                                                                FILED
                                                             JUNE 14, 2018
                                                     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. 35494-6-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
MICHAEL LAMAR ODOM,                           )
                                              )
                     Appellant.               )

       PENNELL, J. — Michael Lamar Odom appeals the sentence from his guilty plea

convictions of two counts of first degree identity theft. He alleges the superior court

improperly ordered the two counts to run consecutively rather than concurrently, and asks

that we to remand for resentencing to correct his judgment and sentence. Construing the

two counts as running concurrently, we affirm.

                                      DISCUSSION

       In January 2016, Mr. Odom pleaded guilty to two counts of first degree identity

theft in Benton County Superior Court. After pleading guilty, Mr. Odom was released

from custody on bond pending the sentencing hearing. He was subsequently taken into

custody in Spokane County on charges of second degree theft and forgery.

       At the sentencing hearing on the Benton County convictions, the superior court

imposed a special drug offender sentencing alternative (DOSA) sentence of 36.75
No. 35494-6-III
State v. Odom


months’ confinement and 36.75 months’ community custody on each count. During the

sentencing hearing, the court indicated the two DOSA sentences would run concurrent to

each other, but exercised its discretion pursuant to RCW 9.94A.589(3) to order the DOSA

sentences to run consecutive to Ms. Odom’s Spokane County sentence.

       The judgment and sentence does not expressly state whether the two DOSA

sentences run consecutively or concurrently. Under Section 4.4 of the judgment, the

sentencing court crossed out the following boilerplate language: “All counts shall be

served concurrently, except for the portion of those counts for which there is an

enhancement as set forth above in Section 2.3, and except for the following counts which

shall be served consecutively:__________.” Clerk’s Papers (CP) at 203. The sentencing

court did not fill in the blank ordering any counts to run consecutively.

       Mr. Odom timely appealed from the judgment and sentence on July 27, 2017,

asserting the sentencing court erred by ordering the two identity theft counts to run

consecutive to each other. He contends that by crossing out the boilerplate language

identified above, the court ordered the two counts to run consecutively, and the court

failed to meet the requirements to impose consecutive sentences for current offenses.

       The general rule in Washington is that sentences for multiple current offenses will

run concurrently. RCW 9.94A.589(1). A sentencing court may order current offenses to


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No. 35494-6-III
State v. Odom


run consecutively pursuant to the exceptional sentence provisions of RCW 9.94A.535,

which authorizes a sentencing court to impose an exceptional sentence if “there are

substantial and compelling reasons justifying an exceptional sentence.” To impose a

consecutive sentence for current offenses, the court must enter written findings of fact

and conclusions of law setting forth the basis for the sentence. RCW 9.94A.535.

       There is no evidence in the record that the sentencing court ordered the two DOSA

sentences to run consecutively. At the hearing, the court indicated it was running these

counts concurrently. The court did not enter any findings and conclusions supporting a

consecutive sentence, or otherwise indicate it was ordering Mr. Odom to serve the counts

consecutively. The court did strike the section of boilerplate language providing space

to impose a consecutive sentence, and in doing so also struck the phrase “All counts shall

be served concurrently” from the judgment and sentence. CP at 203. However, the

mere striking of this language is not enough to overcome the presumption under RCW

9.94A.589(1) that the sentences run concurrently.

       Mr. Odom has failed to demonstrate the sentencing court ordered the counts to run

consecutively, and accordingly has failed to demonstrate the sentencing court erred.

Moreover, he has not demonstrated any need to remand for clarification or amendment of

the judgment and sentence. In the absence of any express language imposing a


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No. 35494-6-III
State v. Odom


consecutive sentence, there can be no confusion under RCW 9.94A.589(1) that the terms

of confinement and community custody for each count of first degree identify theft are to

be served concurrently.



                                             APPELLATE COSTS

        Mr. Odom requests that we decline to impose appellate costs. As the State has

indicated it will not seek costs, no action is necessary on Mr. Odom's request.

                                                    CONCLUSION

        The superior court properly ordered Mr. Odom's sentences for two current identity

theft counts to be served concurrently pursuant to RCW 9.94A.589(1).

        Affirmed.

        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.



WE CONCUR:



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                                        I
Lawrence-Berrey, C.J.                         -)

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