                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            January 8, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 In the Matter of the                                                 No. 51900-3-II
 Personal Restraint of

 ISAIAH JACOB SCHUBERT,

                                Petitioner.
                                                                UNPUBLISHED OPINION



       LEE, A.C.J. — Isaiah Schubert seeks relief from personal restraint resulting from his 2017

plea of guilty to first degree burglary, violation of a no-contact order, residential burglary, assault

in violation of a no-contact order, unlawful imprisonment, second degree unlawful possession of

a firearm, and first degree criminal trespass. He argues that (1) his offender score of 9 is incorrect

and (2) he received ineffective assistance of counsel.

                                               FACTS

       In 2017, Schubert pleaded guilty to first degree burglary with a firearm enhancement,

violation of a no-contact order, residential burglary, assault in violation of a no-contact order,

unlawful imprisonment, second degree unlawful possession of a firearm, and first degree criminal

trespass. Schubert’s offender scores were calculated as follows: 9 on the first degree burglary, 5

on the residential burglary, 6 on the assault in violation of a no-contact order and the unlawful

imprisonment, and 4 on the unlawful possession of a firearm.
No. 51900-3-II


       The superior court sentenced Schubert to a total of 176 months confinement. Schubert now

seeks relief through this personal restraint petition, arguing that his offender score was improperly

calculated and that he received ineffective assistance of counsel.

                                            ANALYSIS

A.     OFFENDER SCORE

       Schubert argues that the trial court incorrectly calculated his offender scores because (1) it

counted the first degree criminal trespass in the offender score for the first degree burglary even

though that crime was not a “repetitive domestic violence offense” under RCW 9.94A.030(42),

(2) it did not treat his assault in violation of a no-contact order and unlawful imprisonment as parts

of the same criminal conduct, (3) it did not treat his violation of a no-contact order and first degree

criminal trespass as parts of the same criminal conduct, and (4) it did not merge his violation of a

no-contact order and first degree criminal trespass with his first degree burglary. The State

concedes that the trial court erred when it counted the first degree criminal trespass in the offender

score in the other counts because that crime was not a “repetitive domestic violence offense” under

RCW 9.94A.030(42). We accept the State’s concession.

       RCW 9.94A.030(42) specifically defines “repetitive domestic violence offense” as any

domestic violence assault, violation of a no-contact order, violation of an anti-harassment order,

harassment, or stalking offense that is not a felony. RCW 9.94A.030(42) does not include criminal

trespass as a repetitive domestic violence offense and the State properly concedes that the criminal

trespass should not have been included in Schubert’s offender score. Therefore, Schubert is

entitled to be resentenced with an offender score of 8 for the first degree burglary conviction. In

re Pers. Restraint of Goodwin, 146 Wn.2d 861, 877, 50 P.3d 618 (2002).


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No. 51900-3-II


       But Schubert’s other arguments regarding his offender score fail. As part of his plea

agreement, he stipulated that his convictions were not parts of the same criminal conduct. And he

does not show that his burglary conviction should have been merged with the violation of a no-

contact order and criminal trespass with his burglary because the latter crimes are misdemeanors

not subject to merger under RCW 9.94A.589.

       Finally, Schubert argues that the error in his offender score renders his plea involuntary,

entitling him to withdraw it. But an error in a judgment and sentence does not render a plea

involuntary. In re Pers. Restraint of Coats, 173 Wn.2d 123, 141, 267 P.3d 324 (2011).

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Schubert argues that he received ineffective assistance of counsel because his counsel

(1) miscalculated his offender score as described above, (2) did not object to joinder, (3) did not

move to suppress evidence from a search of his car and his phone, (4) did not obtain a copy of a

security camera video, and (5) was unprepared for trial. We disagree.

       To establish ineffective assistance of counsel, Schubert must demonstrate that his counsel’s

performance fell below an objective standard of reasonableness and that as a result of that deficient

performance, the result of his case probably would have been different. State v. McFarland, 127

Wn.2d 322, 335-36, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption that trial counsel’s performance

was reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011).

       Here, Schubert does not show either deficient performance or resulting prejudice. The

miscalculation of his offender score was a mutual mistake by his counsel, the prosecutor, and the

trial court. And Schubert does not show that motions to sever and suppress, if made, likely would


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No. 51900-3-II


have been granted. Also, he does not show the relevance of the security camera video. And his

trial counsel was able to negotiate a plea agreement that reduced his sentence from a possible

maximum of 212 months with 96 months of enhancements to 116 months with 60 months of

enhancements. Thus, Schubert does not demonstrate that he received ineffective assistance of

counsel.

        We grant Schubert’s petition in part and remand his judgment and sentence for

resentencing with a correct offender score of 8 for the first degree burglary. We deny the remainder

of the petition. We also deny Schubert’s request for appointment of counsel.

        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.



                                                     LEE, A.C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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