State v. Williams

307 P.3d 819, 176 Wash. App. 138

Opinions

Brown, J.

¶1 Christian Vern Williams appeals the sentencing court’s decision to count his prior burglary and robbery convictions separately in calculating his offender score. He contends the court abused its discretion and misapplied the law by relying on the burglary antimerger statute, RCW 9A.52.050, and overlooking the same criminal conduct test, RCW 9.94A.525(5)(a)(i) and .589(l)(a). We hold as a matter of first impression that a current sentencing court lacks discretion to count prior convictions separately under the burglary antimerger statute and must do so, if at all, under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Accordingly, we reverse and remand for resentencing.

FACTS

¶2 In October 2010, a jury found Mr. Williams guilty of residential burglary and first degree trafficking in stolen property. The sentencing court calculated his offender score as seven by separately counting his April 2004 convictions for first degree burglary and first degree robbery, each of which he committed in December 2003. The court applied the burglary antimerger statute, apparently viewing it as mandatory, instead of applying the same criminal conduct test. Mr. Williams appealed. The sole remaining dispute after our commissioner’s motion-on-the-merits ruling concerns Mr. Williams’s offender score calculation. Because the trial court failed to conduct a same criminal conduct analysis as required by RCW 9.94A.525(5)(a)(i) and .589(l)(a), we reverse and remand for the trial court to perform that analysis.

ANALYSIS

¶3 The issue is whether the sentencing court erred by deciding to count Mr. Williams’s prior burglary and robbery convictions separately in calculating his offender score. He contends the court abused its discretion and misapplied the law in relying on the burglary antimerger statute to the exclusion of the same criminal conduct test.

¶4 We review a discretionary sentencing decision made under the SRA for abuse of discretion or misapplication of law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990). A trial court abuses its discretion if its decision is “manifestly unreasonable,” based on “untenable grounds,” or made for “untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); see State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (“A decision is based ‘on untenable grounds’ or made ‘for untenable reasons’ if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is ‘manifestly unreasonable’ if the court, despite applying the correct legal standard to the supported facts, adopts a view ‘that no reasonable person would take,’ and arrives at a decision ‘outside the range of acceptable choices.’ ” (citations omitted) (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995))). We interpret a statute de novo. State v. Bright, 129 Wn.2d 257, 265, 916 P.2d 922 (1996). In doing so, we “ascertain and carry out” our legislature’s intent. State v. Neher, 112 Wn.2d 347, 350, 771 P.2d 330 (1989).

¶5 A current sentencing court must calculate an offender score based on an offender’s “other current and prior convictions.” RCW 9.94A.589(l)(a). If a prior sentencing court found multiple offenses “encompass the same criminal conduct,” the current sentencing court must count those prior convictions as one offense. RCW 9.94A-,525(5)(a)(i). If the prior sentencing court did not make this finding, but nonetheless ordered the offender to serve the sentences concurrently, the current sentencing court must independently evaluate whether those prior convictions “encompass the same criminal conduct” and, if they do, must count them as one offense. Id.; RCW 9.94A.589(1)(a); State v. Torngren, 147 Wn. App. 556, 563, 196 P.3d 742 (2008) (“A sentencing court . . . must apply the same criminal conduct test to multiple prior convictions that a court has not already concluded amount to the same criminal conduct. The court has no discretion on this.” (citation omitted) (citing RCW 9.94A.525(5)(a)(i); State v. Reinhart, 77 Wn. App. 454, 459, 891 P.2d 735 (1995); State v. Lara, 66 Wn. App. 927, 931-32, 834 P.2d 70 (1992))), abrogated on other grounds by State v. Aldana Graciano, 176 Wn.2d 531, 295 P.3d 219 (2013).¹ The offender bears the burden of proving offenses encompass the same criminal conduct. Graciano, 176 Wn.2d at 539.

¶6 Here, the prior sentencing court did not find Mr. Williams’s 2004 burglary and robbery convictions encompass the same criminal conduct. But it nonetheless ordered him to serve his sentences concurrently.² Under these circumstances, the current sentencing court needed to apply the same criminal conduct test. See RCW 9.94A.525(5)(a)(i), .589(l)(a); Torngren, 147 Wn. App. at 563. It did not. While we think it doubtful that Mr. Williams met his burden of proof, we cannot decide this issue because the trial court failed to exercise discretion required under the same criminal conduct test. See Lara, 66 Wn. App. at 932 (remanding for resentencing because the trial court failed to exercise discretion required under the portion of former RCW 9.94A-.360(6)(a) (1988) our legislature later amended to incorporate the same criminal conduct test); State v. Wright, 76 Wn. App. 811, 829, 888 P.2d 1214 (1995) (same); Reinhart, 77 Wn. App. at 459 (same); State v. McCraw, 127 Wn.2d 281, 287-88, 898 P.2d 838 (1995) (approving Lara, Wright, and Reinhart).

¶7 Instead of applying the same criminal conduct test, the current sentencing court relied solely on the burglary antimerger statute, which provides, “Every person who, in the commission of a burglary shall commit any other crime, may be punished therefore as well as for the burglary, and may be prosecuted for each crime separately.” RCW 9A.52.050. In State v. Lessley, 118 Wn.2d 773, 779-82, 827 P.2d 996 (1992), our Supreme Court held this statute grants a current sentencing court discretion, in calculating an offender score, to count current burglary and nonburglary convictions separately even if they encompass the same criminal conduct.³ We are unaware of any reported decision extending this holding to a current sentencing court’s treatment of prior convictions.⁴ Therefore, we must interpret the statute.

¶8 Certainly, if a person commits a burglary simultaneously with another crime, the statute allows the State to separately “prosecute[ ]” both current offenses. RCW 9A.52-.050. If a judge or jury then finds the defendant guilty, the statute allows a current sentencing court to separately “punish [ ]” both current convictions, including by counting them separately in calculating an offender score. Id.; Lessley, 118 Wn.2d at 779-82. But the statute provides no direction to a later sentencing court regarding how it may treat prior convictions.

¶9 We hold the burglary antimerger statute’s plain language applies solely to current offenses before a current sentencing court. Our interpretation comports with logic. While sentences must be proportionate to criminal history, our legislature has designed them to punish current, not prior, offenses. See RCW 9.94A.0KX1); Laws of 2002, ch. 107, § 1 (“[T]he provisions of the [SRA] act upon and punish only current conduct; the [SRA] does not act upon or alter the punishment for prior convictions.” (citing In re Pers. Restraint of Williams, 111 Wn.2d 353, 362-64, 759 P.2d 436 (1988))). And, our legislature has established the SRA, not the burglary antimerger statute, as the proper means for ensuring sentences are proportionate to criminal history. Compare RCW 9.94A.010(1), with RCW 9A.04.020. See generally RCW 9.94A.030(11), .500(1), .525-.530; Laws of 2008, ch. 231, § 1.

¶10 Applying this interpretation, we conclude the current sentencing court erred by relying on the burglary antimerger statute to count Mr. Williams’s 2004 burglary and robbery convictions separately in calculating his offender score. Instead, the court needed to apply the same criminal conduct test. Because the court applied the wrong legal standard, it exercised its discretion on untenable grounds or reasons. Therefore, the court abused its discretion and misapplied the law.

¶11 Reversed and remanded for resentencing.

Siddoway, J., concurs.

Footnotes

1

Prior convictions encompass the same criminal conduct if they “require the same criminal intent, are committed at the same time and place, and involve the same victim.” RCW 9.94A.589(l)(a); see RCW 9.94A.525(5)(a)(i). Whether offenses involve the same criminal intent depends on “the extent to which the criminal intent, as objectively viewed, changed from one crime to the next.” State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). This analysis considers “whether one crime furthered the other,” id., or the two were “part of a recognizable scheme or plan.” State v. Lewis, 115 Wn.2d 294, 302, 797 P.2d 1141 (1990). If any of these statutory elements are missing, the trial court must count the offenses separately in calculating an offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).

2

In arguing to the current sentencing court, the parties noted the 2004 sentencing court did not check the same criminal conduct box on Mr. Williams’s judgment and sentence but imposed concurrent imprisonment terms totaling 78 months.

3

Relying on the State’s arguments, the current sentencing court apparently believed the burglary antimerger statute required it to count Mr. Williams’s 2004 convictions separately. To the extent the court viewed applying the statute as mandatory, it erred.

4

Our Supreme Court declined to reach this issue in In re Personal Restraint of Connick, 144 Wn.2d 442, 464, 28 P.3d 729 (2001).