IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 82702-2-I
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION DAVID V. KANKAM,
Appellant.
SMITH, A.C.J. — A jury found David Kankam guilty of first degree robbery.
The trial court sentenced him to 129 months, the low end of the standard range
given his calculated offender score of 11. On appeal Kankam challenges that
calculation, contending that the trial court failed to consider whether some of his
prior convictions constituted the same criminal conduct and should not have
been counted separately, as required by RCW 9.94A.525(5)(a)(i). He contends
that if it had, his offender score standard range would be lower. Because
Kankam’s attorney not only failed to challenge the offender score calculation but
explicitly referenced it in his presentence report, and because the court was
entitled to rely on those representations, we affirm on this issue.
Kankam also challenges the trial court’s imposition of supervision fees in
his Judgement and Sentence when it had, in its oral ruling, said that it would
waive any discretionary fees. The State concedes the error in light of State v.
Bowman, 198 Wn.2d 609, 498 P.3d 478 (2021). We therefore reverse on this
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82702-2-I/2
issue with instructions to the trial court to strike the supervision fee language
from the Judgement and Sentence.
FACTS
On June 26, 2020, David Kankam walked into Tobacco Town in Mill
Creek, Washington. After the store’s proprietor handed over the wrong type of
pipe tobacco, Kankam became angry and violent. He struck the proprietor with
his backpack, threw over displays, and took a number of lighters. When followed
outside the store, he turned and renewed his attack, hitting the proprietor’s face
and head until, and after, the man fell to the ground. Kankam was charged with
first degree robbery. A jury found him guilty on February 25, 2021.
The State’s sentencing memorandum calculated Kankam’s offender score
at 11 and requested a sentence of 171 months, the high end of the standard
range. The state calculated his score based on ten prior convictions, one of
which counted as two points as a violent offense under RCW 9A.56.200. The
State noted that Kankam’s “score of 11 means that his sentencing range does
not take into account all of his felony convictions.” The State did not address in
either its sentencing memorandum or at the sentencing hearing itself that three of
Kankam’s convictions (for possession of stolen property, theft, and residential
burglary) were entered on December 3, 2004 and two others (for possession of
stolen property and attempted robbery) occurred on October 13, 2006.
Counsel for Kankam did not contest the State’s calculation of his offender
score in either his pre-sentencing briefing or at the sentencing hearing. Instead,
2 No. 82702-2-I/3
Kankam’s sentencing memorandum requested a downward departure based on
the State’s offender score calculation: “For a Robbery in the First-Degree
conviction, Mr. Kankam’s standard range sentence is 129-171 months at an
offender score of 11. The Defense is requesting a sentence of 84 months, a
downward departure from the sentencing guidelines.” This was the Defense’s
only reference to Kankam’s offender score calculation throughout the sentencing
process. At no point in briefing or at the sentencing hearing was the issue
brought to the court’s attention by either the State or the Defense, and the Court
did not raise the question independently.
The court denied Kankam’s request for a downward departure and
sentenced Kankam to the low end of the standard range: 129 months. At
sentencing, the court confirmed its feelings about the appropriateness of this
sentence independent from the standard range: “the Court is convinced that over
ten years . . . is appropriate for this particular crime for this particular defendant.”
The court relied on the same criminal history presented by the State and
assumed an offender score of 11.
Also at sentencing, the court stated on the record that it was “making a
finding of indigency and waiving any non-mandatory fees and costs.” Despite
this, the judgment and sentence reviewed and submitted by the parties and
signed by the court included language directing that Kankam “pay supervision
fees as determined by [the Department of Corrections].” The language was
3 No. 82702-2-I/4
preprinted in the middle of a long paragraph as the sixth of eight listed conditions
of community custody contained in the judgment and sentence form.
Kankam appeals. ANALYSIS Standard of Review
Generally, issues not raised in the trial court may not be raised for the first
time on appeal. See RAP 2.5(a); State v. Ford, 137 Wn.2d 472, 477, 973 P.2d
452 (1999). RAP 2.5(a) is discretionary rather than an absolute bar to review,
however, and “[i]n the context of sentencing, established case law holds that
illegal or erroneous sentences may be challenged for the first time on appeal.”
Ford, 137 Wn.2d at 477. This is true even where the error is not, as RAP 2.5
would otherwise require, jurisdictional or constitutional. In re Pers. Restraint of
Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996).
As a general matter, “[i]nterpretation of the [Sentencing Reform Act of
1981, ch. 9.94A RCW] is a question of law that we review de novo.” State v.
Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). Where the trial court has
made a determination as to whether two or more criminal convictions are the
“same criminal conduct” under RCW 9.94A.525, that determination is reviewed
for abuse of discretion or misapplication of the law. State v. Graciano, 176
Wn.2d 531, 536, 295 P.3d 219 (2013). Under this standard, “where the record
adequately supports either conclusion, the matter lies in the court's discretion.
Whether the record ‘supports’ a particular conclusion, of course, may depend on
who carries the burden of proof.” Graciano, 176 Wn.2d at 538.
4 No. 82702-2-I/5
Same Criminal Conduct Determination
Kankam first contends that the trial court erred by failing to consider
whether certain of his prior convictions constitute the same criminal conduct
under RCW 9.94A.525(5)(a)(i). This statute directs that, when calculating an
offender score, “[p]rior offenses which . . . encompass the same criminal conduct,
shall be counted as one offense, the offense that yields the highest offender
score.” RCW 9.94A.525(5)(a)(i). “The current sentencing court shall determine
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 82702-2-I
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION DAVID V. KANKAM,
Appellant.
SMITH, A.C.J. — A jury found David Kankam guilty of first degree robbery.
The trial court sentenced him to 129 months, the low end of the standard range
given his calculated offender score of 11. On appeal Kankam challenges that
calculation, contending that the trial court failed to consider whether some of his
prior convictions constituted the same criminal conduct and should not have
been counted separately, as required by RCW 9.94A.525(5)(a)(i). He contends
that if it had, his offender score standard range would be lower. Because
Kankam’s attorney not only failed to challenge the offender score calculation but
explicitly referenced it in his presentence report, and because the court was
entitled to rely on those representations, we affirm on this issue.
Kankam also challenges the trial court’s imposition of supervision fees in
his Judgement and Sentence when it had, in its oral ruling, said that it would
waive any discretionary fees. The State concedes the error in light of State v.
Bowman, 198 Wn.2d 609, 498 P.3d 478 (2021). We therefore reverse on this
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82702-2-I/2
issue with instructions to the trial court to strike the supervision fee language
from the Judgement and Sentence.
FACTS
On June 26, 2020, David Kankam walked into Tobacco Town in Mill
Creek, Washington. After the store’s proprietor handed over the wrong type of
pipe tobacco, Kankam became angry and violent. He struck the proprietor with
his backpack, threw over displays, and took a number of lighters. When followed
outside the store, he turned and renewed his attack, hitting the proprietor’s face
and head until, and after, the man fell to the ground. Kankam was charged with
first degree robbery. A jury found him guilty on February 25, 2021.
The State’s sentencing memorandum calculated Kankam’s offender score
at 11 and requested a sentence of 171 months, the high end of the standard
range. The state calculated his score based on ten prior convictions, one of
which counted as two points as a violent offense under RCW 9A.56.200. The
State noted that Kankam’s “score of 11 means that his sentencing range does
not take into account all of his felony convictions.” The State did not address in
either its sentencing memorandum or at the sentencing hearing itself that three of
Kankam’s convictions (for possession of stolen property, theft, and residential
burglary) were entered on December 3, 2004 and two others (for possession of
stolen property and attempted robbery) occurred on October 13, 2006.
Counsel for Kankam did not contest the State’s calculation of his offender
score in either his pre-sentencing briefing or at the sentencing hearing. Instead,
2 No. 82702-2-I/3
Kankam’s sentencing memorandum requested a downward departure based on
the State’s offender score calculation: “For a Robbery in the First-Degree
conviction, Mr. Kankam’s standard range sentence is 129-171 months at an
offender score of 11. The Defense is requesting a sentence of 84 months, a
downward departure from the sentencing guidelines.” This was the Defense’s
only reference to Kankam’s offender score calculation throughout the sentencing
process. At no point in briefing or at the sentencing hearing was the issue
brought to the court’s attention by either the State or the Defense, and the Court
did not raise the question independently.
The court denied Kankam’s request for a downward departure and
sentenced Kankam to the low end of the standard range: 129 months. At
sentencing, the court confirmed its feelings about the appropriateness of this
sentence independent from the standard range: “the Court is convinced that over
ten years . . . is appropriate for this particular crime for this particular defendant.”
The court relied on the same criminal history presented by the State and
assumed an offender score of 11.
Also at sentencing, the court stated on the record that it was “making a
finding of indigency and waiving any non-mandatory fees and costs.” Despite
this, the judgment and sentence reviewed and submitted by the parties and
signed by the court included language directing that Kankam “pay supervision
fees as determined by [the Department of Corrections].” The language was
3 No. 82702-2-I/4
preprinted in the middle of a long paragraph as the sixth of eight listed conditions
of community custody contained in the judgment and sentence form.
Kankam appeals. ANALYSIS Standard of Review
Generally, issues not raised in the trial court may not be raised for the first
time on appeal. See RAP 2.5(a); State v. Ford, 137 Wn.2d 472, 477, 973 P.2d
452 (1999). RAP 2.5(a) is discretionary rather than an absolute bar to review,
however, and “[i]n the context of sentencing, established case law holds that
illegal or erroneous sentences may be challenged for the first time on appeal.”
Ford, 137 Wn.2d at 477. This is true even where the error is not, as RAP 2.5
would otherwise require, jurisdictional or constitutional. In re Pers. Restraint of
Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996).
As a general matter, “[i]nterpretation of the [Sentencing Reform Act of
1981, ch. 9.94A RCW] is a question of law that we review de novo.” State v.
Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). Where the trial court has
made a determination as to whether two or more criminal convictions are the
“same criminal conduct” under RCW 9.94A.525, that determination is reviewed
for abuse of discretion or misapplication of the law. State v. Graciano, 176
Wn.2d 531, 536, 295 P.3d 219 (2013). Under this standard, “where the record
adequately supports either conclusion, the matter lies in the court's discretion.
Whether the record ‘supports’ a particular conclusion, of course, may depend on
who carries the burden of proof.” Graciano, 176 Wn.2d at 538.
4 No. 82702-2-I/5
Same Criminal Conduct Determination
Kankam first contends that the trial court erred by failing to consider
whether certain of his prior convictions constitute the same criminal conduct
under RCW 9.94A.525(5)(a)(i). This statute directs that, when calculating an
offender score, “[p]rior offenses which . . . encompass the same criminal conduct,
shall be counted as one offense, the offense that yields the highest offender
score.” RCW 9.94A.525(5)(a)(i). “The current sentencing court shall determine
with respect to other prior adult offenses for which sentences were served
concurrently . . . 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).”1 RCW 9.94A.525(5)(a)(i). “[I]f 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.525(5)(a)(i).
The sentencing court does not have discretion regarding whether to apply
this test. State v. Torngren, 147 Wn. App. 556, 563, 196 P.3d 742 (2008) (“A
sentencing court, again, must apply the same criminal conduct test to multiple
prior convictions that a court has not already concluded amount to the same
criminal conduct. RCW 9.94A.525(5)(a)(i). The court has no discretion on this.”
(emphasis omitted)), abrogated on other grounds by Graciano, 176 Wn.2d 531.
1 RCW 9.94A.589(1) defines “same criminal conduct” as “two or more
crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.”
5 No. 82702-2-I/6
A defendant may, however, “waive any challenge to a miscalculated
offender score by agreeing to that score (or to the criminal history on which the
score is based) in a plea agreement or by other stipulation.” In re Pers. Restraint
of Goodwin, 146 Wn.2d 861, 873, 50 P.3d 618 (2002). Waiver cannot apply
“where the alleged sentencing error is a legal error leading to excessive
sentence,” but can apply “where the alleged error involves an agreement to facts,
later disputed, or where the alleged error involves a matter of trial court
discretion.” Goodwin, 146 Wn.2d at 873-74 (emphasis omitted).
In Goodwin, the Supreme Court specifically approved of the Court of
Appeals opinion in State v. Nitsch.2 146 Wn.2d at 875. In Nitsch, the defendant
argued for the first time on appeal that two of his prior crimes should have been
counted as the same criminal conduct. 100 Wn. App. at 518-19. Nitsch had not
remained silent on the issue of his offender score below but had “affirmatively
alleged” the higher, miscalculated sentencing range in his presentence report.
Id. at 522. While he had not explicitly stated an offender score, “his explicit
statement of the range [was] inescapably an implicit assertion of his score, and
also an implicit assertion that his crimes did not constitute the same criminal
conduct.” Id.
The court concluded that the Sentencing Reform Act “permits the
sentencing court to rely on unchallenged facts and information.” Id. at 521. As a
result, by his statement, Nitsch failed to request an exercise of the court’s
2 100 Wn. App. 512, 997 P.2d 1000, review denied, 141 Wn.2d 1030, 11
P.3d 827 (2000).
6 No. 82702-2-I/7
discretion and waived any further challenge to his offender score. Id. at 524-25
(“[T]he trial court's failure to conduct such a review sua sponte cannot result in a
sentence that is illegal. The trial court thus should not be required, without
invitation, to identify the presence or absence of the issue and rule thereon.”).
Here, as in Nitsch, Kankam “affirmatively alleged” his standard range in
written materials submitted to the trial court for review before his sentencing
hearing. He then asked for a downward departure based on that range. Unlike
Nitsch, in which the defendant did not affirmatively state his offender score but
only his range, Kankam also explicitly referenced an offender score of 11. In so
doing, because the trial court appropriately relied upon his representations to
infer that he was not challenging the calculation of his offender score, he waived
his right to make that challenge on appeal.
Kankam contends that the statement in his sentencing memorandum did
not constitute waiver by citing to State v. Lucero, 168 Wn.2d 785, 230 P.3d 165
(2010). There, counsel for the defendant recited a range during his sentencing
hearing “that was apparently based on the inclusion of a California burglary
conviction in his offender score.” Lucero, 168 Wn.2d at 787. The Supreme
Court found that “mere failure to object to the State's assertion of criminal history
is not an affirmative acknowledgment amounting to a waiver of criminal history
sentencing error” and reversed.” Lucero, 168 Wn.2d at 788-89.
Lucero is distinguishable. There, the issue was whether underlying out-of-
state convictions were comparable to certain Washington crimes for purposes of
7 No. 82702-2-I/8
offender score calculation.” Lucero, 168 Wn.2d at 789. Here, the issue is
whether underlying crimes should have been counted as the “same criminal
conduct.” The key distinction between the two is what party bears the burden of
proof. The State generally bears the burden to demonstrate past criminal record.
State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). But it is the
defendant’s burden to demonstrate that prior offenses constitute the same
criminal conduct. Graciano, 176 Wn.2d at 539. Therefore, Lucero does not
control.
The trial court did not err by failing to conduct a same criminal conduct
analysis.
Legal Financial Obligations
Kankam also challenges the trial court’s imposition in his judgment and
sentence of community custody supervision fees, contrary to its oral ruling. The
State concedes that these should be stricken, given the Supreme Court’s recent
decision in Bowman. As here, Bowman concerns a conflict between the trial
court’s oral ruling and its judgment and sentence; in the former, the court waived
all non-mandatory fees, but the latter nonetheless imposed the supervision fees
also imposed on Kankam. See Bowman, 198 Wn.2d at 629. The Court in
Bowman found that “because ‘supervision fees are waivable by the trial court,
they are discretionary [legal financial obligations].’ ” 198 Wn.2d at 629 (quoting
State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2018)). The Court
agreed that the trial court had committed procedural error by imposing the
8 No. 82702-2-I/9
supervision fee where it had agreed to waive discretionary fees and it ordered
the fee be stricken from the judgment and sentence. Bowman, 198 Wn.2d at
489-90. Similarly, the court erred by imposing supervision fees here.
We reverse in part and remand for the court to strike the supervision fees
from Kankam’s judgment and sentence.
WE CONCUR: