                                                            FILED
                                                          APRIL 3, 2018
                                                  In the Office of the Clerk of Court
                                                 WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                         )          No. 35001-1-III
                                             )
                    Respondent,              )
                                             )
      v.                                     )          UNPUBLISHED OPINION
                                             )
CATHE L. McNEILL,                            )
                                             )
                    Appellant.               )

      PENNELL, J. — Cathe McNeill appeals her sentence for delivery of a controlled

substance. Because the sentence imposed by the court exceeded the applicable range set

by the legislature, we reverse the sentence and remand for resentencing.

                                   BACKGROUND

      In November 2016, Ms. McNeill pleaded guilty to two counts of delivery of

methamphetamine. The offense conduct dates were July 15 and 22, 2015. Ms. McNeill’s
No. 35001-1-III
State v. McNeill


plea was pursuant to a plea agreement. Under the terms of the agreement, the State

agreed to dismiss three additional charges and to recommend a sentence of 60 months’

incarceration. The 60-month term was the low-end of the applicable range. At

sentencing, the trial court followed the State’s recommendation, imposed a 60-month

sentence, and assessed $3,445 in mandatory and discretionary legal financial obligations

(LFOs), including a $1,000 fine.

       At issue in this appeal are the terms of Ms. McNeil’s plea agreement. Pursuant to

the agreement, Ms. McNeil stipulated that her offender score was seven. She also agreed

to the following statement of criminal history:




Clerk’s Papers (CP) at 95. 1




       1
       The image above was taken from the criminal history that was included in Ms.
McNeill’s guilty plea statement.

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State v. McNeill


       Subsequent to sentencing, Ms. McNeill’s appellate counsel obtained additional

information regarding Ms. McNeill’s criminal history. Through a declaration submitted

under RAP 9.11, appellate counsel disclosed that Ms. McNeill was released from her

December 5, 2006, sentence for delivery of methadone in May 2009. 2 The declaration

also states Ms. McNeill had no criminal convictions between 2009 and December 1,

2016. The State does not challenge the accuracy of the information submitted by

appellate counsel.

                                       ANALYSIS

Incorrect offender score

       Ms. McNeill claims that, based on the post-conviction information obtained by

appellate counsel, her offender score was miscalculated. She specifically argues that, at

the time of her plea and sentencing in 2016, most of her prior convictions had washed out

from her offender score pursuant to RCW 9.94A.525(2)(c). The State does not challenge

the factual or legal accuracy of Ms. McNeill’s offender score calculation. Instead, the

State claims Ms. McNeill’s plea agreement precludes her from challenging the offender

score at this stage of the proceedings. Our review is de novo. State v. Mutch, 171 Wn.2d



       2
       Ms. McNeill was granted leave to file the declaration by our court commissioner.
A panel of this court denied the State’s motion to revise the commissioner’s ruling.

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No. 35001-1-III
State v. McNeill


646, 653, 254 P.3d 803 (2011).

       We begin by assessing whether, as assumed by the parties, Ms. McNeill’s offender

score was miscalculated. An offender score establishes the standard range term of

confinement for a felony offense. See RCW 9.94A.525, .530(1). The sentencing court

calculates an offender score by adding current offenses, prior convictions, and juvenile

adjudications. RCW 9.94A.030(11), .525. A defendant’s current convictions are each

counted separately unless the court finds that some or all of the current offenses constitute

the same criminal conduct. RCW 9.94A.589(1)(a). For nonviolent drug offenses, as here,

a court counts one point for each prior adult felony conviction. RCW 9.94A.525(7), 3 (13);

see also RCW 9.94A.030(34), (55). However, if a prior conviction is for a class C felony

that is not a sex offense, and the offender has remained free of conviction for five

consecutive years since last being released from confinement, the prior conviction washes

out and is not counted toward the offender score. RCW 9.94A.525(2)(c).

       Ms. McNeill stipulated that her criminal history was limited to six prior felonies.

Her plea statement and the judgment and sentence both indicate Ms. McNeill was

sentenced for her two most recent prior convictions on December 5, 2006. It is further



       3
       The provisions of this subsection pertaining to juvenile offenses do not apply
here. Ms. McNeill has no juvenile convictions.

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No. 35001-1-III
State v. McNeill


noted that Ms. McNeill served 60 months for the controlled substance conviction, but

there is no term of confinement included for the second degree unlawful possession of a

firearm conviction. But second degree unlawful possession of a firearm is a class C

felony. Former RCW 9.41.040(2)(b) (1995). The statutory maximum sentence for a

class C felony is five years (60 months). RCW 9A.20.021(1)(c). Thus, Ms. McNeill

could not have served more than 60 months on that conviction. Further, according to the

declaration of appellate counsel, Ms. McNeill was last released from confinement in

May 2009. Given the concurrent sentencing date between the controlled substance and

second degree unlawful possession of a firearm convictions, it is apparent Ms. McNeill

was released from confinement on both convictions in May 2009.

      With this in mind, we agree with the parties that Ms. McNeill’s offender score

was miscalculated. Five of Ms. McNeill’s six prior convictions are class C felonies.

RCW 69.50.403(1)(c), (3) (attempt to obtain a controlled substance by fraud); former

RCW 9.41.040(2)(b) (second degree unlawful possession of a firearm). The remaining

conviction is a class B felony. RCW 69.50.401(2)(a) (delivery of a controlled substance,

methadone). 4 Over five years elapsed between May 2009 and the date of Ms. McNeill’s



      4
        Methadone is a schedule II synthetic opiate, which is considered a narcotic drug
under the statute. Former RCW 69.50.101(r)(2), .206(c)(14) (1993).

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No. 35001-1-III
State v. McNeill


plea in 2016. Under RCW 9.94A.525(2)(c), Ms. McNeill’s five prior class C felony

convictions had washed out and should not have been counted toward her offender score.

It appears the proper offender score is two, one point for a current offense, and one point

for the prior delivery of a controlled substance offense. Ms. McNeill was sentenced to 60

months’ confinement. But with this properly calculated offender score, the standard

range for her current convictions is 12-20 months. RCW 9.94A.517, .518. Under the

offender score used by the trial court, Ms. McNeill’s standard range was 60-120 months.

RCW 9.94A.517.

       The State’s argument on appeal is that Ms. McNeill has waived her challenge to

the offender score by stipulating to her criminal history and offender score in the plea

agreement. The problem with the State’s position is that a defendant generally cannot

waive a challenge to a miscalculated offender score. In re Pers. Restraint of Goodwin,

146 Wn.2d 861, 874, 50 P.3d 618 (2002). Waiver can be found in situations where the

defendant agrees to incorrect facts. Id. But a defendant does not agree to incorrect facts

merely by signing a plea agreement that contains an agreed offender score calculation and

list of prior convictions. Id. at 874-76. Something more is needed, such as an explicit

agreement as to when the defendant was released from custody or, at the very least, a

specific agreement that the prior convictions had not washed out due to age. Id. at 874


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No. 35001-1-III
State v. McNeill


(“[W]aiver 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.”). See also

State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004) (Waiver occurred when

defendants “affirmatively acknowledged at sentencing that their prior out-of-state and/or

federal convictions were comparable to Washington State crimes.”); In re Pers. Restraint

of Call, 144 Wn.2d 315, 326, 28 P.3d 709 (2001) (There is no waiver when nothing is in

the record to indicate the defendant understood he was electing to have prior convictions

included in his offender score even though they technically washed out.); State v. Huff,

119 Wn. App. 367, 370-72, 80 P.3d 633 (2003) (An explicit stipulation that prior

conviction had not washed out resulted in waiver.).

       Here, Ms. McNeill did not stipulate to any facts that are inconsistent with her

current claims regarding the washout of prior convictions. Contrary to the State’s

position, Ms. McNeill’s plea paperwork did not set forth the period of incarceration for

the 2006 methadone conviction. Instead, the agreed statement of criminal history merely

indicated the total sentence was 60 months. At no point during the proceedings in trial

court did Ms. McNeill indicate when the 60-month term began to run or when it ended.

She is therefore not estopped from raising this claim now.




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No. 35001-1-III
State v. McNeill


       The State also claims it has relied to its detriment on Ms. McNeill’s offender score

agreement. The State points out that it could have pursued additional charges against Ms.

McNeill had she not pleaded guilty, including a charge that would have precluded

application of any washout provision. According to the State, Ms. McNeill should be

estopped from pursuing a remedy, such as resentencing, that would prevent the State from

renegotiating the terms of Ms. McNeill’s plea.

       We find no authority for the claim that Ms. McNeill’s choice of litigation strategy

should be dictated by the State’s reliance interests. While Ms. McNeill could have raised

her offender score concerns through a personal restraint petition or motion to withdraw

her plea, she was not required to do so. State v. Malone, 138 Wn. App. 587, 593 & n.4,

157 P.3d 909 (2007) (A defendant who discovered post-plea that agreed prior convictions

included washed out offenses was not limited in available remedies.). Our cases have

consistently recognized that an incorrect offender score calculation can be raised on direct

appeal. See, e.g., Goodwin, 146 Wn.2d at 877 (Even “on direct appeal . . . the erroneous

portion of a sentence in excess of the statutory authority must be reversed.”); State v.

Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999) (“[I]llegal or erroneous sentences may

be challenged for the first time on appeal.”). The ability to seek relief on direct appeal is

based on the court’s “duty and power to correct an erroneous sentence upon its


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No. 35001-1-III
State v. McNeill


discovery.” Call, 144 Wn.2d at 334. We will not abdicate this responsibility simply

because Ms. McNeill has other avenues of relief available.

       The remedy for an incorrect offender score calculation is resentencing unless the

record makes clear the trial court would have imposed the same sentence. State v. Tili,

148 Wn.2d 350, 358, 60 P.3d 1192 (2003). Here, there are no facts indicating that the

trial court would have imposed an exceptional sentence of 60 months, despite knowing

the correct range was 12-20 months. Given this circumstance, resentencing is required. 5

LFOs

       For the first time on appeal, Ms. McNeill challenges the trial court’s imposition of

discretionary LFOs based on her inability to pay. We have discretion to review an

unpreserved LFO challenge such as the one raised by Ms. McNeill. RAP 2.5(a). But

because Ms. McNeill’s case must be remanded for resentencing, we opt not to review the

merits of Ms. McNeill’s LFO challenge at this time. Instead, we direct the trial court on

remand to make an individualized inquiry into Ms. McNeill’s ability to pay pursuant to

State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015) prior to imposition of any

discretionary LFOs.


       5
        We pass no judgment over whether, on remand, the State may be able to continue
to pursue its recommended sentence of 60 months, based on the exceptional circumstance
provision of RCW 9.94A.535(2)(d). Nothing in our opinion precludes this possibility.

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No. 35001-1-III
State v. McNeil!


                                    CONCLUSION

       We remand for full resentencing and reconsideration of discretionary LFOs.

Because Ms. McNeill is the prevailing party, her request to deny appellate costs is

granted.

      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.

                                                 · ~ I


WE CONCUR:
                                         Pennell, J.               '   d

                                         Fea~t




                                            10
