                                                                                               rrt.t,-     FILED
                                                                                                         DIVISION if
                                                    2014 OCT - 7
                                                                 flPf IQ: " 6
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                                       TON
                                          DIVISION II                                     sP




 STATE OF WASHINGTON                                                   No. 44417 -8 -II


                                  Respondent.


        v.



 ANGELA MARIE RODRIGUEZ,                                           PUBLISHED OPINION


                                  Appellant.




       LEE, J. — Angela Marie Rodriguez appeals two domestic violence ( DV) violation of a no-


contact order (VNCO) sentences. She argues that the trial court improperly calculated her offender

score for the felony DV - NCO by counting her concurrent gross misdemeanor DV - NCO
                        V                                                     V

conviction as one point under the repetitive domestic violence provision of the Sentencing Reform

             1.
Act ( SRA)        She also challenges the length of the suspended sentence, community custody, and

no- contact order imposed on her gross misdemeanor DV - NCO conviction. The State concedes
                                                      V

these alleged errors.2

        We accept the State' s concession of error regarding the length of Rodriguez' s suspended

gross misdemeanor sentence, community custody, and no- contact order. However, we reject the

State' s concession of error regarding the calculation of her offender score on the felony DV-

VNCO.    Accordingly, we affirm the trial court' s offender score calculation and sentence for the



1 Ch. 9. 94A RCW.

2 The State acknowledges that its concession on the offender score calculation for the felony DV-
VNCO issue is contrary to the position taken by trial counsel and the Caseload Forecast Council,
which publishes      the Washington State Adult   Sentencing   Guidelines Manual.
No. 44417 -8 -II



felony      VNCO
         DV -          conviction.         We reverse the sentence for the gross misdemeanor DV -
                                                                                                VNCO

conviction and remand to the trial court to resentence Rodriguez on the gross misdemeanor DV-


VNCO by correcting the length of the suspended sentence, community custody, and no- contact

order.



                                                        FACTS


          On November 13, 2012, the State charged Rodriguez with one count of felony DV - NCO
                                                                                        V

and one count of gross misdemeanor DV - NCO. These charges resulted from the same incident,
                                      V


but involved different victims. Rodriguez pleaded guilty to both charges on December 14, 2012.

          Rodriguez was sentenced on December 21, 2012. For purposes of calculating Rodriguez' s

offender score for the felony DV -
                                 VNCO, the trial court determined that Rodriguez' s gross

misdemeanor        VNCO
                DV -                would   be    considered a " prior   conviction"   and, thus, .calculated her


offender    score as   1   rather   than   0.    Based on an offender score of 1, the trial court sentenced


Rodriguez to 14 months' total confinement and 12 months of community custody on the felony

   VNCO
DV -           conviction.          On the gross misdemeanor DV -
                                                                VNCO conviction, the trial court


sentenced    Rodriguez to 364 days'              confinement with 50 days of credit for time served, and


suspended the remaining 314 days for 60 months on community custody. Rodriguez' s community

custody provisions on the suspended sentence included a 60 month no- contact order with the

victim.     Rodriguez appeals the calculation of her offender score on the felony DV -
                                                                                     VNCO

conviction and the length of her suspended sentence, community custody, and no- contact order on

her gross misdemeanor DV -
                         VNCO conviction.




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No. 44417 -8 -II



                                                            ANALYSIS


A.         FELONY DV - NCO OFFENDER SCORE
                     V


           Rodriguez first argues that the trial court miscalculated her offender score on the felony

DV - NCO sentence by counting her gross misdemeanor DV - NCO conviction as a prior
   V                                                   V

conviction        under     RCW 9. 94A. 525( 21)(          c)   of   the   SRA.   Rodriguez asserts that under RCW


9. 94A.525( 21)(      c),   a gross misdemeanor or misdemeanor DV conviction may be included in an

offender score only if it (1) was committed prior to (temporally before) the felony being sentenced

and ( 2)   is   repetitive ( part of a pattern).      We disagree. Interpreting RCW 9. 94A. 525( 21)( c) together

with related statutes shows that the legislature intended to have a gross misdemeanor DV


conviction count as one point in the offender score for a felony DV conviction even if both offenses

were committed as part of the same incident. Therefore, we affirm the trial court' s calculation of


Rodriguez' s offender score on the felony DV - NCO conviction.
                                             V

           1.         Mootness


           As an initial matter, Rodriguez was sentenced to 14 months' confinement and she has .

finished serving her term                of confinement.        Therefore, Rodriguez' s assignment of error regarding

the   calculation of        her   offender score     is   moot. "'     A case is moot if a court can no longer provide


effective relief. "'        State   v.   Ross, 152 Wn. 2d 220, 228, 95 P. 3d 1225 ( 2004) ( quoting State   v. Gentry,

125 Wn.2d 570, 616, 888 P.2d 1105 ( 1995)).                          The remedy for an improperly calculated offender

score is remand for resentencing using the correct offender score. Thus, the relief is generally less

confinement         due to    a   lower     offender score.       Ross, 152 Wn.2d at 228 ( citing State v. Ford, 137

Wn.2d 472, 485, 973 P. 2d 452 ( 1999)).                    Because Rodriguez has served her term of confinement,


there is no relief that we can grant and Rodriguez' s challenge to her offender score is moot.




                                                                      3
No. 44417 -8 -II



              However, if a case presents an issue of continuing and substantial public interest and that

issue will likely reoccur, we may still reach a determination on the merits to provide guidance to

lower    courts."      Ross, 152 Wn.2d at 228 ( citing State v. Blilie, 132 Wn.2d 484, 488 n. 1, 939 P.2d

691 ( 1997)).       There is a continuing and substantial public interest in ensuring that offenders are

sentenced with         the   correct offender score.    See RCW 9. 94A.525( 22). And, the State has informed


us that the prevailing practice, followed by most prosecutors in the State, is to calculate offender

scores consistently with the manner in which the trial court calculated Rodriguez' s offender score

on the felony DV -
                 VNCO in this case. Therefore, the issue regarding the proper calculation of an

offender score based on RCW 9. 94A.525( 21)( c) is likely to reoccur, and our opinion here will

provide valuable guidance              to the lower   courts.   Accordingly, we reach the merits of Rodriguez' s

claim.



          2.           Interpretation of RCW 9. 94A.525( 21)( c)


                       a.          Standard of Review


          We     review      the   calculation of an offender score    de   novo.   State v. Bergstrom, 162 Wn.2d


87, 92, 169 P. 3d 816 ( 2007).            Statutory interpretation also is a question of law this court reviews

de   novo.     State   v.   Rice, 180 Wn. App. 308, 313, 320 P. 3d 723 ( 2014) ( citing      State v. Franklin, 172

Wn.2d 831, 835, 263 P. 3d 585 ( 2011)).


          We employ statutory interpretation to determine and give effect to the legislature' s intent.

State    v.   Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013); Rice, 180 Wn.                   App.   at   313.   To


determine legislative intent, we first look to the plain language of the statute considering the text

of the provision in question, the context of the statute, and the statutory scheme as a whole. Evans,

177 Wn.2d at 192. In determining the plain meaning, we must consider " the text of the provision



                                                                4
No. 44417 -8 -II



in question, the context of the statute in which the provision is found, related provisions, and the


statutory   scheme as a whole."           Evans, 177 Wn. 2d         at   192.     Only "[ i] f the   statute is still susceptible


to more than one interpretation after we conduct a plain meaning review, then the statute is

ambiguous and we rely on statutory construction, legislative history, and relevant case law to

determine legislative intent."           Rice, 180 Wn. App. at 313.

                   b.         RCW 9. 94A.525( 21)( c)


          The   sentencing     provision at       issue here is RCW 9. 94A. 525( 21)(                c).   RCW 9. 94A.525( 21)


states:




          If the present conviction is for a felony domestic violence offense where domestic
          violence as defined in RCW 9. 94A.030 was plead and proven, count priors as in
          subsections (7) through (20) of this section; however, count points as follows:
                  c)  Count one point for each adult prior conviction for a repetitive
          domestic violence offense as defined in RCW 9. 94A.030, where domestic violence
          as defined in RCW 9. 94A.030, was plead and proven after August 1, 2011.[ 3]

The   plain   language   of   RCW 9. 94A. 525( 21)(         c) uses   the    words " prior" and " repetitive."           The plain


language definition       of " prior"      is "   earlier in time or order: preceding temporally, causally, or

psychologically." WEBSTER' S THIRD INTERNATIONAL DICTIONARY                                 at   1804 ( 1969). And, repetitive


means "   containing     repetition."     WEBSTER' S, supra, at 1924 -25.


          Rodriguez      argues   that   under     the   plain   language     of   RCW 9. 94A.525( 21)(          c),   a conviction




for a DV offense can be counted as one point under RCW 9. 94A.525( 21)( c) only if it (1) occurred ..

temporally before the         current   felony DV offense         and ( 2)   is   repetitive (part of a pattern).       Therefore,




3
    RCW 9. 94A.030( 20) defines " domestic                 violence"      as having the same meaning as defined in
RCW 10. 99. 020         and   RCW 26. 50. 010.           RCW 10. 99. 020( 5)(        r)   defines " domestic violence" as a
violation of a no- contact order when committed by one family or household member against
another. Here, there is no dispute that both the felony and gross misdemeanor VNCO convictions
were   domestic    violence     because     they   were committed against             her   parents.       RCW 10. 99. 020( 3).
No. 44417 -8 -II



according to Rodriguez, her gross misdemeanor DV - NCO should not have counted as one point
                                                 V

because her gross misdemeanor DV -
                                 VNCO was committed at the same time as her felony DV

offense, was against a different victim, and was not part of a repetitive pattern.

        Rodriguez' s interpretation of RCW 9. 94A.525( 21)( c) fails to account for the sentencing

scheme employed within the SRA as a whole. Provisions governing the calculation of an offender

score are unique because they must be applied within the complex framework ofthe SRA. Statutes

are interpreted to give effect to all language in the statute and to render no portion meaningless or


superfluous.    State   v.   J.P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003).   And, even when examining

the plain language of a statute, we must consider " the text of the provision in question, the context

of the statute in which the provision is found, related provisions, and the statutory scheme as a

whole."     Evans, 177 Wn.2d           at    192.   Therefore, we must consider the meaning of RCW

9. 94A.525( 21)( c) within the context of the SRA as a whole in order to determine the plain meaning

of the provision.


          To interpret the effect of RCW 9. 94A.525( 21)( c) within the SRA as a whole, we must


begin   with   RCW 9. 94A.505        and    RCW 9. 94A.530.   When an offender is sentenced on a felony,

RCW 9. 94A.505( 2)( a)( i) requires that a trial court impose a standard range sentence unless another


term of confinement applies. And, RCW 9. 94A.530 dictates that an offender' s standard sentencing

range is determined by using the seriousness level of the offense for which the offender is being

sentenced and the offender score for the offense for which the offender is being, sentenced.

          At issue here is the appropriate calculation of Rodriguez' s offender score for a felony DV

offense.    When Rodriguez was sentenced, her only criminal history was the gross misdemeanor

DV - NCO arising from the same incident as the felony DV - NCO for which her offender score
   V                                                     V



                                                         6
No. 44417 -8 -II



was   being   calculated.        To be counted as one point for the purposes of calculating Rodriguez' s

offender score on her felony DV - NCO, the gross misdemeanor DV - NCO must be ( 1) a prior
                                V                               V

conviction under the SRA and ( 2) a repetitive DV offense as defined in RCW 9. 94A.030( 41). 4

                                 1)     Prior conviction requirement under the SRA


         Generally, an offender score is calculated based on RCW 9.94A.525. RCW 9.94A.525( 1)

defines what is considered a " prior conviction" and states:


         A prior conviction is a conviction which exists before the date of sentencing for the
         offense for which the offender score is being computed.      Convictions entered or
         sentenced on the same date as the conviction for which the offender score is being
         computed shall be deemed " other current offenses" within the meaning of RCW
         9. 94A.589.


Thus, when an offender is being sentenced on two or more current offenses, we must also consider

RCW 9. 94A. 589. RCW 9. 94A.589( 1)( a) 5 states:




4 To be clear, we are determining the proper calculation of Rodriguez' s offender score on the
felony DV - NCO for the purpose of determining Rodriguez' s standard range sentence for the
           V
felony   DV -
            VNCO.           We understand that the SRA does not apply to misdemeanors or gross
misdemeanors.        See RCW 9. 94A.010 ( " The purpose of this chapter is to make the criminal justice
system accountable to the public by developing a system for the sentencing of felony offenders. ").
        Although, the SRA generally does not use misdemeanors or gross misdemeanors in
calculating an offender score, it does have rules that allow misdemeanors and gross misdemeanors
to be counted towards a felony offender' s offender score when that offender is being sentenced for
a particular crime.  See, e. g., RCW 9. 94A.525( 11) ( scoring prior convictions for serious traffic
offenses —    including     nonfelony        DUI, nonfelony        physical      control,    reckless   driving —if        the

conviction for which the offender' s offender score is being calculated is a felony traffic offense);
RCW 9. 94A. 525( 20) ( scoring            prior   convictions     for   second   degree     vehicle   prowling —a     gross

misdemeanor —  if the conviction for which the offender score is being calculated is theft of a motor
vehicle, possession of a stolen vehicle or first or second degree taking a motor vehicle without
permission).       These rules allow misdemeanors and gross misdemeanors to be used to calculate an
offender score on a felony offense to which the SRA offender score rules apply; they do not
impermissibly make the SRA applicable to misdemeanor and gross misdemeanor convictions.
5
    In LAWS   OF   2014,   ch.    101, § 1, the legislature   amended    former RCW 9. 94A. 589( 1)(       a) (   2002).
The 2014 amendments do not change our analysis.


                                                              7
No. 44417 -8 -II


         Except    as provided       in (b), ( c), or ( d) of this subsection, whenever a person is to be
         sentenced for two or more current offenses, the sentence range for each current
         offense shall be determined by using all other current and prior convictions as if
         they were prior convictions for the purpose of the offender score: PROVIDED,
         That if the court enters 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.




Here, the salient question is whether Rodriguez' s conviction for gross misdemeanor DV -
                                                                                       VNCO

is a " prior conviction" under RCW 9. 94A.525( 1) or RCW 9. 94A.589( 1)( a) such that it is counted


as a point under RCW 9. 94A.525( 21)( c) when calculating Rodriguez' s offender score for her

felony DV -
          VNCO. We must conclude that it is.

         A conviction is an " adjudication of guilt pursuant to Title 10 or 13 RCW and includes a

verdict of   guilty,   a   finding    of   guilty,   and acceptance of a plea of   guilty."   RCW 9. 94A.030( 9).


Rodriguez pleaded guilty to the gross misdemeanor DV -
                                                     VNCO charge on December 14, 2012.

She was being sentenced for the felony DV - NCO conviction (the offense for which her offender
                                          V

score was    being   calculated) on         December 21.     Under the plain language of RCW 9. 94A.525( 1),


Rodriguez' s gross misdemeanor DV - NCO is a prior conviction because it is an adjudication of
                                  V


guilt that existed prior to the sentencing on the felony DV -
                                                            VNCO.

         Moreover, even if we did not consider Rodriguez' s gross misdemeanor DV - NCO a prior
                                                                                 V


conviction under       the   definition in RCW 9. 94A.525( 1),       it still must be used as a prior conviction


for the purposes of calculating Rodriguez' s offender score for her felony DV - NCO under RCW
                                                                              V

9. 94A.589( 1)( a), which states that "the sentence range for each current offense shall be determined

by using all other current and prior convictions as if they were prior convictions for the purpose of

the   offender score."       The only time a current conviction is not counted as though it were a prior

conviction under RCW 9. 94A.589( 1)( a) is if it is an " other current offense" that is the same




                                                              8
No. 44417 -8 -II



criminal   conduct          as   the    offense      for    which     the offender score           is    being    calculated.    Although


Rodriguez' s gross misdemeanor DV - NCO is an " other current offense" as it relates to the felony
                                  V

DV VNCO, it is not the same criminal conduct as the felony DV - NCO. Therefore, under RCW
                                                              V

9. 94A. 589( 1)(     a)    Rodriguez'     s   gross        misdemeanor         DV -
                                                                                  VNCO             conviction       is   an " other   current




conviction" that is used as a prior conviction for the purposes of calculating Rodriguez' s offender

score on the felony DV -
                       VNCO conviction.

                                   2)         Repetitive domestic violence requirement under the SRA


          Having determined that Rodriguez' s gross misdemeanor DV -
                                                                   VNCO conviction is

considered a prior conviction for the purposes of calculating her offender score on the felony DV-

VNCO,      we       turn to the         question       of whether        it is    a "   repetitive"      DV      offense.     Under RCW


9. 94A. 525( 21)(     c)    each prior adult            conviction       for     a " repetitive     domestic        violence    offense"   is


counted    as       one    point    toward the             offender' s   offender         score.        RCW 9. 94A.030( 41)           defines


 repetitive domestic violence offense" as a DV assault that is not a felony, a DV - NCO that is not
                                                                                  V

a felony, a DV violation of a protection order that is not a felony, DV harassment that is not a

felony, and DV stalking that is not a felony. RCW 9. 94A.030(41) does not qualify the definition

of "repetitive domestic violence offense" with anything other than the type of offense. Therefore,

Rodriguez'      s   argument       that the          statute   requires      a repetitive      pattern     fails.        Rodriguez' s gross


misdemeanor             VNCO is
                     DV -                      a "    repetitive      domestic          violence    offense"       as defined in RCW


9. 94A.030( 41).


          When analyzed within the statutory scheme of the SRA as a whole, Rodriguez' s gross

misdemeanor DV - NCO is both a " prior conviction" and a " repetitive domestic violence offense"
               V

for the   purposes         of RCW 9. 94A. 525( 21)(             c).   Accordingly, the trial court did not err by counting



                                                                         9
No. 44417 -8 -II



Rodriguez' s gross misdemeanor DV VNCO as one point toward her offender score on the felony

DV - NCO.
   V


B.       GROSS MISDEMEANOR DV -
                              VNCO SENTENCE


         Rodriguez argues, and the State agrees, that the trial court erred by suspending Rodriguez' s

gross misdemeanor DV - NCO sentence for 60 months and, as a result, improperly imposed terms
                     V

of community custody, including a no- contact order with the victim, for 60 months.6 We agree
with Rodriguez and accept the State' s concession of error.


         Trial    courts      lack inherent authority to        suspend a sentence.             Rice, 180 Wn. App. at 312

 citing State     v.    Gibson, 16 Wn.         App.    119, 127, 553 P. 2d 131 ( 1976)).          Therefore, a trial court' s


authority to suspend a sentence is limited to the manner provided by the legislature. Rice, 180 Wn.

App. at 312. The legislature has authorized the superior court to suspend a sentence; however, it

has limited the manner in which the superior court can suspend a sentence. RCW 9. 92. 064 states:

         In the case of a person granted a suspended sentence under the provisions of RCW
         9. 92. 060, the court shall establish a definite termination date for the suspended
         sentence.    The court shall set a date no later than the time the original sentence
         would have elapsed and may provide for an earlier termination of the suspended
         sentence. Prior to the entry of an order formally terminating a suspended sentence
         the court may modify the terms and conditions of the suspension or extend the
         period of the suspended sentence.


          The     legislature has            also    limited the term       of   a   suspended     sentence.   Under RCW


9. 95. 210( 1)(   a),   the    superior      court   may   suspend     a   sentence   for   a   period "   not exceeding the

maximum       term      of   sentence   or   two    years, whichever   is longer." The maximum sentence for a gross




6 " A defendant may challenge a sentence imposed in excess of statutory authority for the first
time on appeal because ` a defendant cannot agree to punishment in excess of that which the
Legislature has         established. "'      Rice, 180 Wn. App. at 312 -13 ( quoting In re Pers. Restraint of
Goodwin, 146 Wn.2d 861, 873 -74, 50 P. 3d 618 ( 2002)).


                                                                 10
No. 44417 -8 -II



misdemeanor    is 364 days. RCW 9A. 20. 021( 2). Here, the trial court suspended Rodriguez' s gross


misdemeanor sentence for 60 months, far in excess of statutorily authorized maximum. Therefore,

under either RCW 9. 92.064 or RCW 9. 95. 210( 1)( a), the trial court exceeded its statutory authority

by suspending Rodriguez' s gross misdemeanor DV - NCO sentence for 60 months. And, because
                                                V

the trial court imposed community custody and the no- contact order for 60 months as a condition

of this unauthorized suspended sentence, the imposition of community custody and the no- contact

order for 60 months was also in excess of the trial court' s authority.

        We   affirm   Rodriguez'   s sentence on   the   felony   DV - NCO.
                                                                     V        We reverse her sentence on


the gross misdemeanor DV -
                         VNCO and remand to the trial court to resentence Rodriguez on this


the gross misdemeanor conviction by correcting the term of the suspended sentence, community

custody, and no contact order so that it does not exceed the statutorily authorized maximum.




 We concur:




                                                         11
