                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                     November 15, 2016




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                           No. 47820-0-II

                                Respondent,

    v.

                                                             UNPUBLISHED OPINION
    MICHAEL RAY SIMPSON, JR.,

                                Appellant.

          WORSWICK, J. — Michael Simpson Jr., appeals his sentence following his guilty plea to

two counts of second degree assault, two counts of third degree rape, two counts of misdemeanor

violation of a protection order, and one count of felony harassment. He argues, and the State

concedes, that the sentencing court erred by miscalculating his offender score and imposing a

sentence based on the erroneously calculated offender score. We accept the State’s concession,

vacate Simpson’s sentence, and remand for resentencing under the appropriate offender score.1

                                              FACTS

          On June 10, 2014, Simpson pleaded guilty to crimes including two counts of second

degree assault, two counts of third degree rape, two counts of misdemeanor violation of a


1
 Simpson also seeks waiver of appellate costs. Because we remand for resentencing, the
appellate costs issue is not ripe.
No. 47820-0-II




protection order, and one count of felony harassment. During plea negotiations, Simpson

stipulated to the State’s summary of his criminal history, which included a 2004 California

conviction for first degree burglary. The sentencing court calculated Simpson’s offender score

at 11, and sentenced him to a standard range sentence.

       Simpson moved to correct the judgment and sentence, arguing the judgment and sentence

erroneously listed the 2004 conviction for first degree burglary, when his prior conviction was

actually a 2004 California class C felony conviction for possession of cocaine. Simpson further

argued that the court erroneously calculated his offender score because the 2004 possession of

cocaine conviction should have washed out.

       The sentencing court entered an order reflecting the correct criminal history and

determined that Simpson’s offender score was 9. The sentencing court did not change

Simpson’s sentence.

       Simpson then filed a motion to vacate the sentence, and the sentencing court conducted a

hearing to consider whether the 2004 California conviction washed out. The State argued that

Simpson stipulated to the particular conviction in the plea bargain. Simpson acknowledged that

he had stipulated to his criminal history during plea negotiations. The court then denied

Simpson’s motion to vacate his sentence based on Simpson’s stipulation to the conviction during

his plea negotiations.

       Simpson appeals.




                                                2
No. 47820-0-II




                                             ANALYSIS

        Simpson argues that the sentencing court erred when calculating his offender score and

that the error led to the imposition of an incorrect sentence. The State concedes. We agree that

the sentencing court miscalculated Simpson’s offender score and accept the State’s concession.

                                        I. LEGAL PRINCIPLES

        We review offender score calculations de novo. State v. Moeurn, 170 Wn.2d 169, 172,

240 P.3d 1158 (2010). The Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW,

requires the sentencing court to calculate a defendant’s offender score by the sum of points

accrued under RCW 9.94A.525. In reviewing a challenge to an offender score, we adhere to the

principles that (1) a sentence in excess of statutory authority is subject to collateral attack, (2) a

sentence is excessive if based upon a miscalculated offender score (miscalculated upward), and

(3) a defendant cannot agree to punishment in excess of that which the legislature has

established. In re Goodwin, 146 Wn. 2d 861, 873-74, 50 P.3d 618 (2002). Additionally, a

sentencing court bears the ultimate responsibility to determine the correct offender score and

sentencing range. State v. Malone, 138 Wn. App. 587, 593, 157 P.3d 909 (2007).

                                       II. SENTENCING ERROR

        The sentencing court erroneously included Simpson’s 2004 class C felony conviction for

possession of cocaine when calculating Simpson’s offender score. Under RCW 9.94A.525(2)(c),

class C felony convictions other than sex offenses are not included in the offender score if, since

the last date of release from confinement pursuant to a felony conviction or entry of judgment

and sentence, the offender spent five consecutive years in the community without being

convicted of any felonies. Simpson’s 2004 conviction should have washed out for sentencing


                                                   3
No. 47820-0-II




purposes because the record shows that Simpson spent five years in the community without

committing any crime that resulted in a conviction.

       Because Simpson’s 2004 conviction washes out, Simpson’s correct offender score should

be 8 rather than 9. See RCW 9.94A.525(2)(c). The sentencing court calculated Simpson’s

offender score at 9 based on Simpson’s stipulation in his plea agreement to a criminal history,

which included the 2004 conviction. Because a defendant cannot, by way of a negotiated plea

agreement, agree to a sentence in excess of that authorized by statute, and a sentencing court

bears the ultimate responsibility to determine the correct offender score, the sentencing court

here erred in imposing a sentence based on the incorrect offender score. See In re Goodwin, 146

Wn. 2d at 873-74; Malone, 138 Wn. App. at 593.

       The sentencing court erroneously calculated Simpson’s offender score and as a result,

Simpson’s sentence exceeds what is statutorily permitted for his crimes. We therefore vacate

Simpson’s sentence, and remand his case for resentencing using the correct offender score of 8.

See In re Goodwin, 146 Wn. 2d at 873-74.

                 STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Simpson also filed a statement of additional grounds for review (SAG). In addition to the

offender score argument we considered above, Simpson also argues that there should be some

sort of “compensation” awarded to him and his family for the trouble they endured in attempting

to correct Simpson’s offender score. SAG at 2. We do not award civil damages in criminal

cases based solely on a successful appeal.




                                                 4
No. 47820-0-II




                                          CONCLUSION

        We hold that the sentencing court erred in calculating Simpson’s offender score.

Accordingly, Simpson’s sentence is vacated, and we remand for resentencing consistent with the

correct offender score of 8.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                                       Worswick, J.
 We concur:



 Maxa, A.C.J.




 Melnick, J.




                                                  5
