State Of Washington v. Shawn Bird

Opinion

F !L D COL T OF APPEALS DIVISION 11

IN THE COURT OF APPEALS OF THE STATE OF WASHING 2014 JAH 22 AM 9, 19 hA 11 rN, DIVISION II ily STATE OF WASHINGTON, No. 44678 -2 -II

Respondent.

V.

SHAWN VINCENT BALETO BIRD, UNPUBLISHED OPINION

PENOYAR, J. — Shawn Vincent Baleto Bird appeals his sentence for conspiracy to deliver

methamphetamine with an enhancement for commission while in a jail facility and two counts of

unlawful possession of a firearm. The State concedes that the trial court erred when it imposed a

jail zone" sentencing enhancement for his conspiracy conviction. Accepting the State' s

concession, we remand with instructions to strike the sentencing enhancement from Bird' s

judgment and sentence.

The State alleged the conspiracy to deliver methamphetamine was committed in a jail or

correctional facility, which would require an 18 -month sentencing enhancement under RCW 9. 94A.533( 5)( a). This statute lists seven crimes to which the enhancement applies, but not the

crime Bird was convicted of committing.

RCW 9. 94A.533( 5) by its own terms only applies to anticipatory offenses under chapter

9A.28 RCW. Because Bird was convicted under RCW 69. 50. 407, the enhancement was

improperly applied to him. State v. Mendoza, 63 Wn. App. 373, 377 -78, 819 P. 2d 387 ( 1991)

provisions that applied to "` persons convicted of ... conspiracy under chapter 9,4. 28 RCW" did

not apply to a conviction under RCW 69. 50. 408) ( quoting former RCW 9. 94A.410 ( 2000))

emphasis in the original). The enhancement should therefore be stricken. 44678 -2 -II

We remand to the trial court to strike the sentencing enhancement from Bird' s judgment

and sentence.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it

is so ordered.

We concur:

V

Johanson, J.

OF

Maxa, J.