                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         November 10, 2015

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 46240-1-II
                                                                     consolidated with
                                Respondent,                           No. 46244-3-II

        v.

 JEFF LEROY HARP,                                               UNPUBLISHED OPINION

                                Appellant.


       MELNICK, J. — Jeff Leroy Harp appeals the denial of a CrR 7.8 motion in which he sought

resentencing after he pleaded guilty to taking a motor vehicle without permission in the second

degree and other offenses. Harp argues that the trial court misidentified a prior conviction and that

this misidentification resulted in an incorrect offender score. The State concedes error but argues

that Harp’s appeal is moot. We agree with the State and dismiss the appeal.

                                              FACTS

       In 2013, the State charged Harp under two cause numbers with several property and drug

crimes. The prosecutor’s statement of criminal history showed that Harp’s eight prior felonies

included a conviction for possession of a stolen vehicle.

       Under a global plea agreement, Harp pleaded guilty to taking a motor vehicle without

permission in the second degree and possession of clonazepam under one cause number, and to

possession of methamphetamine under the other. Harp’s offender score of 12 for the motor vehicle

conviction included 3 points for his prior possession of a stolen vehicle. The standard range for

the current motor vehicle conviction was 22-29 months. Harp’s offender scores of 10 on each
46240-1-II / 46244-3-II


drug conviction included 1 point for the prior possession of a stolen vehicle. The standard range

for the drug convictions was 12+ to 24 months.

       The trial court imposed concurrent sentences of 24 months on the motor vehicle conviction

and 12+ months on each drug conviction. The court also imposed 12 months of community

custody on the drug convictions. In each judgment, the appendix listing Harp’s criminal history

included the prior conviction for possession of a stolen vehicle.

       Harp subsequently filed CrR 7.8 motions under each cause number, complaining that his

prior conviction for possession of a stolen vehicle was actually a conviction for illegal transfer of

a vehicle and that his offender score as well as his list of criminal history needed to be corrected.

The trial court denied Harp’s motions in a single order.

       Harp now appeals and argues that he is entitled to resentencing because, due to the

misidentification of his prior conviction, the trial court miscalculated his offender score for his

conviction of taking a motor vehicle without permission in the second degree.

                                            ANALYSIS

       The State concedes that Harp’s offender score for the motor vehicle conviction should be

10 instead of 12 because his prior conviction was for illegal transfer of a vehicle rather than

possession of a stolen vehicle. RCW 9.94A.525(7), (20). The State argues, however, that Harp’s

appeal is moot because there is no longer any effective remedy for this error. See State v. Ross,

152 Wn.2d 220, 228, 95 P.3d 1225 (2004) (case is moot if court can no longer provide meaningful

relief). Harp has served his term of confinement for the motor vehicle conviction and is now

serving the community custody imposed for his drug offenses.1



1
  The State also points out that Harp’s standard range remains 22-29 months with the correct
offender score of 10. RCW 9.94A.510.
                                                 2
46240-1-II / 46244-3-II


       Harp responds that his appeal is not moot because, upon resentencing, the trial court may

modify the termination date of his community custody. See State v. Harris, 148 Wn. App. 22, 27,

197 P.3d 1206 (2008) (if an offender is on community custody that should have started earlier

because he should have been released earlier, the trial court may modify the termination date of

his community custody on resentencing). However, the Supreme Court has held that a term of

community custody cannot be adjusted to reflect any excess time that a defendant spent in

confinement. State v. Jones, 172 Wn.2d 236, 248-49, 257 P.3d 616 (2011); see also State v.

McAninch, No. 46072-6-II, 2015 WL 4916399, at *5 (Wash. Ct. App. Aug. 18, 2015) (holding

that personal restraint petition complaining of offender score error was moot because petitioner

had served his sentence). We find the Jones rule particularly applicable where a mandatory term

of community custody has been imposed for offenses other than the offense for which sentence

credit might be appropriate. See RCW 9.94A.701(3)(c) (court shall impose community custody

of one year for offenders sentenced to DOC custody for felony drug offenses).

       Harp also contends that his appeal is not moot because the error in his criminal history may

affect him in future prosecutions. Where a sentencing error could affect a future sentence, the case

is not moot even though the defendant has served his sentence. State v. Vike, 125 Wn.2d 407, 409

n.2, 885 P.2d 824 (1994). In Vike, the issue was whether the defendant’s two current offenses

constituted the same criminal conduct. 125 Wn.2d at 409. The issue was not moot because the

question of how the two convictions should be scored would arise during any future sentencing.

125 Wn.2d at 409 n.2.

       The error here is different. Future sentencing courts may not rely on a statement of criminal

history from a previous judgment. Harris, 148 Wn. App. at 28. Instead, the sentencing court must

calculate the offender score on “the date of sentencing for the offense for which the offender score


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46240-1-II / 46244-3-II


is being computed.” RCW 9.94A.525(1); Harris, 148 Wn. App. at 28. If a defendant objects to

his criminal history at sentencing, the State must prove his prior convictions by the preponderance

of evidence with either a certified judgment and sentence or, if none is available, other comparable

evidence. State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007). Harp has supplemented

the record with the certified judgment and sentence for the prior offense at issue, and it clearly

identifies that offense as one for illegal transfer of a vehicle rather than possession of a stolen

vehicle. The error here will not bind future courts in sentencing Harp.

        Because there is no longer any effective relief that we can provide, and because the error

in identifying Harp’s prior conviction will not influence future sentencing decisions, we dismiss

this appeal as moot.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                             Melnick, J.

We concur:




        Johanson, C.J.




        Maxa, J.




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