                                                                            FILED
                                                                         APRIL 27, 2017
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )            No. 34038-4-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MAXWELL DEL VON JONES,                        )            UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. -    Maxwell Jones appeals his sentence following a bench trial at

which he was convicted of first degree robbery, arguing the State failed to show that

convictions included in his offender score had not washed out or did not constitute the

same criminal conduct. He makes a related argument that his trial lawyer provided

ineffective assistance when he failed to challenge the offender score used by the court.

As Mr. Jones fails to demonstrate that a sentencing error actually occurred, or that he was

prejudiced by his lawyer's failure to object, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       The State charged Maxwell Jones with one count of first degree robbery and one

count of second degree assault on April 5, 2013. Following a bench trial, the trial court
      No. 34038-4-III
      State v. Jones


      convicted Mr. Jones of first degree robbery, but acquitted him on the assault charge.

                At sentencing, the State presented a document entitled "Understanding of

      Defendant's Criminal History," which contained the following information:

      Crime                               Date of Crime Adult Place of Conviction                                                     Sent.
      ----···-·· .... ---------·-·············Crillle ____ Type ______ or_.Juv______ · · · · · · · · ·······--------··- .____________ ;Q_~!~-----------
      FELON POSS                             080612                                      A  US DISTRICT OF                                                            111814
      FIREARM                                                                               EASTERN
                                                                                            WASHINGTON
                                                                                         ·--·-··     ..       - --·------·····-····-···-······---------- ·------- ·-·---·-··-------··-·--·····--
                                                                                           ·--··························· .   -   ·-·········

  FELON POSS                         042012                                  A              US DISTRICT OF                                                            111814
  FIREARM                                                                                   EASTERN
                                                                                            WASHINGTON
  ---·--·-------·--- ···----·---·--·-----·--·--·--- ----------- -- --····-·-·-··--··-··--·-----·--- ···············-·-·-----·--·--··---·-··--··----·-···-··--··--·-- ----· ·--------·····-····
·-·

  FELON POSS                         102811                                  A              US DISTRICT OF                                                            111814
  FIREARM                                                                                   EASTERN
                                                                                            WASHINGTON
·----------···--------------···----------·-·-----·--··-··-----··----·--·-··--------------·--·-·····-·-·-------·-·-···-·------·--------·--------····---·--··--
  PCS CONSP                          122511 DRUG A
- - - · - - - - ---------·-····-----·---- -·-·-- ·---··---··------~-·-
                                                                                            SPOKANE                                   WA                             062712
  POSS WEAPON                        021005                                  A              US DISTRICT OF                                                           032106
                                                                                            EASTERN
                                                                                            WASHINGTON
                                                                                   - - ---·-·-·------ --··- ·-·---------··--···------·--·-···---·······--· ---               -·--··----···-·-···--·····-

  PSP 2                              090303 NV                                              SPOKANE                                   WA                              121703
  DCS CONSP                          011703                       DRUG
                                            - ----·-------··-····-··-··-· --
                                                                             A              SPOKANE
                                                                             -····----------·
                                                                                                                                      WA                              112603
  DCS CONSP                          011703 DRUG A                                          SPOKANE                                   WA                              112603
  R0BBERY2                           030403 V                                A              SPOKANE                                   WA                             112403
  ASSAULT 2 ATT 062601 V                                                     A              SPOKANE                                   WA                             112403

      Clerk's Papers (CP) at 47-48.

                Mr. Jones's counsel signed this document, but noted above his signature that Mr.

      Jones refused to sign it because he believed the conspiracy to possess a controlled

      substance conviction from June 27, 2012, was a misdemeanor rather than a felony. The

      trial court located the guilty plea for that crime and concluded it was a felony. Defense

      counsel raised no other challenges to the statement of criminal history.


                                                                                                  2
No. 34038-4-111
State v. Jones


       Based on the statement of criminal history, the State calculated Mr. Jones's

offender score at a 9+ (12 to be exact). The court then asked: "Are you disputing that

he's a 9-plus?" Report of Proceedings (RP) at 204. Defense counsel responded: "No,

Your Honor." Id. The trial court found the standard range for first degree robbery based

on an offender score of 9+ was 129 to 171 months, and sentenced him to 171 months.

       Mr. Jones appeals.

                                        ANALYSIS

       Mr. Jones makes two assignments of error on appeal: (1) his offender score was

miscalculated, and (2) he received ineffective assistance of counsel at sentencing.

                                     1. Offender score

       A defendant's offender score, together with the seriousness level of his current

offense, dictates the standard sentence range used in determining his sentence. RCW

9.94A.530(1). To calculate the offender score, the court relies on its determination of the

defendant's criminal history, which the Sentencing Reform Act of 1981 (SRA), chapter

9.94A RCW, defines as "the list of a defendant's prior convictions and juvenile

adjudications, whether in this state, in federal court, or elsewhere." RCW 9.94A.030(1 l).

Prior convictions result in offender score "points" as outlined in RCW 9.94A.525. They

will not result in additional points in the offender score if they have "washed out" due to

time spent in the community without committing further crimes. Prior convictions for

class B felonies are not included in the offender score

                                             3
No. 34038-4-111
State v. Jones


       if since the last date of release from confinement ... pursuant to a felony
       conviction, if any, or entry of judgment and sentence, the offender had
       spent ten consecutive years in the community without committing any
       crime that subsequently results in a conviction.

RCW 9.94A.525(2)(b). The same terms apply to class C felonies, though they wash out

in five years. RCW 9.94A.525(2)(c). We review offender score calculations de novo.

State v. Moeurn, 170 Wn.2d 169, 172,240 P.3d 1158 (2010).

       "In determining the proper offender score, the court 'may rely on no more

information than is admitted by the plea agreement, or admitted, acknowledged, or

proved in a trial or at the time of sentencing.'" State v. Hunley, 175 Wn.2d 901, 909, 287

P.3d 584 (2012) (quoting RCW 9.94A.530(2)). "[T]he State bears the burden to prove

the existence of prior convictions by a preponderance of the evidence." State v.

Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). "This reflects fundamental

principles of due process, which require that a sentencing court base its decision on

information bearing '" some minimal indicium of reliability beyond mere allegation."'"

Id. at 920 (quoting State v. Ford, 137 Wn.2d 472,481,973 P.2d 452 (1999)).

       The need for the State to produce evidence may be obviated where there is "an

affirmative acknowledgment by the defendant offacts and information introduced for the

purposes of sentencing." Mendoza, 165 Wn.2d at 928. "The mere failure to object to a

prosecutor's assertions of criminal history does not constitute such an acknowledgment."

Id. "Nor is a defendant deemed to have affirmatively acknowledged the prosecutor's


                                             4
No. 34038-4-111
State v. Jones


asserted criminal history based on his agreement with the ultimate sentencing

recommendation." Id.

       "Our Supreme Court has held, as a limit on what can be effectively acknowledged

by a defendant, that 'a defendant cannot agree to punishment in excess of that which the

Legislature has established."' State v. Zamudio, 192 Wn. App. 503,508,368 P.3d 222

(2016) (quoting In re Pers. Restraint a/Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618

(2002)). "It has also recognized this type of sentencing error as a non-rule-based

exception to RAP 2.5(a), which provides, generally, that errors cannot be raised for the

first time on appeal." Id. at 508.

       But there are limitations on the Supreme Court's holding that a defendant cannot

agree to a sentence in excess of statutory authority. While a defendant cannot waive

legal errors that lead to an excessive sentence, "waiver can be found where the alleged

error involves an agreement to facts, later disputed, or where the alleged error involves a

matter of trial court discretion." Goodwin, 146 Wn.2d at 874. The application of the

waiver analysis outlined in Goodwin depends on the defendant's ability to show that a

sentencing error was actually made, and not merely that one might have been made.

State v. Ross, 152 Wn.2d 220,231, 95 P.3d 1225 (2004) (holding that "[t]o invoke the

waiver analysis set forth in Goodwin, a defendant must first show on appeal ... that an

error of fact or law exists within the four comers of his judgment and sentence");

Mendoza, 165 Wn.2d at 927-28 (requiring the defendant to show an obvious error of fact

                                             5
No. 34038-4-111
State v. Jones


or law within the four comers of the sentence); cf State v. Wilson, 170 Wn.2d 682, 690

n.4, 244 P .3d 950 (2010) (indicating that the defendant is required to establish that an

error in fact occurred, regardless of whether that error is apparent from the face of the

judgment and sentence).

       Mr. Jones made a very limited objection at sentencing. He argued his conviction

for conspiracy to possess a controlled substance from June 27, 2012, was a misdemeanor

rather than a felony. But even after the trial court obtained the plea document for that

crime, Mr. Jones appears to have refused to sign the State's summary of his criminal

history. The issues of class C felonies washing out or of certain convictions constituting

the same criminal conduct were not raised. Whether two convictions constitute the same

criminal conduct involves "factual determinations and the exercise of discretion" and

may not be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 523,

997 P.2d 1000 (2000). We, therefore, decline to review Mr. Jones's challenge on that

issue. However, whether certain felony convictions have washed out involves legal error,

which Mr. Jones may raise if he shows that a sentencing error actually occurred. See

Ross, 152 Wn.2d at 231. This requires an analysis of each prior conviction.

   a. Three Convictions for Felon in Possession of a Firearm-3 Points

       Mr. Jones was convicted of committing three counts of felon in possession of a

firearm on October 28, 2011, April 20, 2012, and August 6, 2012, respectively. He was

sentenced for all three convictions on November 18, 2014. The record does not contain

                                              6
No. 34038-4-III
State v. Jones


the statute under which Mr. Jones was convicted of those crimes, but presumably it was

18 U.S.C. § 922. Under 18 U.S.C. § 922(g), it is "unlawful for any person who has been

convicted in any court of, a crime punishable by imprisonment for a term exceeding one

year ... to ... possess in or affecting commerce, any firearm or ammunition." "Whoever

knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this

title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2).

       "Federal convictions for offenses shall be classified according to the comparable

offense definitions and sentences provided by Washington law." RCW 9.94A.525(3).

Under RCW 9.41.040(1)(b), unlawful possession of a firearm in the first degree is a class

B felony, punishable by imprisonment of more than 8 years but less than 20 years. RCW

9A.20.040(2). Mr. Jones does not appear to argue that his 3 convictions for felon in

possession of a firearm washed out or constituted the same criminal conduct.

Accordingly, as Mr. Jones's present conviction was for first degree robbery-a class A

felony that constitutes a violent offense--and these appear to be nonviolent adult felony

convictions, each adds one point to Mr. Jones's offender score. RCW 9A.56.200(2);

RCW 9.94A.030(55)(a)(i); RCW 9.94A.525(8).

   b. Conspiracy to Commit Possession of a Controlled Substance-I Point

      Mr. Jones's crime of conspiracy to possess a controlled substance was committed

on December 25, 2011. He was sentenced on June 27, 2012. Possession of a controlled

substance is a class C felony punishable by up to five years' imprisonment. RCW

                                             7
No. 34038-4-111
State v. Jones


69.50.4013(2); RCW 9A.20.020(1)(c). Where a defendant is charged with conspiracy

under the Uniform Controlled Substances Act, chapter 69.50 RCW-rather than under

Title 9A RCW, a statute that deals with conspiracy in general-then RCW 9A.28.010,

which relates to prosecutions of felonies defined outside of Title 9A RCW, applies.

RCW 9A.28.010 states:

       In any prosecution under this title for ... conspiracy to commit a felony
       defined by a statute of this state which is not in this title, unless otherwise
       provided:

              (3) If the maximum sentence of imprisonment authorized by law
       upon conviction of such felony is less than eight years, such felony shall
       be treated as a class C felony for purposes of this title.

Under the SRA, the maximum penalty for a drug conspiracy is set by the maximum

penalty for the offense that is the object of the conspiracy. RCW 69.50.407. As noted,

the maximum penalty for possession of a controlled substance is five years. The same

maximum penalty therefore applies to the analogous conspiracy conviction. Because this

penalty is more than one year but less than eight, Mr. Jones's conviction for conspiracy to

possess a controlled substance is a class C felony.

       As earlier discussed, class C felonies wash out in five years. RCW

9.94A.525(2)(c). It is unclear when Mr. Jones was released from confinement on this

offense, but he was sentenced on June 27, 2012. His sentencing for the three federal




                                               8
No. 34038-4-111
State v. Jones


felon in possession of a firearm convictions occurred on November 18, 2014, resetting

the five-year clock. Presuming that he served no time and was released from

incarceration on November 18, 2014, the washout period would end November 18, 2019.

This conviction, therefore, has not washed out and was properly included as one point in

the offender score. See RCW 9.94A.525(8).

   c. Possession of a Dangerous Weapon-I Point

          Mr. Jones committed the crime of possession of a dangerous weapon on February

10, 2005, and was sentenced on March 21, 2006. The nature of this crime is unclear. It

might have been a conviction for possession of a firearm after being convicted of a felony

under 18 U.S.C. § 922(g).

          However, as Mr. Jones testified to being in prison from 2003 to 2008, it is more

likely the crime committed was under 18 U.S.C. § 1791, which relates to convictions for

possession, while in prison, of an object intended to be used as a weapon. 18 U.S.C. §

179I(a), (d)(l)(B). An offense under this statute is comparable to an offense under RCW

9.94.040 for possessing any weapon while in a state correctional institution, which is a

class B felony, or while in a county or local correctional institution, which is a class C

felony.

          If this was a class B felony, the washout period is 10 years. RCW 9.94A.525(2)(b).

Accepting Mr. Jones's testimony that he was released in 2008, the washout period would

not end until 2018. And as Mr. Jones was sentenced for other felonies in 2012 and 2014,

                                               9
No. 34038-4-111
State v. Jones


the washout period reset, and would not have ended until 2024. Thus, if the offense was a

class B felony, it did not wash out. And as it does not appear to be a violent offense, it

adds one point to Mr. Jones's offender score. RCW 9.94A.525(8); RCW 9.94A.030(55).

       If this was, instead, a class C felony, the washout period would be five years.

Again accepting Mr. Jones's testimony that he was released in 2008, the washout period

would not end until 2013. But he was convicted of a felony in 2012, which reset the

clock to 2017. His subsequent felonies in 2014 again reset the clock to 2019. Thus,

under any scenario, this crime did not wash out, and counts as one point in Mr. Jones's

offender score.

   d. Second Degree Possession of Stolen Property-I Point

       Mr. Jones committed. the crime of second degree possession of stolen property on

September 3, 2003, and was sentenced on December 17, 2003. Second degree possession

of stolen property is a class C felony. RCW 9A.56.160(2). The washout period is

therefore five years. Assuming Mr. Jones served no time on this crime, the conviction

would have washed out on December 17, 2008. However, Mr. Jones was convicted and

sentenced for the felony possession of a weapon on March 21, 2006, and his testimony




                                             10
No. 34038-4-III
State v. Jones


indicates he was incarcerated until 2008, which extended the washout period to 2013.

But he was convicted and sentenced for conspiracy to possess a controlled substance in

2012, again extending the washout period to 201 7. At sentencing this crime had not

washed out, and as a nonviolent felony offense, it added one point to Mr. Jones's

offender score.

   e. Two Convictions for Conspiracy to Deliver a Controlled Substance-2 Points

       Mr. Jones was convicted and sentenced for two counts of conspiracy to deliver a

controlled substance on November 26, 2003. Mr. Jones testified that the charges were for

possession ofmethamphetamine and ecstasy.

       Delivery of methamphetamine is a class B felony with a maximum sentence of 10

years of incarceration. RCW 69.50.401(2)(b). As previously stated, where a conspiracy

is charged under the Uniform Controlled Substances Act, RCW 9A.28.010 applies.

Under that statute, if the maximum sentence for the offense that is the object of the

conspiracy is 8 years or more but less than 20 years, it is a class B felony, and the

washout period is 10 years. RCW 9A.28.010(2); RCW 9.94A.525(2)(b). Again, Mr.

Jones testified to being in prison until 2008, meaning the conviction would not wash out

until 2018. As such, this conviction was properly included as one point in Mr. Jones' s

offender score. See RCW 9.94A.525(8).

       Ecstasy (methylenedioxymethamphetamine) is a Schedule I controlled substance,

delivery of which is a class C felony with a maximum penalty of five years of

                                             11
No. 34038-4-III
State v. Jones


incarceration. RCW 69.50.401(2)(c); RCW 69.50.204(c)(l 1); RCW 9A.20.021(1)(c).

As the sentence is less than eight years, the conspiracy to deliver ecstasy is a class C

felony, for which the washout period is five years. RCW 9A.28.010(3); RCW

9.94A.525(2)(c). If Mr. Jones was released from incarceration in 2008, this felony would

not wash out until 2013. But Mr. Jones was convicted and sentenced for conspiracy to

possess a controlled substance in 2012, which reset the clock to 201 7. Thus, this felony

was also properly included as one point in Mr. Jones's offender score. See RCW

9.94A.525(8).

   f. Second Degree Robbery-2 Points

       Mr. Jones committed second degree robbery on March 4, 2003, and was sentenced

on November 24, 2003. Second degree robbery is a class B felony, with a washout

period of 10 years. RCW 9A.56.210(2); RCW 9.94A.525(2)(b). As Mr. Jones was not

released from prison until 2008, the conviction will not wash out until 2018. Because

second degree robbery is classified as a violent offense, it counts as two points in Mr.

Jones's offender score. RCW 9.94A.030(55)(xi); RCW 9.94A.525(8).

   g. Attempted Second Degree Assault-2 Points

       Mr. Jones committed second degree attempted assault on June 26, 2001, and was

sentenced on that charge on November 24, 2003. Second degree assault is a class B

felony, with a maximum sentence of 10 years. RCW 9A.36.021(2)(a); RCW




                                             12
No. 34038-4-111
State v. Jones


9A.20.02l(l)(b). However, because an attempt to commit a class B felony is categorized

as a class C felony, the washout period is 5 years. RCW 9A.28.020(3)(c); RCW

9.94A.525(2)(c). As previously discussed, because Mr. Jones was not released from

prison until 2008, this conviction would not wash out until 2013. Mr. Jones's 2012

conviction for conspiracy to possess a controlled substance reset the washout clock to

2017. This conviction had not washed out at the time of sentencing.

       Second degree assault is a violent offense. RCW 9.94A.030(55)(viii). Under

RCW 9.. 94A.525(4), felony anticipatory offenses (such as attempt) must be scored "the

same as if they were convictions for completed offenses." Because prior violent offenses

count as two points when the current offense is a violent offense, this conviction for

attempt adds two points to the offender score. See RCW 9.94A.525(8).

       The above analysis shows that Mr. Jones's offender score is 12. Mr. Jones has

therefore failed to show that an error was actually made and he may not raise this issue

for the first time on appeal.

                                2. Ineffective assistance of counsel

       Mr. Jones argues he received ineffective assistance of counsel when his attorney

failed to assert that the two convictions for conspiracy to deliver a controlled substance

constituted the same criminal conduct for the purposes of sentencing, and that four of the

class C felonies had washed out.




                                                13
No. 34038-4-III
State v. Jones


       "In order to prove ineffective assistance of counsel, a defendant must show that

the attorney's performance was deficient and that prejudice resulted." State v. Levy, 156

Wn.2d 709, 729, 132 P.3d 1076 (2006). A failure to demonstrate either deficient

performance or prejudice defeats an ineffective assistance claim. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); see also Strickland v. Washington, 466

U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A claim of ineffective

assistance of counsel presents a mixed question of fact and law reviewed de novo." State

v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       As detailed above, the record does not show that any of Mr. Jones's prior

convictions had washed out. Because Mr. Jones "points to no apparent invalidity on the

face of the judgment and sentence and falls short in his attempt to assert an incorrect

offender score," he has not shown that counsel was ineffective. State v. Foster, 140 Wn.

App. 266, 277, 166 P.3d 726 (2007).

             STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In a prose statement of additional grounds for review (SAG), Mr. Jones raises

two.

       SAG 1: Unconstitutional prior convictions. Mr. Jones argues that the Ninth

Circuit found four of his prior state criminal convictions unconstitutional, and that the

trial court in the instant matter improperly included those unconstitutional convictions in

his offender score. This issue involves factual allegations outside the record of this

                                             14
No. 34038-4-111
State v. Jones


appeal. Mr. Jones's remedy is to seek relief by personal restraint petition. See State v.

Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).

       SAG 2: First degree robbery with a deadly weapon. Mr. Jones contends the trial

court improperly found he committed first degree robbery with a deadly weapon when

the "deadly weapon" was actually a cigarette lighter in the shape of a gun. He asserts that

the proper charge would have been second degree robbery.

       Under RCW 9A.56.200, "[a] person is guilty of robbery in the first degree if ...

[i]n the commission of a robbery ... he ... [d]isplays what appears to be a firearm or

other deadly weapon." RCW 9A.56.200(l)(a)(ii). Whether an instrument appears to be a

firearm or deadly weapon is based on the victim 's perspective, regardless of "whether the

weapon is actually loaded and operable or not, [or] whether the weapon is real or toy."

State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983); see also State v. Webb,

162 Wn. App. 195,205,252 P.3d 424 (2011). Blane Peterson, the victim, testified that

Mr. Jones put a small silver gun to his ribs. Testimony from a detective also shows that

the cigarette lighter is three to four inches from the hammer to the front of the gun and

initially appears to be a firearm, which supports Mr. Peterson's belief that it was a gun.

The record contains sufficient evidence for a finding that Mr. Jones displayed what

appeared to be a firearm as required by RCW 9A.56.200. There was no error.




                                             15
No. 34038-4-111
State v. Jones


       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                     d?~tt)i:J''o=.
                                                  Siddoway, J.

WE CONCUR:




Pennell, J.




                                             16
