State v. Roberts
| Decision Date | 17 October 1991 |
| Docket Number | No. 57442-1,57442-1 |
| Citation | 817 P.2d 855,117 Wn.2d 576 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Mark Jay ROBERTS, Petitioner. |
Charles A. Baechler, Spokane, for petitioner.
Donald C. Brockett, Spokane County Prosecutor and Kevin Korsmo, Deputy County Prosecutor, Spokane, for respondent.
Mark Jay Roberts challenges the trial court's computation of the offender score for his sentencing after a guilty plea. Roberts contends that under RCW 9.94A.360(6)(c) his multiple 1981 offenses should be counted as one offense and not two so that his total offender score is reduced from 6 to 5. We agree and reverse the trial court's computation.
On May 2, 1989, judgment and sentence were entered in Spokane County Superior Court against Roberts after he pled guilty to attempted first degree theft. The trial judge sentenced Roberts to 15 months' confinement after determining that Roberts' criminal history yielded an offender score of six.
Two 1981 convictions were considered in determining Roberts' offender score. For the first conviction on March 4, 1981, under Thurston County cause 80-1-00331-7, for one count of second degree escape and one count of third degree assault, Roberts was sentenced to two consecutive 5-year terms. For the second conviction on August 17, 1981, under King County cause 80-1-04754-6, for second degree robbery and two counts of second degree assault, Roberts was sentenced to two concurrent 10-year terms. In accordance with RCW 9.94A.400(3), the King County sentence specifically provided that it was to run concurrently with the sentence imposed under Thurston County cause 80-1-00331-7. Thus, Roberts began serving his sentence of two concurrent 10-year terms roughly 5 months after he began serving his sentence of two consecutive 5-year terms.
In 1989, the Spokane County sentencing court counted as one point each conviction for four crimes committed by Roberts between August 1987 and October 1987. These four points, plus the one point for the 1981 King County sentence and one point for the 1981 Thurston County sentence, were calculated by the Spokane court in arriving at the offender score of six.
Roberts appealed this calculation of offender score, arguing that under RCW 9.94A.360(6)(c) the 1981 Thurston County convictions and the 1981 King County convictions must be counted as one prior offense, thereby reducing Roberts' offender score from six to five. Roberts argued that RCW 9.94A.360(6)(c) compelled this result, since the 1981 King County sentence was expressly ordered to run concurrently with the 1981 Thurston County sentence. Under RCW 9.94A.360(6)(c), multiple prior convictions committed before July 1, 1986 and "served concurrently" are counted as one offense in computing an offender score.
There is only one issue on appeal. For sentences to be "served concurrently" under RCW 9.94A.360(6)(c), must the sentences begin and end on the same date? In other words, does it matter if the concurrently imposed sentences may have both begun and ended on different dates?
RCW 9.94A.360(6) states, in pertinent part:
(6) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:
. . . . .
(c) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense ... Use the conviction for the offense that yields the highest offender score.
The statute provides no definition for the term "served concurrently". Citing its own opinion in State v. Chavez, 52 Wash.App. 796, 764 P.2d 659 (1988), the Court of Appeals, in upholding the trial court's computation of Roberts' offender score, held that when a trial court ordered a sentence (for pre-July 1986 offenses) to be served concurrently with the remainder of a previously imposed sentence, this was not to be treated as one concurrent sentence for the purposes of RCW 9.94A.360(6)(c). Roberts, 58 Wash.App. at 388, 793 P.2d 981. The Court of Appeals below also relied upon State v. Hartley, 41 Wash.App. 669, 705 P.2d 821, review denied, 104 Wash.2d 1028 (1985) (Hartley I). Hartley I stated it would be inconsistent to construe RCW 9.94A.360 to mean that defendants who by fortuity serve overlapping prison terms for separate crimes should be considered to have committed only one offense in computing offender score. Hartley I Roberts argues that subsection (6)(c) of RCW 9.94A.360 requires that his two 1981 convictions be counted as one offense for purposes of calculating his offender score because the judge in King County imposed the 1981 sentence to run concurrently with the 1981 Thurston County sentence. The State argues that the terms were not served concurrently because the second 1981 sentence commenced several months after the defendant began serving the first 1981 sentence.
at 673, 705 P.2d 821. Following this rationale, the Court of Appeals in Roberts below held that to be "served concurrently" for the purposes of RCW 9.94A.360(6)(c), the sentences must begin and end at the same time in order to be counted as "one" in computing the offender score. Roberts, 58 Wash.App. at 389, 793 P.2d 981. The Court of Appeals declined to follow State v. Hartley, 51 Wash.App. 442, 754 P.2d 131 (1988) (Hartley II); State v. Harper, 50 Wash.App. 578, 749 P.2d 722 (1988); and State v. Johnson, 49 Wash.App. 239, 742 P.2d 178 (1987), review denied, 110 Wash.2d 1006 (1988), to the extent they held to the contrary. Roberts, 58 Wash.App. at 389, 793 P.2d 981
This case presents a conflict between the holding of Division Three in State v. Chavez, 52 Wash.App. 796, 764 P.2d 659 (1988), and the holding of Division Two in State v. Johnson, 49 Wash.App. 239, 742 P.2d 178 (1987), review denied, 110 Wash.2d 1006 (1988). These two cases are most applicable to the issue at hand. However, some review of other related cases is helpful.
The court in Hartley I refused the defendant's argument that his five prior Oregon convictions were served concurrently for the purposes of former RCW 9.94A.360(11) (). The opinion in Hartley I pointed to the ambiguity in the term "served concurrently" as used in RCW 9.94A.360. The court resolved this ambiguity by concluding the rule of lenity should not be allowed to resolve ambiguities favorable to the defendant if an absurd result would 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 arose out of the same or separate incidents.
follow. The absurd result the court sought to avoid was a lower offender score in an instance in which concurrent sentences were not judicially imposed and in which the defendant had received separate sentences in different years, without reference to each other
Hartley I, 41 Wash.App. at 673-74, 705 P.2d 821.
Roberts submits his sentences were, on the contrary, imposed to run concurrently by the King County sentencing judge. The 1981 King County sentence refers to the 1981 Thurston County sentence and orders the second sentence to run concurrently with the first. On this basis we may distinguish Hartley I from the facts in Roberts' case. Similarly, Roberts' case meets the requirement of State v. Harper, 50 Wash.App. 578, 749 P.2d 722 (1988), decided by Division One, that the concurrent sentence for the subsequent offense must be shown to have been imposed as an intentional exercise of the sentencing court's discretion.
The State argues that a later sentencing judge's ordering a sentence to run concurrently with the remainder of an earlier sentence does not create concurrence, and thus that Roberts' 1981 convictions, the second of which was imposed to run concurrently to the first, were not "convictions served concurrently" within the meaning of the statute.
occurred in different counties and states, they occurred in separate years, and they were entered before separate sentencing judges. In addition, these convictions were imposed without reference to each other.
Hartley II, 51 Wash.App. at 448, 754 P.2d 131. We distinguish Hartley II for the same reason as we have distinguished Hartley I.
State v. Chavez, supra, is also factually distinguishable from State v. Johnson, supra, and the instant case. In...
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