State v. Lara

Decision Date11 August 1992
Docket NumberNo. 11347-7-III,11347-7-III
Citation834 P.2d 70,66 Wn.App. 927
PartiesSTATE of Washington, Respondent, v. Frank R. LARA, Appellant.
CourtWashington Court of Appeals

Eric M. Christianson and Scott & Schmidt, Wenatchee, for appellant.

Gary A. Riesen, Pros. Atty., Douglas J. Shae, Deputy Pros., Wenatchee, for respondent.

SWEENEY, Judge.

Frank R. Lara pleaded guilty to one count of unlawful delivery of a material in lieu of a controlled substance. The standard range sentence for the offense was 51 to 68 months based upon Mr. Lara's offender score as computed by the sentencing court. Mr. Lara was sentenced to 51 months. He appeals, contending the court erroneously computed his offender score for purposes of calculating the standard range.

Factual Background and Procedural Posture

On November 19, 1990, Mr. Lara was charged with one count of unlawful delivery of a material in lieu of a controlled substance, RCW 69.50.401(c). He entered a plea of guilty.

Mr. Lara's adult criminal history included convictions of second degree burglary in 1984, first degree theft in 1987, second degree theft in 1987, five counts of forgery in Douglas County between December 19, 1988 and January 6, 1989, and five counts of forgery in Chelan County between December 22, 1988 and January 3, 1989.

Each of the ten forgery counts involved checks drawn on the account of Mr. Lara's mother and passed to various business merchants, including a supermarket, a gas station, a jewelry store and a department store. On February 28, 1989, Mr. Lara was convicted and sentenced for the Douglas County offenses. The court calculated his offender score at 7 and imposed standard range sentences of 18 months for each count, to be served concurrently.

Mr. Lara was convicted of five counts of forgery in Chelan County on May 1, 1989. The court calculated his offender score at 9+, the maximum offender score available. Mr. Lara received standard range sentences of 25 months for each count of forgery, to be served concurrently.

At the sentencing hearing for the unlawful delivery offense, Mr. Lara asserted that the ten forgery offenses should be counted as only one point in calculating his offender score, or at the most two points. He contended that the unlawful delivery sentencing court had, pursuant to RCW 9.94A.360(6)(a), the discretion to count all prior offenses which ran concurrently as one offense.

The unlawful delivery sentencing court (the current sentencing court) rejected Mr. Lara's argument and counted his ten prior forgery convictions as separate offenses. Based upon the maximum offender score of 9+, Mr. Lara was sentenced to 51 months, the low end of the standard range. This appeal follows.

Issue

The sole issue presented is whether the court erred in computing Mr. Lara's offender score.

Discussion

Mr. Lara contends the current sentencing court has discretion to treat his ten prior forgery offenses as one or two points in calculating his offender score even though the prior sentencing court determined the offenses were not thesame criminal conduct pursuant to RCW 9.94A.400(1)(a). RCW 9.94A.360(6)(a); State v. Hartley, 41 Wash.App. 669, 705 P.2d 821, review denied, 104 Wash.2d 1028 (1985).

The interpretation of a statute is a matter of law subject to independent appellate review. Schmitt v. Cape George Sewer Dist. 1, 61 Wash.App. 1, 5, 809 P.2d 217 (1991). A statute is interpreted so as to give effect to the Legislature's intent in creating the statute. Cherry v. Metropolitan Seattle, 116 Wash.2d 794, 799, 808 P.2d 746 (1991). In a criminal case, ambiguities in the statute are to be resolved in favor of a defendant. Hartley, 41 Wash.App. at 673, 705 P.2d 821.

RCW 9.94A.360(6)(a) provides that in computing a defendant's offender score,

[p]rior adult offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently whether those offenses shall be counted as one offense or as separate offenses ...

(Italics ours.) RCW 9.94A.400(1)(a) provides that

if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.... "Same criminal conduct" ... means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.

The prior sentencing courts in Douglas and Chelan County each respectively determined Mr. Lara's forgery offenses did not encompass the same criminal conduct and were to be counted separately in computing his offender score. RCW 9.94A.400(1)(a); State v. Blakey, 61 Wash.App. 595, 599, 811 P.2d 965 (1991). Notwithstanding that determination, Mr. Lara argues the current sentencing court has discretion to count the forgeries as one offense. He directs this court to the Legislature's wording of RCW 9.94A.360(6)(a) and RCW 9.94A.400(1)(a). He concludes that while the latter statute is guided by the "same criminal conduct" standard, the former is guided by a broad discretion. State v. Hartley, supra.

In Hartley, the defendant argued that his five prior Oregon convictions should be counted as one offense. The defendant had been sentenced separately for the five crimes, but the sentences coincidentally overlapped. The court found the use of the word "served" in the statute to be ambiguous, but ruled it would be

utterly inconsistent ... to construe the statute so that a defendant who had committed and been sentenced separately for several serious crimes over a period of years, but who happened to serve overlapping prison terms for them at the same time, would be deemed to have committed only one offense. We are confident that the Legislature's true intent was to include one offense in criminal history when prior concurrent sentences were judicially imposed for more than one offense, regardless of whether the concurrent sentences...

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13 cases
  • State v. Wright
    • United States
    • Court of Appeals of Washington
    • 6 Febrero 1995
    ...Wright's offender score and precluding any discretion by the court to do otherwise. This issue was addressed in State v. Lara, 66 Wash.App. 927, 834 P.2d 70 (1992). The Lara court concluded that RCW 9.94A.360(6)(a) grants the current sentencing court discretion to determine whether offenses......
  • State v. Ray, No. 32711-2-II (WA 2/22/2006)
    • United States
    • United States State Supreme Court of Washington
    • 22 Febrero 2006
    ...Reinhart, 77 Wn. App. at 454; State v. Wright, 76 Wn. App. 811, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995); State v. Lara, 66 Wn. App. 927, 834 P.2d 70 (1992). RCW 9.94A.525(5)(a)(i) provides that when a sentencing court is considering whether prior convictions count as separate of......
  • State v. Torngren
    • United States
    • Court of Appeals of Washington
    • 25 Noviembre 2008
    ...The court has no discretion on this. State v. Reinhart, 77 Wash. App. 454, 459, 891 P.2d 735 (1995); State v. Lara, 66 Wash.App. 927, 931-32, 834 P.2d 70 (1992). ¶ 17 The sentencing court here applied the test to Mr. Torngren's multiple prior convictions and concluded that none of them enco......
  • State v. Williams
    • United States
    • Court of Appeals of Washington
    • 15 Agosto 2013
    ...(citation omitted) (citing RCW 9.94A.525(5)(a)(i); State v. Reinhart, 77 Wash.App. 454, 459, 891 P.2d 735 (1995); State v. Lara, 66 Wash.App. 927, 931–32, 834 P.2d 70 (1992)), abrogated on other grounds by State v. Graciano, 176 Wash.2d 531, 295 P.3d 219 (2013).1 The offender bears the burd......
  • Request a trial to view additional results

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