                                                                          FILED 

                                                                        AUG. 15, 2013 

                                                                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. 29931-7-111
                                             )
                     Respondent,             )
                                             )
             v.                              )
                                             )
CHRISTIAN VERN WILLIAMS,                     )         PUBLISHED OPINION
                                             )
                     Appellant.              )

       BROWN,   J. - Christian Vern Williams appeals the sentencing court's decision to

count his prior burglary and robbery convictions separately in calculating his offender

score. He contends the court abused its discretion and misapplied the law by relying on

the burglary antimerger statute, RCW 9A.52.050, and overlooking the same criminal

conduct test, RCW 9.94A.525(5)(a)(i) and .589(1 )(a). We hold as a matter of first

impression that a current sentencing court lacks discretion to count prior convictions

separately under the burglary antimerger statute and must do so, if at all, under the

Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Accordingly, we reverse

and remand for resentencing.
No. 29931-7-111
State v. Williams

                                            FACTS

       In October 2010, a jury found Mr. Williams guilty of residential burglary and first

degree trafficking in stolen property. The sentencing court calculated his offender score

as seven by separately counting his April 2004 convictions for first degree burglary and

first degree robbery, each of which he committed in December 2003. The court applied

the burglary antimerger statute, apparently viewing it as mandatory, instead of applying

the same criminal conduct test. Mr. Williams appealed. The sole remaining dispute

after our commissioner's motion-on-the-merits ruling concerns Mr. Williams's offender

score calculation. Because the trial court failed to conduct a same criminal conduct

analysis as required by RCW 9.94A525(5)(a)(i) and .589(1 )(a), we reverse and remand

for the trial court to perform that analysis.

                                          ANALYSIS

       The issue is whether the sentencing court erred by deciding to count Mr.

Williams's prior burglary and robbery convictions separately in calculating his offender

score. He contends the court abused its discretion and misapplied the law in relying on

the burglary antimerger statute to the exclusion of the same criminal conduct test.

       We review a discretionary sentencing decision made under the SRA for abuse of

discretion or misapplication of law. State v. Elliott, 114 Wn.2d 6, 17,785 P.2d 440

(1990). A trial court abuses its discretion if its decision is "manifestly unreasonable,"

based on "untenable grounds," or made for "untenable reasons." State ex reI. Carroll v.

Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see State v. Rohrich, 149 Wn.2d 647,

654,71 P.3d 638 (2003) ("A decision is based on untenable grounds or made for


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No. 29931-7-111
State v. Williams

untenable reasons if it rests on facts unsupported in the record or was reached by

applying the wrong legal standard. A decision is manifestly unreasonable if the court,

despite applying the correctlegal standard to the supported facts, adopts a view that no

reasonable person would take, and arrives at a decision outside the range of acceptable

choices." (citations omitted) (internal quotation marks omitted)). We interpret a statute

de novo. State v. Bright, 129 Wn.2d 257, 265, 916 P.2d 922 (1996). In doing so, we

"ascertain and carry out" our legislature's intent. State v. Neher, 112 Wn.2d 347, 350,

771 P.2d 330 (1989).

      A current sentencing court must calculate an offender score based on an

offender's "other current and prior convictions." RCW 9.94A.589(1)(a). If a prior

sentencing court found multiple offenses "encompass the same criminal conduct," the

current sentencing court must count those prior convictions as one offense. RCW

9.94A.525(5)(a)(i). If the prior sentencing court did not make this finding, but

nonetheless ordered the offender to serve the sentences concurrently, the current

sentencing court must independently evaluate whether those prior convictions

"encompass the same criminal conduct" and, if they do, must count them as one

offense. /d.; RCW 9.94A.589(1)(a); State v. Tomgren, 147 Wn. App. 556, 563, 196

P.3d 742 (2008) ("A sentencing court ... must apply the same criminal conduct test to

multiple prior convictions that a court has not already concluded amount to the same

criminal conduct. The court has no discretion on this." (citation omitted) (citing RCW

9.94A.525(5)(a)(i); State v. Reinhart, 77 Wn. App. 454, 459, 891 P.2d 735 (1995); State

v. Lara, 66 Wn. App. 927,931-32,834 P.2d 70 (1992)), abrogated on other grounds by


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No. 29931-7-111
State v. Williams

State v. Graciano, 176 Wn.2d 531, 295 P.3d 219 (2013).1 The offender bears the

burden of proving offenses encompass the same criminal conduct. Graciano, 176

Wn.2d at 539.

       Here, the prior sentencing court did not find Mr. Williams's 2004 burglary and

robbery convictions encompass the same criminal conduct. But it nonetheless ordered

him to serve his sentences concurrently.2 Under these circumstances, the current

sentencing court needed to apply the same criminal conduct test. See RCW

9.94A525(5)(a)(i), .589(1)(a); Tomgren, 147 Wn. App. at 563. It did not. While we

think it doubtful that Mr. Williams met his burden of proof, we cannot decide this issue

because the trial court failed to exercise discretion required under the same criminal

conduct test. See Lara, 66 Wn. App. at 932 (remanding for resentencing because the

trial court failed to exercise discretion required under the portion of former RCW

9.94A360(6)(a) (1988) our legislature later amended to incorporate the same criminal

conduct test); State v. Wright, 76 Wn. App. 811,829, 888 P.2d 1214 (1995) (same);




        1 Prior convictions encompass the same criminal conduct if they "require the
same criminal intent, are committed at the same time and place, and involve the same
victim." RCW 9.94A589(1)(a); see RCW 9.94A525(5)(a)(i). Whether offenses involve
the same criminal ihtent depends on "the extent to which the criminal intent, as
objectively viewed, changed from one crime to the next." State v. Dunaway, 109 Wn.2d
207,215, 743 P.2d 1237,749 P.2d 160 (1987). This analysis considers "whether one
crime furthered the other," id., or the two were "part of a recognizable scheme or plan."
State v. Lewis, 115 Wn.2d 294,302,797 P.2d 1141 (1990). If any of these statutory
elements are missing, the trial court must count the offenses separately in calculating
an offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
        2 In arguing to the current sentencing court, the parties noted the 2004
sentencing court did not check the same criminal conduct box on Mr. Williams's
judgment and sentence but imposed concurrent imprisonment terms totaling 78 months.

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No. 29931-7-111
State v. Williams

Reinhart, 77 Wn. App. at 459 (same); State v. McCraw, 127 Wn.2d 281,287-88,898

P.2d 838 (1995) (approving Lara, Wright, and Reinhart).

       Instead of applying the same criminal conduct test, the current sentencing court

relied solely on the burglary antimerger statute, which provides, "Every person who, in

the commission of a burglary shall commit any other crime, may be punished therefore

as well as for the burglary, and may be prosecuted for each crime separately." RCW

9A.52.050. In State v. Lessley, 118 Wn.2d 773, 779-82,827 P.2d 996 (1992), our

Supreme Court held this statute grants a current sentencing court discretion, in

calculating an offender score, to count current burglary and non-burglary convictions

separately even if they encompass the same criminal conduct. 3 We are unaware of any

reported decision extending this holding to a current sentencing court's treatment of

prior convictions. 4 Therefore, we must interpret the statute.

       Certainly, if a person commits a burglary simultaneously with another crime, the

statute allows the State to separately "prosecute[]" both current offenses. RCW

9A.52.050. If a judge or jury then finds the defendant guilty, the statute allows a current

sentencing court to separately "punish[]" both current convictions, including by counting

them separately in calculating an offender score. Id.; Lessley, 118 Wn.2d at 779-82.

But the statute provides no direction to a later sentencing court regarding how it may



       3 Relying on the State's arguments. the current sentencing court apparently
believed the burglary anti merger statute required it to count Mr. Williams's 2004
convictions separately. To the extent the court viewed applying the statute as
mandatory. it erred.
       4 Our Supreme Court declined to reach this issue in In re Pers. Restraint of
Connick. 144 Wn.2d 442, 464.28 P.3d 729 (2001).

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No. 29931-7-111
State v. Williams

treat prior convictions.

       We hold the burglary antimerger statute's plain language applies solely to current

offenses before a current sentencing court. Our interpretation comports with logic.

While sentences must be proportionate to criminal history, our legislature has designed

them to punish current, not prior offenses. See RCW 9.94A.01 0(1); LAws OF 2002, ch.

107, § 1 ("[TJhe provisions of the [8RA] act upon and punish only current conduct; the

[8RA] does not act upon or alter the punishment for prior convictions." (citing In re Pers.

Restraint of Williams, 111 Wn.2d 353,362-64,759 P.2d 436 (1988))). And, our

legislature has established the 8RA, not the burglary antimerger statute, as the proper

means for ensuring sentences are proportionate to criminal history. Compare RCW

9.94A.010(1). with RCW 9A.04.020. See generally RCW 9.94A.030(11), .500(1), .525­

.530; LAws OF 2008, ch. 231, § 1.

       Applying this interpretation, we conclude the current sentencing court erred by

relying on the burglary antimerger statute to count Mr. Williams's 2004 burglary and

robbery convictions separately in calculating his offender score. Instead, the court

needed to apply the same criminal conduct test. Because the court applied the wrong

legal standard, it exercised its discretion on untenable grounds or reasons. Therefore,

the court abused its discretion and misapplied the law.




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No. 29931-7-111
State v. Williams

      Reversed and remanded for resentencing.




1CONCUR:




                                       7

                                     No. 29931-7-III

       KORSMO, C,J. (dissenting) -The majority opinion runs afoul of State v. Lessley,

118 Wn.2d 773,827 P.2d 996 (1992), which is an adequate basis to reject appellant's

position. More fundamentally, even while properly acknowledging that it was his burden

to establish that the 2004 crimes constituted the same criminal conduct, the opinion

overlooks the fact that Mr. Christian Williams never attempted to meet the burden. The

sentence should be affirmed.

      As to the latter point first, State v. Graciano, 176 Wn.2d 531, 539,295 P.3d 219

(2013), clearly places the burden on Mr. Williams to establish that the 2004 crimes

constituted the same criminal conduct. At sentencing, the prosecutor presented the 2004

judgment and sentence for the purpose of showing that Judge Baker had not found the

burglary and robbery convictions to be the same criminal conduct and had used an

offender score of"3" for each offense even though there were only two prior convictions.

Mr. Williams thereafter did not present argument suggesting that the two crimes occurred

at the same time and place or that they involved the same victim(s) and the same criminal

intent; rather, he argued that it was unclear how Judge Baker had treated them. 1 There


       I The defense's confusion was understandable because the 2004 offender score of
"3" was not possible for the first degree robbery offense under any scenario. In
sentencing that offense, the two prior crimes each scored one point and the current first
degree burglary would be worth two points, resulting in an offender score of "4" unless
the burglary was not counted at all, which would mean the score was "2." Former RCW
9.94A.525(8) (2003). The first degree burglary score could have been "3" if the robbery
                                                                                               I
No. 29931-7-111
State v. Williams                                                                              I
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simply was no evidence presented, nor any argument made, that the two offenses

somehow satisfied the RCW 9.94A.589(l) standard. 2

       Since the defense failed to meet its burden, Graciano requires rejection of the

argument and there is no need to discuss the burglary anti-merger statute and its

application to this case. Nonetheless, since the majority desires to address the statute, I,

will do so too, although in a rather cursory manner. The short answer to the majority's
                                                                                               I
position is that Lessley faced the same ultimate task as what the trial court faced here

application of the same criminal conduct test of State v. Dunaway, 109 Wn.2d 207,215,

749 P.2d 160 (1987), and RCW 9.94A.589(1). The fact that the test has to be applied to

the prior offenses in this case does not make it significantly different than Lessley, which

had to apply that statute to current offenses. The trial judge in both instances had the

same duty to look at whether the offenses constituted the same criminal conduct issue. In

Lessley our court decided that the anti-merger statute could be applied to essentially

trump the need to look at same criminal conduct as it related to the burglary offense.


was treated as same criminal conduct because the prior burglary counted two points and
the drug conviction counted one point. If the robbery had counted, it would have resulted
in an offender score of"5" for the offense. Former RCW 9.94A.525(10) (2003).
       2 Curiously, the majority repeatedly mentions that the 2004 offenses were served
concurrently as if that is a fact of consequence to the issue at hand in this proceeding.
Since they were sentenced at the same time, they needed to be served concurrently.
RCW 9.94A.589(l). The information does not inform on the question of whether they
are the same criminal conduct.

                                              2                                                )

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No. 29931-7-111
State v. Williams


There is no way to meaningfully distinguish this case. If it was permissible in Lessley, it

had to be permissible here. 3 Since this court lacks the power4 to overturn Lessley, the

trial judge could properly apply the anti-merger statute to the 2004 crimes. 5

       This case should be affirmed for the simple reason that Mr. Williams never

attempted to meet his burden under Graciano and therefore the alleged legal error is

simply not relevant. If we reach the same criminal conduct issue, however, this case

cannot be meaningfully distinguished from Lessley and the trial judge did not err in

applying the anti-merger statute to the prior offenses.

       F or both reasons, I respectfully dissent.




                                              orsmo, C.J.




       3  Even appellant's counsel recognizes that the anti-merger statute could be applied
to prior offenses. See Br. of Appellant at 9. The majority cites no authority suggesting
the statute was inapplicable.
        4                          .
          E.g., State v. Gore, 101 Wn.2d 481, 487,681 P.2d 227 (1984).
        5 It is unclear from my reading of the judge's ruling whether he actually did apply
the anti-merger statute to the 2004 convictions since that discussion appears during the
analysis of the same criminal conduct argument relating to the two current offenses.
However, both parties read the transcript as if the judge did do so; that is a plausible
interpretation.

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