State v. Harris

197 P.3d 1206
Court of Appeals of Washington·Decided December 23, 2008·No. 36725-4-II·Published·Cited by 10 cases

Opinion

197 P.3d 1206 (2008)

STATE of Washington, Respondent,
v.
Steven Lamont HARRIS, Appellant.

No. 36725-4-II.

Court of Appeals of Washington, Division 2.

December 23, 2008.

*1207 Anne Mowry Cruser, Law Office of Anne Cruser, Vancouver, WA, for Appellant.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 Steven Harris appeals the calculation of his offender score following his guilty plea conviction of first degree theft. He argues that the State failed to present certified copies of the judgments and sentences and did not demonstrate why those documents were unavailable and, therefore, the trial court erred when it admitted other evidence to prove his prior convictions. This is a rare situation in which the defendant did not waive objection to his offender score when he pleaded guilty. We hold that this case is moot because Harris has been released into the community, he is not on community custody, and a prior offender score computation does not control a defendant's future sentence for a subsequent crime. Nevertheless, we address the issue on the merits because it is one of substantial public interest, and we *1208 conclude that the State met its burden, albeit belatedly, to prove that the Louisiana documents it submitted were certified judgments and sentences. We affirm.

Facts

¶ 2 The State charged Harris by third amended information with one count of first degree theft. Harris pleaded guilty but challenged the use of several out-of-state prior convictions in calculating his offender score. Among other things, he argued that the State failed to prove the validity of five prior Louisiana convictions because it did not present certified judgment and sentences. The State did not argue that the documents it presented were certified judgment and sentences or that it could not present such evidence. The sentencing court held that the Louisiana documents were not certified but that they were admissible because the rules of evidence are relaxed during sentencing hearings. On August 29, 2007, the sentencing court calculated Harris's offender score as five and sentenced him to 16 months of confinement. It did not impose community custody. Harris concedes that he has been released into the community.

¶ 3 Harris appeals.

ANALYSIS

Mootness

¶ 4 A case is moot if a court can no longer provide effective relief. State v. Ross, 152 Wash.2d 220, 228, 95 P.3d 1225 (2004) (quoting State v. Gentry, 125 Wash.2d 570, 616, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995)). The issue of Harris's offender score calculation is moot because he has been released from confinement, is not on community custody, and is not subject to another miscalculation based on this alleged error if he is convicted of another crime in the future.

¶ 5 There are only two forms of effective relief from an excessive sentence that results from an offender score miscalculation. If a defendant received an excessive sentence and is still confined, we can order resentencing that will result in his timely release from confinement. In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 123 P.3d 456 (2005) (holding that, upon resentencing, the State may not present evidence pertaining to criminal history that it failed to introduce at original sentencing hearing). But Harris is no longer confined. And if an offender is on community custody that should have begun earlier than it did (because he should have been released earlier), upon resentencing the trial court may modify the termination date of his community custody. RCW 9.95.230; see State v. Jorgenson, 48 Wash.App. 205, 208, 737 P.2d 1277 (1987) (holding that trial court has no jurisdiction to modify community custody term after it expires). But Harris was not sentenced to community custody.

¶ 6 Harris argues that this case is not moot because, if he is convicted of another crime, the future sentencing court could use his offender score calculation for the present conviction as proof of his offender score for the subsequent conviction. That is incorrect. A sentencing court is required to calculate the defendant's offender score on "the date of sentencing for the offense for which the offender score is being computed." RCW 9.94A.525(1). When, as here, the defendant enters a guilty plea and objects to his criminal history calculation, the "disputed issues as to criminal history shall be decided at the sentencing hearing." RCW 9.94A.441. If the defendant objects, at sentencing the State must prove prior convictions by the preponderance of evidence with either a certified judgment and sentence or, if none is available, other comparable evidence. State v. Bergstrom, 162 Wash.2d 87, 93, 169 P.3d 816 (2007) (citing Cadwallader, 155 Wash.2d at 876, 123 P.3d 456; State v. Lopez, 147 Wash.2d 515, 519, 55 P.3d 609 (2002)).

¶ 7 Further, a prior judge's criminal history computation is not evidence of a certified judgment and sentence because Washington's sentencing law has been amended approximately 200 times in the 27 years since the legislature enacted the Sentencing Reform Act of 1981(SRA), ch. 9.94A RCW. In re Pers. Restraint of Dalluge, 162 Wash.2d 814, 818 n. 1, 177 P.3d 675 (2008) (noting that the SRA is traditionally amended several times each year); In re Pers. Restraint of LaChapelle, *1209 153 Wash.2d 1, 7, 100 P.3d 805 (2004) (tallying 181 SRA amendments between 1981 and 2004). "Any sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.345. Accordingly, a future sentencing court may not simply rely on a criminal history from a previous judgment but must compute the offender score anew at any future sentencing hearing. If history is any indicator, the SRA is likely to have been amended since Harris's offender score was computed in this case.

¶ 8 We hold that Harris's challenge to the computation of his offender score is moot. Even if improperly computed, we cannot provide effective relief because Harris is not incarcerated or on community custody and because his offender score computation will not affect a hypothetical future sentence. See Ross, 152 Wash.2d at 228,

State v. Harris, 197 P.3d 1206 (Wash. Ct. App. 2008).

197 P.3d 1206 (State v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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