                                                                                                FIL.F-
                                                                                                     D
                                                                                       e   d0
                                                                                                IV/ IA
    IN THE COURT OF APPEALS OF THE STATE OF W.
                                                                                     2013 JUL -9 AM 9: to
                                                                                       Y."
                                                                                        TAW



                                                                                                     NG
                                           DIVISION II                               BY
                                                                                                 I
STATE OF WASHINGTON,                                                No. 43768 6 II
                                                                              - -
                                                                   consolidated with
                              Appellant,                     Nos. 43775 9 II and 43778 3 II
                                                                        - -            - -


       rm




SAMANTHA WESTLUND,                                             UNPUBLISHED OPINION




       PENOYAR J. — State appeals the trial court's imposition of concurrent sentences when
                The

it (1) revoked Samantha Westlund's two drug offender sentencing alternative sentences

DOSAs)and (2)sentenced her on a heroin possession conviction. Agreeing that the trial court
erred, we reverse and remand for resentencing.
                                                  FACTS


       On January 4,2011, the trial court sentenced Westlund to two concurrent DOSAs under
cause numbers 09 1-
                 - 00821 1 ( 2009 conviction) and 10 1-
                         - the                       - 01102 9 the 2010 conviction). On
                                                             - (

June 6, 2012, the State charged Westlund with heroin possession and moved to revoke her
DOSAs.      On July 3, 2012, Westlund pleaded guilty to possessing heroin and also admitted to

violating   her DOSA terms.   The State recommended.(
                                                   1) revoking the DOSAs; 2)imposing
                                                                          (

concurrent sentences of 12 months and a day on the 2009 conviction and three months on the

2010 conviction; and (3)imposing a consecutive sentence of six months and one day for the

2012 heroin possession conviction. Westlund agreed with the State's recommendations.




1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to
      1                             a   panel   of judges.
43768 6 II /43775 9 II /43778 3 II
      - -         - -         - -



       When the trial court questioned the sentences because Westlund would have to transfer

from the county jail after serving her sentence on the 2012 conviction to the Department of

Corrections to serve the revoked DOSA sentences, the prosecutor stated, I think by statute,
                                                                        "

Your Honor, the DOSA has to be consecutive to the newest charge."Report of Proceedings at 5-

6. The court imposed an 18 month sentence on the 2012 conviction and concurrent sentences of
                           -

12 months and one day for the 2009 conviction and three months for the 2010 conviction. The

State appeals the sentences.

                                                  ANALYSIS


       The State argues that the trial court's imposition of concurrent sentences disregarded the

RCW 9. )( that " henever a person while under sentence for conviction
    a)
    589( 4A.requirement
       2
       9                w

of a felony commits another felony and is sentenced to another term of confinement, the latter
term shall not begin until expiration of all prior terms." Because the superior court departed
from RCW 9. )( contends that it imposed an exceptional sentence
         a),
         589( 4A. the State
            2
            9

unsupported by the record. See RCW 9. ( "[
                                   535 a]departure from the standards in RCW
                                    94A.
589( 4A. and
9. ) .(2) governing whether sentences are to be served consecutively or
   1
   9
                                                  subject   to the limitations in this section ").   Westlund
concurrently   is   an   exceptional   sentence



responds that RCW 9. )( apply because although she committed the heroin
                  a)
                  589( 4A.does not
                     2
                     9
possession felony while "under sentence for conviction"for the 2009 and 2010 convictions, the
DOSAs ended when the trial court revoked them. She,therefore, argues that RCW




                                                        2
43768 6 II /43775 9 II /43778 3 II
      - -         - -         - -



a),
589( 4A.which covers sentencing for multiple "current offenses" applies and the trial
9. 1)(
   9

court was authorized to impose concurrent sentences.

         Westlund acknowledges that "current offense" is not defined in RCW 9. but
                                                                            589
                                                                             94A.

looks   to   RCW    525( 4A.which
                    9. ), provides
                       1
                       9                          that "[   c] ...
                                                             onvictions   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.
                                    589." t' at 5. The State counters that
                                      94A. Resp'
                                           s Br.

Westlund ignores the first sentence of RCW 9. ), provides: "A prior conviction
                                           525( 4A.which
                                              1
                                              9
is a conviction which exists before the date of sentencing for which the offender score is being

computed." Because the 2009 and 2010 convictions existed before the 2012 conviction, the

State contends that they are prior convictions, not current offenses. RCW 9. ).
                                                                          525( 4A.
                                                                             l
                                                                             9

         The premise of Westlund's argument, that the trial court imposed new sentences when it
revoked her DOSAs, is not persuasive. When the trial court revoked Westlund's DOSAs for the
2009 and 2010 convictions, it did not impose new sentences. It,instead, signed orders to modify

Westlund's existing sentences. This is consistent with the DOSA scheme, which does not treat

DOSA revocation as a resentencing, but rather defines imprisonment as one "sanction"that the

court can impose in the event it concludes that an offender violated any "conditions or
requirements        of the   sentence."   RCW    660( 4A. b) & ( see generally RCW
                                                 a),
                                                 9. 7)( c);
                                                    9                     (

2
    RCW 9.
        a),
        589( 4A.provides in part:
           1)(
           9

             Except as provided in (b)or (c)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.   Sentences imposed under this subsection shall be served
             concurrently. Consecutive sentences may only be imposed under the exceptional
             sentence provisions of RCW 9.
                                        535.
                                          94A.
                                                     3
43768 6 II /43. 75 9 II /43778 3 II
      - -     7 - -            - -



c)
664( 4A.setting
9. )(length of term of imprisonment). Westlund had already been sentenced
   4
   9            (
on   the 2009 and 2010 convictions when she               was   sentenced   on   the 2012 conviction.   Thus,

Westlund was not "sentenced on the same date" for the 2009, 2010, and 2012 convictions and

they do not fall within the definition of current offenses."RCW 9. ) ( "
                                          "                     525( 4A. Convictions . .
                                                                   1
                                                                   9
 sentenced   on   the   same   date   as   the conviction .     shall be deemed `other current offenses."');

see also RCW 9.
             a)
             589( 4A.providing that " ( a person is to be sentenced for two or
                1)(
                9                   whenever

more current offenses"the sentences "
                                    shall be served concurrently. ").

        Accordingly, we Bold that Westlund was convicted of and sentenced on the 2009 and
2010 offenses before the trial court sentenced her on the 2012 heroin possession conviction. The

fact that the trial court modified the 2009 and          2.10
                                                          0     sentences on the same date that it sentenced

Westlund on the 2012 conviction does not change the facts that Westlund committed the 2012

felony "while under sentence[s] conviction" for the 2009 and 2010 offenses, requiring
                               of
consecutive sentences pursuant to RCW 9.
                                      a).
                                      589( 4A.
                                         2)(
                                         9

        Because the trial court deviated from RCW 9.
                                                  a),
                                                  589( 4A.it imposed an exceptional
                                                     2)(
                                                     9

sentence.        535. Westlund
             RCW 9.
                  94A.                              does not present any argument in support of the trial

court's decision to impose such a sentence.                     Accordingly, we reverse and remand for

resentencing.




                                                          0
43768 6 II /43775 9 II /43778 3 II
      - -         - -         - -




       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

040,
2.6.it is so ordered.
 0




We concur:




                  0
       Quinn -
             Brintnall, J.




       Worswick, 6.
                  J.




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