State Of Washington, V. Arthur William Stavig

• Court: Court of Appeals of Washington
• Decided: May 1, 2023
• Docket: 83872-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

THE STATE OF WASHINGTON, No. 83872-5-I

Respondent,

v. UNPUBLISHED OPINION

ARTHUR WILLIAM STAVIG,

Appellant.

BOWMAN, J. — Arthur William Stavig appeals his sentence, arguing that

the sentencing court erred by adding a point to his offender score for committing

the current offenses while on community custody for a prior conviction of

possession of a controlled substance, a crime our Supreme Court later voided as

unconstitutional in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). We

agree and remand for resentencing.

FACTS

In 2013, Stavig pleaded guilty to one count of possession of a controlled

substance and one count of first degree identity theft. On January 27, 2014, the

trial court imposed a special drug-offender sentencing alternative (DOSA) and

ordered that Stavig serve 24 months of community custody.1

1 In 2013, an offender was eligible for a DOSA if “[t]he end of the standard sentence range for the current offense is greater than one year.” Former RCW 9.94A.660(1)(f) (2009). Only Stavig’s possession of a controlled substance charge carried a standard range of greater than one year.

This opinion bases the citations and pin cites on the Westlaw online version of the cited material. No. 83872-5-I/2

In 2016, Stavig pleaded guilty to one count of first degree robbery while

armed with a firearm and one count of theft of a firearm for an incident that

occurred on January 21, 2016 while he was still on community custody for the

DOSA. At sentencing, the trial court calculated Stavig’s offender score as 8. His

score included four points for prior drug possession convictions and one point for

committing his current offenses while on community custody. The court

sentenced Stavig to 168 months.

In 2021, our Supreme Court decided Blake, holding that the criminal

statute for possession of a controlled substance was unconstitutional and void.

197 Wn.2d at 195. In light of the Blake decision, Stavig moved for resentencing

with a corrected offender score of 3. He argued that his score should not include

four points for the prior drug possession convictions or a point for committing the

current offenses while on community custody for a drug possession conviction.

The State agreed the court should vacate the drug possession convictions

under Blake but argued the “community custody point applies,” so the court

should calculate Stavig’s offender score as 4. The sentencing court agreed with

the State. It removed Stavig’s prior possession convictions from his offender

score but included the community custody point. Based on an offender score of

4, the court resentenced Stavig to 111 months of confinement.

Stavig appeals.

2 No. 83872-5-I/3

ANALYSIS

Stavig argues the trial court erred by including a point in his offender score

for committing his offenses while on community custody for an invalid drug

possession conviction. We agree.

Generally, when a person commits a crime while on community custody

for an earlier crime, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A

RCW, requires the sentencing court to add a point to the person’s offender score.

RCW 9.94A.525(19). But it is “well established that a prior conviction based on a

constitutionally invalid statute may not be considered when a sentencing court

calculates an offender score.” State v. French, 21 Wn. App. 2d 891, 895, 508

P.3d 1036 (2022). And just as we interpret the SRA to require that a sentencing

court consider only a valid prior conviction when calculating an offender score,

“we likewise interpret the SRA to require that a term of community custody be

validly imposed in order for such a condition to be considered by a sentencing

court.” Id. at 898.

In French, we concluded that because the trial court had no lawful

authority to enter judgment on a conviction for unlawful possession of a

controlled substance, it also had no lawful authority to impose a sentence related

to the invalid possession statute, including community custody. 21 Wn. App. 2d

at 897. Adding a point for being on community custody for an invalid sentence

would renew the constitutional violation. Id. The same is true here.

The State urges us “to reconsider [our] holding in French and affirm

Stavig’s sentence.” It cites Mead School District No. 354 v. Mead Education

3 No. 83872-5-I/4

Ass’n, 85 Wn.2d 278, 280, 534 P.2d 561 (1975), and State v. Gonzales, 103

Wn.2d 564, 565, 693 P.2d 119 (1985), to reiterate the same arguments it made

in French. See French, 21 Wn. App. 2d at 899-901. But as we explained in

French, those cases are distinguishable from the issue here. Id. at 900-01. We

see no compelling reason to part from French.

We remand for the trial court to recalculate Stavig’s offender score without

a point for committing the current offenses while on community custody for an

unconstitutional drug possession conviction and resentence him based on the

corrected score.

WE CONCUR: