                                                                              FILED

                                                                         May 21, 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. 28835-8-II1
                      Respondent,             )
                                              )
       v.                                     )
                                              )
ANTHONY D. SINGH,                             )
                                              )         UNPUBLISHED OPINION
                      Appellant.              )


       SIDDOWAY, A.C.J. - Anthony Singh relies on the Washington Supreme Court's

decision in State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)1 to challenge an

exceptional sentence and firearm enhancements imposed for an armed assault he

committed in July 2008. Given the decisions of this court and the Supreme Court in State

v. Guzman Nunez, 160 Wn. App. 150,248 P.3d 103 (2011), affd, 174 Wn.2d 707, 285

P.3d 21 (2012), his arguments fail. We affirm his convictions but, having determined

that the sentence imposed by the trial court fails to accomplish its stated objective and

could create future confusion, we reverse the sentence and remand for consideration and

entry of a corrected sentence.


       1   Overruled by State v. Guzman Nunez, 174 Wn.2d 707,285 P.3d 21 (2012).
No. 28835-8-III
State v. Singh


                    FACTS AND PROCEDURAL BACKGROUND

       In July 2008, Anthony Singh and his brother became involved in an early morning

altercation with Alasaga Tauala in downtown Spokane. As the men argued, Mr. Singh,

already a convicted felon prohibited from possessing a firearm, accepted a handgun

offered him by his brother and fired it at Mr. Tauala's feet. The bullet hit Mr. Tauala's

right shoe but did not injure him. Later that day, Mr. Singh contacted a woman who had

ridden with him and his brother the night before and was present at the shooting. He told

her not to discuss the shooting with anyone. She felt threatened by the conversation.

       Mr. Singh was charged with second degree assault with a deadly weapon (count I),

drive-by shooting (count II), first degree unlawful possession of a firearm (count III),

conspiracy to commit second degree assault (count IV), intimidating a witness (count V),

and tampering with a witness (count VI). The State alleged that he had been armed with

a firearm in committing the offenses charged in counts I and IV.

       In connection with the potential firearm sentencing enhancements, the jury was

given special verdict forms to answer in the event it found Mr. Singh guilty of assault or

conspiracy to commit assault. It was instructed that when answering the special verdict

forms, which asked whether Mr. Singh had been armed with a firearm in committing the

offense, "If you unanimously have a reasonable doubt as to this question, you must

answer 'no. '" Clerk's Papers (CP) at 648. No objection was made to these instructions.




                                             2

No. 28835-8-III
State v. Singh


Mr. Singh was convicted on all counts except count V. The jury answered "yes" to the

two special verdict forms.

       In sentencing Mr. Singh, the court determined that he had an offender score of 9 or

higher; the duration of his firearm enhancements must be doubled because he had earlier

served sentences enhanced based on a finding he had been armed with a firearm,

requiring the court to impose six years for the enhancement on count I and three years for

the enhancement on count IV; counts I, II, and III should be treated as the same criminal

conduct for offender score purposes and should run concurrently to one another; and

counts IV and VI amounted to separate conduct and should run concurrently to one

another.

       The court granted the State's request for exceptional consecutive sentencing, with

the latter two counts running consecutively to the first three. The State had argued that

the 9 years that must be served on the consecutive firearm enhancements would consume

all but 1 year of the maximum 10-year sentence that the court could impose on the most

serious (class B) felonies, leaving some of Mr. Singh's offenses effectively unpunished.

According to the judgment and sentence, the total amount of confinement imposed was

171 months. Mr. Singh appeals.

                                       ANALYSIS

       Mr. Singh challenges the trial court's imposition of the firearm enhancements and

its imposition of an exceptional sentence upward. We address the challenges in tum.

                                             3

No. 28835-8-III
State v. Singh


                                              I

       In his opening brief filed before this court's opinion in Guzman Nunez, Mr. Singh

argued that in light of Bashaw, the firearm sentencing enhancements must be vacated

because the jury was incorrectly instructed that it had to be unanimous to answer "no" to

the special verdict forms. Under Bashaw, the instruction given was an incorrect

statement of law. 169 Wn.2d at 147 (holding that juror unanimity "is not required to find

the absence of such a special finding").

       This court's decision in Guzman Nunez was filed in February 2011, during the

course of the parties' briefing of this appeal. In Guzman Nunez, we held that a trial

court's incorrect instruction requiring unanimity to answer "no" to a special verdict form

addressing an aggravating factor was not manifest constitutional error and could not be

raised for the first time on appeal. 160 Wn. App. at 159-64. Mr. Singh did not object at

trial to the instruction he challenges in this appeal. In addressing our decision in Guzman

Nunez in his reply brief, Mr. Singh argued that we were wrong in finding no manifest

constitutional error (a panel from Division One had by then held otherwise in State v.

Ryan, 160 Wn. App. 944, 252 P.3d 895 (2011), rev'd, 174 Wn.2d 707) and, alternatively,

that he could raise the matter for the first time on appeal as a sentencing error-that is,

the trial court erroneously enhanced his sentence on the basis of the jury's response to a

flawed verdict form.




                                              4

No. 28835-8-III
State v. Singh


        The Washington Supreme Court's decision in Guzman Nunez, 174 Wn.2d 707 was

filed after the parties completed their briefing. In Guzman Nunez, the Supreme Court

overruled the nonunanimity rule for aggravating circumstances it had expressed in

Bashaw and, before that, in State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003). It

upheld the giving of instructions requiring unanimity for either "yes" or "no" special

verdict answers. In light of the Supreme Court's overruling of Bashaw, both of Mr.

Singh's arguments challenging the jury instruction and the reSUlting sentence

enhancements fail.

                                             II

        Mr. Singh also challenges the exceptional consecutive sentence imposed by the

trial court.

        In reviewing an exceptional sentence, we may reverse if we find, "(a) Either that

the reasons supplied by the sentencing court are not supported by the record which was

before the judge or that those reasons do not justifY a sentence outside the standard

sentence range for that offense; or (b) that the sentence imposed was clearly excessive or

clearly too lenient." RCW 9.94A.585(4). We review de novo whether the reasons

supplied by the sentencing court justifY an exceptional sentence. State v. Hale, 146 Wn.

App. 299, 308, 189 P.3d 829 (2008). Here, the State requested and the trial court

imposed an exceptional sentence upward based on RCW 9.94A.535(2)(c), which permits

the trial court to impose such a sentence when "[t]he defendant has committed multiple

                                             5

No. 28835-8-II1
State v. Singh


current offenses and the defendant's high offender score results in some of the current

offenses going unpunished." The State and trial court believed that the firearm

enhancements would substitute for 9 years of the maximum 10-year sentence on Mr.

Singh's class B felonies,2 meaning that unless the court imposed an exceptional

consecutive sentence, Mr. Singh would serve only 12 months for the underlying crimes.

      Mr. Singh's briefs challenge the exceptional sentence based on his assumption that

we would reverse the firearm enhancements in light of Bashaw. He argues that without

valid firearm enhancements, the trial court's only reason for imposing the exceptional

sentence disappears. Of course, with that as Mr. Singh's only argument, and with the

firearm enhancements having proved valid, his only reason for challenging the

exceptional sentence disappears.

       While that would ordinarily dispose of the appeal, in the course of our de novo

review of the exceptional sentence we can see that the sentence imposed did not

accomplish the trial court's stated objective and that some provisions of the judgment and

sentence may be a source of future confusion.

       The State and the trial court were correct that the firearm enhancements must run

"consecutively to all other sentencing provisions, including other firearm ...


       2 Second degree assault with a deadly weapon, drive-by shooting, first degree
unlawful possession of a firearm, and intimidating a witness are all class B felonies
subject to a maximum lO-year sentence. RCW 9A.36.021(2)(a), .045(3); RCW
9.41.040(l)(b); RCW 9A.72.110(4); RCW 9A.20.021 (l)(b).

                                             6

No. 28835-8-111
State v. Singh


enhancements, for all offenses sentenced under [chapter 9.94A RCW]." RCW

9.94A.533(3)(e). They were also correct that the total sentence for a given offense,

including enhancements to the sentence for that offense, cannot exceed the statutory

maximum-meaning, e.g., that the court could not impose more than 48 months for the

second degree assault (count I) in light of the 6-year firearm enhancement and 10-year

maximum sentence. RCW 9.94A.533(3)(g); State v. DeSantiago, 149 Wn.2d 402, 421,

68 P.3d 1065 (2003) (the presumption that the total sentence, including firearm and

deadly weapon enhancements, cannot exceed the statutory maximum ensures that

enhancements will not "absurdly extend sentences," citing subsections (g) of former

RCW 9.94A.510(3) and (4) (1998)). But they failed to consider that sentences imposed

by the trial court for other offenses not subject to firearm enhancements are not reduced

for the enhancements and extend the total period of incarceration.

       Accordingly, while the State proposed the exceptional consecutive sentence

believing that it would result in a total period of incarceration of 171 months, the terms

imposed on each count and the court's order as to whether they are to run consecutively

or concurrently result in 246 months of total confinement-because, pursuant to RCW

9.94A.533(3)(g), the firearm enhancements cannot run concurrently with any other

offense regardless of whether an enhancement was imposed on account of that offense or

not. The following sentencing timeline illustrates the operation of the exceptional

consecutive sentence imposed by the court:

                                             7

No. 28835-8-111
State v. Singh


    ~
           Concurrent sentences       Consecutive          Firearm enhancements (FA)
                                       sentences

     I   I: 12 months                IV: 24 months      FA: 72 months   I FA: 36 months
     I   II: 87 months               VI: 51 months

     I III: 87 months


         In fact, given the standard range of 87 months to 116 months for counts II and III in

light of Mr. Singh's offender score, reversal of the exceptional consecutive sentence on

counts IV and VI is not enough to reduce his period of confinement to the 171-month total

contemplated by the trial court. The total sentence, applying the low end of the standard

range, amounts to 195 months, as illustrated by the following sentencing timeline:


              Concurrent sentences                 Firearm enhancements (FA)

         I: 12 months                     FA: 72 months        I FA: 36 months
         II: 87 months

         III: 87 months

         IV: 24 months

         VI: 51 months



         The only way to achieve a 171-month period of incarceration is with an exceptional

sentence downward, reducing the sentences for counts II and III below the standard range.




                                               8
No. 28835-8-III
State v. Singh


       The trial court's judgment and sentence states that the "[a]ctual number of months

of total confinement ordered is 171 months." CP at 866. That absolute limitation treats

the sentence terms for counts II, III, and VI as being partially consumed by the firearm

enhancements. Despite that intention on the part of the trial court, the Department of

Corrections may construe the judgment and sentence as ordering the 246 months of

confinement that follows from some of its other provisions.

       Therefore, while finding none of the errors assigned by Mr. Singh, we reverse the

exceptional sentence and remand to the trial court for resentencing.

       We affirm the convictions and reverse and remand the sentence for proceedings

consistent with this opinion.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.



                                             Sidd~' 

WE CONCUR: 





Kulik, J.

                                             9

