Opinion
No. 60442-2-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01348-9, Jeffrey M. Ramsdell, J., entered July 30, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
Melvin Xavier entered into a plea agreement in which he expressly agreed to the State's offender score calculation. Though he attempted to argue the calculation was incorrect at the sentencing hearing, he ultimately withdrew the objection to take advantage of the plea agreement. Because the alleged error does not present a legal issue, but rather involves a factual question about whether certain prior convictions constitute the same criminal conduct, Xavier may not challenge the offender score on appeal. We affirm, but remand for correction of a scrivener's error on the judgment and sentence.
BACKGROUND
The State charged Melvin Xavier with robbery in the first degree and added a deadly weapon enhancement. Xavier entered into a plea agreement that provided the State would drop the enhancement and recommend a sentence of 150 months in custody. Xavier and his attorney signed the agreement, which stated that Xavier agreed that the State's description of his criminal history and that "the attached sentencing guidelines scoring form" were "accurate and complete." Clerk's Papers at 40. The agreement further provided, "An essential term of this agreement is the parties' understanding of the standard sentencing range(s) and if the parties are mistaken as to the offender score on any count, neither party is bound by any term of this agreement." Id.
The scoring form indicated an offender score of 10, including one point for committing the current offense while on community placement. The score counted Xavier's convictions for second degree assault and second degree robbery in 2001 separately. Xavier entered the plea at a hearing in which he confirmed that he understood the standard sentence range was 129 to 171 months in custody and that the State had recommended 150 months. Xavier's attorney filed a presentence report concurring with the State's offender score calculation and acknowledging Xavier's standard range as 129 to 171 months.
At the sentencing hearing, Xavier's attorney requested a 129 month sentence. Xavier then made a pro se objection to his offender score. For the first time, Xavier claimed the two 2001 offenses constituted the same criminal conduct and should not count separately toward his offender score. The court explained the offender score and guilty plea were "part of the same package," and asked Xavier if he wanted to withdraw his plea so he could litigate the offender score calculation. Report of Proceedings (RP) (July 20, 2007) at 8. Xavier was emphatic that he did not want to withdraw to the plea, but maintained that the offender score was incorrect. The court continued the hearing so Xavier could discuss his options with his attorney.
When the parties returned to court, Xavier reiterated his confusion about his offender score. Xavier argued, pro se, that his score should be 8, not 10, but again confirmed he did not wish to withdraw his plea. Despite his misgivings about the calculation, Xavier decided to go forward with the sentencing. The court therefore did not consider or rule on the same criminal conduct issue. In his allocution, Xavier expressed appreciation for the State withdrawing the deadly weapon enhancement and asked for a sentence at the low end of the range.
Part of the confusion stems from Xavier's counsel's repeated explanations that counting the two 2001 convictions as one would only reduce Xavier's offender score from 10 to 9 points, yielding no change in his standard range. RCW 9.94A.510 (no difference in standard ranges for offender scores above 9). However, the two violent felony convictions each contributed two points each to his score. RCW 9.94A.525(8). Had they not been counted separately, Xavier's score would have been 8, and his standard range would indeed have been lower (108 to 144 months rather than 129 to 171 months). RCW 9.94A.510.
The following exchange took place after Xavier explained his position:
COURT: Let me ask you this just pure and simple. You said a moment ago to me that you wanted to go forward with the sentencing, right?
XAVIER: Yes, sir.
COURT: Even despite the fact that you have some misgivings about the calculation. Is that fair?
XAVIER: Yes.
COURT: Then that's what we'll do. Because that's really your choice to make and not mine. Like I said before, it may not be in your best interest to withdraw the plea.
XAVIER: No.
RP (July 30, 2007) at 7-8.
Observing that Xavier had several offenses that did not "even factor into the calculation of the 8, 9, or 10 that we are talking about," the court declined to sentence him at the low end of the range. RP (July 30, 2007) at 10. The court imposed a midrange sentence of 140 months. Xavier appeals.
DISCUSSION
Xavier contends he is entitled to a new sentencing hearing because the trial court miscalculated his offender score by including both 2001 offenses. We conclude Xavier waived this issue when he withdrew his objection to take advantage of the plea agreement.
Xavier affirmatively agreed to the State's offender score calculation as an essential term of his plea bargain. Had he chosen to litigate that issue, he would have breached the agreement, freeing the State to pursue the deadly weapon enhancement. See State v. Collins, 144 Wn. App. 547, 558, 182 P.3d 1016 (2008) (defendant's effort to force State to prove offender score breached plea agreement; court properly reinstated the original charges). Though he raised the issue with the sentencing court, he ultimately elected to take advantage of the plea agreement and proceed with sentencing, thereby withdrawing his objection.
Citing In re Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002), Xavier contends he can reanimate the objection on appeal. In that case, the Supreme Court held that a defendant who pleads guilty does not waive his right to challenge an obvious legal error in an offender score calculation that leads to a sentence in excess of statutory authorization. Id. at 874-75. But "waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." Id. at 874. That is precisely the situation presented here. Xavier agreed with the State's depiction of his criminal history and its calculation of his offender score, which he now challenges based upon the same criminal conduct statute. Application of that statute involves both factual determinations and exercise of discretion. Id. at 875; State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000). By withdrawing his objection in order to take advantage of his plea agreement, Xavier may not now challenge his offender score. Goodwin, 146 Wn.2d at 875; accord In re Shale, 160 Wn.2d 489, 158 P.3d 588 (2007).
For the reasons expressed above, we affirm Xavier's sentence. We remand, however, for correction of an apparent clerical error in the judgment and sentence. Though the parties agreed that Xavier was under community placement at the time of the present offense, adding one point to his offender score, the court failed to check the box on the judgment and sentence that correlates to this finding. This oversight caused Xavier no prejudice and can be corrected on remand without a new hearing. See State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999).
The parties' agreement to this fact is reflected in the scoring form, defense presentence report, and in the record of the sentencing hearing. See Clerk's Papers at 44, 72; RP (July 20, 2007) at 12. Additionally, the judgment and sentence reflects the offender score of 10 and corresponding sentencing range, which can only result from adding the community custody point. See Clerk's Papers at 47.