FILED APRIL 27, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34038-4-111 Respondent, ) ) v. ) ) MAXWELL DEL VON JONES, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. - Maxwell Jones appeals his sentence following a bench trial at
which he was convicted of first degree robbery, arguing the State failed to show that
convictions included in his offender score had not washed out or did not constitute the
same criminal conduct. He makes a related argument that his trial lawyer provided
ineffective assistance when he failed to challenge the offender score used by the court.
As Mr. Jones fails to demonstrate that a sentencing error actually occurred, or that he was
prejudiced by his lawyer's failure to object, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The State charged Maxwell Jones with one count of first degree robbery and one
count of second degree assault on April 5, 2013. Following a bench trial, the trial court No. 34038-4-III State v. Jones
convicted Mr. Jones of first degree robbery, but acquitted him on the assault charge.
At sentencing, the State presented a document entitled "Understanding of
Defendant's Criminal History," which contained the following information:
Crime Date of Crime Adult Place of Conviction Sent. ----···-·· .... ---------·-·············Crillle ____ Type ______ or_.Juv______ · · · · · · · · ·······--------··- .____________ ;Q_~!~----------- FELON POSS 080612 A US DISTRICT OF 111814 FIREARM EASTERN WASHINGTON ·--·-·· .. - --·------·····-····-···-······---------- ·------- ·-·---·-··-------··-·--·····-- ·--··························· . - ·-·········
FELON POSS 042012 A US DISTRICT OF 111814 FIREARM EASTERN WASHINGTON ---·--·-------·--- ···----·---·--·-----·--·--·--- ----------- -- --····-·-·-··--··-··--·-----·--- ···············-·-·-----·--·--··---·-··--··----·-···-··--··--·-- ----· ·--------·····-···· ·-·
FELON POSS 102811 A US DISTRICT OF 111814 FIREARM EASTERN WASHINGTON ·----------···--------------···----------·-·-----·--··-··-----··----·--·-··--------------·--·-·····-·-·-------·-·-···-·------·--------·--------····---·--··-- PCS CONSP 122511 DRUG A - - - · - - - - ---------·-····-----·---- -·-·-- ·---··---··------~-·- SPOKANE WA 062712 POSS WEAPON 021005 A US DISTRICT OF 032106 EASTERN WASHINGTON - - ---·-·-·------ --··- ·-·---------··--···------·--·-···---·······--· --- -·--··----···-·-···--·····-
PSP 2 090303 NV SPOKANE WA 121703 DCS CONSP 011703 DRUG - ----·-------··-····-··-··-· -- A SPOKANE -····----------· WA 112603 DCS CONSP 011703 DRUG A SPOKANE WA 112603 R0BBERY2 030403 V A SPOKANE WA 112403 ASSAULT 2 ATT 062601 V A SPOKANE WA 112403
Clerk's Papers (CP) at 47-48.
Mr. Jones's counsel signed this document, but noted above his signature that Mr.
Jones refused to sign it because he believed the conspiracy to possess a controlled
substance conviction from June 27, 2012, was a misdemeanor rather than a felony. The
trial court located the guilty plea for that crime and concluded it was a felony. Defense
counsel raised no other challenges to the statement of criminal history.
2 No. 34038-4-111 State v. Jones
Based on the statement of criminal history, the State calculated Mr. Jones's
offender score at a 9+ (12 to be exact). The court then asked: "Are you disputing that
he's a 9-plus?" Report of Proceedings (RP) at 204. Defense counsel responded: "No,
Your Honor." Id. The trial court found the standard range for first degree robbery based
on an offender score of 9+ was 129 to 171 months, and sentenced him to 171 months.
Mr. Jones appeals.
ANALYSIS
Mr. Jones makes two assignments of error on appeal: (1) his offender score was
miscalculated, and (2) he received ineffective assistance of counsel at sentencing.
1. Offender score
A defendant's offender score, together with the seriousness level of his current
offense, dictates the standard sentence range used in determining his sentence. RCW
9.94A.530(1). To calculate the offender score, the court relies on its determination of the
defendant's criminal history, which the Sentencing Reform Act of 1981 (SRA), chapter
9.94A RCW, defines as "the list of a defendant's prior convictions and juvenile
adjudications, whether in this state, in federal court, or elsewhere." RCW 9.94A.030(1 l).
Prior convictions result in offender score "points" as outlined in RCW 9.94A.525. They
will not result in additional points in the offender score if they have "washed out" due to
time spent in the community without committing further crimes. Prior convictions for
class B felonies are not included in the offender score
3 No. 34038-4-111 State v. Jones
if since the last date of release from confinement ... pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.
RCW 9.94A.525(2)(b). The same terms apply to class C felonies, though they wash out
in five years. RCW 9.94A.525(2)(c). We review offender score calculations de novo.
State v. Moeurn, 170 Wn.2d 169, 172,240 P.3d 1158 (2010).
"In determining the proper offender score, the court 'may rely on no more
information than is admitted by the plea agreement, or admitted, acknowledged, or
proved in a trial or at the time of sentencing.'" State v. Hunley, 175 Wn.2d 901, 909, 287
P.3d 584 (2012) (quoting RCW 9.94A.530(2)). "[T]he State bears the burden to prove
the existence of prior convictions by a preponderance of the evidence." State v.
Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). "This reflects fundamental
principles of due process, which require that a sentencing court base its decision on
information bearing '" some minimal indicium of reliability beyond mere allegation."'"
Id. at 920 (quoting State v. Ford, 137 Wn.2d 472,481,973 P.2d 452 (1999)).
The need for the State to produce evidence may be obviated where there is "an
affirmative acknowledgment by the defendant offacts and information introduced for the
purposes of sentencing." Mendoza, 165 Wn.2d at 928. "The mere failure to object to a
prosecutor's assertions of criminal history does not constitute such an acknowledgment."
Id. "Nor is a defendant deemed to have affirmatively acknowledged the prosecutor's
4 No. 34038-4-111 State v. Jones
asserted criminal history based on his agreement with the ultimate sentencing
recommendation." Id.
"Our Supreme Court has held, as a limit on what can be effectively acknowledged
by a defendant, that 'a defendant cannot agree to punishment in excess of that which the
Legislature has established."' State v. Zamudio, 192 Wn. App. 503,508,368 P.3d 222
(2016) (quoting In re Pers. Restraint a/Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618
(2002)). "It has also recognized this type of sentencing error as a non-rule-based
exception to RAP 2.5(a), which provides, generally, that errors cannot be raised for the
first time on appeal." Id. at 508.
But there are limitations on the Supreme Court's holding that a defendant cannot
agree to a sentence in excess of statutory authority. While a defendant cannot waive
legal errors that lead to an excessive sentence, "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." Goodwin, 146 Wn.2d at 874. The application of the
waiver analysis outlined in Goodwin depends on the defendant's ability to show that a
sentencing error was actually made, and not merely that one might have been made.
State v. Ross, 152 Wn.2d 220,231, 95 P.3d 1225 (2004) (holding that "[t]o invoke the
waiver analysis set forth in Goodwin, a defendant must first show on appeal ... that an
error of fact or law exists within the four comers of his judgment and sentence");
Mendoza, 165 Wn.2d at 927-28 (requiring the defendant to show an obvious error of fact
5 No. 34038-4-111 State v. Jones
or law within the four comers of the sentence); cf State v. Wilson, 170 Wn.2d 682, 690
n.4, 244 P .3d 950 (2010) (indicating that the defendant is required to establish that an
error in fact occurred, regardless of whether that error is apparent from the face of the
judgment and sentence).
Mr. Jones made a very limited objection at sentencing. He argued his conviction
for conspiracy to possess a controlled substance from June 27, 2012, was a misdemeanor
rather than a felony. But even after the trial court obtained the plea document for that
crime, Mr. Jones appears to have refused to sign the State's summary of his criminal
history. The issues of class C felonies washing out or of certain convictions constituting
the same criminal conduct were not raised. Whether two convictions constitute the same
criminal conduct involves "factual determinations and the exercise of discretion" and
may not be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 523,
997 P.2d 1000 (2000). We, therefore, decline to review Mr. Jones's challenge on that
issue. However, whether certain felony convictions have washed out involves legal error,
which Mr. Jones may raise if he shows that a sentencing error actually occurred. See
Ross, 152 Wn.2d at 231. This requires an analysis of each prior conviction.
a. Three Convictions for Felon in Possession of a Firearm-3 Points
Mr. Jones was convicted of committing three counts of felon in possession of a
firearm on October 28, 2011, April 20, 2012, and August 6, 2012, respectively. He was
sentenced for all three convictions on November 18, 2014. The record does not contain
6 No. 34038-4-III State v. Jones
the statute under which Mr. Jones was convicted of those crimes, but presumably it was
18 U.S.C. § 922. Under 18 U.S.C. § 922(g), it is "unlawful for any person who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year ... to ... possess in or affecting commerce, any firearm or ammunition." "Whoever
knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this
title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2).
"Federal convictions for offenses shall be classified according to the comparable
offense definitions and sentences provided by Washington law." RCW 9.94A.525(3).
Under RCW 9.41.040(1)(b), unlawful possession of a firearm in the first degree is a class
B felony, punishable by imprisonment of more than 8 years but less than 20 years. RCW
9A.20.040(2). Mr. Jones does not appear to argue that his 3 convictions for felon in
possession of a firearm washed out or constituted the same criminal conduct.
Accordingly, as Mr. Jones's present conviction was for first degree robbery-a class A
felony that constitutes a violent offense--and these appear to be nonviolent adult felony
convictions, each adds one point to Mr. Jones's offender score. RCW 9A.56.200(2);
RCW 9.94A.030(55)(a)(i); RCW 9.94A.525(8).
b. Conspiracy to Commit Possession of a Controlled Substance-I Point
Mr. Jones's crime of conspiracy to possess a controlled substance was committed
on December 25, 2011. He was sentenced on June 27, 2012. Possession of a controlled
substance is a class C felony punishable by up to five years' imprisonment. RCW
7 No. 34038-4-111 State v. Jones
69.50.4013(2); RCW 9A.20.020(1)(c). Where a defendant is charged with conspiracy
under the Uniform Controlled Substances Act, chapter 69.50 RCW-rather than under
Title 9A RCW, a statute that deals with conspiracy in general-then RCW 9A.28.010,
which relates to prosecutions of felonies defined outside of Title 9A RCW, applies.
RCW 9A.28.010 states:
In any prosecution under this title for ... conspiracy to commit a felony defined by a statute of this state which is not in this title, unless otherwise provided:
(3) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is less than eight years, such felony shall be treated as a class C felony for purposes of this title.
Under the SRA, the maximum penalty for a drug conspiracy is set by the maximum
penalty for the offense that is the object of the conspiracy. RCW 69.50.407. As noted,
the maximum penalty for possession of a controlled substance is five years. The same
maximum penalty therefore applies to the analogous conspiracy conviction. Because this
penalty is more than one year but less than eight, Mr. Jones's conviction for conspiracy to
possess a controlled substance is a class C felony.
As earlier discussed, class C felonies wash out in five years. RCW
9.94A.525(2)(c). It is unclear when Mr. Jones was released from confinement on this
offense, but he was sentenced on June 27, 2012. His sentencing for the three federal
8 No. 34038-4-111 State v. Jones
felon in possession of a firearm convictions occurred on November 18, 2014, resetting
the five-year clock. Presuming that he served no time and was released from
incarceration on November 18, 2014, the washout period would end November 18, 2019.
This conviction, therefore, has not washed out and was properly included as one point in
the offender score. See RCW 9.94A.525(8).
c. Possession of a Dangerous Weapon-I Point
Mr. Jones committed the crime of possession of a dangerous weapon on February
10, 2005, and was sentenced on March 21, 2006. The nature of this crime is unclear. It
might have been a conviction for possession of a firearm after being convicted of a felony
under 18 U.S.C. § 922(g).
However, as Mr. Jones testified to being in prison from 2003 to 2008, it is more
likely the crime committed was under 18 U.S.C. § 1791, which relates to convictions for
possession, while in prison, of an object intended to be used as a weapon. 18 U.S.C. §
179I(a), (d)(l)(B). An offense under this statute is comparable to an offense under RCW
9.94.040 for possessing any weapon while in a state correctional institution, which is a
class B felony, or while in a county or local correctional institution, which is a class C
felony.
If this was a class B felony, the washout period is 10 years. RCW 9.94A.525(2)(b).
Accepting Mr. Jones's testimony that he was released in 2008, the washout period would
not end until 2018. And as Mr. Jones was sentenced for other felonies in 2012 and 2014,
9 No. 34038-4-111 State v. Jones
the washout period reset, and would not have ended until 2024. Thus, if the offense was a
class B felony, it did not wash out. And as it does not appear to be a violent offense, it
adds one point to Mr. Jones's offender score. RCW 9.94A.525(8); RCW 9.94A.030(55).
If this was, instead, a class C felony, the washout period would be five years.
Again accepting Mr. Jones's testimony that he was released in 2008, the washout period
would not end until 2013. But he was convicted of a felony in 2012, which reset the
clock to 2017. His subsequent felonies in 2014 again reset the clock to 2019. Thus,
under any scenario, this crime did not wash out, and counts as one point in Mr. Jones's
offender score.
d. Second Degree Possession of Stolen Property-I Point
Mr. Jones committed. the crime of second degree possession of stolen property on
September 3, 2003, and was sentenced on December 17, 2003. Second degree possession
of stolen property is a class C felony. RCW 9A.56.160(2). The washout period is
therefore five years. Assuming Mr. Jones served no time on this crime, the conviction
would have washed out on December 17, 2008. However, Mr. Jones was convicted and
sentenced for the felony possession of a weapon on March 21, 2006, and his testimony
10 No. 34038-4-III State v. Jones
indicates he was incarcerated until 2008, which extended the washout period to 2013.
But he was convicted and sentenced for conspiracy to possess a controlled substance in
2012, again extending the washout period to 201 7. At sentencing this crime had not
washed out, and as a nonviolent felony offense, it added one point to Mr. Jones's
e. Two Convictions for Conspiracy to Deliver a Controlled Substance-2 Points
Mr. Jones was convicted and sentenced for two counts of conspiracy to deliver a
controlled substance on November 26, 2003. Mr. Jones testified that the charges were for
possession ofmethamphetamine and ecstasy.
Delivery of methamphetamine is a class B felony with a maximum sentence of 10
years of incarceration. RCW 69.50.401(2)(b). As previously stated, where a conspiracy
is charged under the Uniform Controlled Substances Act, RCW 9A.28.010 applies.
Under that statute, if the maximum sentence for the offense that is the object of the
conspiracy is 8 years or more but less than 20 years, it is a class B felony, and the
washout period is 10 years. RCW 9A.28.010(2); RCW 9.94A.525(2)(b). Again, Mr.
Jones testified to being in prison until 2008, meaning the conviction would not wash out
until 2018. As such, this conviction was properly included as one point in Mr. Jones' s
offender score. See RCW 9.94A.525(8).
Ecstasy (methylenedioxymethamphetamine) is a Schedule I controlled substance,
delivery of which is a class C felony with a maximum penalty of five years of
11 No. 34038-4-III State v. Jones
incarceration. RCW 69.50.401(2)(c); RCW 69.50.204(c)(l 1); RCW 9A.20.021(1)(c).
As the sentence is less than eight years, the conspiracy to deliver ecstasy is a class C
felony, for which the washout period is five years. RCW 9A.28.010(3); RCW
9.94A.525(2)(c). If Mr. Jones was released from incarceration in 2008, this felony would
not wash out until 2013. But Mr. Jones was convicted and sentenced for conspiracy to
possess a controlled substance in 2012, which reset the clock to 201 7. Thus, this felony
was also properly included as one point in Mr. Jones's offender score. See RCW
9.94A.525(8).
f. Second Degree Robbery-2 Points
Mr. Jones committed second degree robbery on March 4, 2003, and was sentenced
on November 24, 2003. Second degree robbery is a class B felony, with a washout
period of 10 years. RCW 9A.56.210(2); RCW 9.94A.525(2)(b). As Mr. Jones was not
released from prison until 2008, the conviction will not wash out until 2018. Because
second degree robbery is classified as a violent offense, it counts as two points in Mr.
Jones's offender score. RCW 9.94A.030(55)(xi); RCW 9.94A.525(8).
g. Attempted Second Degree Assault-2 Points
Mr. Jones committed second degree attempted assault on June 26, 2001, and was
sentenced on that charge on November 24, 2003. Second degree assault is a class B
felony, with a maximum sentence of 10 years. RCW 9A.36.021(2)(a); RCW
12 No. 34038-4-111 State v. Jones
9A.20.02l(l)(b). However, because an attempt to commit a class B felony is categorized
as a class C felony, the washout period is 5 years. RCW 9A.28.020(3)(c); RCW
9.94A.525(2)(c). As previously discussed, because Mr. Jones was not released from
prison until 2008, this conviction would not wash out until 2013. Mr. Jones's 2012
conviction for conspiracy to possess a controlled substance reset the washout clock to
2017. This conviction had not washed out at the time of sentencing.
Second degree assault is a violent offense. RCW 9.94A.030(55)(viii). Under
RCW 9.. 94A.525(4), felony anticipatory offenses (such as attempt) must be scored "the
same as if they were convictions for completed offenses." Because prior violent offenses
count as two points when the current offense is a violent offense, this conviction for
attempt adds two points to the offender score. See RCW 9.94A.525(8).
The above analysis shows that Mr. Jones's offender score is 12. Mr. Jones has
therefore failed to show that an error was actually made and he may not raise this issue
for the first time on appeal.
2. Ineffective assistance of counsel
Mr. Jones argues he received ineffective assistance of counsel when his attorney
failed to assert that the two convictions for conspiracy to deliver a controlled substance
constituted the same criminal conduct for the purposes of sentencing, and that four of the
class C felonies had washed out.
13 No. 34038-4-III State v. Jones
"In order to prove ineffective assistance of counsel, a defendant must show that
the attorney's performance was deficient and that prejudice resulted." State v. Levy, 156
Wn.2d 709, 729, 132 P.3d 1076 (2006). A failure to demonstrate either deficient
performance or prejudice defeats an ineffective assistance claim. State v. McFarland,
127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); see also Strickland v. Washington, 466
U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A claim of ineffective
assistance of counsel presents a mixed question of fact and law reviewed de novo." State
v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
As detailed above, the record does not show that any of Mr. Jones's prior
convictions had washed out. Because Mr. Jones "points to no apparent invalidity on the
face of the judgment and sentence and falls short in his attempt to assert an incorrect
offender score," he has not shown that counsel was ineffective. State v. Foster, 140 Wn.
App. 266, 277, 166 P.3d 726 (2007).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In a prose statement of additional grounds for review (SAG), Mr. Jones raises
two.
SAG 1: Unconstitutional prior convictions. Mr. Jones argues that the Ninth
Circuit found four of his prior state criminal convictions unconstitutional, and that the
trial court in the instant matter improperly included those unconstitutional convictions in
his offender score. This issue involves factual allegations outside the record of this
14 No. 34038-4-111 State v. Jones
appeal. Mr. Jones's remedy is to seek relief by personal restraint petition. See State v.
Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
SAG 2: First degree robbery with a deadly weapon. Mr. Jones contends the trial
court improperly found he committed first degree robbery with a deadly weapon when
the "deadly weapon" was actually a cigarette lighter in the shape of a gun. He asserts that
the proper charge would have been second degree robbery.
Under RCW 9A.56.200, "[a] person is guilty of robbery in the first degree if ...
[i]n the commission of a robbery ... he ... [d]isplays what appears to be a firearm or
other deadly weapon." RCW 9A.56.200(l)(a)(ii). Whether an instrument appears to be a
firearm or deadly weapon is based on the victim 's perspective, regardless of "whether the
weapon is actually loaded and operable or not, [or] whether the weapon is real or toy."
State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983); see also State v. Webb,
162 Wn. App. 195,205,252 P.3d 424 (2011). Blane Peterson, the victim, testified that
Mr. Jones put a small silver gun to his ribs. Testimony from a detective also shows that
the cigarette lighter is three to four inches from the hammer to the front of the gun and
initially appears to be a firearm, which supports Mr. Peterson's belief that it was a gun.
The record contains sufficient evidence for a finding that Mr. Jones displayed what
appeared to be a firearm as required by RCW 9A.56.200. There was no error.
15 No. 34038-4-111 State v. Jones
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
d?~tt)i:J''o=. Siddoway, J.
WE CONCUR:
Pennell, J.