State v. Lowe

293 P.3d 1287, 173 Wash. App. 390
Court of Appeals of Washington·Decided February 4, 2013·No. No. 67728-4-I·Published·Cited by 1 cases

Opinion

Leach, C.J.

¶1 — Eric Lowe appeals the sentence imposed for his conviction for residential burglary, claiming that the trial court erred by including a prior juvenile conviction in his offender score calculation. He contends the juvenile court previously vacated this conviction after a deferred disposition. We disagree and affirm.

¶2 The Juvenile Justice Act of 1977 (Act)1 allows a court to defer disposition of certain juvenile convictions. If the offender successfully completes the conditions of the deferral, the court may then vacate the conviction. In 2000, Eric Lowe received a deferred disposition for a juvenile third degree assault charge. He did not, however, fully comply with the terms of his supervision, and because the State did not timely move to revoke the deferral, the juvenile court denied the State’s motion to revoke the deferred disposition. Because Lowe had not successfully completed the conditions of deferral, the court also did not vacate the conviction. Instead, it dismissed the deferred disposition, leaving the finding of guilt intact.

FACTS

¶3 In 2011, Eric Lowe pleaded guilty to one count of residential burglary. In his statement of plea of guilty, he agreed with the State’s offender score calculation of four and the criminal history used to calculate it. This history included the juvenile assault conviction Lowe now challenges. However, because Lowe was also awaiting trial on other charges, the court postponed sentencing until after resolution of those charges.

¶4 After Lowe’s convictions in the second case, the State recalculated his offender score for residential burglary as [393] eight. Lowe then argued for the first time that the court should not include the juvenile conviction in his offender score calculation because the juvenile court had dismissed a deferred disposition after denying a motion to revoke it. The juvenile court had denied the motion to revoke because the State filed it after the term of the deferred disposition expired. Omitting the juvenile conviction from Lowe’s offender calculation would reduce his score by one point but would not change his standard range for sentencing. The court included the juvenile assault conviction in its offender score calculation and imposed a standard range sentence. Lowe appeals.

STANDARD OP REVIEW

¶5 “Statutory interpretation is a question of law that we review de novo.”2 “Our chief goal in analyzing and applying a statute is to give effect to the legislature’s intent, ‘and if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ ”3

ANALYSIS

¶6 Lowe asserts that the court erred by counting his juvenile conviction in the offender score calculation. His appeal rests on the assumption that the juvenile court’s order dismissing his deferred disposition necessarily vacates the finding of guilt as well. It does not.

¶7 As a preliminary matter, the State argues that Lowe invited any error by not objecting to the State’s sentencing recommendation during the plea hearing. However, “a sentencing court acts without statutory authority [394] when it imposes a sentence based on a miscalculated offender score”4 and Lowe raised the issue before the court sentenced him. Further, the appellate record does not support a claim that Lowe intentionally agreed to an erroneous offender score in order to set up an appeal. Under these circumstances, we decline to apply the invited error doctrine.

¶8 At the time of Lowe’s juvenile conviction, the Juvenile Justice Act of 1977 granted the juvenile court discretion to defer disposition of certain juvenile criminal convictions for not more than one year.5 Not all juvenile offenders were eligible for a deferred disposition.6 An eligible juvenile who agreed to a deferred disposition had to (1) stipulate to the admissibility of the facts contained in the written police report, (2) acknowledge that the report will be used to support a finding of guilt and to impose a disposition if the juvenile fails to comply with the terms of supervision, and (3) waive his rights to speedy disposition and to call and confront witnesses.7 Once the juvenile did so, the court had discretion to continue the case for disposition up to a year from the date it found the offender guilty. During that time, the juvenile had to comply with all court-ordered conditions of supervision.8

¶9 The Act expressly addressed two possible dispositions following the deferral. Upon a finding by the court of full compliance, the Act required that the court vacate the conviction and dismiss the case with prejudice.9 Absent an affirmative finding of compliance, the juvenile court lacked authority to vacate the juvenile’s conviction and dismiss the [395] action.10 If the court found, upon the prosecutor’s written motion, that the juvenile failed to comply, the Act required that the court enter an order of disposition.* 11 However, the court lost the authority to revoke a deferral and enter a disposition order if the deferral period expired without the State filing a motion to revoke.12

¶10 Neither of these two possible dispositions occurred in Lowe’s case. On November 28, 2000, the court entered a deferred disposition order. This order found Lowe guilty of third degree assault and continued disposition “for a period of not to exceed one year to_[original left blank].” The order required Lowe to comply with stated conditions of supervision during the deferral period. The appellate record reflects no further activity in the case until the State filed a “motion to revoke deferred sentence [sic]” on July 23, 2002. The affidavit supporting the motion alleged that Lowe committed two crimes during the deferral period, to which he pleaded guilty after its expiration. The juvenile court denied the State’s motion with the following order:

IT IS HEREBY ORDERED
The State should have instituted proceedings to revoke the deferred disposition prior to the end of the period of deferral. The motion to revoke is denied. The court dismisses the Respondent’s deferred disposition.

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State v. Lowe, 293 P.3d 1287, 173 Wash. App. 390 (Wash. Ct. App. 2013).

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