Opinion
No. 30127-0-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 99-1-01040-0. Judgment or order under review. Date filed: 01/22/2003. Judge signing: Hon. Barbara D. Johnson.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Duane Sullivan appeals his sentence for first degree murder, arguing that the trial court miscalculated his offender score by including in his criminal history several juvenile adjudications and a burglary conviction he contends washed out. Because the State concedes that Sullivan's juvenile adjudication washed out, we vacate his sentence and remand for resentencing.
FACTS
The State charged Duane Sullivan with first degree premeditated murder while armed with a firearm. On June 15, 2001, Sullivan entered an Alford plea to manslaughter in the first degree with a firearm enhancement.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Sullivan stipulated to a criminal history that included juvenile adjudications and an adult second degree burglary he committed in May 1979. The State released Sullivan from custody on the burglary conviction in December 1984. After calculating an offender score of four, the trial judge sentenced Sullivan to 207 months.
ANALYSIS I. Juvenile Adjudications
Sullivan argues that his juvenile adjudications before age 15 washed out. The State concedes the issue and agrees that one point should be deducted from his criminal history. Sullivan also contends that his juvenile robbery adjudication should not be counted towards an offender score because it was merely on adjudication of `delinquency,' rather than of `guilt.' Brief of Appellant at 16. He argues that an adjudication of delinquency is different than an adjudication of guilt, citing RCW 13.04.240 and In re Frederick, 93 Wn.2d 28, 604 P.2d 953 (1980). RCW 13.04.240 states, `An order of court adjudging a child delinquent or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime.'
The court rejected a similar argument in State v. Johnson, 118 Wn. App. 259, 76 P.3d 265 (2003), review denied, 151 Wn.2d 1021 (2004). Distinguishing Frederick, 93 Wn.2d 28, the court observed: [T]he juvenile statute is properly concerned with preventing an adjudication of guilt from being considered a crime while one is still a juvenile, as this approach furthers its rehabilitative purpose. Similarly, the adult statute allows consideration of prior juvenile adjudications in sentencing an individual who is now an adult and has committed a crime as an adult because the SRA is primarily concerned with punishing all adult offenders who have the same criminal history to the same extent. Each statute treats prior offenses in a manner appropriate to its purpose, and they are not contradictory as between the two systems.
Johnson, 118 Wn. App. at 263.
The court reasoned that the SRA applied when the defendants `became adults and committed adult crimes.' Johnson, 118 Wn. App. at 264. And it concluded that, `[t]he SRA unambiguously includes juvenile adjudications under Title 13 RCW in the definition of criminal history.' Johnson, 118 Wn. App. at 264.
Similarly, in State v. Smathers, 109 Wn. App. 546, 549, 36 P.3d 1078 (2001), review denied, 146 Wn.2d 1017 (2002), we said that, ``Conviction' means an adjudication of guilt pursuant to Titles 10 or 13 RCW.' (citing former RCW 9.94A.030(10) (2000)). Accordingly, we held that Smathers's juvenile adjudication was a `prior conviction' under the SRA. Smathers, 109 Wn. App. at 549-50. Again we conclude that the court properly included Sullivan's juvenile adjudications in his criminal history.
II. Burglary Conviction
Sullivan argues that his adult second degree burglary conviction committed on May 1, 1981, washed out because he went 10 years after release from incarceration without a felony conviction. The State counters that the 1995 legislature amended the SRA to require 10 years without a conviction of any crime and that Sullivan had three misdemeanor convictions between 1984 and 1994. According to the State, the 1995 amendments revived convictions that would have washed out under the pre-1995 statute, citing State v. Watkins, 86 Wn. App. 852, 855, 939 P.2d 1243 (1997).
Before 1995, Class B felony convictions, other than sex offenses, washed out for sentencing purposes if the defendant spent 10 consecutive years without any felony conviction. Former RCW 9.94A.360(2), Laws of 1983, ch. 115, sec. 7. In 1995, the legislature amended that provision to require a defendant to spend 10 consecutive years without convictions of any crimes, not just felonies. Laws of 1995, ch. 316, sec. 1.
Sullivan relies on State v. Smith, 144 Wn.2d 665, 674-75, 39 P.3d 294 (2002), where the Washington Supreme Court found that the 1997 SRA amendment eliminating wash-out provisions for juvenile convictions did not apply retroactively. In Smith, the court concluded that the 1997 amendments were prospective only because the legislature had not clearly stated a contrary intent. Smith, 144 Wn.2d at 672-73. The court found a lack of clearly stated intent even though in 2000 the legislature attempted to clarify any ambiguity in the 1997 amendments that led to the court's decision in State v. Cruz, 139 Wn.2d 186, 192, 985 P.2d 384 (1999).
Similarly, the 1995 SRA amendments contain no language expressing a legislative intent to apply the amendments retroactively. State v. Hern, 111 Wn. App. 649, 656, 45 P.3d 1116 (2002). Second degree burglary is a Class B felony. RCW 9A.52.030. Sullivan's last date of confinement for the conviction was December 12, 1984. Between December 12, 1984 and December 12, 1994, he was convicted of three misdemeanors but no felonies. Thus, under the SRA provisions in effect up to 1995, the burglary conviction washed out on December 12, 1994. And under Smith and Cruz, the 1995 amendments did not apply retroactively.
The Supreme Court has recently held that the legislature in its 2002 SRA amendments made clear that for crimes committed after the effective date of the 2002 amendments, the sentencing court must include previously `washed out' convictions. State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) (citing Laws of 2002, ch. 107, sec. 3(18)).
III. Statement of Additional Grounds
In his statement of additional grounds for review, Sullivan again argues that the State miscalculated his offender score. He contends that the gun enhancement was improper. He also argues that he should receive one-third or one-half off his sentence for `good time credit' because `he has been discriminated against by the State.' Statement of Additional Grounds (SAG) at 2-3. Finally, he argues that he should be allowed to withdraw his guilty plea if his offender score is not changed.
We have already addressed Sullivan's arguments about the calculation of his offender score. The juvenile adjudications for crimes Sullivan committed before he was 15 years old do not count, and the burglary conviction in 1984 washed out in 1994.
Sullivan next contends that the gun enhancement was improper because there was no `nexus' between the weapon and his conduct, citing State v. Johnson, 94 Wn. App. 882, 893, 974 P.2d 855 (1999). SAG at 6. Johnson does not help Sullivan. In that case, the defendant was charged with controlled substances violations. Because police found a gun in the defendant's apartment, the charges alleged that he was `armed' with a deadly weapon. The court stated, `[A] person is not armed simply because a weapon is present during the commission of a crime; there must be some nexus between the defendant and the weapon.' Johnson, 94 Wn. App. at 892 (citing State v. Mills, 80 Wn. App. 231, 236, 907 P.2d 316 (1995)). There, the drug charges were not necessarily related to the weapons allegation. Here, in contrast, the murder charge was a direct result of Sullivan having fired the gun.
Sullivan also argues that the gun enhancement creates double jeopardy because `if the gun is taken out of the offense then no offense would have happened.' SAG at 8. He concludes that the gun `is . . . part of the charge of manslaughter and already calculated into the standard range.' SAG at 8. Although not entirely clear, Sullivan seems to be arguing that the weapons enhancement merged with the manslaughter.
We use the merger doctrine to determine if the legislature intended two crimes to be punished separately. See State v. Saunders, 120 Wn. App. 800, 820, 86 P.3d 232 (2004). Two crimes merge and thus are not punishable separately only where the State must prove the degree of one crime by proving another crime (e.g., rape elevated to first degree if accompanied by assault or kidnapping). Saunders, 120 Wn. App. at 820. We reject Sullivan's argument for several reasons. First, a weapons enhancement is not a separate crime. Second, the weapons enhancement does not elevate the degree of manslaughter. Finally, the legislature clearly intended the weapons enhancement to increase the punishment for the underlying crime. Thus, Sullivan's double jeopardy argument fails.
Sullivan also argues that he is entitled to good time credits, and that failure to allow him credit is discriminatory, citing In re Personal Restraint of King, 146 Wn.2d 658, 49 P.3d 854 (2002). But nothing in the record before us sets out whether Sullivan earned good time and, if so, how much or what the Department of Corrections has allowed Sullivan. The court will not review a newly raised argument if the facts necessary to adjudicate the alleged error are not in the record. State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993) (citing Van Vonno v. Hertz Corp., 120 Wn.2d 416, 427, 841 P.2d 1244 (1992)). Accordingly, we are unable to consider Sullivan's good time credits argument.
Sullivan contends that he must be allowed to withdraw his plea because he `was advised of the wrong sentencing range,' citing State v. Perkins, 46 Wn. App. 333, 730 P.2d 712 (1986). SAG at 7. A defendant may withdraw his guilty plea if he enters it based on advice that the standard sentencing range is lower than it actually is. State v. Paul, 103 Wn. App. 487, 495, 12 P.3d 1036 (2000) (citing Perkins, 46 Wn. App. at 338). But here, the court advised Sullivan of the correct sentencing range; and the court sentenced him based upon the offender score he stipulated was correct.
Finally, Sullivan complains that the prosecutor was biased and prejudiced against him because the `head prosecutor' was his attorney in the disputed 1977 juvenile adjudication. SAG at 8. But Sullivan does not explain how or in what way the prosecutor demonstrated bias against him. Moreover, the treatment of his 1977 juvenile robbery adjudication is a question of law, unaffected by any possible prosecutorial bias.
We vacate Sullivan's sentence and remand for sentencing consistent with this opinion.
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.
HUNT, J. and VAN DEREN, J., concur.