Opinion
Nos. 60024-9-I; 60025-7-I.
December 22, 2008.
Appeals from a judgment of the Superior Court for King County, No. 96-1-08481-2, Brian D. Gain, J., entered May 21, 2007.
Affirmed by unpublished per curiam opinion.
Sherlise Clifton appeals the sentence imposed following her guilty pleas to delivery of a controlled substance and solicitation of possession with intent to deliver a controlled substance. Citing a former version of RCW 43.43.754, she contends the superior court lacked authority to require her to submit a DNA sample as part of her sentence. But the State correctly points out that a 2008 amendment authorizes the taking of DNA samples from persons who were convicted of felonies "prior to June 12, 2008 . . . and [were] still incarcerated on or after June 12, 2008." Laws of 2008, ch. 97 § 2. The State correctly contends, and Clifton does not dispute, that this statute applies to Clifton because her convictions were entered in 1997 and she was still incarcerated on June 12, 2008. The amended statute therefore required her to provide a DNA sample and authorized the inclusion of that requirement in her sentence.
Clifton raises several additional arguments in her pro se statement of additional grounds for review. Citing RCW 9.94A.640, she argues that several of her prior convictions should have been vacated. But that statute requires the defendant to apply to the superior court for such relief, something Clifton does not claim to have done, and specifically precludes vacation of convictions if the offender has any pending criminal charges or has committed new offenses since the date of his or her discharge on the challenged offense. RCW 9.94A.640(1), (2).
Clifton also questions the scoring of her four Pierce County convictions and suggests that some of her prior convictions "were essentially washed out." These arguments are based largely on matters outside the record and, in any event, are too conclusory to merit review. 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); State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (court will not review pro se arguments that have only received passing treatment).
We note that Clifton's trial counsel told the court that she considered the possibility of a "wash out" but concluded that no viable "wash out" argument could be made.
Clifton contends that only one of her prior convictions should have received three points in her offender score. The basis for this contention is not stated, but even assuming Clifton is correct, the alleged error makes no difference in her sentence. The prosecutor argued that two prior convictions should each receive three points. Even assuming one of those convictions should only have received one point, Clifton's offender score would still be nine or more and her standard range would be unaffected.
The prosecutor explained Clifton's offender score of 14 as follows:
Essentially, the way that I arrive at that number is that she had two prior VUCSA felony convictions, under the tripling guide, which gives her a six. And then she has five other felony convictions, which includes one VUCSA possession from 1988, and then the four new Pierce County ones. And then, since we are sentencing on the solicitation and delivery, each of those counts against each other and those triple. So the offender score would be a fourteen.
Finally, Clifton contends the trial court abused its discretion in concluding that the nine-year lapse between her guilty pleas and sentencing did not violate her constitutional right to a speedy sentencing. A delay violates the constitutional right to speedy sentencing where it is "purposeful or oppressive." Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). Determining if a delay is purposeful or oppressive requires balancing a number of factors, including: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and, (4) the prejudice to the defendant. Ellis, 76 Wn. App. at 394. We review a trial court's ruling on speedy sentencing issues for abuse of discretion. Ellis, 76 Wn. App. at 395. There was no abuse of discretion here.
In rejecting Clifton's speedy sentencing claim, the trial court noted that she received notice of the original sentencing but absconded. Then, when police arrested her several years later on an unrelated charge, she used an alias. The court found that despite "a number of attempts by the authorities to notify her . . . [Clifton] didn't show up" and "deliberately absented herself from the court proceedings." The court concluded that "[i]f there was any denial of [her] right to [a] speedy sentence, it was because of her [.]" This ruling is supported by the record and was within the court's discretion. See, e.g., State v. Braithwaite, 34 Wn. App. 715, 721-22, 724, 667 P.2d 82 (1983) (no speedy sentencing violation where part of five year and four month delay due to habitual criminal charge and defendant agreed to or caused the rest); State v. Kelly, 20 Wn. App. 705, 708-10, 582 P.2d 891 (1978) (two-year delay not unreasonable where due in part to defendant absconding the jurisdiction). Clifton's claim that the State could have done more to locate her does not demonstrate an abuse of discretion given her undisputed and persistent efforts to elude detection throughout the period of delay.
Affirmed.