Opinion
No. 83322-7-I
05-22-2023
The STATE of Washington, Respondent, v. Randy Lee ROYAL, Appellant.
Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant. Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
PUBLISHED IN PART OPINION
Bowman, J.
¶1 Randy Lee Royal appeals his jury conviction for second degree rape. Royal argues the State failed to prove his prior convictions in calculating his offender score. He also claims that the trial court erred by denying his motion to sever an additional second degree rape charge. In the published portion of our opinion, we hold that when a defendant affirmatively presents his criminal history to the trial court in a presentence memorandum for the purpose of calculating his offender score, he acknowledges those convictions under RCW 9.94A.530(2) and relieves the State of its burden to prove them. In the unpublished portion of our opinion, we conclude that the trial court did not abuse its discretion by denying Royal's motion to sever. We affirm.
We discuss only those facts presented to the trial judge at the motion to sever.
¶2 On October 4, 2019, B.T. was homeless and living in White Center. Late that evening, she was sitting in a stairwell behind a strip mall. At some point, Royal approached B.T., asking if she wanted to smoke methamphetamine (meth). B.T. knew Royal and agreed to smoke with him. Royal hung blankets around the area to shield them from public view. B.T. and Royal then smoked meth together.
¶3 Without warning, Royal punched B.T. in the face and told her that if she resisted, he would hit her again. He then pulled off B.T.’s pants and raped her for several hours. During the assault, Royal instructed B.T. to hold a pipe to his mouth so that he could smoke meth while raping her. In the early morning of October 5, Royal allowed B.T. to put on her clothes. As Royal put on his shoes, B.T. fled. She ran to a nearby Starbucks and used the barista's cell phone to call the police. When they arrived, B.T. told the police that Royal assaulted her. Officers interviewed B.T. and photographed the area where the assault occurred.
¶4 Late in the evening on January 28, 2020, Royal approached S.W. while she waited at a bus stop in White Center. S.W. recognized Royal but knew him only as "R&R." Royal asked if she wanted to " ‘smoke some drugs.’ " S.W. agreed, and they went to a nearby vacant townhome still under construction. They entered one of the unfinished rooms and Royal put up pieces of drywall to block the opening. After they smoked meth, Royal removed his pants and told S.W. to " ‘suck his dick.’ " She refused, and Royal punched her in the face, breaking her glasses and cutting the bridge of her nose. Royal then told her that if she resisted, he would kill her. Royal forced S.W. to undress and raped her for several hours. During the assault, Royal took several breaks so that he could smoke meth. Early the next morning on January 29, S.W. fled and ran to her aunt's house nearby. She reported the assault to police the next day on January 30.
The bus stop is in front of the Department of Social and Health Services (DSHS) White Center Community Services Office.
¶5 On April 28, 2020, officers arrested Royal after an incident with E.C. On May 1, 2020, the State charged Royal with one count of second degree rape of S.W. On February 26, 2021, the State amended the information, adding one count of second degree rape of B.T. and asserting all charges were part of a common scheme or plan.
The State also charged Royal with one count of second degree assault of E.C. with sexual motivation and one count of false imprisonment of E.C. Those charges are not at issue in this appeal.
The State also added one count of second degree assault of Z.M. That charge is not at issue in this appeal.
¶6Before trial, Royal moved to sever the charges. He argued that he could not have a fair trial if the jury heard evidence from both counts. The State responded that the jury would hear evidence from each case regardless because it was cross admissible to show a common scheme or plan. The trial court denied Royal's motion, determining that the rapes "appear to have been carried out in the same manner.... [S]o, ... B.T. and S.W. can be tried together."
The court severed the charges involving E.C. and Z.M.
¶7 At trial, B.T. testified that after speaking to police, she went to Harborview Medical Center to complete a sexual assault examination. A police detective testified that law enforcement did not process the rape kit in time for trial. During cross-examination of B.T., defense counsel attacked her credibility and elicited several statements inconsistent with her earlier statements to the police.
¶8 After B.T.’s testimony, Royal renewed his motion to sever. He made no substantive argument and referred the court to his pretrial severance motion. The court again denied the motion to sever.
¶9 S.W.’s testimony mostly aligned with her earlier statements to police. She testified that she also completed a sexual assault examination, which included a vaginal swab. DNA analysis confirmed the presence of Royal's DNA. During cross-examination of S.W., defense counsel also attacked her credibility.
Deoxyribonucleic acid.
¶10 At the close of trial, defense counsel argued that B.T. was not credible because of the multiple inconsistent statements in her testimony. And he argued that S.W. consented to sex with Royal in exchange for drugs. The jury acquitted Royal of second degree rape of B.T. but convicted him of second degree rape of S.W.
¶11 Before sentencing, Royal moved for arrest of judgment and a new trial. The court denied the motion. In his sentencing memorandum, Royal represented that his "offender score is 9+ based on his criminal history." He then listed these 10 adult and 2 juvenile felony convictions as his criminal history:
[C]ontrolled substance distribution, theft in the first degree, attempt to elude a police vehicle, theft in the first degree, escape in the second degree, conspiracy to deliver cocaine, promoting prostitution in the second degree, taking a motor vehicle without permission, possession of stolen property in the first degree and possession of stolen property in the second degree. ... Royal also has juvenile felony convictions for theft in the second degree and robbery in the first degree.
Royal asserted that his "sentencing range ... is 210 to 280 months."
¶12 At his sentencing hearing on October 8, 2021, Royal again agreed to the calculation of his offender score and standard range:
[PROSECUTOR:] Before we move forward, I'll ask — well, the State calculates his offender score as a 14. This crime has a seriousness level of 11, a standard range of 210 to 280 months on indeterminate sentence, maximum term of life in prison, and/or $20,000. I'll ask [defense counsel] if he agrees with that.
[DEFENSE COUNSEL]: Yes, that's correct.
The trial court sentenced Royal to a mid-range, indeterminate sentence of 245 months to life. Royal appeals.
ANALYSIS
Offender Score
¶13 Royal argues that "[t]here was insufficient evidence to establish [his] criminal history and offender score." We disagree. Because Royal affirmatively agreed to all but two of his prior convictions, he relieved the State of its obligation to prove them. And excluding the two unproved convictions from Royal's offender score does not change his standard range, so that error is harmless and does not warrant resentencing.
¶14Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the trial court determines a standard sentencing range using a grid based on a crime's seriousness and a defendant's offender score. RCW 9.94A.505, .510, .520, .525. An offender score is the sum of points accrued for prior and current convictions. RCW 9.94A.525.
¶15 The State must prove the existence of a defendant's prior convictions by a preponderance of the evidence. State v. Cate, 194 Wash.2d 909, 912-13, 453 P.3d 990 (2019). Bare assertions of a defendant's criminal history are not enough. State v. Hunley, 175 Wash.2d 901, 910, 287 P.3d 584 (2012). The State must provide some kind of evidence to satisfy its burden. Id. "This reflects fundamental principles of due process, which require that a sentencing court base its decision on information bearing ‘some minimal indicium of reliability beyond mere allegations.’ " State v. Mendoza, 165 Wash.2d 913, 920, 205 P.3d 113 (2009) (quoting State v. Ford, 137 Wash.2d 472, 481, 973 P.2d 452 (1999) ). Such evidence may include certified copies of prior judgments, comparable documents of record, or transcripts of prior proceedings. State v. Wilson, 113 Wash. App. 122, 136, 52 P.3d 545 (2002). A sentencing court must "specify the convictions it has found to exist," and all of this information "shall be part of the record." RCW 9.94A.500(1). Whether a prior felony exists " ‘is a question of fact.’ " State v. Arndt, 179 Wash. App. 373, 378, 320 P.3d 104 (2014) (quoting In re Pers. Restraint of Adolph, 170 Wash.2d 556, 566, 243 P.3d 540 (2010) ).
Emphasis and internal quotation marks omitted.
¶16 We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wash.2d 87, 92, 169 P.3d 816 (2007). But we review underlying factual determinations for abuse of discretion. In re Pers. Restraint of Toledo-Sotelo, 176 Wash.2d 759, 764, 297 P.3d 51 (2013). A court abuses its discretion when its decision is unreasonable or exercised on untenable grounds or for untenable reasons. State v. Vy Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002).
¶17 While the burden to prove criminal history generally rests with the State, a court may rely on information "admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing" to determine a defendant's sentence. RCW 9.94A.530(2). The State's burden to prove prior convictions is relieved "only if the defendant affirmatively acknowledges the alleged criminal history." Hunley, 175 Wash.2d at 917, 287 P.3d 584. A defendant's "mere failure to object" to State assertions of criminal history at sentencing does not result in an "acknowledgment." Id. Nor does a defendant affirmatively acknowledge his prior convictions by agreeing to the State's sentencing recommendation, the standard sentencing range, or the offender score. Mendoza, 165 Wash.2d at 928, 205 P.3d 113 ; State v. Ramirez, 190 Wash. App. 731, 734, 359 P.3d 929 (2015).
¶18 Royal argues that "[w]ithout certified copies of [his] prior convictions, it was impossible for the court to accurately determine [his] offender score." But Royal presented his criminal history to the court in his presentence memorandum for the purpose of calculating his offender score. Royal's assertion of his criminal history amounts to an affirmative acknowledgment of facts and information introduced for the purpose of sentencing. See Mendoza, 165 Wash.2d at 928, 205 P.3d 113. So, the trial court could rely on those facts and information in calculating his offender score. See RCW 9.94A.530(2).
¶19 Even so, the judgment and sentence shows the trial court included in his offender score two prior adult convictions that Royal did not affirmatively acknowledge—possession of stolen property in the second degree and conspiracy to deliver a substance in lieu of a controlled substance. Because the State failed to prove the existence of those convictions by a preponderance of the evidence, the trial court erred by counting them in Royal's offender score.
¶20 Generally, the remedy for an incorrect offender score is resentencing using a corrected score. State v. Schwartz, 194 Wash.2d 432, 438, 450 P.3d 141 (2019). But a recalculated offender score that does not affect a defendant's standard range is harmless unless the trial court conveyed a desire to impose a sentence at the low end of the standard range. State v. Argo, 81 Wash. App. 552, 569, 915 P.2d 1103 (1996) ; State v. Kilgore, 167 Wash.2d 28, 41-42, 216 P.3d 393 (2009) ; see, e.g., State v. Derri, 17 Wash. App. 2d 376, 411 n.14, 486 P.3d 901 (2021) (error in offender score was harmless when the State failed to prove a juvenile conviction, resulting in an offender score of 16 instead of 17), aff'd, 199 Wash.2d 658, 511 P.3d 1267 (2022). Royal's recalculated offender score reduces from 14 to 12. The recalculated score does not impact his standard range. And the record here does not show that the trial court wanted to sentence Royal to the low end of the standard range. As a result, the trial court's error was harmless and we need not remand for resentencing.
We recognize that another panel from this court relied on McCorkle to hold that an offender score error that does not affect the standard range is not harmless when the " ‘record does not clearly indicate that the sentencing court would have imposed the same sentence’ without the erroneous offender score." State v. Griepsma, 17 Wash. App. 2d 606, 621, 490 P.3d 239 (quoting State v. McCorkle, 88 Wash. App. 485, 499-500, 945 P.2d 736 (1997), aff'd, 137 Wash.2d 490, 973 P.2d 461 (1999) ), review denied, 198 Wash.2d 1016, 495 P.3d 844 (2021). But McCorkle relies on Parker, which held that "[w]hen the sentencing court incorrectly calculates the standard range ..., remand is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence anyway." McCorkle, 88 Wash. App. at 499, 945 P.2d 736 ; State v. Parker, 132 Wash.2d 182, 189, 937 P.2d 575 (1997) (emphasis added). Because the incorrect offender score here did not affect Royal's standard range, the analysis in McCorkle does not apply.
Because we conclude that the trial court properly relied on Royal's affirmative acknowledgment of his criminal history in calculating his offender score, we do not address the State's argument that Royal invited the error.
¶21 The panel has determined that the rest of this opinion has no precedential value and should not be published in accordance with RCW 2.06.040.
WE CONCUR:
Birk, J.
Dwyer, J.