                                                                           FILED 

                                                                        APRIL 17,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32151-7-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
RANDY MICHAEL ANDERSON,                       )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

      KORSMO,    J. -In 2012, a Thurston County jury found Randy Anderson guilty of

one count of felony violation ofa domestic violence no contact order. On appeal, Mr.

Anderson argues that his trial date violated CrR 3.3 and that his offender score is

erroneous. We affirm the conviction, but remand for resentencing.

                                          FACTS

      A court order prevented Mr. Anderson from having any contact with his mother.

On March 25, 2012, Mr. Anderson went to his mother's home and requested to speak

with her. His mother's caretaker called the police. Officers arrested Mr. Anderson. He

was charged with one count of felony violation of a post-conviction domestic violence no

contact order. Mr. Anderson was maintained in custody throughout these proceedings.
No. 32151-7-111
State v. Anderson


       The case initially went to trial on June 7, 2012, but a mistrial was declared the

following day. The parties agreed at that time to a new trial start date during the week of

July 30. On July 9, the State asked for a continuance because the deputy prosecutor had

not realized until recently that the new trial date conflicted with her pre scheduled

vacation. Defense counsel opposed the continuance. The court granted the motion and

rescheduled the trial start date to the week of August 13.

       On July 19, the deputy prosecutor sought another continuance because the lead

investigator was not available during the week that trial was scheduled to start. Defense

counsel again opposed the motion. The court granted the motion and reset the trial start

date to the week of September 4.

       On July 24, Mr. Anderson filed a pro se motion to exercise his 60 day speedy trial

rights under erR 3.3. On August 14, defense counsel filed a motion to dismiss for

violation of erR 3.3. The court denied the motion, stating that it would not second guess

the earlier continuance rulings and noting that the defense had failed to file a written

objection and motion within 10 days of the original ruling as required by

erR 3.3(d)(3).

       Following a second trial that began September 4, the jury found Mr. Anderson

guilty as charged. At sentencing, the prosecutor proved Mr. Anderson's prior criminal

history for offender score purposes through a mix of certified and noncertified

documents. The prosecutor provided certified copies of Mr. Anderson's six prior felony

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No. 32151-7-II1
State v. Anderson


convictions from Washington. Those documents showed that five of the prior offenses

had the same offense date and same sentencing date in June 2008. The prosecutor also

provided noncertified copies of several government documents establishing that Mr.

Anderson had been convicted of a felony drug-related offense in California. Based on

this criminal history, the court determined that Mr. Anderson had an offender score of

seven and ordered a standard range sentence. Mr. Anderson appealed.

                                         ANALYSIS

       Mr. Anderson raises three issues on appeal. First, he contends that his retrial

occurred outside the limits set by CrR 3.3. Second, he argues that the sentencing court

erred by relying on the noncertified documents to prove his prior California conviction.

Third, he argues that the sentencing court erred by refusing to determine whether his five

felony convictions from June 2008 constituted the same criminal conduct for offender

score purposes. We affirm on the first two issues, but remand for resentencing on the

third issue.'

       Time for Trial

       Review of Mr. Anderson's first argument is barred by his failure to preserve the

issue for review. A party that objects to a continuance under CrR 3.3(f) "must, within 10

days after the notice is mailed or otherwise given, move that the court set a trial within


       1 Mr. Anderson has also filed a pro se statement of addition grounds. We find his
three claims without merit and will not discuss them further.

                                              3

No. 32151-7-III
State v. Anderson


those time limits." CrR 3.3(d)(3). "A party who fails, for any reason, to make such a

motion shall lose the right to object that a trial commenced on such a date is not within

the time limits prescribed by this rule." Id.; Accord State v. Farnsworth, 133 Wn. App. 1,

12-13,130 P.3d 389 (2006); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209

(2008), aff'd, 166 Wn.2d 881, 214 P.3d 907 (2009). Because Mr. Anderson failed to

move the court for a trial within the original time limits, he waived any objection to the

new trial date.

       The timeliness argument also was without merit. The decision to grant a

continuance is reviewed for abuse of discretion. State v. Selam, 97 Wn. App. 140, 142,

982 P.2d 679 (1999). Attorney or police officer vacations have long been recognized as

valid reasons for continuing a case. Id. at 143 (citing cases). The effect of a continuance

is to extend the time for trial by excluding the period of the continuance from the time to

bring the case to trial. CrR 3.3(e)(3). Thus, under well-settled precedent, the trial court

did not abuse its discretion in granting either continuance.

       ProofofPrior Convictions

       Mr. Anderson's second argument is that the trial court should not have accepted

noncertified documents from the State in establishing his prior felony conviction in

California. We review this challenge to Mr. Anderson's offender score de novo. State v.

Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).




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No. 32151-7-111
State v. Anderson


       At sentencing, the State bears the burden of establishing the defendant's criminal

history for offender score calculations. State v. Ford, 137 Wn.2d 472.480,973 P.2d 452

(1999). "[U]se of a prior conviction as a basis for sentencing under the SRA is

constitutionally permissible if the State proves the existence ofthe prior conviction by a

preponderance ofthe evidence." Id. at 479-80. "Absent a sufficient record. the

sentencing court is without the necessary evidence to reach a proper decision, and it is

impossible to determine whether the convictions are properly included in the offender

score." Id. at 480-81.

       Here, the prosecutor met this burden by providing numerous documents from the

state of California showing that Mr. Anderson had a prior felony drug conviction. Citing

to Ford, Mr. Anderson argues that the State needed to provide certified copies ofthese

documents. Ford did state that a certified copy of a prior judgment is "[t]he best

evidence of a prior conviction." Id. at 480. However, Ford did not state that a certified

copy was mandatory in all cases. To the contrary, Ford also stated that "the State may

introduce other comparable documents of record or transcripts of prior proceedings to

establish criminal history." Id.

       Mr. Anderson contends that the Supreme Court later modified the holding in Ford

to make a certified copy mandatory. The Supreme Court appeared to do so in State v.

Lopez, 147 Wn.2d 515,519,55 P.3d 609 (2002). However, the Supreme Court later

abrogated this part of Lopez. In re Pers. Restraint ofAdolph, 170 Wn.2d 556, 243 P.3d

                                             5

No. 32151-7-III
State v. Anderson


540 (20 10) (holding that a noncertified driving record abstract, when combined with a

criminal history printout, was sufficient to prove the existence of a prior DUI conviction).

In Adolph, the Supreme Court explicitly held that "the Lopez language ... is, in fact, the

product ofa misapplication of the so-called best evidence rule." ld. at 567. The Supreme

Court then went on to hold that Ford remains the rule with regard to proving a prior

conviction at sentencing. ld. at 568-69. Because the official documents submitted by the

State carried the necessary minimum indicia of reliability when put together, we conclude

that the State carried its burden of proving Mr. Anderson's prior conviction from

California.

       Scoring ofPrior Convictions

       Mr. Anderson's third argument is that the sentencing court erred when it refused to

determine whether his June 2008 convictions constituted same criminal conduct for

offender score purposes. RCW 9.94A.525(5)(a)(i) requires sentencing courts to

determine whether the defendant's prior concurrent sentences should be treated as the

same criminal conduct when calculating his current offender score. The court did not do

so despite the defense request. Accordingly, we must vacate the judgment and sentence

and remand for resentencing.

       Mr. Anderson also argues that upon remand, the State should be held to the record

as it existed below and not have the opportunity to provide evidence that his prior

convictions should not be counted as the same criminal conduct. We disagree. The State

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No. 32151-7-111
State v. Anderson


only bears the burden of establishing the existence of the prior convictions. The

defendant bears the burden of proving that prior crimes should be counted as the same

criminal conduct. State v. Graciano, 176 Wn.2d 531, 539,295 P.3d 219 (2013). Thus,

on remand Mr. Anderson has the burden of establishing that the five offenses constituted

the same criminal conduct.

      Affirmed in part, reversed in part, and remanded for resentencing.

      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.




WE CONCUR: 





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