State Of Washington v. Manuel R Ramirez

• Court: Court of Appeals of Washington
• Decided: July 31, 2017
• Docket: 75149-2
• Status: Unpublished

Opinion

FILED f\PPE.M.5 DIV 1 COURI OF \IA,S1-111-1.Gl.rn.1 STATE OF 11: 39 ltIl 3

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 75149-2-1 Respondent, DIVISION ONE V.

MANUEL RAMIREZ, UNPUBLISHED OPINION

Appellant. FILED: July 31, 2017

SPEARMAN, J. — Manuel Ramirez appeals his judgment and sentence,

contending that the findings of fact do not support his offender score. Finding no

error, we affirm.

FACTS

Ramirez was convicted by a jury of domestic violence felony violation of a

court order. At sentencing, the court found that his offender score was 7. This

finding was supported by an appendix listing four prior convictions. The court

imposed an exceptional sentence lower than the standard range and entered

findings of fact and conclusions of law supporting the exceptional sentence. One

of the findings of fact stated that Ramirez's offender score was 7.

Ramirez challenged his sentence on appeal, arguing that the trial court's

findings of fact did not support the offender score. State v. Ramirez, 190 Wn.

App. 731, 733, 359 P.3d 929(2015). The State agreed that the convictions listed No. 75149-2-1/2

in the appendix did not support the offender score. Id. at 734. The State argued,

however, that by signing the findings of fact and conclusions of law supporting

the exceptional sentence, Ramirez stipulated to the offender score. Id. We

disagreed. Id. We held that the State had failed to meet its burden of proving

Ramirez's criminal history and remanded for resentencing. Id. at 735.

At resentencing, the State submitted as exhibits certified copies of

documents from five prior convictions. Based upon the new exhibits, the court

found that Ramirez's offender score was 7. The court resentenced Ramirez. The

court attached to the judgment and sentence an appendix listing Ramirez's

criminal history. The appendix lists the five convictions documented in the

exhibits and a juvenile offense not supported by documentation.

DISCUSSION

Ramirez appeals his judgment and sentence, contending that the offender

score is not supported by the findings of fact.

The State has the burden to prove prior criminal convictions by a

preponderance of the evidence. Ramirez, 190 Wn. App. at 733 (citing RCW

9.94A.500(1)). To meet this burden, the State must introduce evidence. Id. (citing

State v. Ford, 137 Wn.2d 472,482, 973 P.2d 452(1999))."The best evidence of

a prior conviction is a certified copy of the judgment." Ford, 137 Wn.2d at 479-80.

We review a sentencing court's calculation of an offender score de novo. State v.

Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158(2010). We may affirm on any

basis supported by the record. Bavand v. OneWest Bank, 196 Wn. App. 813,

825, 385 P.3d 233(2016).

2 No. 75149-2-1/3

In calculating an offender score, the sentencing court must(1) identify the

defendant's prior convictions;(2) eliminate those that wash out; and (3) count the

convictions that remain by applying the numerical values assigned by statute.

Moeurn, 170 Wn.2d at 175. Where the current offense is a felony domestic

violence offense, each adult prior felony conviction where domestic violence was

pleaded and proven after August 1, 2011 counts as two points. RCW

9.94A.525(21)(a). Certain misdemeanor offenses count as one point where they

involve an allegation of domestic violence and were pleaded and proven after

August 1, 2011. RCW 9.94A.525(21)(c).

Ramirez asserts that, on resentencing, the trial court repeated its error

and arrived at an offender score that is not supported by the findings of fact. He

relies on the appendix listing his criminal history. The appendix lists convictions

for felony violation of a no contact order in 2007 and 2012, unlawful possession

of a firearm, misdemeanor violation of a no contact order, and two counts of

misdemeanor assault. The appendix also lists one juvenile offense.

Ramirez contends that the trial court erred in counting the 2012 felony

violation of a no contact order as two points without making a finding that the

offense involved domestic violence. But in this case, unlike in Ramirez's first

sentencing hearing, the State produced evidence of the prior conviction. The

judgment and sentence for this offense states that Ramirez was convicted by a

jury of domestic violence felony violation of a court order. The trial court did not

err in counting the offense as two points under RCW 9.94A.525(21)(a).

3 No. 75149-2-1/4

Ramirez also challenges the inclusion of three misdemeanor offenses.

The appendix lists these as domestic violence offenses, but does not list

sentencing dates. Ramirez contends that the trial court failed to find that these

offenses were pleaded and proven after August 1, 2011.

The State's exhibits include the docket and judgment and sentence for

SeaTac Municipal Court cause Y11223062, two counts of assault in the fourth

degree domestic violence. These charges were brought in October 2011 and

Ramirez pleaded guilty as charged in March 2012. Likewise, the exhibits

document SeaTac Municipal Court cause Y13195603, misdemeanor violation of

a no contact order with a domestic violence allegation. This charge was filed in

August 2013. Ramirez pleaded guilty without amendment to the charge. The

exhibits demonstrate that the misdemeanor offenses involved domestic violence

allegations and were pleaded and proven after August 1, 2011. The offenses

count as one point each under RCW 9.94A.525(21)(c). The trial court did not err.

Finally, Ramirez contends that the trial court improperly included the

juvenile offense in calculating his offender score. The State concedes that it was

error to list that offense in the appendix, but asserts that the error was harmless

because the trial court did not count the offense in arriving at an offender score of

7.

We agree with the State. Ramirez does not dispute the 2007 felony

violation of a no contact order or the unlawful possession of a firearm conviction.

These offenses count as one point each. As discussed above, the 2012 felony

violation of a no contact order was a domestic violence offense that counts as

4 No. 75149-2-1/5

two points. The three misdemeanors count as one point each. The sum of the

adult offenses is 7. Although the juvenile offense is listed in the appendix, it does

not contribute to the offender score. In addition, the court stated that it calculated

Ramirez's offender score based on the exhibits documenting his previous

convictions. These exhibits document only Ramirez's adult offenses.

Affirmed.

WE CONCUR: