                                                                                F ILEO
                                                                        C`OURT OF APPEALS
                                                                              DIVISION 11

                                                                        2015 AUG: 18       AM 9: 01

                                                                        STATE OF WASHINGTON

                                                                        BY
                                                                                D'     t1TY


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

 STATE OF WASHINGTON,                                                   No. 46072 -6 -II


                                Respondent,


         V.




JOEL DUANE McANINCH,                                                   Consolidated with:


                                I1
In re the Personal Restraint Petition
 of



 JOEL DUANE McANINCH,
                                                                    PUBLISHED OPINION
                                 Petitioner,




        LEE, J. — Joel Duane McAninch appeals the trial court' s denial of his CrR 7. 8 motion for


relief from judgment, arguing that the sentencing court miscalculated the offender score for his

2013   felony conviction for driving under the   influence (DUI). In his pro se statement of additional


grounds ( SAG) and his consolidated personal restraint petition, McAninch also challenges the


offender score supporting his sentence for a 2011 felony DUI conviction.

         Because the sentencing court did not err in including points for McAninch' s 2004

conviction for attempting to elude and his active community custody status in his 2013 offender

score, the trial court did not abuse its discretion in denying his CrR 7. 8 motion. We do not address

the SAG   challenge   to the 2011 judgment   and sentence   because it is untimely   and   beyond the   scope
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of this appeal. And, because McAninch has served the term of confinement imposed in 2011, we

deny his personal restraint petition as moot. Accordingly, we affirm the trial court' s order denying

relief under CrR 7. 8 and deny the personal restraint petition.

                                                     FACTS


         On March 7, 2013, McAninch pleaded guilty to felony DUI and three gross misdemeanors:

first degree driving while license suspended, third degree malicious mischief, and first degree

criminal    trespass.    McAninch' s offender score of 6 included one point for a 2004 attempting to

elude conviction, one point for a prior felony DUI conviction, three points for prior nonfelony DUI

convictions, and one point because McAninch was on community custody at the time of his current

offenses.



         At his sentencing     on   March 12, the trial       court addressed   McAninch: "    You' re a really,

really dangerous individual.        We sent you to prison and you lasted about two months before you

were   driving   drunk   again."   Verbatim Report   of   Proceedings ( Mar. 12, 2013)   at   7.   The trial court


imposed a high- end sentence of 54 months on the felony DUI and suspended most or all of the

364 -day sentences on each of the gross misdemeanors.

         On January 23, 2014, McAninch filed a pro se CrR 7. 8 motion for relief from judgment in

which he sought resentencing on his 2013 felony DUI conviction. McAninch argued that the trial

court erred in including his 2004 conviction for attempting to elude in his offender score and cited

authority supporting his argument. After a brief hearing on the motion, the trial court concluded

that McAninch' s offender score was correct.




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          McAninch appealed that ruling and filed a personal restraint petition that challenged his

2013 offender score as well as the offender score in his 2011 judgment and sentence for felony

DUI. He then       submitted a     SAG raising the      same offender score challenges.            At his request,. we


consolidated the appeal and the personal restraint petition. We first address his direct appeal and


then turn to his personal restraint petition.


                                                      ANALYSIS


A.        STANDARD OF REVIEW


          A trial court may . relieve a defendant from a final judgment because of mistake,

inadvertence, fraud,       avoid   judgment,   or   for any   other reason   justifying relief.    CrR 7. 8( b); State v.


Gomez-Florencio, 88 Wn.            App.   254, 258, 945 P. 2d 228 ( 1997), review denied, 134 Wn.2d 1026


 1998).    A trial   court   has jurisdiction   under    CrR 7. 8 to   correct an' erroneous sentence.          State v.


Hardesty,    129 Wn.2d 303, 315, 915 P. 2d 1080 ( 1996).               We review the trial court' s decision on a


CrR 7. 8   motion    for   abuse of   discretion.     Gomez- Florencio, 88 Wn.         App.   at   258.   A trial court


abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. State

v.   Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).              A decision is based on untenable grounds


if it is based on an erroneous view of the law. State v. Slocum, 183 Wn. App. 438, 449, 333 P.3d

541 ( 2014).


B.        OFFENDER SCORE CALCULATION


          McAninch argues that the trial court abused its discretion in denying his CrR 7. 8 motion

because his    sentence was erroneous.          McAninch contends that the sentencing court incorrectly




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applied    the   offender score rules      set     forth in the     Sentencing    Reform Act         of   1981 ( SRA).        We


disagree.


           The statute that applies to McAninch' s sentence is former RCW 9. 9A.525 ( 2011). 1 Our

objective in interpreting this statute is to ascertain and carry out the legislature' s intent. State v.

Kintz, 169 Wn.2d 537, 547, 238 P. 3d 470 ( 2010).                   We first look to the statute' s plain meaning to

determine legislative intent. State           v.   Polk, _ Wn.      App. ,      348 P. 3d 1255, 1260 ( 2015).          Where


the meaning of statutory language is plain on its face, we must give effect to that plain meaning as

an expression of legislative intent. State v. Alvarado, 164 Wn.2d 556, 562, 192 P. 3d 345 ( 2008).


In discerning the plain meaning of a statute, we consider all that the legislature has said in the

statute and related statutes that disclose legislative intent. State v. Winkle, 159 Wn. App. 323, 328,

245 P. 3d 249 ( 2011),      review      denied, 173 Wn.2d 1007 ( 2012).                  Interpretations rendering any

portion of a statute meaningless should not be adopted, and we avoid constructions that result in


unlikely    or absurd results.   State   v.   Keller, 143 Wn.2d 267, 277, 19 P. 3d 1030 ( 2001), cert. denied,


534 U. S. 1130 ( 2002).


           RCW 9.94A.525( 11) sets forth the calculation of an offender score for a felony traffic

offense: "     for each felony offense count one point for each adult and 1/ 2 point for each juvenile

prior conviction."     See State   v.   Rodriguez, 183 Wn.          App. 947,    955   n. 4,   335 P. 3d 448 ( 2014) ( citing


RCW 9. 94A. 525( 11) in referring to SRA              rules   for calculating    offender scores),        review denied, 182


Wn.2d 1022 ( 2015).




1
    Some   subsections of   RCW 9. 94A. 525 have been                amended since       2011 but      others   have   not.   In
discussing the subsections individually, we refer only to those that have been amended as
    former."



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         Despite this seemingly          unambiguous     directive, McAninch argues that former RCW


9. 94A.525( 2)( e) controls the calculation of the offender score for his felony DUI conviction, not

RCW 9. 94A. 525( 11).         Former subsection ( 2)( e) states:


         If the present conviction is felony driving while under the influence of intoxicating
         liquor or any drug (RCW 46. 61. 502( 6)) or felony physical control of a vehicle while
         under the influence of intoxicating liquor or any drug ( RCW 46. 61. 504( 6)), prior

         convictions of felony driving while under the influence of intoxicating liquor or
         any drug, felony physical control of a vehicle while under the influence of
         intoxicating liquor or any drug, and serious traffic offenses shall be included in the
         offender score      if. (i) The prior convictions were committed within five years since
         the last date of release from confinement (including full-time residential treatment)
         or entry ofjudgment and sentence; or (ii) the prior convictions would be considered
          prior offenses within ten years" as defined in RCW 46. 61. 5055.


Former RCW 9. 94A. 525( 2)( e).           McAninch asserts that this provision shows that the only prior

convictions that can be included in an offender score for felony DUI are those it expressly identifies

 i.e., felony DUI, felony physical control of a vehicle while under the influence of liquor or drugs,

and serious traffic offenses2).

         As support for his argument, McAninch cites State v. Jacob, 176 Wn. App. 351, 308 P. 3d

800 ( 2013)   and    State   v.   Morales, 168 Wn.   App. 489,   278 P. 3d 668 ( 2012).    In Morales, Division


One held that when calculating a defendant' s offender score for felony DUI, the only relevant

offenses are   those listed in former RCW 9. 94A. 525( 2)(         e).   168 Wn.   App.   at   493`.   Consequently,

the Morales court held that the defendant' s prior assault conviction could not be considered in


calculating his offender score. Id. at 497- 98. In Jacob, this court relied on Morales in concluding




2 Serious traffic offenses include nonfelony DUI, nonfelony physical control, reckless driving,
and   hit-and- run   of an attended vehicle.    Former RCW 9. 94A.030( 44) ( 2012).
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that the trial court erred in including the defendant' s prior drug conviction in his offender score fog'

felony       DUI.   176 Wn.   App.     at   360.     The Jacob court so held because drug convictions were not

among the offenses listed for offender score inclusion in former RCW 9. 94A.525( 2)( e). 3 Id.
             Neither Morales nor Jacob cited RCW 9. 94A.525( 11) and the fact that subsection ( 11)


directly addresses offender score calculations for felony traffic offenses. In relying exclusively on

former RCW 9. 94A.525( 2)( e) to determine an offender score for felony DUI, both Morales and

Jacob effectively       read subsection (           11) out of the statute and failed to consider the statute as a


whole.




             As Division Three recently noted, Morales and Jacob overlooked other provisions of RCW

9. 94A.525, as well as the overall purpose of the statute. State v. Hernandez, 185 Wn. App. 680,

686, 342 P. 3d 820 ( 2015).           The Hernandez court observed that offender scores are calculated in




3
    McAninch        committed   his   current      DUI   on    January   11, 2013. In an amendment that took effect
on September 28, 2013, the legislature revised subsection (2)( e) as follows:


             If the present conviction is felony driving while under the influence of intoxicating
             liquor or any drug ( RCW 46. 61. 502( 6)) or felony physical control of a vehicle while
             under the influence of intoxicating liquor or any drug ( RCW 46. 61. 504( 6)),      all

             predicate crimes for the offense as defined by RCW 46. 61. 5055( 14) shall be

             included in the offender score, and prior convictions for felony driving while under
             the influence of intoxicating liquor or any drug ( RCW 46. 61. 502( 6)) or felony

             physical control of a vehicle while under the influence of intoxicating liquor or any
             drug ( RCW 46. 61. 504( 6)) shall always be included in the offender score. All other
             convictions ofthe defendant shall be scored according to this section.

LAWS     of    2013, 2d Spec. Sess.,        ch.   35, § 8 ( This amendment, which clearly states
                                                              emphasis added).

that all of a defendant' s prior convictions are considered in calculating his offender score,
contravenes the construction placed on the original statute by Morales and Jacob and thus does
not apply retroactively. State v. Dunaway, 109 Wn.2d 207, 216 n.6, 743 P. 2d 1237, 749 P. 2d 160
    1988).



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                     1)                                             2)                  those that   wash out; ( 3)   ` count' the
three   steps: "`(        identify   all prior convictions; (            eliminate




prior convictions         that   remain   in   order   to arrive at the offender score."'               185 Wn. App. at 684

 quoting State v. Moeurn, 170 Wn.2d 169, 175, 240 P. 3d 1158 ( 2010)).

          RCW 9. 94A.525( 2) addresses the second step. Hernandez, 185 Wn. App. at 686; see State

v.   Smith, 137 Wn.       App.    431, 439, 153 P. 3d 898 ( 2007) ( referring                to RCW 9. 94A.525( 2) as " the

wash out provision").            Subsection ( 2)( a) provides that class A and sex felonies never wash out,


subsection ( 2)( b) provides that class B felonies other than sex offenses wash out after the offender


spends 10 crime -free years in the community, and subsections ( 2)( c) and ( d) provide that class C
felonies and serious traffic offenses wash out after the offender spends five crime -free years in the


community,       except as provided            in former   subsection (     2)(   e).   Hernandez, 185 Wn. App. at 686.

Former subsection (2)( e) thus acts as an exception to the wash out provisions in subsections ( 2)( c)


and ( d) by reviving certain offenses that would wash out in those subsections, but only where the

current conviction is for felony DUI or felony physical control. Id.

          In addition to rendering subsection ( 11) meaningless, construing RCW 9. 94A.525 so that

the provisions in former subsection ( 2)( e) control the offender score analysis for a felony DUI

leads to   other " strained and absurd results."            Id. RCW 9. 94A.525( 2)( a) provides that class A and


sex   felonies   never     wash out.      Excluding class A and sex felonies from an offender score for a

felony DUI is an absurd result that also renders subsection (2)( a) meaningless. Id.

          Furthermore,       one purpose of        the SRA is to "[ e] nsure that the punishment for a criminal



offense is proportionate to the seriousness of the offense and the offender' s criminal history."




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RCW 9. 94A. 010( 1).           Excluding a prior conviction that does not washout under former subsection

 2)( e) leads to an inaccurate reflection of the defendant' s criminal history.

             The Hernandez court declined to follow Morales and Jacob and held that all of the


defendant' s prior offenses, including convictions for robbery and forgery, were properly included

in the, offender       score   for his   felony   DUI   conviction.    185 Wn.   App.   at   682- 83.   We likewise reject


the offender score analysis in Morales and Jacob and hold that former subsection ( 2)( e) must be


read in conjunction with the rest of RCW 9. 94A.525, including all of subsection (2) and subsection

    11),   to adhere to the purposes and intent of the SRA. McAninch' s 2004 conviction for attempting

to elude did not wash out under former RCW 9. 94A.525( 2)( e) and counted as one point toward his

offender score. 4              RCW       9. 94A. 525( 11);    see   also   CASELOAD FORECAST COUNCIL,                2014


WASHINGTON-               STATE            ADULT             SENTENCING        GUIDELINES               MANUAL       329,


http:// www.cfc.wa.gov/PublicationSentencing/ SentencingManual/ Adult Sentencing_Manual_20

14.pdf. We affirm the trial court' s denial of McAninch' s CrR 7. 8 motion.


C.           SAG ISSUES


             McAninch     raises   two issues in his SAG.           The first challenges the calculation of his 2013


offender      score.    In addition to arguing that the trial court should not have included a point for his

2004 attempting to elude conviction, which we addressed above, McAninch contends that the trial

court erred in adding a point due to his community custody status at the time of his offenses.




4
    There     was no wash       because     of    McAninch' s 2007     and   2009 DUI        convictions.   Former RCW
9. 94A. 525( 2)(    e).
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McAninch bases this contention on his mistaken assumption that former RCW 9. 94A.525( 2)( e)

governs his offender score calculation.


          RCW 9. 94A.525( 19) provides that courts should add a point to an offender score if "the

present    case   is for   an offense committed while           the   offender was under       community custody."    The


wash provisions in former RCW 9. 94A.525( 2)( e) do not affect this directive, and we reject

McAninch' s claim of error.


          McAninch' s SAG also challenges the offender score underlying his 2011 sentence for

felony DUI. This challenge is beyond the scope of his notice of appeal, which addresses only the

2013 CrR 7. 8 ruling. See RAP 2. 4( a)             (   appellate court will review decision designated in notice of


appeal).    The    challenge also      is untimely. See RAP 5. 2( a) ( notice       of appeal generally must be filed

within   30 days    after    entry   of decision   that party   wants reviewed).     Although we decline to consider


this issue as part of McAninch' s direct appeal, we address it below in the context of his personal


restraint petition.



D.        PERSONAL RESTRAINT PETITION


          McAninch argues in his petition that his. 2011 judgment and sentence for felony DUI is

invalid on its face because his offender score improperly includes his 2004 conviction for

attempting to elude.

           A personal restraint petition challenging a judgment and sentence generally must be filed

within     one    year     after   the judgment becomes final.              RCW 10. 73. 090( 1).        McAninch' s 2011


judgment     and sentence          became final        when   the trial   court entered   it   on   April 19, 2011.   RCW


10. 73. 090( 3)(   a).     McAninch filed his petition after the one- year time limit expired, but he argues




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that the petition is exempt from the time bar because his judgment and sentence is invalid on its

face. RCW 10. 73. 090( 1).


         The State    responds   that the   petition   is   moot.   We   agree.    At the time of his current 2013


convictions, McAninch had completed his 2011 term of confinement. Even if McAninch' s 2011


sentence was excessive, which we do not concede, we may not order the trial court to credit the

extra period of confinement against his remaining term of community custody. State v. Jones, 172

Wn.2d 236, 247- 49, 257 P. 3d 616 ( 2011).         Because there is no longer any meaningful relief from

the   alleged offender score error    that   we can provide, we must          deny     this   petition as moot.   In re


Det. of Cross, 99 Wn.2d 373, 376- 77, 662 P. 2d 828 ( 1983).

         We affirm the trial court' s order denying relief under CrR 7. 8 and deny the personal

restraint petition.




                                                                                  47
                                                                                         Lee, J.
 We concur:




                      4 Maxa, P.J.




                          uNn, J.




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