     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


                                                                               CO    -~\CT-

STATE OF WASHINGTON,
                                                No. 68413-2-1
                    Respondent,
                                                                                co
                                                DIVISION ONE
      v.



KENNETH SANDHOLM,                               UNPUBLISHED OPINION                 to



                    Respondent.                 FILED: February 18. 2014



      Spearman, A.C.J. — Kenneth Sandholm was convicted of felony driving

under the influence. He appeals, contending that (1) evidence of his prior crimes

was improperly admitted at trial; (2) he was denied the right to a unanimous

verdict; (3) his offender score was miscalculated; and (4) the combined term of

incarceration and community custody imposed by the trial court exceeds the

statutory maximum sentence. We affirm the conviction, but remand for

resentencing.

                                     FACTS


      On October 29, 2009, State Trooper Christopher Poague stopped

Sandholm after observing several lane violations. The trooper observed that

Sandholm had watery, bloodshot eyes and smelled of alcohol. The trooper also

noticed that Sandholm's speech pattern was slow and his face flushed. When the

trooper asked Sandholm for his license, insurance, and registration, Sandholm

put a breath mint into his mouth. The trooper asked Sandholm to step out of his
No. 68413-2-1/2


vehicle and to spit out the mint. Sandholm complied, at which point the trooper

detected the odor of intoxicants and observed Sandholm's lack of coordination.

       Suspecting that Sandholm was under the influence of intoxicants, the

trooper attempted to administer field sobriety tests; Sandholm declined several of

the tests but agreed to do the horizontal gaze nystagmus (HGN) test. Based on

the results of the HGN test, the trooper concluded that Sandholm had consumed

intoxicants and was impaired. Sandholm was consequently arrested. Following

his arrest, Sandholm agreed to submit to a breath test. The breath samples,

taken approximately two hours after the trooper first observed Sandholm's

driving, provided results of 0.079 and 0.080.

       The State charged Sandholm under former RCW 46.61.502 (2008) with

driving while "under the influence of or affected by intoxicating liquor or any drug;

and while under the combined influence of or affected by intoxicating liquor and

any drug; having at least four prior offenses, as defined under [former] RCW

46.61.5055(14)(a) [2008]1 within ten years ofthe arrest for the current offense;"



       1Former RCW 46.61.5055(14)(2008) provides in relevant part:
          (14) For purposes of this section and RCW 46.61.502 and 46.61.504:
          (a) A "prior offense" means any of the following:
          (i) A conviction for a violation of RCW 46.61.502 or an equivalent local
       ordinance;
          (ii) A conviction for a violation of RCW 46.61.504 or an equivalent
       local ordinance;
         (iii) A conviction for a violation of RCW 46.61.520 committed while
       under the influence of intoxicating liquor or any drug;
         (iv) A conviction for a violation of RCW 46.61.522 committed while
       under the influence of intoxicating liquor or any drug;
           (v) A conviction for a violation of RCW 46.61.5249, 46.61.500, or
       9A.36.050 or an equivalent local ordinance, if the conviction is the result
       of a charge that was originally filed as a violation of RCW 46.61.502 or
No. 68413-2-1/3


(hereinafter, "qualifying prior offenses"). CP at 329. Subsection (5) of the statute

provided that the offense of driving while under the influence (DUI) is punishable

as a gross misdemeanor, "[e]xcept as provided in subsection (6)...." That

subsection provided that the offense is punishable as a class C felony under

chapter 9.94A RCW if, among other things, the defendant has four or more

qualifying prior offenses.

       At trial, Sandholm stipulated that he had four qualifying prior offenses. He

moved to bifurcate the proceedings such that the jury would determine whether

he was guilty of DUI and, if so, the court would consider the stipulation to

determine whether his prior offenses elevated the crime from a gross

misdemeanor to a felony. The judge denied this motion, concluding that the

existence of the prior convictions was an element of the offense that must be

proven to the jury. To minimize the prejudicial effect of the evidence, however,

the court gave "bifurcated instructions" directing the jurors to first decide whether

the State had proven DUI and, only upon such a finding, to consider by special

verdict whether the stipulation proved the prior crimes element. Verbatim Report


       46.61.504, or an equivalent local ordinance, or of RCW 46.61.520 or
       46.61.522;
          (vi) An out-of-state conviction for a violation that would have been a
       violation of (a)(i), (ii), (iii), (iv), or (v) of this subsection ifcommitted in this
       state;
          (vii) A deferred prosecution under chapter 10.05 RCW granted in a
       prosecution for a violation of RCW 46.61.502, 46.61.504, or an
       equivalent local ordinance; or
          (viii) A deferred prosecution under chapter 10.05 RCW granted in a
       prosecution for a violation of RCW46.61.5249, or an equivalent local
       ordinance, ifthe charge under which the deferred prosecution was
       granted was originally filed as a violation of RCW 46.61.502 or
       46.61.504, or an equivalent local ordinance, or of RCW 46.61.520 or
       46.61.522.
No. 68413-2-1/4


of Proceedings (VRP) (1/30/12) at 22-24. The trial court also gave a limiting

instruction to preclude misuse ofthe evidence by the jurors2 and prohibited
counsel from using the term "felony DUI." VRP (1/23/12) at 12-19. At the close of

the State's case, the trial court read the jury the following stipulation:

       At the time of the arrest in this case, the defendant, KENNETH
       SANDHOLM, had been previously convicted of four or more
       prior offenses within ten years as defined by RCW
       46.61.5055(14).

CP at 1332. The jury found Sandholm guilty of driving while under the influence

while having four or more qualifying offenses.

       At sentencing, the court calculated an offender score of eight, resulting in

a standard range of sixty months, the statutory maximum for the offense. The

court imposed sixty months of confinement and twelve months of community

custody. On the judgment and sentence, which was entered on March 2, 2012,

the court included the notation, "[t]he term of community custody shall be

reduced by the Department of Corrections if necessary so that the total amount

of incarceration and community custody does not exceed the maximum term of

sentence for any offense. . . ." CP at 1664. The court also interlineated, "60

months maximum." CP at 1664.

       Sandholm appeals.

       2The trial court gave the following limiting instruction:
          For purposes of determining whether defendant is guilty of the crime of
       Driving While Under the Influence, you are not to consider any stipulations
       concerning the existence of prior offenses. The existence of prior offenses is not
       evidence or proof of Driving Under the Influence.
CP at 1437.
No. 68413-2-1/5


                                   DISCUSSION

       Sandholm contends that the trial court denied him a fair trial by admitting

evidence of his stipulation to four or more of the requisite prior offenses. He also

contends that the instructions to the jury denied him the right to a unanimous

verdict. Finally, he challenges the sentence imposed, asserting that the trial court

erred in calculating his offender score and sentenced him to a combined term of

incarceration and community custody which exceeds the statutory maximum. We

affirm the conviction, but remand for resentencing.

                            Admission of Prior Offenses.

       Sandholm first contends the admission of evidence of his prior convictions

was prejudicial error. He argues the trial court wrongly concluded that whether he

had four or more qualifying prior offenses was an essential element of the crime

of felony DUI to be proved to the jury. He contends the existence of his prior

offenses merely increases the potential sanction upon conviction of DUI, but is

not an element of the crime itself. Therefore, he argues, the determination of the

existence of his criminal history is for the judge, not the jury. He further argues

that the admission of evidence of his prior offenses was error because it was

irrelevant to whether he committed the charged crime and prejudicial to his right

to a fair trial. We disagree.

       Because the legislature defines the elements of a crime, we look to the

statute to determine the elements the State must prove to sustain a conviction.

State v. Williams, 162 Wn.2d 177, 183, 170 P.3d 30 (2007). We review issues of
No. 68413-2-1/6



statutory interpretation de novo. Okeson v. City of Seattle. 150 Wn.2d 540, 548-

49, 78 P.3d 1279 (2003).

       Former RCW 46.61.502(5) provides that the crime of DUI is a gross

misdemeanor, "[ejxcept as provided in subsection (6).. . ." That subsection

provides that the crime is a felony if "[t]he person has four or more prior offenses

within ten years as defined in RCW 46.61.5055                " Former RCW

46.61.502(6)(a).

       In State v. Roswell. 165 Wn.2d 186, 196 P.3d 705 (2008), our Supreme

Court considered nearly identical statutory language and concluded that where

the existence of prior offenses elevates a crime from a misdemeanor to a felony,

the prior offenses are an essential element of the crime that the State must prove

beyond a reasonable doubt, id. at 192. In that case, Roswell was charged with,

among other things, communicating with a minor for immoral purposes under

RCW 9.68A.090(1) which provides that a person who commits the crime is guilty

of a gross misdemeanor, except that ifthe person has been previously convicted

ofa felony sex offense, it is punishable as a class C felony.3 The State alleged
Roswell had two prior felony sex offense convictions.



       3RCW 9.68A.090 provides in relevant part:
       (1) Except as provided in subsection (2) of this section, a person who
    communicates with a minor for immoral purposes, or a person who communicates
    with someone the person believes to be a minor for immoral purposes, is guilty of
    a gross misdemeanor.
       (2) A person who communicates with a minor for immoral purposes is guilty of
    a class C felony punishable according to chapter 9A.20 RCW if the person has
    previously been convicted under this section or of a felony sexual offense under
    chapter 9.68A, 9A.44, or 9A.64 RCW or of any other felony sexual offense in this
    or any other state ....


                                              6
No. 68413-2-1/7



       At trial, Roswell requested that he be allowed to stipulate to the existence

of the prior sexaul offense convictions. He argued that the prior convictions were

an aggravating factor and he offered to waive his right to a jury trial on that issue

in order to prevent the jury from being informed of the prior convictions. He also

argued that even if the prior convictions were an element of the crime, he was

entitled to waive a jury trial as to that element. The State contended that the

existence of the prior convictions was an element of the crime that had to be

proved to a jury beyond a reasonable doubt. The trial court agreed with the State

and included as an element of the crime in the "to-convict" jury instruction

whether Roswell had been previously convicted of a felony sexual offense. The

jury found Roswell guilty as charged.

       On appeal, the court discussed the distinction between a prior conviction

as an aggravating factor as opposed to an element of a crime:

       Unlike an aggravator, which elevates the maximum punishment that may
       be imposed for a crime, an element is an essential component of the
       underlying offense. For example, here, if Roswell had had no prior felony
       sex offense convictions, he could not have been charged or convicted of
       felony communication with a minor for immoral purposes. If all other
       elements had been proved he could have been convicted of only a
       misdemeanor. See RCW 9.68A.090(1). Despite the similarities between
       an aggravating factor and a prior conviction element, under RCW
       9.68A.090(2), a prior sexual offense conviction is an essential element
       that must be proved beyond a reasonable doubt. The prior conviction is
       not used to merely increase the sentence beyond the standard range but
       actually alters the crime that may be charged.

\± at 192. This observation is equally applicable to the present case. The

language used by the legislature in elevating both crimes to felonies is nearly

identical and in both cases the prior conviction does not simply increase the
No. 68413-2-1/8


potential sentence upon conviction but actually alters the crime that may be

charged from a gross misdemeanor to a felony.

       Sandholm disagrees with the reasoning in Roswell. He argues that the

case is an anomaly which ignores controlling precedent. He is mistaken. Our

cases have uniformly held that a prior conviction is an essential element of the

crime where, under the statute, the prior conviction elevates the offense from

misdemeanor to felony. See, e^, State v. Oster, 147 Wn.2d 141, 146, 52 P.3d

26 (2002)(explaining that, where the existence of two prior convictions elevated

the crime of violation of a no contact order from a misdemeanor to a felony, that,

"[a]s set forth in the statute, the prior convictions function as an element of the

felony violation of a no contact order."); State v. Cochrane. 160 Wn. App. 18, 25,

253 P.3d 95 (2011)(holding that the existence of four prior DUI offenses within

ten years is an essential element of felony DUI that must be alleged in the

charging document); State v. Chambers, 157 Wn. App. 465, 475, 237 P.3d 352

(2010), ("[pjroof of the existence of the prior offenses that elevate a crime from a

misdemeanor to a felony is an essential element that the State must establish

beyond a reasonable doubt"); State v. Castle. 156 Wn. App. 539, 543, 234 P.3d

260 (2010) ("[b]y a plain reading of the statute, RCW 46.61.502 subsection (6)

adds an element to the list of elements stated in subsection (1) to define the

offense of felony driving under the influence"); State v. Davis. 116 Wn. App. 81,

93-94, 64 P.3d 661 (2003) (holding that where statute requires proof of a prior

conviction in order to elevate the underlying crime from a misdemeanor to a



                                           8
No. 68413-2-1/9


felony, the prior convictions are elements of the crime that must be proved to a

jury beyond a reasonable doubt); State v. Carmen. 118 Wn. App. 655, 667, 77

P.3d 368 (2003) (acknowledging that, where statute provides that upon proof of

two prior convictions for violating a no contact order, a third or subsequent

offense elevates the crime from a gross misdemeanor to a felony, the prior

convictions are an essential element of the crime).

       In his attempt to distinguish this authority, Sandholm relies principally on

State v. Williams. 162 Wn.2d 177, 170 P.3d 30 (2007) and Almendarez-Torres v.

United States. 523 U.S. 224, 118 S.Ct. 1219, 140 LEd.2d 350 (1998), to argue

that the penalty classification of an offense is not an element of the offense.

Williams is distinguishable. In that case, the defendant was charged with bail

jumping. The bail jumping statute, RCW 9A.76.170, contains three sections. The

first sets out the elements of the crime. The second establishes an affirmative

defense to the crime. And the third determines the classification of the crime by

degree of felony or as a misdemeanor.4 After the jury convicted Williams of bail
jumping, he argued on appeal that the "to-convict" instruction was erroneous

because it omitted as an element of the offense, the classification of the



       4RCW 9A.76.170(3) provides:
       (3) Bail jumping is:
       (a) A class A felony ifthe person was held for, charged with, or convicted
     of murder in the first degree;
       (b) A class B felony ifthe person was held for, charged with, or convicted
     of a class A felony other than murder in the first degree;
       (c) A class C felony ifthe person was held for, charged with, or convicted
     of a class B or class C felony;
       (d) A misdemeanor ifthe person was held for, charged with, or convicted
     of a gross misdemeanor or misdemeanor.
No. 68413-2-1/10


underlying crime. The court disagreed and held that because the classification of

the underlying crime is a legal question, it is outside of the jury's domain, and

therefore, not an element of the charged crime, jd., at 187. By contrast, here, the

question of whether Sandholm had at least four prior convictions within ten years

was an issue of fact to be decided by the jury.

       Sandholm's reliance on Almendarez-Torres is also misplaced. In that case

the defendant pleaded guilty to returning to the United States after being

deported. The statute under which he was charged provided that a person who

committed the crime is guilty of a felony punishable by not more than two years

imprisonment and a fine, jd at 229, 233 (citing 8 U.S.C. § 1326 (1988 ed.)). The

statute further provided that if the deportation was subsequent to a conviction for

a felony, the maximum penalty increased to ten years and, ifsubsequent to an

aggravated felony, to twenty years. The defendant admitted during the plea

hearing that his deportation had been pursuant to three earlier convictions for

aggravated felonies.

       At sentencing, the defendant pointed out that an indictment must set forth

all the elements of a crime and, in his case, the indictment made no mention of

his prior aggravated felony convictions. He argued that consequently, the court

could not sentence him to more than two years, the maximum sentence for an

offender without a prior aggravated felony conviction. The trial court rejected this

argument and imposed a sentence of 85 months.




                                          10
No. 68413-2-1/11



       On appeal, the United States Supreme Court affirmed the sentence. The

Court looked to the language of the statute to determine whether Congress,

when it increased the maximum punishments for defendants with the requisite

prior convictions, intended to define separate crimes or merely establish a

sentencing factor allowing the judge to increase punishment. It concluded that a

close reading of the statute's language disclosed that Congress intended to

establish a sentencing factor. Id., at 229-33.

       But the language of the statute in this case bears little resemblance to that

considered in Almendarez-Torres. Indeed, our courts have considered the

language of former RCW 46.61.502(6) and nearly identical language in other

statutes many times, each time concluding that the prior conviction is an

essential element of the crime. Oster. 147 Wn.2d at 145-46; Cochrane. 160 Wn.

App. at 25; Chambers. 157 Wn. App. at 475. Moreover, Almendarez-Torres.

does not address the circumstances presented here, where the prior conviction

actually changes the classification of the crime from a gross misdemeanor to a

felony. Thus, not only does the statute increase the possible sanction for the

crime, it expressly directs that the sanction be determined under a completely

different statutory scheme, the Sentencing Reform Act, chapter 9.94A RCW. This

supports the conclusion that the legislature intended to create a different crime

by adding the element of qualifying prior offenses.

       We conclude that Sandholm's stipulation to his prior convictions was

relevant to an essential element of the crime of felony DUI. See Roswell. 165



                                          11
No. 68413-2-1/12



Wn.2d at 198, ("[i]f a prior conviction is an element of the crime charged,

evidence of its existence will never be irrelevant.").

         We also reject Sandholm's claims that evidence of his prior convictions

was unfairly prejudicial. Relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice. State v. Acosta.

123 Wn. App. 424, 434, 98 P.3d 504 (2004); ER 403. We find no such unfair

prejudice in this case. Sandholm's stipulation did not tell the jury that his "four or

more prior offenses" were DUIs, only that they were qualifying offenses under the

relevant statute. CP at 1332. Moreover, the trial court took several steps to

reduce any unnecessary prejudice to Sandholm. It gave a limiting instruction and

bifurcated the jury instructions so that the jury considered whether the prior

convictions were proven only after, and if, it found the State had proven the other

elements of the crime. See Roswell. 165 Wn.2d at 198. The trial court also ruled

that the parties must refrain from using the word "felony" to identify Sandholm's

current offense.

         The admission of the prior conviction evidence was proper and the trial

court took sufficient steps to mitigate any unnecessary prejudice. There was no

error.



                                  Unanimous Verdict

         Next, Sandholm claims that the "to-convict" jury instruction in this case

violated his right to a unanimous verdict. We review questions of law and the




                                           12
No. 68413-2-1/13


adequacy of a "to convict" jury instruction de novo. Chambers. 157 Wn. App. at

474, (citing State v. DeRvke. 149 Wn.2d 906, 910, 73 P.3d 1000 (2003)).

       Washington law recognizes a right to express jury unanimity as to the

means by which a defendant is found to have committed a crime. State v.

Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). In this case, the jury

was instructed to convict Sandholm if it found that he had been driving either (1)

while under the influence of or while affected by intoxicating liquor (the "alcohol

only" alternative), or (2) while under the combined influence of or while affected

by intoxicating liquor and any drug (the "combined influence" alternative). CP at

329. The jury was not instructed that it must unanimously agree as to the

alternative means. Indeed the court affirmatively instructed the members of the

jury that they need not unanimously agree. Thus, Sandholm correctly asserts that

the to-convict instruction misstates the law regarding unanimity.

       But, error in the "to convict" instruction is subject to a harmless error

analysis. DeRvke. 149 Wn. 2d at 906; State v. Rivas. 97 Wn. App. 349, 352, 984

P.2d 432 (1999), disapproved on other grounds by State v. Smith. 159 Wn.2d

778, 154 P.3d 873 (2007). Rivas is instructive. There, the defendant was charged

with assault in the second degree. Because "assault" is not defined by the

criminal code, courts use the common law to define the crime. Under the

common law there are three means of committing assault and the trial court

instructed the jury on all three: (1) battery; (2) attempted battery; and (3) assault,

jd, at 352-53. We agreed with Rivas that no evidence was offered at trial to



                                          13
No. 68413-2-1/14



support the first and second alternative means of committing assault. However,

based on the charging document and the trial record, we determined that the jury

verdict was based entirely on the third means of committing assault, of which

there was substantial evidence in the record. kL at 354-55. We affirmed the

conviction, finding that "there was no danger that the jury's verdict rested on an

unsupported alternative means . ..." Id. at 355.

       Although in this case, unlike in Rivas. the unsupported alternative was

included in the charging document, the trial record shows that the State focused

on proving only the "alcohol only" alternative at trial. The prosecution's

examination of witnesses during its case in chief developed facts related to

Sandholm's alcohol consumption and alcohol-related impairment. And in closing

argument, the prosecutor only mentioned the combined effect alternative when

she read the court's instructions to the jury.

       We conclude that the record amply demonstrates that the State's case

against Sandholm and the jury's verdict rested solely on proof of the "alcohol

only" alternative. Because Sandholm concedes that this alternative was

supported by sufficient evidence, we find any error in the "to-convict" instruction

harmless.

                                   Offender Score

       Sandholm next claims that his offender score was miscalculated. A

sentencing court's offender score calculation is reviewed de novo. State v.

Wilson. 113 Wn. App. 122, 136, 52 P.3d 545 (2002).



                                          14
No. 68413-2-1/15


       Sandholm argues that the sentencing court incorrectly calculated the

offender score applicable to his felony DUI conviction. He maintains that his four

most recent DUI convictions (from 2000, 2005, 2007 and 2008) are the only

offenses that should have counted toward his offender score. This approach

would have yielded a score of four. The State contends that the sentencing court

properly included two additional prior DUI convictions (from 1998 and 1999) and

two felony drug convictions (from 1998 and 2000), resulting in an offender score

of eight.

       Former RCW 9.94A.525 (2008) prescribes the mode for calculating

Sandholm's offender score in this case. Subsection 2(e) of that statute states:

       (e) If the present conviction is felony driving while under the
       influence of intoxicating liquor or any drug (RCW 46.61.502(6))
       or felony physical control of a vehicle while under the influence of
       intoxicating liquor or any drug (RCW 46.61.504(6)), prior
       convictions of felony driving while under the influence of
       intoxicating liquor or any drug, felony physical control of a
       vehicle while under the influence of intoxicating liquor or any drug,
       and serious traffic offenses shall be included in the offender
       score if: (i) The prior convictions were committed within five
       years since the last date of release from confinement (including
       full-time residential treatment) or entry of judgment and sentence;
       or (ii) the prior convictions would be considered "prior offenses
       within ten years" as defined in RCW 46.61.5055.

(Emphasis added.)

                           a. 1998 and 2000 Drug Convictions

        Relying on State v. Morales. 168 Wn. App. 489, 493, 278 P.3d 68 (2012),

Sandholm argues that only those prior convictions listed in subsection (2)(e) are

properly counted toward a felony DUI offender score. Thus, he contends that the


                                         15
No. 68413-2-1/16


two drug convictions were improperly included in calculating his offender score.

The State agrees that under Morales. Sandholm's drug convictions do not count

under subsection (2)(e). But it argues that Morales does not preclude counting

those prior convictions under subsection (2)(c).5 We agree with Sandholm.
       In Morales, the sentencing court concluded that the defendant's fourth

degree assault conviction could be used to determine whether one of the

defendant's prior convictions occurred within five years of release from

confinement or entry of judgment and sentence under subsection 2(e)(i). As a

result, the sentencing court included that prior conviction, and consequently

several others, in the defendant's offender score. We reversed on appeal,

holding that the plain language of subsection (2)(e) made clear that the only prior

convictions "that shall be included in the calculation of the offender score [for a

felony DUI conviction] are limited to these: 'felony driving while under the

influence of intoxicating liquor or any drug, felony physical control of a vehicle

while under the influence of intoxicating liquor or any drug, and serious traffic

offense ....'" Morales. 168 Wn. App. at 493. We explicitly rejected the

conclusion reached by the trial court because, in calculating the defendant's

offender score for felony DUI, the "only relevant prior offenses" are those listed in




       5 Former RCW 9.94A.525(2)(c) (2008) provides:
          (c) Except as provided in (e) of this subsection, class C prior felony
       convictions other than sex offenses shall not be included in the offender score if,
       since the last date of release from confinement (including full-time residential
       treatment) pursuant to a felony conviction, ifany, or entry of judgment and
       sentence, the offender had spent five consecutive years in the community
       without committing any crime that subsequently results in a conviction.

                                                16
No. 68413-2-1/17



subsection (2)(e). jd., at 497. Accordingly, we reversed and remanded for

resentencing.

       For the same reasons, we reject the State's position in this case. By its

express terms, subsection (2)(c), defers to subsection (2)(e) to calculate the

offender score for felony DUI. And subsection (2)(e) lists the only prior

convictions relevant to the calculation of the offender score for felony DUI, which

does not include drug convictions.

       The State argues, without citation to any authority, that "subsection (2)(e)

does not trump subsection (2)(c) — it merely presents an exception designed to

increase the punishment for DUI recidivists." Brief of Respondent at 20. The

argument is untenable for several reasons. First, as discussed above, the

argument is inconsistent with the statutory language. The State does not explain

how or why we should ignore the explicit direction in subsection (2)(c) to

calculate the offender score for felony DUI "as provided in (e) of this subsection."

Former RCW 9.94A.525(2)(c) (2008). Second, the argument is in direct

contradiction to our reasoning in Morales.6 Third, the State's argument would
render subsection (2)(e)(i) superfluous. Under a scenario like that in Morales, for

example, where the defendant's prior conviction for assault washed out under

subsection (2)(e)(i), under the State's argument it could be revived by analysis

under subsection (2)(c), rendering subsection (2)(e)(i) meaningless.



       6 See also, State v. Jacob. 176 Wn. App. 351, 356-60, 308 P.3d 800 (2013) (concurring
with Morales that only the prior convictions specified in subsection (2)(e) count towards the
offender score of a defendant convicted of felony DUI.)


                                               17
No. 68413-2-1/18



        We conclude that the trial court erred below when it included Sandholm's

drug convictions in calculating his offender score.7

                                 b. 1998 and 1999 DUI Convictions

        Sandholm also contends that 1998 and 1999 DUI convictions were

improperly counted toward his offender score. He asserts that these convictions

had washed out under former RCW 9.94A.525(2)(e)(ii) (2008) because they are

more than ten years old.

        Sandholm argues that Washington courts apply either RCW

9.94A.525(2)(e)(i) or (2)(e)(ii), but not both, in calculating felony DUI offender

scores. In other words, he contends that because he has four prior DUI-related

offenses within ten years, only subsection (ii) applies and only those offenses

would count towards his offender score. But subsection (i), which would include

his 1998 and 1999 DUIs because they were committed within five years of his

2000 DUI, does not. In support, he cites State v. Draxinger. 148 Wn. App. 533,

200 P.3d 251 (2008), a decision of Division Two of this court. In Draxinger. the

court held that:

        Subsection (ii) applies only ifthe defendant has committed at least
        four DUI-related offenses in 10 years. If he has fewer than four
        such offenses, subsection (i) applies, requiring that there be five
        years or less between release on one and commission of the next.


          7We reject the State's argument that the legislature's amendment of the statute,
subsequent to Morales, to include in the offender score "fa]ll other convictions of the defendant" is
a clarification of the legislative intent under the prior language to which we should give effect. See
RCW 9.94A.825(e) (2010). Even assuming the amendment to be a clarification, it cannot be
applied retrospectively when it contravenes a construction placed on the original statute by the
judiciary. State v. Dunawav. 109 Wn.2d 207, 216, n.6, 743 P.2d 1237 (1976); Johnson v. Morris.
87 Wn.2d 922, 925-26, 557 P.2d 1299 (1976).


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jd, at 537.

       However, we implicitly rejected this analysis in Morales. 168 Wn.

App. 489, when we applied both subsections (i) and (ii) to determine which

offenses counted toward a felony DUI offender score. Morales was being

sentenced for felony DUI committed in December 2009. He had seven

prior convictions which qualified as "'serious traffic offenses'" under the

statutory definition. kL at 493-94.8 Four ofthese convictions occurred
more than ten years prior to his 2009 date of arrest. jd. At issue was

which, if any of these four convictions washed out.

       We determined first that the four convictions did not count under

subsection (2)(e)(ii) because they were more than ten years old. jd. at

494. We next determined whether the four convictions counted under

subsection (2)(e)(i). We explained that, in order for a conviction to count

under subsection (2)(e)(i), less than five years must elapse between the

date of conviction or the last date of confinement for that offense and any

subsequent offense, jd. at 496. In the case of Morales' four convictions,

nine years had passed between the last of the four convictions at issue

(from April 1992) and Morales' next qualifying offense (from April 2001).

"This gap require[d] a washout of all Morales's convictions" prior to April

1992. Id.


        8"Under [former] RCW 9.94A.030(43),[(2008)] serious traffic offense means '(a)
Nonfelony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502),
nonfelony actual physical control while under the influence of intoxicating liquor or any drug
(RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW
46.52.020(5))     '" Morales. 168 Wn. App. at 494 n.11.


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No. 68413-2-1/20



      In the present case, Sandholm has six DUIs with disposition dates on May

28, 2008; April 12, 2007; February 5, 2005; December 27, 2000; June 23, 1999;

and June 12, 1998. CP at 1666. None of these offenses, which are qualifying

"serious traffic offenses" under RCW 9.94A.030(44)(a) (2008), are separated by

a five-year period between the entry of judgment and sentence on one DUI and

commission of the next. Accordingly, under Morales. Sandholm's 1998 and 1999

DUIs were properly counted under former RCW 9.94A.525(2)(e)(i) (2008).

                                    Sentence

      Finally, Sandholm asserts that the trial court committed error when it

imposed a combined term of community custody and incarceration which

exceeds the 60-month maximum sentence under the Sentencing Reform Act

(SRA). Resolution of this issue requires interpretation of a statute. We review de

novo. Okeson. 150 Wn.2d at 548-49.

      The State concedes that the trial court erred when it sentenced Sandholm

to a combined term of incarceration and community custody that exceeds the

statutory maximum. Sandholm's offense is a class C felony with a statutory

maximum of 60 months of incarceration. See RCW 46.61.502(6); RCW

9A.20.021(1)(c). RCW 9.94A.701(3)(a) authorizes a community custody term of

twelve months. Based on an offender score of eight, the trial court sentenced

Sandholm to sixty months of confinement and twelve months of community

custody. These terms together exceeded the sixty-month statutory maximum for
the offense. The trial court included a notation on the judgment and sentence



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No. 68413-2-1/21



stating that the total term of confinement and community custody could not

exceed the statutory maximum. But this notation does not comply with statutory

requirements. See RCW 9.94A.701(9); State v. Boyd. 174 Wn.2d 470, 472, 275

P.3d 321 (2012). Under RCW 9.94A.701(9), the term of community custody

"shall be reduced by the court whenever an offender's standard range term of

confinement in combination with the term of community custody exceeds the

statutory maximum for the crime."

       Because the sentencing court also erred in calculating Sandholm's

offender score, the remedy for this error is not to strike the term of community

custody. Rather, we remand for resentencing with the correct offender score and

admonish the trial court that the combined term of incarceration and community

custody may not exceed the sixty-month statutory maximum for felony DUI.

       Remand.




                                                                   ACA
WE CONCUR




                                                          ^gft,J




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