FILED
APRIL 17,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32151-7-111 Respondent, ) ) v. ) ) RANDY MICHAEL ANDERSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -In 2012, a Thurston County jury found Randy Anderson guilty of
one count of felony violation ofa domestic violence no contact order. On appeal, Mr.
Anderson argues that his trial date violated CrR 3.3 and that his offender score is
erroneous. We affirm the conviction, but remand for resentencing.
FACTS
A court order prevented Mr. Anderson from having any contact with his mother.
On March 25, 2012, Mr. Anderson went to his mother's home and requested to speak
with her. His mother's caretaker called the police. Officers arrested Mr. Anderson. He
was charged with one count of felony violation of a post-conviction domestic violence no
contact order. Mr. Anderson was maintained in custody throughout these proceedings. No. 32151-7-111 State v. Anderson
The case initially went to trial on June 7, 2012, but a mistrial was declared the
following day. The parties agreed at that time to a new trial start date during the week of
July 30. On July 9, the State asked for a continuance because the deputy prosecutor had
not realized until recently that the new trial date conflicted with her pre scheduled
vacation. Defense counsel opposed the continuance. The court granted the motion and
rescheduled the trial start date to the week of August 13.
On July 19, the deputy prosecutor sought another continuance because the lead
investigator was not available during the week that trial was scheduled to start. Defense
counsel again opposed the motion. The court granted the motion and reset the trial start
date to the week of September 4.
On July 24, Mr. Anderson filed a pro se motion to exercise his 60 day speedy trial
rights under erR 3.3. On August 14, defense counsel filed a motion to dismiss for
violation of erR 3.3. The court denied the motion, stating that it would not second guess
the earlier continuance rulings and noting that the defense had failed to file a written
objection and motion within 10 days of the original ruling as required by
erR 3.3(d)(3).
Following a second trial that began September 4, the jury found Mr. Anderson
guilty as charged. At sentencing, the prosecutor proved Mr. Anderson's prior criminal
history for offender score purposes through a mix of certified and noncertified
documents. The prosecutor provided certified copies of Mr. Anderson's six prior felony
No. 32151-7-II1 State v. Anderson
convictions from Washington. Those documents showed that five of the prior offenses
had the same offense date and same sentencing date in June 2008. The prosecutor also
provided noncertified copies of several government documents establishing that Mr.
Anderson had been convicted of a felony drug-related offense in California. Based on
this criminal history, the court determined that Mr. Anderson had an offender score of
seven and ordered a standard range sentence. Mr. Anderson appealed.
ANALYSIS
Mr. Anderson raises three issues on appeal. First, he contends that his retrial
occurred outside the limits set by CrR 3.3. Second, he argues that the sentencing court
erred by relying on the noncertified documents to prove his prior California conviction.
Third, he argues that the sentencing court erred by refusing to determine whether his five
felony convictions from June 2008 constituted the same criminal conduct for offender
score purposes. We affirm on the first two issues, but remand for resentencing on the
third issue.'
Time for Trial
Review of Mr. Anderson's first argument is barred by his failure to preserve the
issue for review. A party that objects to a continuance under CrR 3.3(f) "must, within 10
days after the notice is mailed or otherwise given, move that the court set a trial within
1 Mr. Anderson has also filed a pro se statement of addition grounds. We find his three claims without merit and will not discuss them further.
No. 32151-7-III State v. Anderson
those time limits." CrR 3.3(d)(3). "A party who fails, for any reason, to make such a
motion shall lose the right to object that a trial commenced on such a date is not within
the time limits prescribed by this rule." Id.; Accord State v. Farnsworth, 133 Wn. App. 1,
12-13,130 P.3d 389 (2006); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209
(2008), aff'd, 166 Wn.2d 881, 214 P.3d 907 (2009). Because Mr. Anderson failed to
move the court for a trial within the original time limits, he waived any objection to the
new trial date.
The timeliness argument also was without merit. The decision to grant a
continuance is reviewed for abuse of discretion. State v. Selam, 97 Wn. App. 140, 142,
982 P.2d 679 (1999). Attorney or police officer vacations have long been recognized as
valid reasons for continuing a case. Id. at 143 (citing cases). The effect of a continuance
is to extend the time for trial by excluding the period of the continuance from the time to
bring the case to trial. CrR 3.3(e)(3). Thus, under well-settled precedent, the trial court
did not abuse its discretion in granting either continuance.
ProofofPrior Convictions
Mr. Anderson's second argument is that the trial court should not have accepted
noncertified documents from the State in establishing his prior felony conviction in
California. We review this challenge to Mr. Anderson's offender score de novo. State v.
Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
No. 32151-7-111 State v. Anderson
At sentencing, the State bears the burden of establishing the defendant's criminal
history for offender score calculations. State v. Ford, 137 Wn.2d 472.480,973 P.2d 452
(1999). "[U]se of a prior conviction as a basis for sentencing under the SRA is
constitutionally permissible if the State proves the existence ofthe prior conviction by a
preponderance ofthe evidence." Id. at 479-80. "Absent a sufficient record. the
sentencing court is without the necessary evidence to reach a proper decision, and it is
impossible to determine whether the convictions are properly included in the offender
score." Id. at 480-81.
Here, the prosecutor met this burden by providing numerous documents from the
state of California showing that Mr. Anderson had a prior felony drug conviction. Citing
to Ford, Mr. Anderson argues that the State needed to provide certified copies ofthese
documents. Ford did state that a certified copy of a prior judgment is "[t]he best
evidence of a prior conviction." Id. at 480. However, Ford did not state that a certified
copy was mandatory in all cases. To the contrary, Ford also stated that "the State may
introduce other comparable documents of record or transcripts of prior proceedings to
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FILED
APRIL 17,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32151-7-111 Respondent, ) ) v. ) ) RANDY MICHAEL ANDERSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -In 2012, a Thurston County jury found Randy Anderson guilty of
one count of felony violation ofa domestic violence no contact order. On appeal, Mr.
Anderson argues that his trial date violated CrR 3.3 and that his offender score is
erroneous. We affirm the conviction, but remand for resentencing.
FACTS
A court order prevented Mr. Anderson from having any contact with his mother.
On March 25, 2012, Mr. Anderson went to his mother's home and requested to speak
with her. His mother's caretaker called the police. Officers arrested Mr. Anderson. He
was charged with one count of felony violation of a post-conviction domestic violence no
contact order. Mr. Anderson was maintained in custody throughout these proceedings. No. 32151-7-111 State v. Anderson
The case initially went to trial on June 7, 2012, but a mistrial was declared the
following day. The parties agreed at that time to a new trial start date during the week of
July 30. On July 9, the State asked for a continuance because the deputy prosecutor had
not realized until recently that the new trial date conflicted with her pre scheduled
vacation. Defense counsel opposed the continuance. The court granted the motion and
rescheduled the trial start date to the week of August 13.
On July 19, the deputy prosecutor sought another continuance because the lead
investigator was not available during the week that trial was scheduled to start. Defense
counsel again opposed the motion. The court granted the motion and reset the trial start
date to the week of September 4.
On July 24, Mr. Anderson filed a pro se motion to exercise his 60 day speedy trial
rights under erR 3.3. On August 14, defense counsel filed a motion to dismiss for
violation of erR 3.3. The court denied the motion, stating that it would not second guess
the earlier continuance rulings and noting that the defense had failed to file a written
objection and motion within 10 days of the original ruling as required by
erR 3.3(d)(3).
Following a second trial that began September 4, the jury found Mr. Anderson
guilty as charged. At sentencing, the prosecutor proved Mr. Anderson's prior criminal
history for offender score purposes through a mix of certified and noncertified
documents. The prosecutor provided certified copies of Mr. Anderson's six prior felony
No. 32151-7-II1 State v. Anderson
convictions from Washington. Those documents showed that five of the prior offenses
had the same offense date and same sentencing date in June 2008. The prosecutor also
provided noncertified copies of several government documents establishing that Mr.
Anderson had been convicted of a felony drug-related offense in California. Based on
this criminal history, the court determined that Mr. Anderson had an offender score of
seven and ordered a standard range sentence. Mr. Anderson appealed.
ANALYSIS
Mr. Anderson raises three issues on appeal. First, he contends that his retrial
occurred outside the limits set by CrR 3.3. Second, he argues that the sentencing court
erred by relying on the noncertified documents to prove his prior California conviction.
Third, he argues that the sentencing court erred by refusing to determine whether his five
felony convictions from June 2008 constituted the same criminal conduct for offender
score purposes. We affirm on the first two issues, but remand for resentencing on the
third issue.'
Time for Trial
Review of Mr. Anderson's first argument is barred by his failure to preserve the
issue for review. A party that objects to a continuance under CrR 3.3(f) "must, within 10
days after the notice is mailed or otherwise given, move that the court set a trial within
1 Mr. Anderson has also filed a pro se statement of addition grounds. We find his three claims without merit and will not discuss them further.
No. 32151-7-III State v. Anderson
those time limits." CrR 3.3(d)(3). "A party who fails, for any reason, to make such a
motion shall lose the right to object that a trial commenced on such a date is not within
the time limits prescribed by this rule." Id.; Accord State v. Farnsworth, 133 Wn. App. 1,
12-13,130 P.3d 389 (2006); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209
(2008), aff'd, 166 Wn.2d 881, 214 P.3d 907 (2009). Because Mr. Anderson failed to
move the court for a trial within the original time limits, he waived any objection to the
new trial date.
The timeliness argument also was without merit. The decision to grant a
continuance is reviewed for abuse of discretion. State v. Selam, 97 Wn. App. 140, 142,
982 P.2d 679 (1999). Attorney or police officer vacations have long been recognized as
valid reasons for continuing a case. Id. at 143 (citing cases). The effect of a continuance
is to extend the time for trial by excluding the period of the continuance from the time to
bring the case to trial. CrR 3.3(e)(3). Thus, under well-settled precedent, the trial court
did not abuse its discretion in granting either continuance.
ProofofPrior Convictions
Mr. Anderson's second argument is that the trial court should not have accepted
noncertified documents from the State in establishing his prior felony conviction in
California. We review this challenge to Mr. Anderson's offender score de novo. State v.
Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
No. 32151-7-111 State v. Anderson
At sentencing, the State bears the burden of establishing the defendant's criminal
history for offender score calculations. State v. Ford, 137 Wn.2d 472.480,973 P.2d 452
(1999). "[U]se of a prior conviction as a basis for sentencing under the SRA is
constitutionally permissible if the State proves the existence ofthe prior conviction by a
preponderance ofthe evidence." Id. at 479-80. "Absent a sufficient record. the
sentencing court is without the necessary evidence to reach a proper decision, and it is
impossible to determine whether the convictions are properly included in the offender
score." Id. at 480-81.
Here, the prosecutor met this burden by providing numerous documents from the
state of California showing that Mr. Anderson had a prior felony drug conviction. Citing
to Ford, Mr. Anderson argues that the State needed to provide certified copies ofthese
documents. Ford did state that a certified copy of a prior judgment is "[t]he best
evidence of a prior conviction." Id. at 480. However, Ford did not state that a certified
copy was mandatory in all cases. To the contrary, Ford also stated that "the State may
introduce other comparable documents of record or transcripts of prior proceedings to
establish criminal history." Id.
Mr. Anderson contends that the Supreme Court later modified the holding in Ford
to make a certified copy mandatory. The Supreme Court appeared to do so in State v.
Lopez, 147 Wn.2d 515,519,55 P.3d 609 (2002). However, the Supreme Court later
abrogated this part of Lopez. In re Pers. Restraint ofAdolph, 170 Wn.2d 556, 243 P.3d
540 (20 10) (holding that a noncertified driving record abstract, when combined with a
criminal history printout, was sufficient to prove the existence of a prior DUI conviction).
In Adolph, the Supreme Court explicitly held that "the Lopez language ... is, in fact, the
product ofa misapplication of the so-called best evidence rule." ld. at 567. The Supreme
Court then went on to hold that Ford remains the rule with regard to proving a prior
conviction at sentencing. ld. at 568-69. Because the official documents submitted by the
State carried the necessary minimum indicia of reliability when put together, we conclude
that the State carried its burden of proving Mr. Anderson's prior conviction from
California.
Scoring ofPrior Convictions
Mr. Anderson's third argument is that the sentencing court erred when it refused to
determine whether his June 2008 convictions constituted same criminal conduct for
offender score purposes. RCW 9.94A.525(5)(a)(i) requires sentencing courts to
determine whether the defendant's prior concurrent sentences should be treated as the
same criminal conduct when calculating his current offender score. The court did not do
so despite the defense request. Accordingly, we must vacate the judgment and sentence
and remand for resentencing.
Mr. Anderson also argues that upon remand, the State should be held to the record
as it existed below and not have the opportunity to provide evidence that his prior
convictions should not be counted as the same criminal conduct. We disagree. The State
only bears the burden of establishing the existence of the prior convictions. The
defendant bears the burden of proving that prior crimes should be counted as the same
criminal conduct. State v. Graciano, 176 Wn.2d 531, 539,295 P.3d 219 (2013). Thus,
on remand Mr. Anderson has the burden of establishing that the five offenses constituted
the same criminal conduct.
Affirmed in part, reversed in part, and remanded for resentencing.
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.
WE CONCUR: