State v. McCraw, 61544-6

• Court: United States State Supreme Court of Washington
• Writing for the Court: ALEXANDER; GUY, JOHNSON, DOLLIVER and MADSEN, JJ., and UTTER; TALMADGE; SMITH; DURHAM
• Citation: 127 Wn.2d 281,898 P.2d 838
• Parties: The STATE of Washington, Appellant, v. Sean Blair McCRAW, Respondent.
• Docket Number: No. 61544-6,61544-6
• Decision Date: 20 July 1995

Page 281

127 Wn.2d 281 898 P.2d 838 The STATE of Washington, Appellant,
v.
Sean Blair McCRAW, Respondent. No. 61544-6. Supreme Court of Washington,
En Banc. July 20, 1995.

[898 P.2d 839]

Page 283

Jim Sweetser, Spokane County Prosecutor, Kevin Korsmo, Deputy, Spokane, for appellant.

Sean McCraw, Shelton, pro se.

Paul Wasson, Spokane, for respondent.

ALEXANDER, Justice.

This case is before us on direct review of a sentence that was imposed by the Spokane County Superior Court on Sean McCraw for attempted first degree escape. The State asserts on appeal that the sentencing court erred in determining the standard range sentence for McCraw's current conviction, arguing that it wrongly considered some of McCraw's prior convictions as one offense for purposes of calculating the offender score. We affirm.

When Sean McCraw, then age 25, was sentenced in Spokane County Superior Court for attempted first degree escape, he had already compiled a substantial adult criminal record, as follows:

 Sentencing Date Offense
                1. July 17, 1987 Second degree theft
                2. April 26, 1988 Second degree burglary
                3. April 26, 1988 Third degree assault
                4. November 15, 1989 Second degree burglary
                5. November 15, 1989 First degree possession of stolen property
                6. August 22, 1991 Second degree possession of stolen property
                7. March 17, 1992 Second degree burglary
                8. June 22, 1992 Residential burglary
                9. June 22, 1992 Residential burglary
                

Each of McCraw's prior convictions was for a crime that occurred on a different date. With the exception of the second degree burglary conviction for which he was sentenced in March 1992, all of the prior convictions were in Spokane County Superior Court.

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The genesis of McCraw's conviction for attempted first degree escape, his current offense, was in June 1992. In that month, he began serving concurrent 69-month sentences for convictions in Spokane County Superior Court for two residential burglaries. Those sentences had been ordered to run concurrently with a 43-month sentence for second degree burglary that had been imposed by the Lincoln County Superior Court in March 1992. On August 17, 1993, less than 4 months after he was transferred from McNeil Island Corrections Center to Airway Heights, a minimum security facility near Spokane, McCraw walked away from an offsite work crew assignment. Two days later, McCraw was apprehended in Royal City. He was thereafter charged in Spokane County Superior Court with attempted first degree escape. McCraw subsequently entered a plea of guilty to that charge. ¹

When McCraw appeared before a judge of the Spokane County Superior Court for sentencing on the attempted first degree escape charge, the State contended that the sentencing court should count each of McCraw's [898 P.2d 840] prior adult felonies as a separate offense in calculating the offender score. The State based its contention on the fact that although McCraw had served some of the sentences for those prior convictions concurrently with other sentences, none of those prior adult offenses encompassed the same criminal conduct and each occurred after 1986. ² Under the State's reasoning, McCraw's offender score was

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9, the maximum offender score, and the standard sentence range was 47 1/4 months to 63 months. ³

McCraw's counsel disagreed with the State and asked the sentencing court to impose an exceptional sentence downward, or, alternatively, to calculate McCraw's offender score by counting as one offense some or all of his nine prior offenses for which the sentences were served concurrently. The sentencing court declined to impose an exceptional sentence. It did, however, accept McCraw's recommendation to consider as one offense some of the prior multiple offenses for which he had served concurrent sentences, concluding that it had the discretion to combine, or not combine, any of McCraw's concurrently served sentences. The sentencing court identified three groups of McCraw's prior multiple convictions for which he served concurrent sentences: two convictions in 1988 (second degree burglary and third degree assault); two convictions in 1989 (second degree burglary and first degree possession of stolen property); and three convictions in 1992 (second degree burglary and two counts of residential burglary). For reasons articulated at sentencing, the sentencing judge chose to count each of the above mentioned groups of concurrently served sentences as one offense for purposes of determining McCraw's offender score. This determination was significant because it resulted in an offender score for McCraw of 5 and a standard sentence range for attempted first degree escape of 16 1/2 to 21 3/4 months. The sentencing court imposed a sentence of 21 3/4 months.

The sole issue presented by this appeal is whether the current sentencing court had the discretion to count as one offense those offenses for which the sentences were served concurrently, but which the original sentencing court did not deem to be the same criminal conduct.

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To resolve the issue we must look to RCW 9.94A.360(6), which the parties agree is the pertinent statute. It provides, in relevant part:

(6) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

(a) Prior 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, and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used[.]

(Italics ours.) RCW 9.94A.360(6). It is readily apparent that the first sentence of sub-section (a) of this statute has no application here because there was no showing that any of the prior sentencing courts had determined that any of McCraw's offenses encompassed the same criminal conduct. ⁴ In fact, [898 P.2d 841] the Spokane County Superior Court judge who sentenced McCraw for his last three prior convictions specifically found that those offenses did not constitute the same criminal conduct. Although the record on appeal does not contain similar findings by any of the other prior sentencing courts, it is unlikely that any of those courts found that the offenses that resulted in those concurrently served sentences encompassed the same criminal conduct because, as noted above, the offenses did not take place on the same day.

The second sentence of the statute cited above does

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bear on the issue at hand. It refers to the duty of a sentencing court to count prior multiple offenses, for which sentences were served concurrently, as either one offense or separate offenses. In deciding to count some of McCraw's prior offenses together as one offense for sentencing purposes, the sentencing court merely exercised the discretion that the statute requires it to exercise. Despite the State's contention to the contrary, the sentencing court was authorized to exercise its discretion regardless of whether it found that the offenses constituted the same criminal conduct under RCW 9.94A.400(1)(a). Indeed, the sentencing court recognized that "these convictions are probably different criminal conduct". Verbatim Report of Proceedings, at 42.

The sentencing court's exercise of discretion under RCW 9.94A.360(6)(a) was based on and is consistent with the well-reasoned decision of Division Three of the Court of Appeals in State v. Lara, 66 Wash.App. 927, 834 P.2d 70 (1992). In Lara, the court said:

RCW 9.94A.360(6)(a) provides that the current sentencing court shall determine whether offenses which were served concurrently shall be counted as "one offense or as separate offenses". The statute does not restrict the current sentencing court to the previous sentencing court's determination or to the application of the same criminal conduct standard imposed pursuant to RCW 9.94A.400(1)(a).

Lara, 66 Wash.App. at 931, 834 P.2d 70. Indeed, the sentencing court said that it was relying on the Lara decision when it calculated McCraw's offender score. In addition, Division One of the Court of Appeals has interpreted RCW 9.94A.360(6)(a) similarly in a more recent but equally well-reasoned decision. State v. Wright, 76 Wash.App. 811, 888 P.2d 1214 (1995). In the Wright decision, the court said:

the current sentencing court is not bound by an earlier determination of whether to count the offenses as one offense or separate offenses, nor is it required to find that the offenses constituted the same criminal conduct under RCW 9.94A.400 in order to count them as one offense.... [T]he language of

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the statute is mandatory, stating that the current sentencing court shall determine whether the offenses are to be counted as one offense or separate offenses.

Wright, 76 Wash.App. at 829, 888 P.2d 1214. In Lara and Wright, the appellate courts remanded for recalculation of the offender score because they believed not only had the sentencing judges failed to exercise discretion pursuant to RCW 9.94A.360(6)(a), these sentencing judges had also indicated that they were not permitted to exercise such discretion. ⁵

The State argues that we must read the first and second sentences of RCW 9.94A.360(6)(a) together. Reading them in that way, the State asserts, leads to a conclusion that each offense must be counted as a separate offense for purposes of calculating the offender score, unless either the original or current sentencing court made an affirmative finding that the offenses are the same criminal conduct. In support of its argument, the State relies on its interpretation of a portion of the legislative history relating to a 1986 amendment to the...