                                                                          FILED
                                                                        MAY 29, 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. 35113-1-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 KEVIN MATHEW PHILLIPS,                        )         UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       SIDDOWAY, J. — Kevin Phillips appeals the exceptional partially-consecutive

sentence imposed for his conviction on plea of guilty to felony violation of a domestic

violence protection order. He argues that the State failed to prove his criminal history

and that the exceptional sentence was not authorized by statute. We reject Mr. Phillips’s

argument that his signed agreement to his criminal history was not a sufficient

acknowledgment and hold that RCW 9.94A.535(2)(c) applies where a defendant’s high

offender score would allow a single crime to go unpunished. We affirm.
No. 35113-1-III
State v. Phillips


                     FACTS AND PROCEDURAL BACKGROUND

       On February 15, 2017, the Benton County Superior Court held a sentencing

hearing on three criminal matters involving Kevin Phillips. The first matter addressed by

the court was Mr. Phillips’s conviction following a jury trial for the second degree assault

of his father, a domestic violence offense. The second was Mr. Phillips’s plea of guilty to

possession of a controlled substance. The third and final matter was this one, in which

Mr. Phillips entered a plea of guilty to violation of a no contact order.

       Among material presented to the court in connection with the sentencings and

included in our record on appeal is a document with the heading, “AMENDED OFFER

LETTER,” dated September 20, 2016. Clerk’s Papers (CP) at 16. It included the

following table, captioned “PRIOR OFFENSE(S) (DATE) – DISPOSITION”:




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No. 35113-1-III
State v. Phillips


Id. It was stamped “DEFENSE COPY” and was signed by Mr. Phillips.

       A signed criminal history was mentioned first during the first sentencing. The

court allowed the prosecutor to approach, and we infer that she provided the court with

sentencing materials, copies of which she had also provided to Shelley Ajax, who

represented Mr. Phillips in the first two sentencings, but not the third.1 The following

statements were made:

              THE COURT: . . . Miss Ajax, just let me know when you’ve had
       the opportunity to review that, and provide that to Mr. Phillips.
              MS. LONG: Does your Honor have a signed copy of the criminal
       history as well as the appeal rights form?
              THE COURT: I have in this file, the trial file. I don’t believe I have
       one. There is one in the other file, the order violation file, Mr. Swanberg’s.

Report of Proceedings (RP)2 at 4 (emphasis added).

       During the second sentencing, the following reference was made to a signed

criminal history:

              MS. LONG: Your Honor has the signed criminal history on that one
       as well?
              THE COURT: Yes, for I believe both of the pleas we have signed
       criminal history.

RP at 36 (emphasis added).




       1
         In the first two matters, the State was represented by Julie Long and Mr. Phillips
was represented by Shelley Ajax. In the third matter, the State was represented by Diana
Ruff and Mr. Phillips was represented by Samuel Swanberg.
       2
         All references to the report of proceedings are to the report of proceedings taking
place on March 1, 2017.

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No. 35113-1-III
State v. Phillips


       During the sentencing in this matter, prosecutor Diana Ruff pointed to matters

reflected in Mr. Phillips’s criminal history several times. Her amended offer letter with

its signed criminal history appears in the trial court record as an attachment to Mr.

Phillips’s statement on plea of guilty. The plea statement refers to the attachment:

       The prosecuting attorney’s statement of my criminal history is attached to
       this agreement. Unless I have attached a different statement, I agree that
       the prosecuting attorney’s statement is correct and complete. If I have
       attached my own statement, I assert that it is correct and complete.

CP at 6. No criminal history other than the history included in the amended offer letter is

attached to the plea statement.

       In arguing for the State’s recommended sentence, Ms. Ruff pointed out that the

eight crimes identified in Mr. Phillips’s criminal history resulted in an offender score of

11 in this case, “and that’s obviously because domestic violence cases are scored

differently than others, and he was also on community custody at the time [the offense in

the case assigned to me] was committed.” RP at 37. With an offender score of 9-plus,

the minimum and maximums of the standard range were both 60 months. Because Mr.

Phillips had been convicted to a total period of confinement of 96 months for the two

convictions sentenced earlier in the hearing, Ms. Ruff asked for an exceptional sentence,

relying on the “free crimes” aggravator, RCW 9.94A.535(2)(c). She asked that the full

60 months, or at least some of it, run consecutive to Mr. Phillips’s other current

sentences.



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No. 35113-1-III
State v. Phillips


       For his part, Mr. Phillips asked for an exceptional mitigated sentence under RCW

9.94A.535(1)(a), on the basis that the party protected by the no contact order that was

violated—his former girlfriend, who was pregnant with his child—was to a significant

degree a willing participant. The sentencing court had already heard from her in the first

sentencing, when she affirmed that she had opposed entry of the no contact order

imposed in connection with a prior conviction of Mr. Phillips and had sought,

unsuccessfully, to have it lifted.

       The sentencing court found substantial and compelling reasons for an exceptional

aggravated sentence and ordered that 18 months of Mr. Phillips’s 60 month sentence for

the crime charged in this case be served consecutive to the sentences for his other current

offenses. The court emphasized what it characterized as Mr. Phillips’s “consistent

history of violating [court orders] whenever . . . you think that what you want is more

important than following the rules.” RP at 54.

       Mr. Phillips appeals.

                                       ANALYSIS

       Mr. Phillips makes two assignments of error. He argues first that the sentencing

court violated his due process rights by sentencing him to an exceptional sentence based

on an offender score the State failed to prove. Second, he argues that we should construe

the “free crimes” aggravator to apply only when more than one current offense would

otherwise go unpunished.

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No. 35113-1-III
State v. Phillips


         By affirmatively acknowledging his criminal history, Mr. Phillips waived
                  the factual error he asserts for the first time on appeal

       A defendant’s offender score, together with the seriousness level of his current

offense, dictates the standard sentence range used in determining his sentence. RCW

9.94A.530(1). To calculate the offender score, the court relies on its determination of the

defendant’s criminal history, which the Sentencing Reform Act of 1981 (SRA), chapter

9.94A RCW, defines as “the list of a defendant’s prior convictions and juvenile

adjudications, whether in this state, in federal court, or elsewhere.” RCW 9.94A.030(11).

Prior convictions result in offender score “points” as outlined in RCW 9.94A.525. When,

as here, the current offense is a felony domestic violence offense, each adult prior felony

conviction involving domestic violence that was “pleaded and proven after August 1,

2011,” counts as two points and certain prior misdemeanors where domestic violence was

pleaded and proven count as one point. RCW 9.94A.525(21). To arrive at an offender

score of 11, the State necessarily attributed two points, as domestic violence offenses, to

Mr. Phillips’s current second degree assault conviction and to his March 2013 conviction

for felony violation of a no contact order.

       The State bears the burden of proving a defendant’s prior convictions at

sentencing by a preponderance of the evidence. State v. Hunley, 175 Wn.2d 901, 909-10,

287 P.3d 584 (2012). The State’s burden is “‘not overly difficult to meet’ and may be

satisfied by evidence that bears some ‘minimum indicia of reliability.’” In re Pers.



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No. 35113-1-III
State v. Phillips


Restraint of Adolph, 170 Wn.2d 556, 569, 243 P.3d 540 (2010) (quoting State v. Ford,

137 Wn.2d 472, 480-81, 973 P.2d 452 (1999)). If there is an affirmative

acknowledgment by the defendant of facts and information introduced for the purposes of

sentencing, no further proof from the State is necessary. State v. Mendoza, 165 Wn.2d

913, 927-28, 205 P.3d 113 (2009).

       Mr. Phillips contends that his signed criminal history contained in the amended

offer letter is an insufficient affirmative acknowledgment of his criminal history because

it is dated September 20, 2016, almost six months before his sentencing date; it is not

signed by his lawyer; it does not bear the court’s “filed” stamp; and it states that it is

subject to change.

       None of these asserted shortcomings prevents Mr. Phillips’s signature, which

attests to the truth and accuracy of his criminal history in the amended offer letter, from

being a sufficient affirmative acknowledgement. It is unsurprising that the amended offer

letter bears no “filed” stamp, since it serves as the 12th and 13th page attachment to Mr.

Phillips’s statement on plea of guilty. Mr. Phillips cites no authority that an

acknowledgement is insufficient unless signed by a defendant’s trial lawyer or that it

must be executed at any particular time. While the prosecutor’s amended offer letter

stated that the criminal history was subject to change, there is nothing to suggest that it

ever did change. While Mr. Phillips’s trial lawyer calculated his client’s offender score



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No. 35113-1-III
State v. Phillips


differently, he never contested the accuracy of the criminal history signed by Mr. Phillips.

Given Mr. Phillips’s affirmative acknowledgment, his sufficiency challenge fails.

       His argument that the calculation of the offender score was in error because some

of his prior convictions were double counted without a showing that domestic violence

was pleaded and proven was not preserved. RAP 2.5(a); In re Pers. Restraint of

Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002) (waiver may be found where a

defendant stipulates to incorrect facts). While not required to reach the issue, we point

out that review of the record strongly suggests that this challenge is premised on a

scrivener’s error made in preparing the criminal history in the judgment and sentence in

this case.

       Among standard Washington court forms is one entitled “Additional Current

Offenses and Current Convictions Listed Under Different Cause Numbers Used in

Calculating the Offender Score.” Form WPF CR 84.0400 A2.1 (Rev. 7/2011).3 It

includes a table for use when convictions imposed in different cases are sentenced at the

same time, as happened here, and reads, in substance:

       2.1b The defendant has the following additional current convictions listed under
       different cause numbers used in calculating the offender score:




       3
       http://www.courts.wa.gov/forms/?fa=forms.static&staticID=14
#CertofRestoreofOpp.



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No. 35113-1-III
State v. Phillips


           Crime             Cause Number            Court (county & state)   DV*
                                                                              Yes




       * DV:Domestic Violence was pled and proved.

Form WPF CR 84.0400 A2.1 (some emphasis added) (some boldface omitted). This

appears to be the table imported into Mr. Phillips’s judgments and sentences in this case

and in case no. 16-1-00740-0, the second degree assault conviction that was sentenced

earlier the same day.

       The felony judgment and sentence in the second degree assault case, no. 16-1-

00740-0, discloses that domestic violence was alleged and proved in that case. See CP at

46. The criminal history in that judgment and sentence also indicates, by asterisks, that

domestic violence had been pleaded and proven when Mr. Phillips was sentenced for

felony violation of a no contact order in March 2013 and when he was sentenced for

violation of a no contact order, a gross misdemeanor, in November 2011. See CP at 48.

There is no indication that domestic violence was pleaded and proven when he was

sentenced for felony harassment in March 2013. See id.

       In the judgment and sentence in this case, however, the sole asterisk appears

misplaced. Although an asterisk is supposed to signify that domestic violence was

pleaded and proven, an asterisk appears next to only Mr. Phillips’s March 2013 felony

harassment conviction. This is identical to the placement of the single asterisk in the


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No. 35113-1-III
State v. Phillips


signed criminal history included in the September 2016 amended offer letter to Mr.

Phillips reproduced above; there, however, one can see that the asterisk signified that Mr.

Phillips was serving community custody (“Confirmed on CC”) at the time of his offense.

CP at 16. It appears likely that the criminal history table from the amended offer letter

was “cut and pasted” into Mr. Phillips’s felony judgment and sentence without realizing

that an asterisk signified something different in the two tables. We doubt that domestic

violence offenses were double counted in error.

           A single offense that will go unpunished because of multiple current
            offenses is sufficient for application of the free crimes aggravator

       Mr. Phillips’s second assigned error is that his exceptional sentence was not

authorized by statute. Generally, sentences for multiple current offenses, other than

serious violent offenses, run concurrently. RCW 9.94A.589(1)(a)-(b). Consecutive

sentences for multiple current offenses are thus exceptional. State v. Newlun, 142 Wn.

App. 730, 735 n.3, 176 P.3d 529 (2008). They may only be imposed under the

exceptional sentence provisions of RCW 9.94A.535. RCW 9.94A.589(1)(a).

       Mr. Phillips argues that properly construed, RCW 9.94A.535(2)(c), the statutory

aggravator on which the sentencing court relied, applies only when, as a result of a

defendant’s high offender score, more than one current offense will go unpunished. In

his case, only one crime would have gone unpunished.




                                            10
No. 35113-1-III
State v. Phillips


       A sentence outside the standard sentence range for an offense is subject to appeal.

RCW 9.94A.585(2). To reverse such a sentence, we must find “(a) [e]ither that the

reasons supplied by the sentencing court are not supported by the record which was

before the judge or that those reasons do not justify a sentence outside the standard

sentence range for that offense; or (b) that the sentence imposed was clearly excessive or

clearly too lenient.” RCW 9.94A.585(4). Where the challenge is to the trial court’s

authority to impose an exceptional sentence for the reasons it identifies, our review is de

novo. State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013) (citing State v. Law,

154 Wn.2d 85, 93, 110 P.3d 717 (2005)).

       RCW 9.94A.535(2)(c) provides that the trial court may impose an aggravated

exceptional sentence where “[t]he defendant has committed multiple current offenses and

the defendant’s high offender score results in some of the current offenses going

unpunished.” The possibility of an offense going unpunished arises because a standard

range sentence reaches its maximum at an offender score of “9 or more.” RCW

9.94A.510. As a result, where a defendant has multiple current offenses that result in an

offender score greater than 9, further increases in the offender score do not increase the

standard sentence range. France, 176 Wn. App. at 468.

       Focusing on the statute’s reference to “some of the current offenses going

unpunished” and citing a dictionary’s definitions, Mr. Phillips asserts that as a quantifier,

“some of” means “a few of them” and “‘a few’ is used to indicate a small number of

                                             11
No. 35113-1-III
State v. Phillips


people or things.” Br. of Appellant at 13-14. From this, he argues that “some of the

current offenses” in RCW 9.94A.535(2)(c) cannot mean “one of the current offenses.”

Because the State’s argument at his sentencing hearing was that only the one crime

charged in this case would go unpunished by a standard range sentence, Mr. Phillips

argues that the free crimes aggravator could not apply.

       We can accept the definitions cited by Mr. Phillips and still conclude that “a small

number of . . . things” can be one thing. And among definitions for “some” provided by

another dictionary are “2 : being one, a part, or an unspecified number of something

(such as a class, group, species, collection, or range of possibilities) named or

contextually implied,” and “4 : being one of, one kind of, or an undetermined proportion

of : being always at least one but often a few and sometimes all of.” MERRIAM-

WEBSTER UNABRIDGED DICTIONARY 2171 (1993) (some emphasis added). When we

think about quantities that do not qualify as “some,” we think of “all” and “none.” By

contrast, “one” plainly qualifies as “some.”

       In France, this court construed the free crimes aggravator, pointing out that our

primary duty is to ascertain and carry out the legislature’s intent and that we begin with

plain meaning. 176 Wn. App. at 469. “[A] statute is not ambiguous merely because

different interpretations are conceivable.” Id. at 470.

       Given the commonly understood meaning of “some,” RCW 9.94A.535(2)(c)

applies where a defendant’s high offender score would allow one crime to go unpunished.

                                               12
1

    No. 35113-1-111
    State v. Phillips


    And were we to resort to canons of statutory construction, a canon that applies here is

    that we will not infer a legislative intent to make arbitrary distinctions. Guinness v. State,

    40 Wn.2d 677, 693-94, 246 P.2d 433 (1952) (Donworth, J., dissenting). It would be an

    arbitrary distinction for the legislature to allow one crime to go unpunished, but not two.

           Mr. Phillips's sentence is 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.



                                                         7)7dk %
                                                          doway,J.
                                                                                      1J·
    WE CONCUR:




           " ,..
    Lawrence-Berrey, C.J.




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