Opinion
No. 60679-4-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08665-8, Richard D. Eadie, J., entered September 24, 2007.
Affirmed by unpublished per curiam opinion.
A defendant waives the right to challenge his offender score when he acknowledges material facts at sentencing contrary to the challenge the defendant seeks to bring for the first time on appeal. The defendant cannot now claim that crimes constitute the same criminal conduct when he agreed to facts at sentencing that necessarily included those convictions when he pleaded guilty. We affirm.
FACTS
As part of a plea bargain, Carl Lee Webster pleaded guilty to "Conspiracy to Commit Violation of the Uniform Controlled Substances Act" (VUCSA) — delivery of cocaine and bail jumping on August 20, 2007. At the time, Webster's defense attorney reserved the right to challenge the State's scoring of his criminal history for purposes of calculating his offender score at sentencing. But the only objections that Webster made were related to whether his forgery convictions from 1993 had washed out when he was confined for parole violations on misdemeanor charges. The sentencing court found that two of Webster's four forgery convictions from 1993 counted as one offense (three of the four had been charged under the same cause number and sentenced on the same day) but rejected Webster's argument that additional forgery offenses had washed out as Webster had not gone five consecutive years in the community without committing any crimes.
At sentencing, Webster agreed that his offender score properly included separate points for his felony harassment and unlawful imprisonment convictions from 1999. Webster never raised any argument alleging that some of his convictions constituted the same criminal conduct and thus should count as one offense in calculating his offender score.
On appeal, Webster contends the trial court erred in not undertaking a same criminal conduct analysis with regard to his 1999 convictions before including them in his offender score. Webster also claims he was deprived of effective assistance of counsel.
ANALYSIS
Waiver
Webster claims that the trial court erred by not undertaking a same criminal conduct analysis with regard to his 1999 convictions for unlawful imprisonment and felony harassment. Webster, however, has waived any right to challenge his offender score on this basis.
A sentence that exceeds statutory authority may be challenged for the first time on appeal. But, a defendant may be found to have waived a right to challenge his sentence, including one allegedly based on a miscalculated offender score, "where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." In In re Personal Restraint of Shale, the Washington Supreme Court adopted this court's reasoning in State v. Nitsch, holding that waiver may apply where a defendant argues for the first time on appeal that two prior convictions constituted the same criminal conduct and thus neither could be counted as part of his offender score for sentencing the other crime.
In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002).
Goodwin, 146 Wn.2d at 874.
160 Wn.2d 489, 158 P.3d 588 (2007).
100 Wn. App. 512, 997 P.2d 1000, review denied, 141 Wn.2d 1030, 11 P.3d 827 (2000).
Shale, 160 Wn.2d at 494-95.
Webster only argued below that his prior forgery convictions should wash out. Otherwise, Webster expressly agreed with the State's calculation of his offender score. In fact, Webster's own presentence report calculated his offender score as a four. This number necessarily included both the 1999 convictions that he now contends constitute the same criminal conduct. Webster waived the right to challenge his offender score and its inclusion of these two convictions from 1999 by acknowledging their inclusion as proper below.
See State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999) (defense counsel's inclusion of an out-of-state conviction in his presentence report constituted an acknowledgment of their comparability and was effective waiver of the right to challenge that comparability on appeal).
Same Criminal Conduct and Ineffective Assistance of Counsel
Even if Webster had not waived the right to challenge his offender score and the inclusion of the two 1999 convictions, his challenge would fail. Further, because such a challenge is without merit, his claim of ineffective assistance of counsel fails as he has failed to show either that counsel's performance was deficient or that he was prejudiced thereby.
See generally Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Under RCW 9.94A.525, an offender score counts all convictions separately except:
(5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used.
RCW 9.94A.589(1)(a) provides in pertinent part:
"[S]ame criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.
The 1999 convictions for unlawful imprisonment and felony harassment were charged under the same cause number, the crimes took place on the same day, and Webster served concurrent sentences for the two convictions. But because these two crimes lack the same criminal intent, they cannot involve the same criminal conduct for purposes of calculating an offender score.
The trial court is affirmed.