                                                    STATE OF WASHIHGTO:-'

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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                            NO. 69271-2-1

                    Respondent,                 DIVISION ONE
             v.



JAMES STEVEN JOHNSON,                           PUBLISHED OPINION


                    Appellant.                  FILED: March 17, 2014



      Lau, J. — James Johnson appeals his high-end standard range sentence for

second degree attempted robbery. He challenges the court's offender score calculation

and argues he received ineffective assistance of counsel at sentencing. Because the

trial court properly calculated Johnson's offender score and Johnson fails to show that

prejudice resulted from his counsel's alleged deficient performance, we affirm.

                                         FACTS


      Second Degree Attempted Robbery Conviction

      The State charged James Johnson with second degree attempted robbery. A

jury found Johnson guilty as charged.

      At sentencing, the State offered evidence of nine prior felony convictions: one for

second degree murder, four for obtaining a controlled substance by forged or altered

prescription, two for forgery, one for second degree possession of stolen property, and

one for second degree burglary. The issues on appeal concern two groups of these
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convictions. One group comprises the four prescription forgeries. The other comprises

the possession of stolen property and one of the forgeries.

       Prior Prescription Forgery Convictions

      The State introduced the judgments and sentences, informations, affidavits of

probable cause, and plea agreements for the prior prescription forgery convictions.

These documents show that in April 1996, Johnson was convicted of one count of

obtaining a controlled substance by forged or altered prescription under Snohomish

County cause 95-1-01647-7 and three counts of obtaining a controlled substance by

forged or altered prescription under Snohomish County cause 95-1-01648-5. The

judgments show on their faces that the crimes were committed on four different dates.

Other documents show Johnson was charged and pleaded guilty to crimes committed

on four different dates. In sentencing Johnson for the prescription forgeries, the court

treated the four crimes as separate criminal conduct.

       Prior Second Degree Possession of Stolen Property and Forgery Convictions

       Similarly, the State introduced the judgment and sentence, information, affidavit

of probable cause, and plea agreementfor these crimes. These documents show that
in November 1999, Johnson was convicted of one count of second degree possession

of stolen property and one count offorgery in Snohomish County cause 97-1-01472-1.

The information showed that the possession of stolen property involved two credit cards

belonging to Talia Bowie. The forgery involved signing a false name to a credit card slip
in payment for cab fare. The judgment and sentence contains no finding that these
crimes constituted the same criminal conduct. In computing Johnson's offender score,

the sentencing court treated Johnson's prior prescription forgery crimes as separate

criminal conduct.
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       Prior Second Degree Murder Conviction

       In October 2001, King County Superior Court sentenced Johnson on one count

of second degree murder. The court scored Johnson's three 1996 convictions for

obtaining a controlled substance by forged or altered prescription under Snohomish

County cause 95-1-01648-5 as "same criminal] conduct" and further scored his 1999

convictions for possessing stolen property and forgery under Snohomish County cause

97-1-01472-1 as "same criminal] conduct." The record does not indicate what

information the King County court relied on in making those determinations.

      Sentencing for Current Offense

       For the current attempted second degree robbery offense, the State scored each

prior crime described above as 1 point, for a total offender score of 10. Before his

sentencing hearing, Johnson questioned his 1996 felony prescription forgery

convictions on same criminal conduct grounds. He claimed that these convictions

counted as only 1 point in his offender score, as opposed to the 4 points calculated

by the State. He also argued that his 1999 second degree possession of stolen

property and forgery convictions constituted same criminal conduct. The court

continued the sentencing hearing to address these issues. The State submitted a

supplemental sentencing memorandum arguing that (1) Johnson's 1996 prescription

forgery convictions did not constitute same criminal conduct because the crimes

were committed on four different and nonconsecutive days and at different locations,

(2) Johnson's 1999 possession of stolen property and forgery convictions did not

constitute same criminal conduct because they involved different victims, and (3) the

King County court erred when it found these crimes constituted the same criminal

conduct in 2001.

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       At the sentencing hearing, defense counsel acknowledged receipt of the State's

supplemental sentencing memorandum and agreed with the State's offender score

calculation as a 10. This yielded a standard range of ATA to 60 months' confinement.

The prosecutor argued for a 60-month sentence based on Johnson's "extensive criminal

history, his very rapid recidivism after having just gotten out of prison on his prior

murder conviction, and the impact on the victim." Report of Proceedings (Aug. 24,

2012) (RP) at 173.

       Defense counsel submitted certificates showing some of Johnson's

accomplishments while in prison. At the sentencing hearing, defense counsel agreed

that a 60-month sentence was appropriate. Because this was the statutory maximum, it

included no period of community custody. Defense counsel added, "The classes and

things that Mr. Johnson was doing towards the end of his prison sentence, also the fact

that he had been attempting to start his own business, I think he was on track to try to

better himself." RP at 174-75. Johnson told the court that he disagreed with his

counsel and requested a 48-month sentence:

       I don't agree with my attorney's recommendation of the high end. I would
       respectfully ask you to consider the low end. When I submitted my letter to you,
       the first thing that I expressed to you was my regret for what happened
       with ... the victim. I feel bad for what happened. It was a very poor decision on
       my part.
              But I'd also like you to take into consideration that the State offered me a
       plea bargain of 48 months before we proceeded to trial. The facts of the case
       and my record have not changed between the time that the State offered the plea
       bargain and essentially after the conviction.

RP at 175-76.


       The court briefly recessed so defense counsel could confer with Johnson. After

the recess, Johnson again asked for a 48-month sentence. Defense counsel stated,



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      I don't have anything to add, your Honor. Mr. Johnson would like to request 48
      months, and he has expressed that. I would like the Court to consider that. But I
      have nothing to add, personally, no, from what he's already stated.

            Your Honor, again, I submitted the materials from Mr. Johnson's education
      when he was in custody from things he was attempting to do when he is out of
      custody. Ithink those materials are positive on Mr. Johnson's behalf. Other than
      that, I think the Court is aware of the record. I think the Court is aware of the
      facts. And I have nothing further to add.

RP at 178.

      The court "view[ed] the defense recommendation as a 48-month

recommendation towards the low end." RP at 179. The court outlined in detail the

conflicting considerations affecting the sentence, including Johnson's high offender

score, his letter to the court, the materials and certificates defense counsel submitted,

the victim impact statement, the seriousness of Johnson's prior crimes, and his rapid

recidivism. Based on all of these factors and the court's view that a short period of

community custody would benefit Johnson, the court imposed a sentence of 58 months'
confinement and 2 months' community custody. Johnson does not challenge his

conviction, but appeals his offender score calculation and sentence.

                                        ANALYSIS


       Offender Score Calculation

       Johnson challenges the trial court's computation of his offender score. Although
defense counsel affirmatively agreed at sentencing that the State's calculation was

correct, the State concedes this issue can be raised for the first time on appeal because

Johnson claims his offender score reflects a legal error. Specifically, Johnson claims

that the 2001 King County sentencing court's action in counting three of his 1996
prescription forgery convictions as well as his 1999 forgery and possession of stolen
property convictions as "same criminal conduct" forecloses any future court from
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counting those crimes as separate conduct. Thus, Johnson claims he was entitled to

have his prior convictions counted together as a matter of law without regard to the facts

of those convictions.


      A sentencing court acts without authority under the Sentencing Reform Act of

1981 when it imposes a sentence based upon a miscalculated offender score. In re

Pers. Restraint of Johnson. 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). We review an

offender score calculation de novo but review a "'determination of what constitutes the

same criminal conduct [for] abuse of discretion or misapplication of the law.'" State v.

Mutch. 171 Wn.2d 646, 653, 254 P.3d 803 (2011) (alteration in original) (quoting State

v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999)). A trial court abuses its discretion if

its decision "(1) adopts a view that no reasonable person would take and is thus

'manifestly unreasonable,' (2) rests on facts unsupported in the record and is thus

based on 'untenable grounds,' or (3) was reached by applying the wrong legal standard

and is thus made 'for untenable reasons.'" State v. Sisouvanh, 175 Wn.2d 607, 623,

290 P.3d 942 (2012) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638

(2003)).

       RCW 9.94A.525(5)(a)(i) explains how a sentencing court scores multiple prior

convictions:


       In the case of multiple prior convictions, for the purpose of computing the
       offender score, count all convictions separately, except:
              (i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to
       encompass the same criminal conduct, shall be counted as one offense, the
       offense that yields the highest offender score. The current sentencing court shall
       determine with respect to other prior adult offenses for which sentences were
       served concurrently or prior juvenile offenses for which sentences were served
       consecutively, whether those offenses shall be counted as one offense or as
       separate offenses using the "same criminal conduct" analysis found in RCW
       9.94A.589(1)(a), and ifthe court finds that they shall be counted as one offense,
       then the offense that yields the highest offender score shall be used. The current
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       sentencing court may presume that such other prior offenses were not the same
       criminal conduct from sentences imposed on separate dates, or in separate
       counties or jurisdictions, or in separate complaints, indictments, or informations.

       This subsection sets out two alternative scoring rules. Under the first sentence,

the current sentencing court is required to treat prior offenses as a single offense if such

offenses "were found, under RCW 9.94A.589(1)(a), to encompass the same criminal

conduct." RCW 9.94A.525(5)(a)(i). If there was no such finding, the second sentence

applies. That sentence requires the current sentencing court to make its own

determination "using the 'same criminal conduct' analysis found in RCW

9.94A.589(1)(a)."1 RCW 9.94A.525(5)(a)(i).
       To determine how these provisions apply, we must examine RCW 9.94A.589.

That section sets forth rules for determining whether sentences will be consecutive or

concurrent. Subdivision (1)(a) contains the default rule for multiple current offenses:

       Except as provided in (b) or (c) of this subsection, whenever a person is to be
       sentenced for two or more current offenses, the sentence range for each current
       offense shall be determined by using all other current and prior convictions as if
       they were prior convictions for the purpose of the offender score: PROVIDED,
       That ifthe court enters a finding that some or all of the current offenses
       encompass the same criminal conduct then those current offenses shall be
       counted as one crime. Sentences imposed under this subsection shall be served
       concurrently. Consecutive sentences may only be imposed under the
       exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct,"
       as used in this subsection, means two or more crimes that require the same
       criminal intent, are committed at the same time and place, and involve the same
       victim. This definition applies in cases involving vehicular assault or vehicular
       homicide even if the victims occupied the same vehicle.

RCW9.94A.589(1)(a).


       1 Even where the prior sentencing court did not explicitly make a finding of same
criminal conduct, if the court ordered that the sentences be served concurrently, the
current sentencing court must independently determine whether the prior convictions
"encompass the same criminal conduct" and, ifthey do, must count them as one
offense. RCW 9.94A.525(5)(a)(i); State v. Torngren, 147 Wn. App. 556, 563, 196 P.3d
742 (2008).
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       RCW 9.94A.589(1)(a) only applies "whenever a person is to be sentenced for

two or more current offenses." RCW 9.94A.589(1)(a) (emphasis added). It, thus,

applies only to the original sentencing proceeding. In subsequent proceedings when a

court is determining criminal history, the offender is no longer "to be sentenced for two

or more current offenses." RCW9.94A.589(1)(a). Thus, any subsequent determination

with regard to criminal history is not made "under RCW 9.94A.589(1)(a)." RCW

9.94A.525(5)(a)(i). RCW 9.94A.525(5)(a)(i) distinguishes between same criminal

conduct determinations made "under RCW 9.94A.589(1)(a)" and those made "using the

'same criminal conduct' analysis found in RCW 9.94A.589(1)(a)." RCW

9.94A.525(5)(a)(i).

       Johnson claims that RCW 9.94A.525(5)(a)(i) required the trial court to score the

1996 and 1999 convictions the same as the 2001 King County Superior Court did

because its decision estops later sentencing courts from scoring those crimes

differently. Johnson does not dispute that some or all of the three 1996 counts and two

1999 counts were not actually the same criminal conduct; rather, he limits his claim to

the binding effect of the 2001 King County Superior Court judgment and sentence. He

specifically claims, "[l]f a prior trial court has determined that two or more convictions

constitute the same criminal conduct, the current sentencing court is bound by that

determination." Appellant's Br. at 9.

       RCW 9.94A.525(5)(a)(i) does not support Johnson's position. Johnson relies on

the sentence, "Prior offenses which were found, under RCW 9.94A.589(1)(a), to

encompass the same criminal conduct, shall be counted as one offense, the offense
that yields the highest offender score." But his argument ignores the circumstances
when a trial court makes this determination under RCW 9.94A.589(1)(a). As explained
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above, this latter statute applies only to a trial court finding for current offenses for which

a defendant is being sentenced. This means that a court considering whether multiple

prior convictions constitute the same criminal conduct is bound by a decision of the trial

court that convicted the defendant of the prior offenses. This may reflect the

legislature's determination that the court convicting a defendant of a crime has the most

complete information about the facts and circumstances of that crime. However,

because decisions made later by other courts in the context of deciding whether prior

convictions constitute the same criminal conduct are not made under RCW

9.94A.589(1)(a), the first sentence of RCW 9.94A.525(5)(a)(i) does not apply here.

That sentence would apply only if the trial court in Snohomish County causes

95-1-01648-5 and 97-1-01472-1 had found that the offenses on which it sentenced

Johnson constituted the same criminal conduct.2


       2Statutory history supports this analysis. See In re Troxel, 87 Wn. App. 131,
136, 940 P.2d 698 (1997) (analyzing statutory history to support court's reading of a
statute's limitations). For purposes of calculating the offender score, the Sentencing
Reform Act counted all prior adult convictions served concurrently as one offense.
Laws of 1983, ch. 115, § 7(8); Laws of 1984, ch. 209, § 19(11). In 1986, the legislature
expanded the number of prior convictions that would count toward the offender score:
       In the case of multiple prior convictions, for the purpose of computing the
       offender score, count all convictions separately, except:
              (a) Prior adult offenses which were found, under RCW 9.94A.400(1)(a), to
       encompass the same criminal conduct, shall be counted as one offense, the
       offense that yields the highest offender score. The current sentencing court shall
       determine with respect to other prior adult offenses for which sentences were
       served concurrently whether those offenses shall be counted as one offense or
       as separate offenses ....
Laws of 1986, ch. 257, § 25(5). At the same time, the legislature amended RCW
9.94A.400(1)(a) to create a "same criminal conduct" standard for multiple current
offenses. Laws of 1986, ch. 257, § 28. RCW 9.94A.400(1)(a) is the predecessor of
RCW 9.94A.589.
       Under the 1986 amendments, the reference to a finding "under RCW
9.94A.400(1)(a)" clearly referred to a finding by the original sentencing court because
the statute did not provide for any other court to make any such determination. The
1986 statute was viewed as conferring unrestricted discretion on subsequent
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       Here, the trial court acted properly under a correct interpretation of RCW

9.94A.525(5)(a). There has been no prior determination under RCW 9.94A.589(1)(a)

that any of Johnson's prior convictions constituted the same criminal conduct.

Consequently, the current sentencing court was required to decide whether to count

those crimes separately "using the 'same criminal conduct' analysis found in RCW

9.94A.589(1)(a)." RCW 9.94A.525(5)(a)(i). The legislature intended the phrase "same

criminal conduct" to be construed narrowly. State v. Flake, 76 Wn. App. 174, 180, 883

P.2d 341 (1994). If any one of the factors is missing, the multiple offenses do not

encompass the same criminal conduct. State v. Lesslev, 118Wn.2d 773, 778, 827


sentencing courts to decide what crimes would be included in criminal history whenever
the defendant had served concurrent sentences for crimes that had not been found by
the original sentencing court to encompass the same criminal conduct. See State v.
McCraw, 127 Wn.2d 281, 287-88, 898 P.2d 838 (1995), superseded bv statute as
stated in State v. Bolar, 129 Wn.2d 361, 917 P.2d 125 (1996). The 1995 legislature
limited subsequent courts' discretion by adding the underlined language:
       Prior adult offenses which were found, under RCW 9.94A.400(1)(a), to
       encompass the same criminal conduct, shall be counted as one offense, the
       offense that yields the highest offender score. The current sentencing court shall
       determine with respect to other prior adult offenses for which sentences were
       served concurrently whether those offenses shall be counted as one offense or
       as separate offenses using the "same criminal conduct" analysis found in RCW
       9.94A.400(1)(a) . . . .
Laws of 1995, ch. 316, § 1(6)(a)(i).
       The 1995 Senate Bill Report for this amendment states, "When counting prior
offenses that were served concurrently, the offenses count as one if thev were
specifically found bv the sentencing court to encompass the same criminal conduct.
Otherwise, the court has discretion whether to count the offenses separately oras one."
S.B. Rep. on Substitute H.B. 1140, 54th Leg., Reg. Sess. (Wash. 1995) (emphasis
added). It continues, "When scoring prior concurrently served offenses that the prior
sentencing judge did not specifically determine encompassed the same criminal
conduct, the currentsentencing judge must determine whetherthe offenses count as
one orseparately by applying the 'same criminal conduct' analysis." S.B. Rep. on
Substitute H.B. 1140, 54th Leg., Reg. Sess (Wash. 1995) (emphasis added). This
language confirms that "same criminal conduct" determinations are binding only if made
 by the original sentencing court.


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P.2d 996 (1992). Moreover, because a finding by the sentencing court of same criminal

conduct always favors the defendant, "it is the defendant who must establish [that] the

crimes constitute the same criminal conduct." State v. Graciano, 176 Wn.2d 531, 539,

295 P.3d 219 (2013).

       Under the above analysis, the 1996 prescription forgery convictions were not the

same criminal conduct because Johnson committed the crimes on completely different

and nonconsecutive days. The 1999 forgery and possession of stolen property

offenses were not the same criminal conduct because they were committed against

different victims.3 Johnson does not argue that these crimes factually constituted the
same criminal conduct—his only argument is that the current sentencing court was

bound by the 2001 King County Superior Court's ruling in that regard. We conclude that

the trial court properly counted Johnson's 1996 and 1999 convictions separately and,

thus, properly declined to follow the 2001 court's "same criminal conduct" determination.

The 1996 and 1999 sentences support applying the State's recommendation to score

the crimes as separate offenses, rather than the same criminal conduct.

       Ineffective Assistance of Counsel

       In his appellate brief and his pro se statement of additional grounds, Johnson

argues he received ineffective assistance of counsel at sentencing. He alleges two

areas of ineffectiveness: (1) counsel stipulated to the offender score and (2) "despite

Johnson's clearly expressed desire to seek a low-end standard range sentence,

[counsel] inexplicably concurred with the prosecutor's recommendation for the harshest

       3As described above, Talia Bowie was the only victim of the possession of stolen
property count. Multiple victims existed for the forgery count (including the cab driver
and the credit card company). Two crimes cannot be the same criminal conduct if one
crime involves only one victim and the other involves multiple victims. State v. Davis.
90 Wn. App. 776, 782, 954 P.2d 325 (1998).
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sentence possible." Appellant's Br. at 10. To establish ineffective assistance of

counsel, a defendant must show both deficient performance and resulting prejudice.

State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice requires

"'a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.'" State v. Thomas. 109 Wn.2d 222, 226, 743

P.2d 816 (1987) (quoting Strickland v. Washington. 466 U.S. 668, 694, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984)). If one of the two prongs of the test is absent, we need not

inquire further. State v. Hendrickson. 129Wn.2d 61, 78, 917 P.2d 563 (1996).

       The first alleged deficiency is immaterial. The State concedes that Johnson can

challenge the computation of Johnson's offender score on appeal notwithstanding

counsel's stipulation at trial. And as discussed above, the State correctly computed

Johnson's offender score in its sentencing memorandum. Defense counsel's stipulation

to the correct offender score was neither deficient performance nor prejudicial.

       Regarding the second alleged deficiency, even assuming defense counsel's

performance was deficient for seeking a sentence at the top ofthe range,4 Johnson fails
to show prejudice. As Division Three of this court noted:

       [A]n allegedly unsuccessful or poor quality sentencing argument alone is unlikely
       to result in demonstrable prejudice because of the near impossibility of showing a
       nexus between the argument and the eventual sentence. We must be
       persuaded the result would have been different. [State v.] McNeal, 145 Wn.2d
       [352,] 362, 37 P.3d 280 [2002]. A standard range sentence is a matter of broad
       trial court discretion. Argument merely attempts to influence the court's exercise
       of its sentencing discretion.

State v. Goldberg, 123 Wn. App. 848, 853, 99 P.3d 924 (2004). Here, the court treated

the defense recommendation as one for 48 months, the low end of the standard range.


       4The State admits that it "cannot. . . suggest any valid tactical reason in this
case for seeking a sentence at the top of the range." Resp't's Br. at 16.
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The court "focus[ed]... on the things that [defense counsel] has pointed to as justifying

something less than the high end." RP (Aug. 24, 2012) at 180. The court considered

factors supporting a lenient sentence, as well as factors supporting a more severe

sentence. The court's 58-month sentence was slightly less than the 60-month statutory

maximum. Given the court's careful analysis and exercise of its discretion, Johnson

fails to show a reasonable probability that any defective performance affected his

sentence—and, thus, he fails to show prejudice.

                                     CONCLUSION

       Because the trial court correctly computed Johnson's offender score and

Johnson fails to establish ineffective assistance of counsel, we affirm his conviction and

sentence.




WE CONCUR:




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