
The rule applied in Bergstrom yields a different result in this case. The sentencing court here noted that defense counsel acknowledged that the offender score calculation was correct, and she was not asking for a second hearing. RP (March 9, 2007) at 6. The court also noted, however, that while Berglund was entitled to have his correct criminal history used in calculating his offender score, the one point difference that he advocated made no difference in his resulting standard range. Further investigation or hearing would be "moot" because any score of 9 or above yielded the same range — 22 to 29 months. RP (Mar. 9, 2007) at 7. Because "the offender score only goes to nine," the court imposed a standard range sentence of 29 months. RP (Mar. 9, 2007) at 7. Accordingly, it may fairly be said that the sentencing court acknowledged Berglund's contention and did not consider the one point in dispute as directed by Bergstrom when sentencing Berglund. See Bergstrom, 162 Wn.2d at 97. Under these circumstances, we hold that no remand is required and affirm Berglund's standard range sentence.
Costs
The State requests that Berglund be required to pay "all taxable costs of this appeal." Br. of Resp't at 12. As the prevailing party the State may recoup those costs provided it files the appropriate cost bill and otherwise complies with the required procedures of RAP 14. See RAP 14.1 — 14.6; RCW 10.73.160; and State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Quinn-Brintnall, J. and Van Deren, C.J., concur.