                                                         FILED 

                                                     NOVEMBER 10,2015 

                                                   In the Office of the Clerk of Court 

                                                 W A State Court of Appeals, Division III 





     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                        DIVISION THREE 


STATE OF WASHINGTON,                         )          No. 32806-6-111
                                             )          (consolidated with
                     Respondent,             )          No. 32903-8-111)
                                             )
             v.                              )
                                             )
MICHAEL DUKE COOMBES,                        )
                                             )
                     Appellant.              )          PUBLISHED OPINION
                                             )
                                             )
In the Matter of the Personal Restraint of   )
                                             )
MICHAEL DUKE COOMBES,                        )
                                             )
                     Petitioner.             )

      LAWRENCE-BERREY, J.      - After withdrawing his guilty plea, Michael

Coombes was convicted of first degree murder while armed with a firearm. Mr.

Coombes appeals, contending (1) the trial court erred in imposing a 36-month

term of community custody, (2) the trial court erred by imposing a community

custody condition prohibiting Mr. Coombes from having any association or

contact with gang members or their associates, and (3) the judgment and sentence

improperly omitted the jury's finding that Mr. Coombes used a firearm in the
No. 32806-6-111; No. 32903-8-111
State v. Coombes; P RP ofCoombes


commission of the first degree murder. In his consolidated personal restraint

petition (PRP), Mr. Coombes contends that the sentencing court erred in including

a conviction for unlawful possession of a firearm in its calculation of his offender

score.

         We affirm Mr. Coombes's conviction and dismiss his PRP. We remand for

the trial court to (1) correct the community custody term to be consistent with the

law in effect in 2007, (2) conduct a hearing to consider the gang association

prohibition, and (3) include in the judgment and sentence the jury's finding that

Mr. Coombes used a firearm in the commission of the first degree murder.

                                       FACTS

         In September 2007, the State charged Michael Duke Coombes with first

degree murder while armed with a firearm and first degree unlawful possession of

a firearm. In June 2008, Mr. Coombes pleaded guilty to first degree murder

without a weapon enhancement and to first degree unlawful possession of a

firearm. In the plea statement, the State made the following recommendation:

         (g) 	   ... 300 months in prison, credit for time served, dismiss
                 weapon enhancement. Dismiss Intimidation of Witness
                 charge, 08-1-00556-0, plead to Unlawful Possession of a
                 Firearm charge on a different day, $500.00 crime victims
                 compensation assessment, $200.00 court costs, $100.00 DNA
                 [deoxyribonucleic acid] collection fee, restitution, 24-48
                 months community custody.

                                          2

No. 32806-6-111; No. 32903-8-111
State v. Coombes; P RP 0/ Coombes


Clerk's Papers (CP) at 13,21. On June 16,2008, the trial court entered a

judgment and sentence as to the first degree murder charge and a separate

judgment and sentence as to the unlawful possession of a firearm charge.

       In April 2009, Mr. Coombes filed a motion for writ of habeas corpus in

superior court alleging his plea was invalid. The superior court transferred the

writ to this court for consideration as a PRP. In an unpublished opinion filed

January 27,2011,1 this court granted Mr. Coombes's PRP and remanded the case

back to the trial court to allow him to withdraw his guilty plea because he was not

informed that early release credits were unavailable during the first 240 months of

his first degree murder sentence. Mr. Coombes then withdrew his guilty plea and

the case was set for a jury trial.

       Before trial, Mr. Coombes moved in limine to exclude any mention of his

alleged gang affiliation. In response, the State stipulated that it would not elicit

testimony from its law enforcement witnesses regarding any gang affiliation but

that it wanted to reserve the right to raise gang-related evidence for purposes of

impeachment of witnesses related to the witness intimidation charge.




     1 In re Pers. Restraint o/Coombes, No. 28036-5-111, 2011 WL 240687, 159
Wn. App. 1044.

                                           3

No. 32806-6-III; No. 32903-8-II1
State v. Coombes; PRP ofCoombes


      At trial, the State called April Atkinson to testify for purposes of the

witness intimidation charge. During her testimony, the State asked Ms. Atkinson

whether she recalled Mr. Coombes saying, '" I got Cryps, [sic] Blood, mafia,

whatever gangs you can think of after [witness Jamie Hall], so [Ms. Hall] better

watch her back[.]'" Report of Proceedings (RP) at 420. Ms. Atkinson replied that

she did not remember Mr. Coombes making the statement. The State later called

Detective Theresa Ferguson to testify regarding her investigation. Detective

Ferguson testified that Ms. Atkinson had told her that Mr. Coombes made the

above-quoted threat concerning Ms. Hall. Detective Ferguson also testified that

Ms. Atkinson had told her that Mr. Coombes believed certain people had "ratted

him out." RP at 586.

      The State called Detective Timothy Madsen to testify for purposes of the

first degree murder charge. Detective Madsen testified that Mr. Coombes made

the following pretrial statements to him about the murder victim:

      Q      And what did Mr. Coombes tell you next about Mr. Nichols?
      A      He told us that Mr. Nichols, whom he described as Red, had
             been arguing with Mr. Coombes' nephew, Chris .....
                    During the argument between Chris and Red, or Mr.
             Nichols, Chris had hit Mr. Nichols in the head after throwing
             an empty beer can at him.
      Q      What did Mr. Coombes say happened after that?




                                         4

No. 32806-6-111; No. 32903-8-111
State v. Coombes; PRP o/Coombes


      A	        He told us that Red, or Mr. Nichols, had walked over to Mr.
                Coombes and stated, quote, "You keep that fucker away from
                me or I'll stab him."
      Q	        Stab who?
      A	        And he was referring to his-that Red was telling Mr.
                Coombes to keep Chris, Mr. Coombes' nephew, away from
                Red, or Mr. Nichols.
      Q	        What did he say next?
      A	        Mr. Coombes told us that at one point, Red had threatened
                Mr. Coombes by saying he knew some gypsy jokers that
                would take care of them, and then he told us he-
                        MR. COMPTON: Objection. Your Honor, can we
                approach on this?
                        THE COURT:           Yes.
                               (BENCH CONFERENCE HELD.)
                        MR. COMPTON: My objection is the next words
                out of the detective's mouth is going to be about Mr.
                Coombes' gang affiliation, which he claims to have some
                Aryan connection.
                        THE COURT:           Is this going to be part of his
                statements as threats, but not the detective did not write any
                statements that he-
                        MR. TREECE:          I'm sorry, Your Honor. I thought
                we went over this in the [CrR] 3.5. This is after he had been
                [read his Miranda 2 rights].
                        THE COURT:           Right, but when we specifically
                talked about gang affiliation, I didn't hear the statement corne
                out at the [CrR] 3.5 hearing this was the specific statement.
                So I would [sustain the objection] because we ruled on that
                [during the motions in limine].

RP at 603-04.




      2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).

                                            5

No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP o/Coombes


       At the end of trial, the jury found Mr. Coombes guilty of first degree

murder while armed with a firearm and of tampering with a witness but not guilty

of intimidating a witness. Mr. Coombes appealed the convictions for first degree

murder and tampering with a witness. In an unpublished opinion filed June 18,

2013, 3 this court affirmed the conviction for first degree murder and reversed and

remanded the tampering with a witness conviction because of an erroneous jury

instruction.

       On remand, the trial court resentenced Mr. Coombes on the first degree

murder charge, lowering his offender score from a six to a five after removing the

conviction for tampering with a witness pursuant to this court's June 2013

decision. In the judgment and sentence entered after resentencing, the trial court

imposed a 36-month term of community custody. The trial court also imposed a

community custody condition "[t]hat the defendant not be allowed to have any

association or contact with known felons or gang members or their associates."

CP at 110. The judgment and sentence does not indicate the jury's finding that

Mr. Coombes used a firearm in the commission of the first degree murder.

       Mr. Coombes appeals.


      State v. Coombes, Nos. 30550-3-III, 30551-1-III, 2013 WL 3148180,175
       3
Wn. App. 1025.

                                         6

No. 32806-6-III; No. 32903-8-III
State v. Coombes; P RP ofCoombes


                                   ANALYSIS

       1. 	   Whether the sentencing court erred in imposing a 36-month term of
              community custody

       Mr. Coombes contends, and the State concedes, that the trial court erred by

imposing a 36-month tenn of community custody under RCW 9.94A.701, where

the law in effect at the time of the offense, fonner RCW 9.94A.715 (2006),

provided a variable term of 24 to 48 months of community custody for serious

violent crimes.

       This court reviews de novo whether the trial court had the requisite

statutory authority to impose community custody conditions. State v. Armendariz,

160 Wn.2d 106, 110, 156 P.3d 201 (2007). While Mr. Coombes challenges the

tenn of community custody for the first time on appeal, such a challenge is

appropriate because courts must correct an erroneous sentence upon discovery. In

re Pers. Restraint ofCall, 144 Wn.2d 315, 331-32, 28 P.3d 709 (2001).

      The Sentencing Refonn Act of 1981 (SRA), chapter 9.94A RCW, governs

a court's imposition of community custody. The SRA provides that any sentence

imposed under its authority must be in accordance with the law in effect when the

offense was committed. RCW 9.94A.345. Mr. Coombes's crime occurred

between August 30,2007, and September 2,2007, so fonner RCW 9.94A.715



                                         7

No. 32806-6-III; No. 32903-8-II1
State v. Coombes; PRP ofCoombes


governs. RCW 10.01.040 would also support this conclusion, as it provides,

"Whenever any criminal or penal statute shall be amended or repealed, all offenses

committed ... while it was in force shall be punished or enforced as if it were in

force, notwithstanding such amendment or repeal, unless a contrary intention is

expressly declared in the amendatory or repealing act."

       This court analyzed a similar issue in State v. Snedden, 166 Wn. App. 541,

544-45,271 P.3d 298 (2012), citing RCW 10.01.040. This court concluded that

the legislature had expressed the requisite "contrary intent" in the amendatory act.

Id. at 544. The legislature had directed courts "to apply the provisions of the

current community custody law to offenders sentenced after July 1,2009, but who

committed their crime prior to August 1,2009 to the extent that such application is

constitutionally permissible." LAWS OF 2008, ch. 231, § 6. Therefore, because

Mr. Snedden fit within this category and made "no argument that the application

of the current statute is constitutionally impermissible," this court concluded that

the trial court properly relied on RCW 9.94A.701 even though it was not in effect

when he committed his crime. Snedden, 166 Wn. App. at 544. But, unlike the

offender in Snedden, Mr. Coombes contends the trial court's application of

RCW 9.94A.701 is constitutionally impermissible as a violation of the prohibition




                                          8

No. 32806-6-III; No. 32903-8-II1
State v. Coombes; PRP o/Coombes


on ex post facto laws because the law in effect when he committed the crime

called for a 24 to 48 month range of community custody.

       This court reviews de novo alleged violations of the prohibition of ex post

facto laws. State v. Pillatos, 159 Wn.2d 459,469,474-77,150 P.3d 1130 (2007).

The party disputing the constitutionality of a statute bears the burden of proving

that the statute is unconstitutional beyond a reasonable doubt. State v. Enquist,

163 Wn. App. 41, 45, 256 P.3d 1277 (2011).

       Both the United States and Washington Constitutions prohibit ex post facto

laws. U.S. CONST. art. I, § 10; CONST. art. I, § 23. The State violates the

prohibition on ex post facto laws when it imposes punishment for conduct that was

not punishable when committed or when it increases the quantum of punishment.

In re Pers. Restraint 0/ Flint, 174 Wn.2d 539, 545, 277 P.3d 657 (20 12) (quoting

In re Pers. Restraint o/Hinton, 152 Wn.2d 853,861,100 P.3d 801 (2004)). In

order to bring a successful ex post facto claim, Mr. Coombes must show that the

law he is challenging (1) is operating retroactively, and (2) increases the quantum

of punishment from the level he was subject to on the date of the crime. Id. at

545,554.

      Mr. Coombes satisfies both prongs of this test. First, RCW 9.94A.701 by

its own terms operates retroactively. The session law amending former

                                         9

No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP o/Coombes


RCW 9.94A.701 that pennits variable terms of community custody included the

same statement of legislative intent as that of 2008, chapter 231, quoted above.

LAWS OF   2009, ch. 375, § 10. It also added this statement: "This act applies

retroactively and prospectively regardless of whether the offender is currently on

community custody or probation with the department, currently incarcerated with

a term of community custody or probation with the department, or sentenced after

the effective date of this section." LAWS OF 2009, ch. 375, § 20. Additionally, the

statute operates retroactively as to Mr. Coombes because Mr. Coombes committed

his offense before the legislature amended the statute. Thus, Mr. Coombes has

satisfied the first prong of the test.

       As for the second prong, the applicable quantum of punishment increases

when a statute makes a fonnerly discretionary punishment mandatory. Lindsey v.

Washington, 301 U.S. 397,401-02,57 S. Ct. 797, 81 L. Ed. 1182 (1937). In

Lindsey, at the time of the offense, the sentencing court had discretion to impose a

penalty of imprisonment for at least 6 months and up to 15 years. Jd. at 398.

Before sentencing, the legislature made the maximum penalty mandatory, and the

offender then received the required 15-year sentence. Id. at 398-99. The United

States Supreme Court held that the new law impermissibly increased the severity

of punishment and invalidated the offender's sentence. Id. at 401-02.

                                         10 

No. 32S06-6-III; No. 32903-S-II1
State v. Coombes; PRP ofCoombes


      Here, when Mr. Coombes committed the offense in late 2007, the SRA

imposed a discretionary range of community custody of 24 to 4S months. See

Former RCW 9.94A.7IS(l) (stating that a sentencing court was required to

sentence an offender "to community custody for the community custody range

established under RCW 9.94A.SSO or up to the period of earned release

awarded pursuant to RCW 9.94A.72S(l) and (2), whichever is longer");

former RCW 9.94A.SSO(S) (200S) (establishing a sentencing guidelines

commission empowered to recommend community custody ranges); former

RCW 9.94A.030(41)(a)(i) (2006) (classifying first degree murder as a "serious

violent offense"); and former WAC 437-20-010 (listing the community custody

range for serious violent offenses as 24 to 4S months). The legislature repealed

RCW 9.94A.71S in 200S and added RCW 9.94A.701, which maintained the

language from former RCW 9.94A.715 authorizing variable terms of community

custody. LAWS OF 200S, ch. 231, §§ 6, 7. 4 Then, in 2009, the legislature amended

former RCW 9.94A.701 by removing the language permitting variable terms of

community custody. LAWS OF 2009, ch. 37S, § 5. The legislature replaced the



      4 Subsequently, the legislature reenacted former RCW 9.94A.71S and then
repealed it once again. LAWS OF 200S, ch. 276, § 305 (reenactment); LAWS OF
2009, ch. 2S, § 42(2) (second repeal).

                                        11
No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP ofCoombes


variable tenns with fixed terms of 36, 18, or 12 months of community 


custody, depending on the type of offense. LAWS OF 2009, ch. 375, § 5; 


RCW 9.94A.701(l)-(3). For Mr. Coombes's offense, the community custody tenn 


is 36 months under the amended statute. RCW 9.94A.701(1)(b). 


       Per Lindsey, the new community custody law increased the punishment

because it changed a previously discretionary tenn to a mandatory tenn. Because

Mr. Coombes has satisfied both prongs for establishing an unconstitutional ex post

facto law, we vacate the community custody portion of Mr. Coombes's sentence

and remand for imposition of a tenn consistent with the law in effect in 2007.

      2. 	   Whether the trial court erred by imposing a community custody
             condition prohibiting Mr. Coombes from having any association or
             contact with gang members or their associates

      Mr. Coombes challenges the trial court's imposition of a community

custody condition prohibiting him from having any association or contact with

gang members or their associates. Mr. Coombes did not object to this condition at

sentencing. Citing State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003), he

argues he may raise this issue for the first time on appeal. We disagree that Jones

supports his argument.

      In Jones, the defendant argued that the trial court did not have authority to

impose certain community custody conditions. Although Everett Jones did not

                                        12 

No. 32806-6-111; No. 32903-8-111
State v. Coombes; PRP ofCoombes


object to the community custody conditions at sentencing, the Jones court stated

that he could raise the conditions for the first time on appeal. To support its

statement, Jones cited State v. Julian, 102 Wn. App. 296, 9 P.3d 851 (2000).

Jones, 118 Wn. App. at 204 n.9. In Julian, we held that a sentence imposed

without statutory authority could be addressed for the first time on appeal. Julian,

102 Wn. App. at 304.

       Here, however, the trial court had authority to impose a gang association

prohibition term as a community custody condition. Former RCW 9.94A.700(5)

(2003) of the SRA permitted trial courts to impose certain discretionary conditions

during the course of community custody. One such condition was prohibiting

contact with "a specified class of individuals," and another was imposing other

"crime-related prohibitions." Former RCW 9.94A.700(5)(b), (e).5



        5 The judgment and sentence does not cite the statute under which the
sentencing court exercised its discretion to impose the gang-related prohibition. In
his analysis, Mr. Coombes cites RCW 9.94A.700(5)(b), which allows the court to
prohibit contact with a "specified class of individuals," while the State cites
RCW 9.94A.700(5)(e), which permits the court to impose other general "crime­
related prohibitions." The cases interpreting each type of condition use essentially
the same standard for both, requiring that the condition relate to the crime. See
State v. Riles, 135 Wn.2d 326,350, 957 P.2d 655 (1998), abrogated on other
grounds by State v. Valencia, 169 Wn.2d 782, 792,239 P.3d 1059 (2010)
(interpreting former RCW 9.94A.120(9)(c)(ii) (1998), which permitted courts to
prohibit offenders from having contact with a "specified class of individuals");
State v. Cordero, 170 Wn. App. 351, 373, 284 P.3d 773 (2012) (interpreting

                                         13 

No. 32806-6-III; No. 32903-8-II1
State v. Coombes; PRP ofCoombes


       The question actually presented here is whether the condition was

appropriate under the facts of this case. The appropriateness of this particular

community custody condition involves a trial court's discretion. Former

RCW 9.94A.700(5). An alleged error involving a trial court's discretion, such as

the one raised here, is susceptible to waiver. In re Pers. Restraint ofShale, 160

Wn.2d 489,494, 158 P.3d 588 (2007) (citing In re Pers. Restraint ofGoodwin,

146 Wn.2d 861, 873-74, 50 P.3d 618 (2002)). Because we are remanding this

case to correct errors in the judgment and sentence, we exercise our discretion to

not review the issue on appeal; rather, we remand to the trial court to consider

argument on this issue, so as to afford us a better record for review, ifnecessary.6




former RCW 9.94A.505(8) (2006), which permitted courts to impose "crime­
related prohibitions"). For this reason, we cite both and do not analyze them
separately.
       6 Mr. Coombes additionally contends the condition prohibiting him from
having any association or contact with gang members or their associates violates
his First Amendment right of free association. Were we to reach this issue, we
would note that while on community custody, a defendant's constitutional rights
are subject to the infringements authorized by the SRA. In re Pers. Restraint of
Waggy, 111 Wn. App. 511, 517,45 P.3d 1103 (2002). Freedom of association
may be restricted if reasonably necessary to accomplish the essential needs of the
State and public order. Id. (quoting State v. Riley, 121 Wn.2d 22,37-38, 846 P.2d
1365 (1993)).

                                         14 

No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP ofCoombes


       3. 	   Whether the trial court improperly omitted afinding that Mr.
              Coombes used afirearm during the commission ofthe offense

       Both parties agree that the judgment and sentence entered after Mr.

Coombes's resentencing improperly omitted a finding of the jury. The remedy for

clerical or scrivener's errors in judgment and sentence forms is remand to the trial

court for correction. In re Pers. Restraint ofMayer, 128 Wn. App. 694, 701, 117

P.3d 353 (2005).

       At the end of trial, the jury found by special verdict that Mr. Coombes had

used a firearm in the commission of the murder. While the judgment and sentence

entered in January 2012 after the jury trial indicated this finding, the judgment and

sentence entered in August 2014 after resentencing failed to include this finding.

We accept the State's concession of error and remand to the trial court for

correction of Mr. Coombes's judgment and sentence to reflect the jury's finding

that Mr. Coombes used a firearm in the commission of the murder.

       We therefore remand this case for resentencing consistent with this opinion.

                         PERSONAL RESTRAINT PETITION

       In his personal restraint petition, Mr. Coombes contends that when he

withdrew his plea to the first degree murder charge in accordance with this court's

opinion, he also withdrew his plea to the unlawful possession of a firearm charge


                                         15 

No. 32806-6-III; No. 32903-8-II1
State v. Coombes; PRP ofCoombes


as both were part of the same plea agreement. He further argues that because he

was never retried for the unlawful possession of a firearm charge, it is no longer

part of his criminal history and cannot be included in the calculation of his

offender score.

       To prevail in this personal restraint petition, Mr. Coombes must show either

a "constitutional error that results in actual prejudice or nonconstitutional error

that results in a miscarriage ofjustice." In re Pers. Restraint of Waggy, 111 Wn.

App. 511, 518,45 PJd 1103 (2002). Bare, unsupported allegations will not

satisfy this burden of proof. Id. at 518-19. Rather, he must show that more likely

than not he was prejudiced by the error. Id. at 518. "A petition that fails to meet

this basic level of proof and argument may be dismissed summarily." Id. at 519.

       Mr. Coombes asks this court to conclude that he withdrew both his first

degree murder plea and his unlawful possession of a firearm plea in August 2011

following the decision of this court. "This remedy is available to a defendant only

where, as part ofa 'package deal,' the defendant was correctly informed of the

consequences of one charge, but not of another charge." In re Pers. Restraint of

Bradley, 165 Wn.2d 934,941,205 PJd 123 (2009) (quoting State v. Turley, 149

Wn.2d 395,399-401,69 PJd 338 (2003)). A plea bargain is such a deal "if the

agreements as to the individual charges are indivisible from one another." Id.

                                          16 

No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP ofCoombes


Appellate courts look "to objective manifestations of intent in determining

whether a plea agreement was meant to be indivisible." Id. "Where 'pleas to

multiple counts or charges were made at the same time, described in one

document, and accepted in a single proceeding,' the pleas are indivisible from one

another." Id. at 941-42 (quoting Turley, 149 Wn.2d at 400).

       While this case is in a different procedural posture than other cases that

have considered the issue of divisibility of a plea agreement, these other cases are

helpful in determining whether Mr. Coombes's petition has merit. First, Mr.

Coombes signed two separate statements of defendant on plea of guilty for each of

the charges. These statements were signed on different days, but they were both

filed on June 16, 2008. Each of the separate documents made only one reference

to the other charge. 7 Specifically, in each plea statement, the State made the

following recommendation encompassing the whole plea agreement:

       (g) 	   ... 300 months in prison, credit for time served, dismiss
               weapon enhancement. Dismiss Intimidation of Witness
               charge, 08-1-00556-0,plead to Unlawful Possession ofa
               Firearm charge on a different day, $500.00 crime victims


       7 The judgment and sentence for the firearm charge also made one
reference to the sentence for the murder charge, stating that the sentence of 41
months for the firearm charge should run "concurrent with Count 1." CP at 34.
The murder charge was labeled as count I on the separate judgment and sentence
for that charge.

                                         17
No. 32806-6-III; No. 32903-8-III
State v. Coombes; PRP ofCoombes


              compensation assessment, $200.00 court costs, $100.00 DNA
              collection fee, restitution, 24-48 months community custody.

CP at 13,21 (emphasis added). The recommendation that the firearm charge be

entered on a different day is an indication that the parties intended the unlawful

possession of a firearm charge to be divisible from the murder charge.

Additionally, while the Bradley court considered the fact that there were cross-

references to other charges in the separate plea documents, it determined such

references were not dispositive of an indivisible plea deal. 165 Wn.2d at 943.

       Second, Mr. Coombes committed the crimes on different days, with the

murder occurring between August 30, 2007, and September 2, 2007, and the

unlawful possession of a firearm occurring September 4, 2007. While this

difference of a few days alone does not establish an indivisible plea deal, it is a

distinction from Turley worth noting. State v. Chambers, 176 Wn.2d 573, 581,

293 P.3d 1185 (2013); Bradley, 165 Wn.2d at 943.

       Third, while the record does not include the report of proceedings from Mr.

Coombes's sentencing following the guilty pleas, the dates the two judgment and

sentences were entered by the court suggest that the pleas were accepted in two

separate proceedings, which is another important difference from Turley. The




                                          18 

No. 32806-6-III; No. 32903-8-111
State v. Coombes; PRP o/Coombes


judgment and sentence for the murder charge was dated June 9, 2008, while the

judgment and sentence for the firearm charge was dated June 16,2008.

       Finally, the documentary record itself evidences an intent to create two

separate pleas. Significantly, Mr. Coombes's habeas corpus petition and this

court's unpublished opinion focus only on Mr. Coombes's plea to first degree

murder. In his petition and in this court's unpublished opinion, there is no

mention of Mr. Coombes's separate and later plea to unlawful possession ofa

firearm. Based on the above considerations, especially the documentary record,

we conclude that the sentencing court properly considered Mr. Coombes's guilty

plea to unlawful possession of a firearm as part of his criminal history. We

therefore dismiss Mr. Coombes's personal restraint petition.




                                          Lawrence-Berrey, 1.

WE CONCUR: 





Siddoway, C.J.




                                         19 

