State v. Knight

138 P.3d 1114
Court of Appeals of Washington·Decided July 18, 2006·No. 23698-6-III·Published·Cited by 7 cases

Opinion

138 P.3d 1114 (2006)

STATE of Washington, Respondent,
v.
Alyssa C. KNIGHT, Appellant.

No. 23698-6-III.

Court of Appeals of Washington, Division 3.

July 18, 2006.

*1115 Eric Broman, Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 Alyssa Knight pleaded guilty to second degree murder (RCW 9A.32.050), conspiracy to commit first degree burglary (RCW 9A.52.020, 9A.28.040), and conspiracy to commit second degree robbery (RCW 9A.56.210, 9A.28.040). At sentencing, the court applied the violent offense doubling provision of the Sentencing Reform Act of 1981(SRA) (RCW 9.94A.525(8)) to count the conviction for conspiracy to commit second degree robbery as two points on the offender score.

¶ 2 On appeal, Ms. Knight contends conspiracy to commit second degree robbery is not a violent offense pursuant to the SRA's definitional statute, RCW 9.94A.030(45). She argues that the definitional statute controls, although the doubling provision provides that felony anticipatory offenses such as criminal conspiracies must be scored the same as completed offenses. RCW 9.94A.525(4). We disagree. However, we conclude that the record supports only one conspiracy conviction. Accordingly, we reverse the conviction for conspiracy to commit first degree burglary and remand for resentencing.

FACTS

¶ 3 Early in the morning on September 26, 2003, police responded to a reported shooting on Division Street in Spokane. Officers found Arren Cole dead from a gunshot wound to his lower back. Evidence led the police to Ms. Knight. Eventually she confessed that Mr. Cole was shot during a robbery planned by Ms. Knight and two men. According to the plan, Ms. Knight struck up a friendship with Mr. Cole, had sex with him at his hotel, and then lured him into an alley, where he was robbed and shot by Ms. Knight's confederates.

*1116 ¶ 4 Ms. Knight pleaded guilty to conspiracy to commit second degree burglary, conspiracy to commit first degree burglary, and second degree murder while armed with a firearm. She had no prior felonies in her criminal history.

¶ 5 At sentencing, the court used an offender score of four to compute Ms. Knight's standard sentence range. Each conspiracy conviction was treated as a serious violent offense and as another current offense pursuant to RCW 9.94A.525(1), (4), and (8). Consequently each conspiracy conviction counted two points. RCW 9.94A.525(4), (8). The resulting standard range for the second degree murder conviction with a 60-month firearm enhancement was 225 to 325 months. The court imposed 285 months of incarceration.[1]

OFFENDER SCORE

¶ 6 Ms. Knight first contends the trial court erred in computing her offender score. She argues that conspiracy to commit second degree robbery is not specifically included in the definition of a violent offense and therefore is not subject to the SRA's doubling provision. Although this issue was not raised at sentencing, a challenge to the offender score may be raised for the first time on appeal. State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999). We review the calculation of an offender score de novo. State v. Tili, 148 Wash.2d 350, 358, 60 P.3d 1192 (2003).

¶ 7 The SRA doubling provision, RCW 9.94A.525(8), provides that if the present conviction is for a violent offense not covered elsewhere in the statute, each prior adult and juvenile violent felony conviction counts as two points. Convictions entered or sentenced on the same date as the current offense are counted the same as prior offenses. RCW 9.94A.525(1), .589(1)(a). "Violent offense" is defined in the general definitional statute as "[a]ny of the following felonies," including "[c]riminal solicitation of or criminal conspiracy to commit a class A felony," and robbery in the second degree. RCW 9.94A.030(45).

¶ 8 Robbery in the second degree is a class B felony. RCW 9A.56.210(2). Accordingly, conspiracy to commit second degree robbery is not a violent offense under the definitional provision of the SRA. RCW 9.94A.030(45). However, the offender score statute specifically provides that prior convictions for felony anticipatory offenses are scored as completed crimes. RCW 9.94A.525(4), (6). Ms. Knight contends the offender score statute conflicts with the definitional statute, which should override the offender score provisions due to principles of statutory construction and the rule of lenity.

¶ 9 Similar arguments were raised in State v. Becker, 59 Wash.App. 848, 801 P.2d 1015 (1990). In Becker, the sentencing court counted a prior conviction for attempted second degree robbery as two points pursuant to former RCW 9.94A.360 (1990), recodified as RCW 9.94A.525. Mr. Becker argued on appeal that the attempted robbery was not subject to the doubling provision because it was not defined as a violent offense. Id. at 850, 801 P.2d 1015. Noting that apparent conflicts in statutes should be reconciled so that each is given effect, Becker concluded that the definitional statute and the doubling provision could be harmonized by reading the plain language of each statute:

The apparent conflict in the sections is based on the assumption that the attempted robbery can only receive two points if it is a "violent offense." Contrary to Becker's contention, the offense does not receive two points because it is a violent offense, but rather, it receives two points because the completed crime of robbery in the second degree would receive two points and the attempted robbery is to be treated as a completed crime.

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State v. Knight, 138 P.3d 1114 (Wash. Ct. App. 2006).

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