                                                                          FILE:D
                                                                  COURT OF APPEALS DIV I
                                                                   STATE OF WASHINGTON
                                                                   2018 FEB 20 Ali 8:36


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE                               No. 76257-5-1
PERSONAL RESTRAINT OF:
                                                   DIVISION ONE
MICHAEL ALEXANDER WADE, JR.,
                                                   UNPUBLISHED OPINION
                      Petitioner.
                                                   FILED: February 20, 2018


       PER CURIAM. Michael Wade filed a timely personal restraint petition

challenging the consecutive sentences imposed pursuant to his conviction for

multiple firearm-related convictions. Wade contends that trial counsel was

ineffective for failing to argue that the convictions were the same criminal

conduct and for not requesting an exceptional sentence below the standard

range. To successfully challenge a judgment and sentence by means of a

personal restraint petition, a petitioner must establish either(1) actual and

substantial prejudice arising from constitutional error, or(2) nonconstitutional error

that inherently results in a "complete miscarriage of justice." In re Pers. Restraint

of Cook, 114 Wn.2d 802, 813, 792 P.2d 506(1990); In re Pers. Restraint of Hews,

99 Wn.2d 80, 88,660 P.2d 263(1983). Because Wade has met this burden, we

grant the petition and remand for resentencing.

       Wade was found guilty by the court, after waiving his right to a jury, of

three counts of residential burglary (counts 1 through 3), six counts of theft of a

firearm (counts 4 through 9), one count of second-degree theft (count 10), one
No.
•   76257-5-1/2


count of first-degree trafficking in stolen property (count 11) and one count of

unlawful possession of a firearm (count 12). The State recommended a low-end

sentence of 549 months confinement, noting that each of the six counts of theft

of a firearm "would be served consecutively under the statute." The State

stipulated that count 10 constituted the same criminal conduct as count 3.

         Wade's attorney noted that "had [Wade]committed a crime or crimes

that resulted in severe disfigurement of another human being that he would be

serving less time than he'll be serving to this sentence." Nonetheless, Wade's

attorney agreed with the State's recommendation and did not argue for

concurrent sentences or request an exceptional sentence below the standard

range.

         The trial court imposed a total sentence of 549 months. This included

concurrent sentences for each of the theft of a firearm convictions pursuant to

RCW 9.94A.589(1)(c).1 The trial court stated:

         As the Court is aware, the defendant is being sentenced today on
         six counts of theft of a firearm and one count of unlawful
         possession of a firearm in the first degree. Each of those standard
         ranges therefore would be served consecutively under the statute.


         Okay. Well, it's a bit distressing what we have to do here this
         morning. The low end of the standard range is a very, very long

1 RCW 9.94A.589(1)(c) provides: "If an offender is convicted under RCW 9.41.040 for
unlawful possession of a firearm in the first or second degree and for the felony crimes
of theft of a firearm or possession of a stolen firearm, or both, the standard sentence
range for each of these current offenses shall be determined by using all other current
and prior convictions, except other current convictions for the felony crimes listed in
this subsection (1)(c), as if they were prior convictions. The offender shall serve
consecutive sentences for each conviction of the felony crimes listed in this subsection
(1)(c), and for each firearm unlawfully possessed."

                                          - 2-
No. 76257-5-1/3


       time. But that's the only option I have right now. There's no —
       there's no basis for mitigation. There's no basis for a sentence
       below the standard range...[F]rankly I would much rather impose
       a lower sentence if I had the opportunity. But I don't.


       And, Mr. Wade, I don't know what to tell you. I wish we weren't
       doing this right now, in all honesty, I really do. I was hopeful that
       we would be here talking about a sentence that was about half the
       length of what we're talking about now, but that's not going to
       happen and — I just don't know what else to say other than I wish
       we weren't doing this.

In the judgment and sentence, the trial court crossed out "theft in the second

degree" and added the handwritten notation "same criminal conduct as count
3."

       In State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017), the

Washington Supreme Court, relying on its analysis in In re Pers. Restraint of

Mulholland, 161 Wn.2d 322, 166 P.3d 677(2007), held that "in a case in which

standard range consecutive sentencing for multiple firearm-related convictions

'results in a presumptive sentence that is clearly excessive in light of the

purpose of[the SRA],' a sentencing court has discretion to impose an

exceptional, mitigated sentence by imposing concurrent firearm-related

sentences." McFarland, 189 Wn.2d 47 at 55 (quoting RCW 9.94A.535(1)(g)).

       The State concedes that Wade is entitled to resentencing under

McFarland.2 We accept the State's concession. We vacate Wade's sentence

and remand for resentencing in accordance with McFarland.


2In McFarland, the defendant argued that the trial court erred in declining to impose
concurrent sentences because it erroneously believed it could not do so, and in the
alternative, that trial counsel was ineffective for failing to request an exceptional


                                         - 3-
No. 76257-5-1/4


       The State additionally argues that the trial court erred in failing to impose

a sentence for count 10. The State notes, correctly, that a determination that

two crimes constitute the same criminal conduct affects only scoring of the

offenses, but does not preclude imposition of a sentence. See RCW

9.94A.589(1)(a)(if a trial court makes 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."). The same criminal conduct doctrine does not "affect

the underlying convictions' validity." State v. Wilkins, 200 Wn. App. 794, 806,

403 P.3d 890(2017). On remand, the trial court shall be directed to impose a

sentence for count 10.

                                 For the court:

                                                        f.f-1.;d-< 1)




sentence. The court in McFarland did not address the ineffective assistance of counsel
claim. Here, Wade frames his argument only in the context of an ineffective assistance
of counsel claim. Nonetheless, in light of the State's concession, we remand for
resentencing.

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