State Of Washington, V. Jacob Kendall Backman
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Opinion
Filed Washington State Court of Appeals Division Two
October 25, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56411-4-II
Respondent,
v. UNPUBLISHED OPINION
JACOB KENDALL BACKMAN,
Appellant.
MAXA, J. – Jacob Backman appeals the judgment and sentence entered after he
was resentenced for two convictions and also challenges his sentence in a statement of
additional grounds (SAG). Backman argues, and the State concedes, that the judgment
and sentence contains a scrivener’s error because although the trial court did not include a
prior unlawful possession of a controlled substance conviction in Backman’s offender
score, the court failed to strike that conviction from his criminal history. We accept the
State’s concession, but we either decline to consider or reject the assertions in Backman’s
SAG. Accordingly, we affirm Backman’s sentence, but we remand for the trial court to
correct the scrivener’s error in the judgment and sentence.
FACTS
In March 2014, Backman was convicted of second degree assault and witness tampering.
He was sentenced to 96 months using an offender score of 12, which included three prior adult No. 56411-4-II
convictions and one prior 1994 juvenile conviction for unlawful possession of a controlled
substance.
In November 2021, the trial court resentenced Backman after the Supreme Court voided
Washington’s strict liability drug possession statute in State v. Blake, 197 Wn.2d 170, 481 P.3d
521 (2021). The trial court calculated Backman’s new offender score as 9. The court expressly
stated that it was not including the four drug possession convictions in Backman’s criminal
history. The new offender score did not change Backman’s standard range, and the court again
sentenced him to 96 months.
However, the judgment and sentence mistakenly included two of the prior unlawful
possession of a controlled substance convictions in the list of Backman’s prior convictions: the
1994 juvenile conviction and a 1997 adult conviction. The trial court drew a line through the
1997 conviction but failed to draw a line through the 1994 conviction. Backman appeals the
judgment and sentence.
ANALYSIS
A. SCRIVENER’S ERROR
As the State concedes, the trial court’s failure to strike the 1994 unlawful possession of a
controlled substance conviction was an error. The State concedes that the 1994 conviction not
only was void under Blake, but actually was incorrectly labeled a felony rather than a
misdemeanor and could not be included in the offender score.
Because the trial court did not include this conviction in Backman’s offender score, this
was merely a scrivener’s error. Therefore, we remand for the trial court to strike the reference to
the 1994 unlawful possession of a controlled substance conviction from the judgment and
sentence.
2 No. 56411-4-II
B. SAG CLAIMS
Backman makes multiple assertions in a SAG. We decline to consider or reject them all.
1. Challenge to Past Sentences
Backman asserts that the 1994 juvenile unlawful possession of a controlled substance
conviction was incorrectly classified as a felony rather than a misdemeanor in prior judgments
and sentences, which improperly enhanced his prior sentences. But those prior sentences are not
on appeal in this case. Therefore, we decline to consider this claim.
2. Changed Conviction
Backman asserts that the trial court improperly changed his 1994 misdemeanor
possession conviction to a felony conviction of possession with intent to deliver in the criminal
history portion of the judgment and sentence, and that his defense counsel was ineffective for
allowing the change. He claims that correcting this change would result in an offender score of
8. But regardless of how the 1994 conviction was classified in the judgment and sentence, the
trial court did not include that conviction in Backman’s offender score of 9. And we are
remanding to strike that conviction from the judgment and sentence. Therefore, any error is
moot and we decline to consider this claim.
3. Incorrect Offender Score
Backman asserts that his offender score should be reduced by one point (from 9 to 8) by
removing the 1994 juvenile unlawful possession of a controlled substance conviction from his
criminal history. But as stated above, the offender score of 9 did not include his 1994 drug
possession conviction. Therefore, we reject this claim.
3 No. 56411-4-II
4. Wash Out Claim
Backman asserts that all of his convictions before 2005 should have washed out and
should not have been included in his offender score because the judgment and sentence reveals
no convictions between 1995 and 2005. We disagree.
Backman was convicted of class C felonies in 1991 and 1993, and was convicted of a
class B felony in 1995. The judgment and sentence lists Backman’s next felony conviction as
occurring in 2005. RCW 9.94A.525(2)(b)1 states that class B felonies “shall not be included in
the offender score, if since the last date of release from confinement . . . the offender had spent
ten consecutive years in the community without committing any crime.” The period is five years
for a class C felony. RCW 9.94A.525(2)(c).
However, the record is insufficient for us to determine whether the 1991 and 1993
convictions washed out for two reasons. First, the record does not show whether Backman was
convicted of any misdemeanors between 1995 and 2005.2 The term “any crime” in RCW
9.94A.525(2) includes a misdemeanor. State v. Haggard, 195 Wn.2d 544, 549, 461 P.3d 1159
(2020). But any misdemeanor convictions would not have appeared in Backman’s criminal
history because misdemeanors generally are not included in an offender score. See State v.
Larkins, 147 Wn. App. 858, 862-63, 199 P.3d 441 (2008).
1 RCW 9.94A.525 has been amended since the events of this case transpired. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute. 2 The prosecutor represented to the court that Backman was convicted of misdemeanor fourth degree assault in 2002 and another misdemeanor, but those convictions are not in our record.
4 No. 56411-4-II
Second, the record does not show when Backman was released from confinement after
his 1995 conviction. Under RCW 9.94A.525(2)(b) and (c), the washout period starts at the
offender’s “release from confinement.”
Accordingly, we cannot address whether Backman’s 1991 and 1993 convictions washed
out.
5. Arson Conviction
Backman asserts that the second degree arson conviction on his criminal history was
nonviolent, and should only count for one point, because the relevant property was uninhabited.
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