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State v. Roberts

The Court of Appeals of Washington, Division Three
Jul 3, 1990
58 Wn. App. 387 (Wash. Ct. App. 1990)


No. 10023-5-III.

July 3, 1990.

[1] Criminal Law — Punishment — Sentence — Criminal History — Convictions Served Concurrently — What Constitutes. For purposes of RCW 9.94A.360(6)(c), which requires that all pre-reform act convictions served concurrently be counted as a single offense when computing the standard range for the sentence for a new offense, separate sentences for separate crimes which happen to overlap do not constitute a concurrent sentence.

Nature of Action: Prosecution for attempted first degree theft.

Superior Court: The Superior Court for Spokane County, No. 88-1-01219-0, Kathleen M. O'Connor, J., on May 2, 1989, entered a judgment on a guilty plea.

Court of Appeals: Holding that the trial court had properly computed the defendant's offender score for sentencing purposes, the court affirms the judgment and sentence.

Charles Baechler, for appellant.

Donald C. Brockett, Prosecuting Attorney, and Edward Hay and Steven Kinn, Deputies, for respondent.

On March 30, 1989, Mark Jay Roberts pleaded guilty in Spokane County to attempted first degree theft. Based on an offender score of 6 he was sentenced to 15 months. Mr. Roberts appeals contending the court erred in calculating his score. We affirm.

The court considered the following criminal history in computing the offender score: On January 13, 1981, Mr. Roberts was convicted in Thurston County of second degree escape and third degree assault in cause 80-1-331-7. He was sentenced on March 4, 1981, to 5 years on each count, the sentences to run consecutively. On June 5, 1981, Mr. Roberts was convicted in King County of robbery in the second degree and two counts of assault in the second degree. On August 17, 1981, he was sentenced to 10 years on each count "to run concurrently, with said sentence to run concurrent w/ Thurston County J S 80-1-331-7." Between August 1987 and October 1987, Mr. Roberts committed four additional crimes. The court arrived at a prior offender score of 6.

The court found the two crimes involved in the 1981 Thurston County convictions encompassed the same criminal conduct and were counted as one offense. The court also counted the 1981 King County convictions as one prior offense. Mr. Roberts contends this was error. He argues the 1981 Thurston County convictions and 1981 King County convictions should be counted as one prior offense because the King County sentence specifically stated it would run concurrent with the Thurston County sentence. Thus, he asserts his offender score should have been 5 — not 6.

See RCW 9.94A.360(6)(2), which reads in part:
"Prior adult offenses which were found . . . to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score."

[1] RCW 9.94A.360(6)(c) reads in part: "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 . . .". In State v. Chavez, 52 Wn. App. 796, 764 P.2d 659 (1988), we held the fact that a court orders a subsequent sentence be served concurrently with the remainder of a previous sentence does not thereby convert the two sentences into one concurrent sentence for the purpose of the statute. We noted that such sentences were not concurrent, but merely overlapped, because part of the prior sentence had already been served. We cited with approval State v. Hartley, 41 Wn. App. 669, 705 P.2d 821, review denied, 104 Wn.2d 1028 (1985), in which the court observed it would be inconsistent to construe the statute so that a defendant who happened to serve overlapping prison terms for separate crimes would be deemed to have committed only one offense. Here, Mr. Roberts began serving his Thurston County sentence prior to his sentencing in King County. His sentences were issued in different counties, at different times, for separate crimes, and before different sentencing judges. His Thurston County and King County sentences overlapped, but were not concurrent for purposes of RCW 9.94A.360. To be concurrent for the purposes of RCW 9.94A.360(6)(c), we believe the Legislature intended the sentences must begin and end at the same time. In that situation, the multiple sentences prior to July 1, 1986, will be treated as one in computing the offender score.

It is argued that State v. Hartley, 51 Wn. App. 442, 754 P.2d 131 (1988); State v. Harper, 50 Wn. App. 578, 749 P.2d 722 (1988); and State v. Johnson, 49 Wn. App. 239, 742 P.2d 178 (1987), review denied, 110 Wn.2d 1006 (1988) hold to the contrary. To the extent they may differ from our construction of RCW 9.94A.360(6)(c), we decline to follow them.

We conclude the trial court correctly calculated Mr. Roberts' offender score to be 6. Mr. Roberts' pro se brief does not raise any additional issues other than those addressed in this opinion.


MUNSON, C.J., and THOMPSON, J., concur.

Review granted at 115 Wn.2d 1021 (1990).

Summaries of

State v. Roberts

The Court of Appeals of Washington, Division Three
Jul 3, 1990
58 Wn. App. 387 (Wash. Ct. App. 1990)
Case details for

State v. Roberts

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MARK JAY ROBERTS, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Jul 3, 1990


58 Wn. App. 387 (Wash. Ct. App. 1990)
58 Wash. App. 387
793 P.2d 981

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