State v. Ross

Decision Date12 August 2004
Docket Number No. 73784-3, No. 74171-9., No. 73895-5
Citation152 Wash.2d 220,152 Wn.2d 220,95 P.3d 1225
PartiesSTATE of Washington, Respondent, v. David Wayne ROSS, Petitioner. State of Washington, Respondent, v. Russell James Hunter, Petitioner. State of Washington, Respondent, v. Donald Janell Legrone, Petitioner.
CourtWashington Supreme Court

Thomas Edward Doyle, Hansville, Gregory Charles Link, Jason Brett Saunders, Washington Appellate Project, Seattle, Patricia Anne Pethick, Tacoma, for Petitioners.

Steven Curtis Sherman, Thurston County Prosecutors Office, Olympia, Andrea Ruth Vitalich, King County Prosecutors Office/Appellate Unit, Seattle, for Respondents.

BRIDGE, J.

These defendants principally assert that the State's failure to prove at sentencing that their prior out-of-state and/or federal convictions were comparable to Washington State felony crimes and thus properly included in their offender scores, constitutes legal error. They contend that pursuant to our decision in In re Personal Restraint of Goodwin, 146 Wash.2d 861, 50 P.3d 618 (2002), they cannot waive a challenge to a sentence based on a miscalculated offender score. Division One and Division Two of the Court of Appeals denied their appeals holding that the sentencing courts properly included their prior out-of-state and/or federal convictions in their offender scores since these defendants affirmatively acknowledged at sentencing that their prior convictions were comparable to Washington State crimes. Because these defendants fail to show that any error of fact or law exists that supports their claims that the sentencing courts miscalculated their offender scores, we affirm the Courts of Appeals.

I STATEMENT OF FACTS
David W. Ross

On October 1, 1999, a jury found Ross guilty of felony harassment, fourth degree assault, and four counts of unlawful imprisonment. At Ross' November 22, 1999 sentencing hearing, Ross' counsel expressly acknowledged that his criminal history properly included a 1988 Texas burglary conviction and that the State had properly calculated his offender score as 9. Accordingly, the sentencing court calculated Ross' offender score as 9 for each offense based, in part, on his 1988 Texas conviction. Ross appealed his sentence to Division Two of the Court of Appeals.

On appeal, Ross argued that the sentencing court improperly calculated his offender score because the State failed to prove that his 1988 Texas conviction was comparable to a Washington State crime. The Court of Appeals commissioner rejected Ross' initial appeal challenging his offender score, reasoning that Ross waived his challenge when his counsel affirmatively acknowledged at sentencing that his criminal history properly included his 1988 Texas conviction. Ct. of Appeals Ruling Affirming J. & Sentence at 6 (May 2, 2001) (citing State v. Ford, 137 Wash.2d 472, 483 n. 5, 973 P.2d 452 (1999)). The Court of Appeals denied Ross' motion to modify the commissioner's ruling.

Ross petitioned for review to this court. We granted his petition, but remanded it to Division Two pending our decision in Goodwin. After we reached our decision in Goodwin, the Court of Appeals commissioner again denied Ross' appeal. The Court of Appeals denied Ross' motion to modify the commissioner's ruling.

Ross petitioned for review to this court asserting that the sentencing court miscalculated his offender score by failing to require that the State prove his 1988 Texas conviction was comparable to a Washington State crime. We granted review.

Russell J. Hunter

On February 14, 2001, Hunter pleaded guilty to second degree attempted robbery. The State initially calculated Hunter's offender score as a 5 based on five prior out-of-state convictions. Hunter disputed his offender score arguing that two of his Oregon convictions were not comparable to Washington State crimes. At Hunter's March 9, 2001 sentencing hearing, the prosecutor conceded that the State could not prove that one of Hunter's Oregon drug convictions compared to a Washington State felony and thus, recommended that the sentencing court calculate Hunter's offender score as 4. In reply, Hunter's counsel conceded that Hunter's second challenged Oregon drug conviction was properly included in his offender score. Consequently, the court calculated Hunter's offender score as 4. Hunter appealed to Division One of the Court of Appeals.

On appeal, Hunter argued that the sentencing court miscalculated his offender score by including prior out-of-state convictions that the State had failed to prove were comparable to Washington State felony crimes. The Court of Appeals rejected Hunter's argument holding that the sentencing court correctly calculated his offender score since his counsel affirmatively acknowledged that his prior out-of-state convictions were properly included. State v. Hunter, 116 Wash.App. 300, 301, 65 P.3d 371 (2003) (citing Ford, 137 Wash.2d at 483 n. 5, 973 P.2d 452).

Hunter petitioned for review to this court asserting that the Court of Appeals erred when it held that the sentencing court had properly calculated his offender score. He also argues that due process and the Sentencing Reform Act (SRA) of 1981, chapter 9.94A RCW, requires that the State prove by a preponderance of the evidence that his out-of-state convictions compare to Washington State felony crimes. We granted review and consolidated his case with Ross' case.

Donald J. Legrone

On October 22, 2002, a jury found Legrone guilty of possession with intent to deliver cocaine for events that occurred on October 19, 2000. In his sentencing memorandum, Legrone's counsel included two prior federal drug convictions as part of Legrone's criminal history but argued that the court should calculate the two convictions as a one in his offender score. The sentencing court rejected Legrone's argument and counted both his federal convictions separately. Additionally, the court imposed three offender score points for each of Legrone's prior felony drug convictions in accordance with former RCW 9.94A.360(3) (2000), the statute in effect at the time Legrone committed his 2000 offense. Thus, the court calculated Legrone's offender score as 12. Legrone appealed to Division One of the Court of Appeals.

On appeal, Legrone argued the following: the sentencing court miscalculated his offender score when it failed to require that the State prove by a preponderance of the evidence his federal convictions were comparable to Washington State crimes; insufficient evidence existed to prove that he was guilty of possession with intent to deliver cocaine; the sentencing court erred when it refused to retroactively apply the 2002 amendments to RCW 9.94A.525(12), which eliminated provisions that tripled the number of offender score points for Legrone's prior drug convictions; and, the court's failure to retroactively apply the 2002 amendments to RCW 9.94A.525(12) violated his equal protection rights. In an unpublished opinion, the Court of Appeals rejected Legrone's claims holding that the sentencing court properly included Legrone's prior federal convictions in his offender score, that the State presented sufficient evidence, and that the 2002 amendments do not retroactively apply to crimes committed before the amendments' effective date nor violate Legrone's equal protection rights. State v. Legrone, noted at 117 Wash.App. 1044, 2003 WL 21500733, at *1-2.

Legrone petitioned for review to this court asserting that the Court of Appeals erred when it held that the sentencing court properly calculated his offender score and when the court failed to retroactively apply the 2002 amendments to RCW 9.94A.525(12). We granted review and consolidated his case with Ross' and Hunter's cases.

II ANALYSIS
Mootness

As an initial matter, the State contends that Ross' case is moot since Ross' confinement and State supervision ended November 25, 2003.1 We have stated that "this court will not consider a question that is purely academic. A case is moot if a court can no longer provide effective relief." State v. Gentry, 125 Wash.2d 570, 616, 888 P.2d 1105 (1995) (footnote omitted) (citing Grays Harbor Paper Co. v. Grays Harbor County, 74 Wash.2d 70, 73, 442 P.2d 967 (1968); Washam v. Pierce County Democratic Cent. Comm., 69 Wash.App. 453, 457, 849 P.2d 1229 (1993),review denied, 123 Wash.2d 1006, 868 P.2d 872 (1994)). However, if a case presents an issue of continuing and substantial public interest and that issue will likely reoccur, we may still reach a determination on the merits to provide guidance to lower courts. State v. Blilie, 132 Wash.2d 484, 488 n. 1, 939 P.2d 691 (1997); Grays Harbor Paper Co.,74 Wash.2d at 73,442 P.2d 967.

Here, Ross contends that the sentencing court miscalculated his offender score by including a 1988 Texas conviction. But the remedy for a miscalculated offender score is resentencing using a correct offender score. Ford, 137 Wash.2d at 485, 973 P.2d 452. Because Ross' confinement and supervision ended on November 25, 2003, it is undisputed that this court cannot provide him with any effective relief, i.e., less confinement due to a lower offender score.

Nonetheless, Ross argues that the "continuing and substantial public interest" exception should apply. Ross' Answer to State's Mot. to Dismiss Moot Appeal at 2 (citing Blilie, 132 Wash.2d at 488 n. 1, 939 P.2d 691). However, both Legrone and Hunter raise identical claims. Since resolution of their claims will provide sufficient guidance to lower courts, we decline to apply the "continuing and substantial public interest" exception to the mootness doctrine in Ross' case.

Offender Score Challenges

Hunter and Legrone assert that the sentencing courts miscalculated their offender scores. We have established that "illegal or erroneous sentences may be challenged for the first time on appeal." Ford, 137 Wash.2d at 477, 973 P.2d 452 (citing State v. Moen, 129 Wash.2d 535, 543-48...

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