State v. King

253 P.3d 120
Court of Appeals of Washington·Decided June 14, 2011·No. 28905-2-III·Published·Cited by 10 cases

Opinion

253 P.3d 120 (2011)

STATE of Washington, Respondent,
v.
Jon Jason KING, Appellant.

No. 28905-2-III.

Court of Appeals of Washington, Division 3.

June 14, 2011.

*121 Kenneth H. Kato, Attorney at Law, Spokane, WA, for Appellant.

Andrew Kelvin Miller, Julie Elizabeth Long, Benton County Prosecutor's Office, Kennewick, WA, for Respondent.

KORSMO, J.

¶ 1 Jon King challenges the validity of his guilty plea, contending that the offender score was wrongly calculated. We agree that probation or supervision on an out-of-state criminal conviction does not count in a Washington offender score calculation. Thus, Mr. King's offender score was incorrect on one of his two convictions. Constrained by precedent, we reverse both.

FACTS

¶ 2 This case began with an automobile accident in Kennewick. An eyewitness saw Mr. King in the driver's seat and a woman, later identified as Laticia Wilks, in the passenger seat. Mr. King asked the witness to say that he was not driving. When the witness declined, Mr. King dragged Ms. Wilks, who had suffered multiple fractures in her legs, from the passenger's seat to the driver's seat.

¶ 3 Mr. King told officers that a man named "Hector" was the driver. Mr. King admitted to having seven alcohol beverages to drink, but denied that he was the driver. Police arrested Mr. King and discovered the car keys in his pocket.

¶ 4 Charges of vehicular assault and two counts of witness tampering ultimately were filed by amended information in the Benton County Superior Court. The latter charges arose from Mr. King's repeated efforts to induce Ms. Wilks to back his story. The parties ultimately reached a plea agreement and a second amended information was filed. The plea agreement indicated that the prosecutor would amend the existing vehicular assault charge from driving while under the influence to disregard for the safety of others.[1] The amendment also eliminated two aggravating factors on that charge and removed one count of witness tampering. The agreement recognized offender scores of 10 and 9, with identical ranges of 51-68 months on each count. The plea agreement called for the parties to recommend concurrent 55 month sentences on each count.

*122 ¶ 5 The court accepted Mr. King's guilty pleas to both counts and also imposed the requested concurrent 55 month sentences. The judgment and sentence recognized 10 prior convictions: (1) a 2002 DUI, (2) 2005 Second Degree Theft, (3) 2005 Second Degree Burglary, (4) 2004 Bail Jumping, (5) 1998 Residential Burglary, (6) 1997 Second Degree Theft, (7) 1993 Residential Burglary, (8) 1993 First Degree Burglary, (9) 1991 Residential Burglary, and (10) 2005 First Degree Burglary. The last conviction was an Oregon offense, while the three 1991-1993 era burglaries were juvenile offenses. The court also found that the current offenses had been committed while the defendant was on post-prison supervision for the Oregon burglary conviction.[2] Based on this history, the trial court concluded that the offender scores were 10 for vehicular assault and 9 for witness tampering.

¶ 6 Mr. King shortly thereafter began efforts to withdraw his guilty plea. He argued that the prosecutor had committed misconduct, there was no factual basis for the plea, and that his offender score was incorrectly calculated. The trial court denied the motion. Mr. King then timely appealed to this court.

ANALYSIS

¶ 7 Mr. King's appeal reprises the same three challenges presented to the trial court. We conclude that two of them are without merit, but we will not discuss those contentions because we agree with his claim that the offender score was wrongly calculated, requiring withdrawal of his guilty pleas.

Offender Score Calculation

¶ 8 The existence of the 10 prior convictions is not in dispute. Mr. King agrees that he has the 10 prior convictions; he challenges how those offenses apply to his case and whether he was on community placement at the time of the current crimes. The trial court correctly scored the defendant's convictions, but erred by including the Oregon community supervision in the offender score.

¶ 9 The standard sentencing range under Washington's Sentencing Reform Act (SRA) is a function of the seriousness level of the offense and the offender score. RCW 9.94A.525. The seriousness level is assigned by the Legislature. Both witness tampering and vehicular assault by disregard for the safety of others are Level III offenses.[3] RCW 9.94A.515.

¶ 10 The offender score is calculated by counting the prior and current felony convictions in accordance with the rules for each offense. RCW 9.94A.525. Current felony offenses are treated as if they were prior offenses when scoring the other crimes being sentenced. RCW 9.94A.525(1); RCW 9.94A.589(1)(a). Both convictions in this case are considered nonviolent crimes. RCW 9.94A.030(32), (53). Vehicular assault is scored pursuant to the commands of RCW 9.94A.525(11). As relevant here, that provision requires prior adult felonies to count as one point, prior juvenile felonies as one-half point each, and prior adult convictions for driving while under the influence (DUI) to count as one point. Witness tampering is scored in accordance with directives of RCW 9.94A.525(7). Each prior adult felony offense counts as one point, and prior juvenile felony offenses count one-half point each. Misdemeanor offenses do not count in the offender score. Id. Offender scores are rounded down to the nearest whole number. RCW 9.94A.525.

¶ 11 Application of these rules in this case is straightforward. Each of the six prior adult felonies counts as one point and total six points for each offense. The three prior juvenile felony adjudications score as one-half point in each case, adding another 1.5 points to the tally. Each current offense adds one point to the scoring of the other *123 crime.[4] RCW 9.94A.589(1)(a). Thus, these other offenses total 8.5 points for each crime.

¶ 12 The 2002 DUI conviction also adds another point to the vehicular assault score, raising that total to 9.5. RCW 9.94A.525(11). After rounding down to the whole number, Mr. King's offender scores are 9 and 8 respectively. The trial court reached scores of 10 and 9 by including the Oregon post-prison supervision to the tally.

¶ 13 RCW 9.94A.525

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State v. King, 253 P.3d 120 (Wash. Ct. App. 2011).

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