                                                                    FILED
                                                                 JULY 11, 2019
                                                         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. 36652-9-III
                                               )
                     Respondent,               )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
DARRELL PARNEL BERRIAN,                        )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, C.J. — Darrell Berrian appeals his sentence. He argues the

trial court abused its discretion when, contrary to law, it applied a presumption that his

sentence should run consecutive with another sentence. The State agrees. In a

supplemental brief, he requests that we direct the trial court to waive his criminal filing

fee and his deoxyribonucleic acid (DNA) collection fee. The State agrees again.

       In a statement of additional grounds for review, Berrian challenges his offender

score on two grounds. We reject both challenges.

       We remand this matter for resentencing, direct the trial court to apply a

presumption that Berrian’s sentence should run concurrent to the other sentence, and

direct the trial court to strike Berrian’s criminal filing fee and DNA collection fee.
No. 36652-9-III
State v. Berrian


                                           FACTS

       Darrell Berrian committed attempted robbery in the first degree and unlawful

possession of a firearm in the first degree on July 7, 2013. Two months later, on

September 5, 2013, Berrian committed first degree assault, the crime in this appeal.

       On February 14, 2014, Berrian was convicted and sentenced on the attempted

robbery and firearm case. On September 12, 2014, Berrian was convicted and sentenced

on this case.

       In his first direct appeal of this case, this court ordered resentencing because a

prior conviction from Georgia was erroneously counted as 1 point instead of ½ point. At

resentencing on this case, the trial court ran Berrian’s sentence consecutive with his

sentence in the other case. In doing so, it stated:

       Okay. Mr. Berrian, I see no good reason to run your sentence concurrent
       with an entirely separate case. I’m not going to do that. The presumption is
       that it’s going to be consecutive, and that’s what I’m going to do.

Report of Proceedings (RP) at 11-12 (emphasis added).

       Berrian timely appealed to this court.




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No. 36652-9-III
State v. Berrian


                                        ANALYSIS

       NO PRESUMPTION FAVORING A CONSECUTIVE SENTENCE

       Berrian argues the trial court abused its discretion by applying an incorrect legal

presumption when it imposed a consecutive sentence. The State correctly concedes error.

       A trial court’s decision regarding concurrent or consecutive sentences is reviewed

for an abuse of discretion. In re Pers. Restraint of Delgado, 149 Wn. App. 223, 239, 204

P.3d 936 (2009). A trial court abuses its discretion when it applies the incorrect legal

standard. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).

       The correct legal standard is set forth at RCW 9.94A.589(3):

       [W]henever a person is sentenced for a felony that was committed while the
       person was not under sentence for conviction of a felony, the sentence shall
       run concurrently with any felony sentence which has been imposed by any
       court in this or another state or by a federal court subsequent to the
       commission of the crime being sentenced unless the court pronouncing the
       current sentence expressly orders that they be served consecutively.

       “RCW 9.94A.589(3) ‘applies when (1) a person who is not under sentence of a

felony (2) commits a felony and (3) before sentencing (4) is sentenced for a different

felony.’” State v. Jones, 137 Wn. App. 119, 124, 151 P.3d 1056 (2007) (internal

quotation marks omitted) (quoting State v. Shilling, 77 Wn. App. 166, 175, 889 P.2d 948

(1995)). Under these circumstances, the sentences must run concurrent unless the judge

orders otherwise. State v. King, 135 Wn. App. 662, 675, 145 P.3d 1224 (2006).

                                             3
No. 36652-9-III
State v. Berrian


      Here, the four conditions outlined in Jones were satisfied, so there was no

presumption favoring a consecutive sentence. We conclude the trial court abused its

discretion by applying an incorrect presumption.

      CRIMINAL FILING FEE AND DNA COLLECTION FEE MUST BE STRUCK

      Berrian is an indigent defendant, and the State acknowledges his DNA has been

previously collected. Berrian contends that State v. Ramirez, 191 Wn.2d 732, 426 P.3d

714 (2018) requires his criminal filing fee and DNA collection fee to be struck. The State

concedes, and we grant Berrian’s requests.

      STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

      SAG GROUND 1—OFFENDER SCORE

      In his first direct appeal, we determined that Berrian’s correct offender score

rounded down to 4. In his second direct appeal, Berrian contends that his correct offender

score should be rounded down to 3. We disagree.

      We review a trial court’s calculation of a defendant’s offender score de novo.

State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014).




                                             4
No. 36652-9-III
State v. Berrian


       RCW 9.94A.525(9) provides:

       If the present conviction is for a serious violent offense, count three points
       for prior adult and juvenile convictions for crimes in this category, two
       points for each prior adult and juvenile violent conviction (not already
       counted), one point for each prior adult nonviolent felony conviction, and
       1/2 point for each prior juvenile nonviolent felony conviction.

       Assault in the first degree is a serious violent offense; thus, RCW 9.94A.525(9)

applies. Former RCW 9.94A.030(45)(a)(v) (2012). Berrian’s February 14, 2014

conviction for the crime of attempted robbery in the first degree counts as 2 points

because it is a prior violent offense.1 See RCW 9.94A.525(9); Clerk’s Papers at 512.

       Next, the prior sale of cocaine committed on May 18, 2010, scores 1 point as a

nonviolent felony conviction.2 Similarly, as a class B felony, unlawful possession of a

firearm scores 1 point. RCW 9.41.040(1)(b).

       Lastly, Berrian’s juvenile conviction in Georgia for possession of a controlled

substance on May 7, 1999, scores ½ point.




       1
         “‘Violent offense’ means . . . [a]ny felony defined under any law as a class A
felony or an attempt to commit a class A felony.” Former RCW 9.94A.030(54)(a)(i).
Robbery in the first degree is a class A felony. RCW 9A.56.200.
       2
        “Nonviolent offense” means an offense that is not a violent offense.
Former RCW 9.94A.030(33). Cocaine is a Schedule II drug, and manufacture,
delivery, or possession with intent to deliver a Schedule II drug is a class B felony.
RCW 69.50.206(4); RCW 69.50.401.

                                              5
No. 36652-9-III
State v. Berrian


       Berrian’s total points equal 4½. RCW 9.94A.525 dictates that the offender score is

the sum of the total points rounded down to the nearest whole number. Thus, Berrian’s

offender score is 4. RCW 9.94A.525(9). We conclude that Berrian’s offender score was

correctly calculated.

       SAG GROUND 2—COMPARABILITY ANALYSIS

       Berrian argues that the trial court erred by including his two Georgia convictions in

his offender score without conducting a comparability analysis. He claims that he did not

affirmatively acknowledge that the foreign crimes were comparable to Washington State

crimes. This argument fails.

       At the beginning of Berrian’s resentencing hearing, the trial court asked the State

if it agreed with the offender score calculation as set forth in Berrian’s sentencing

memorandum:

              [THE COURT:] Let me ask first if the State is in agreement with the
       calculation of the offender score as put forth by [defense counsel] in the
       Sentencing Memorandum.
              [THE STATE]: Yes, sir. . . .
              ....
              [DEFENSE COUNSEL]: That’s correct, Your Honor.

RP at 3-4.




                                              6
No. 36652-9-III
State v. Berrian


       In Berrian’s sentencing memorandum, his counsel dedicated an entire section of

the brief to comparability analysis. There, defense counsel set forth that the juvenile

conviction only scored ½ point. Because no other offenses scored ½ point, the offense

would be eliminated by RCW 9.94A.525’s requirement to round down. Thus, no

comparability analysis was conducted on the juvenile possession of controlled substance

charge.

       Next, defense counsel addressed the second Georgia conviction and set forth the

Georgia controlled substance statute—GA. CODE ANN. § 16-13-30(b):

       Except as authorized by this article, it is unlawful for any person to
       manufacture, deliver, distribute, dispense, administer, sell, or possess
       with intent to distribute any controlled substance.

       He then set forth RCW 69.50.401(1):

       Except as authorized by this chapter, it is unlawful for any person to
       manufacture, deliver, or possess with intent to manufacture or deliver, a
       controlled substance.

       Defense counsel correctly concluded that the Georgia statute was not broader than

the Washington statute and acknowledged that the Georgia crime was legally comparable

to a Washington crime. We conclude the trial court did not err when it agreed that the

Georgia crime was comparable to a Washington crime.




                                              7
No. 36652-9-111
State v. Berrian


      Remanded for resentencing and striking two court costs.

      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.


                                         Lawrence-Berrey, C.J.

WE CONCUR:




 7)) Ucv ~ ' ~ .
 ddoway, J.                              Fearing, J.




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