State v. Keller

19 P.3d 1030, 143 Wash. 2d 267, 2001 Wash. LEXIS 255
Washington Supreme Court·Decided March 22, 2001·No. No. 68993-8·Published·Cited by 192 cases

Opinions

Smith, J.

Petitioner Lawrence John Keller seeks review of a decision of the Court of Appeals, Division One, which affirmed his conviction in the King County Superior Court for vehicular assault under former RCW 46.61.522(1)(b) and felony hit and run under RCW 46.52.020.1 Petitioner was determined to be a persistent offender with three “strikes,” thus subjecting him to the penalty of life imprisonment under the Persistent Offender Accountability Act (Persistent Offender Act).2 The Court of Appeals concluded the phrase “included in the offender score under [former] RCW 9.94A.360” in former RCW 9.94A.030(25)(b) refers specifically to the “washout” provision in former RCW 9.94A.360(2), and thus Petitioner’s two prior felony convictions would be included as “strikes” under the Persistent Offender Act. This court granted review limited to the persistent offender issue. We affirm.

QUESTION PRESENTED

The question presented in this case is whether two prior felony convictions which count as one offense in the calculation of an offender score because the sentences were served concurrently may nevertheless be counted as two prior convictions in determining “strikes” under the Persistent Offender Act.

[271] STATEMENT OF FACTS

Petitioner Lawrence John Keller on December 21, 1994 was charged by information in the King County Superior Court with one count of vehicular assault under former RCW 46.61.522(1)(b) and on May 16, 1996 by amended information with one count of vehicular assault under former RCW 46.61.522(1)(b), a class C felony; one count of felony hit and run under RCW 46.52.020(4), a class C felony; and one count of assault in the second degree under former RCW 9A.36.020(1)(f), repealed by Laws of 1986, ch. 257, § 9, a class B felony. The charges arose out of an automobile collision in Seattle, Washington, on October 16, 1994.3

On August 5, 1995 Petitioner was found “guilty” of hit and run-felony and assault in the second degree.4 On August 6, 1995 a mistrial was declared because of prosecutorial misconduct and a new trial was ordered.5 In the retrial, the jury on January 8, 1996 found Petitioner Keller “guilty” of vehicular assault under former RCW 46.61.522(1)(b) and felony hit and run under RCW 46.52.020.6

At the sentencing hearing on February 18, 1997, the trial court, the Honorable Joan E. DuBuque, concluded it was established by the State that Petitioner “had two prior convictions, and that they . . . qualify under the Persistent Offender Act.”7 The court then indicated its intention to impose sentence as follows:

[272] In Count I, in accordance with the law, the Court is going to impose the sentence of life imprisonment, without the possibility of parole, or early release. . . . [and Petitioner] is to be given credit for time served of three hundred seventy days.[8]

Petitioner was previously convicted of second degree assault in Washington in 1979 and convicted of aggravated assault in Arizona in 1983. He served his sentences in those cases concurrently.9 The trial court counted Petitioner’s two prior convictions as “two strikes”10 and this vehicular assault conviction as a “third strike” under the Persistent Offender Act. The court on February 18, 1997 signed a judgment and sentence finding that petitioner was a persistent offender and sentencing him to life in prison without early release.11 Petitioner appealed the decision to the Court of Appeals, Division One, on February 21, 1997.12

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State v. Keller, 19 P.3d 1030, 143 Wash. 2d 267, 2001 Wash. LEXIS 255 (Wash. 2001).

19 P.3d 1030 (State v. Keller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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