                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                  November 24, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46386-5-II

                                  Respondent,

         v.

 BRIAN ALLEN ROBERTS II                                         UNPUBLISHED OPINION

                                  Appellant.

       MELNICK, J. — Brian Allen Roberts II appeals the sentence imposed after he pleaded guilty

to three counts of violating a domestic violence court order. Roberts argues that the trial court

erroneously misinterpreted RCW 9.94A.030(20) disjunctively to permit the court to enhance his

sentence for domestic violence offenses as defined in either RCW 10.99.020 or RCW 26.50.010.

Roberts also argues that the trial court lacked statutory authority to order the forfeiture of property

as a condition of sentence. In his statement of additional grounds (SAG), Roberts argues further

that the trial court erred by excluding a prior misdemeanor from his offender score and that his

offender score for a 2012 conviction was miscalculated.

       Under State v. Kozey, 183 Wn. App. 692, 334 P.3d 1170 (2014), review denied, 182 Wn.2d

1007 (2015), the trial court properly interpreted RCW 9.94A.030(20) in the disjunctive.              It

properly enhanced Roberts’s offender score based on his current and prior domestic violence

offenses. While we reject Roberts’s additional claims of error concerning his offender score, we

agree that the trial court lacked statutory authority to order the forfeiture of Roberts’s property.

We remand for the trial court to strike the forfeiture provision from Roberts’s judgment and

sentence, but otherwise affirm.
46386-5-II


                                              FACTS

       Roberts pleaded guilty to three counts of violating a domestic violence court order after he

telephoned his former girlfriend several times from jail. His plea statement noted that his offender

score was in dispute and added that the State would recommend that Roberts “forfeit any items in

Tacoma Police Department property room.” Clerk’s Papers at 14; Report of Proceedings (March

11, 2014) at 5.

       At sentencing, the State argued that Roberts’s offender score was 11 under RCW

9.94A.525(21), and the defense argued that it was 6 under RCW 9.94A.525(7).1 RCW 9.94A.525

states the rules for computing offender scores. RCW 9.94A.525(7) is a general rule used to

calculate offender scores for nonviolent offenses.    RCW 9.94A.525(21) specifically relates to

calculating offender scores for felony domestic violence offenses “where domestic violence as

defined in RCW 9.94A.030 was plead and proven,” and it provides for additional points if prior

and other current offenses involved domestic violence as defined in RCW 9.94A.030. RCW

9.94A.525(21)(a)-(c). RCW 9.94A.030(20), in turn, states that domestic violence “has the same

meaning as defined in RCW 10.99.020 and 26.50.010.”

       The State maintained that Roberts’s crimes had to satisfy only one of the definitions in

RCW 9.94A.030 to fall within RCW 9.94A.525(21). The State argued further that Roberts’s

current and prior domestic violence convictions involved domestic violence as defined in RCW

10.99.020. The defense responded that RCW 9.94A.525(21) did not apply because Roberts’s



1
  Roberts had three prior convictions for robbery, theft, and malicious mischief that counted for
three points. Under RCW 9.94A.525(21)(a) and (c), his current and prior domestic violence felony
offenses counted for an additional six points, and his two prior domestic violence misdemeanor
offenses counted for an additional two points. Under RCW 9.94A.525(7), Roberts’s domestic
violence felonies counted for three points and his domestic violence misdemeanors did not count
at all.


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46386-5-II


domestic violence convictions did not satisfy the definitions of domestic violence in both RCW

10.99.020 and RCW 26.50.010. The defense requested a sentence under the Drug Offender

Sentencing Alternative,2 and the State argued for a standard range sentence.

         The trial court agreed with the State’s interpretation of RCW 9.94A.030 and sentenced

Roberts to concurrent sentences of 60 months on each count. The trial court also checked a box

in the judgment and sentence stating that “[a]ll property is hereby forfeited,” and it added a

handwritten notation ordering Roberts to “forfeit any items in property.” CP at 100.

         Roberts appeals his sentence.

                                           ANALYSIS

I.       OFFENDER SCORE CALCULATION

         Roberts contends that the trial court misinterpreted RCW 9.94A.030 in calculating his

offender score. He argues that because his current and prior domestic violence offenses did not

satisfy both definitions of domestic violence in RCW 9.94A.030(20), the trial court erred in adding

points to his offender score pursuant to RCW 9.94A.525(21). We considered and rejected a similar

argument in Kozey and held that domestic violence under RCW 9.94A.030(20) has the same

meaning as domestic violence in either RCW 10.99.020 or RCW 26.50.010. 183 Wn. App. at 700.

         RCW 10.99.020(5) states that “‘[d]omestic violence’ includes but is not limited to any of

the following crimes when committed by one family or household member against another.” This

nonexclusive list includes violent crimes, property crimes, and other miscellaneous crimes,

including the “[v]iolation of the provisions of a restraining order, no-contact order, or protection

order.” RCW 10.99.020(5)(r). In contrast, RCW 26.50.010(1) defines a domestic violence offense




2
     RCW 9.94A.660.


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46386-5-II


as assault, sexual assault, or stalking committed by one family or household member against

another. Kozey, 183 Wn. App. at 697.

       Roberts’s current offenses were violations of no-contact orders committed against a

household member, and his prior domestic violence offenses were attempted assault in the second

degree, assault in the fourth degree, and violating a sentencing no-contact order. All of these

offenses satisfied the definition of domestic violence in RCW 10.99.020(5). Consequently, under

Kozey, the trial court properly applied RCW 9.94A.525(21) to Roberts’s offender score.

       Roberts’s disagreement with the analysis in Kozey does not warrant its reconsideration.

The Supreme Court has denied review of Kozey, and other decisions have followed its reasoning.

See, e.g., State v. Hodgins, No. 31780-3-III, 2015 WL 5771248 (Wash. Ct. App. Oct. 1, 2015);

State v. Ross, 188 Wn. App. 768, 355 P.3d 306 (2015); State v. MacDonald, 183 Wn. App. 272,

333 P.3d 451 (2014). We affirm the trial court’s interpretation of RCW 9.94A.030 and its

application of the offender score provisions in RCW 9.94A.525(21).3

II.    FORFEITURE OF PROPERTY

       Roberts argues next that the trial court acted without statutory authority when it ordered

the forfeiture of any property held by the police department. We review de novo whether the trial

court had statutory authority to impose this sentencing condition. State v. Roberts, 185 Wn. App.

94, 96, 339 P.3d 995 (2014).

       In Roberts, we considered an identical claim of error and held that in the absence of a

showing that statutory authority supported the forfeiture condition, the condition was imposed in

error. 185 Wn. App. at 96. In so holding, we distinguished a decision addressing whether the trial


3
  In doing so, we note that the trial court added a point because Roberts committed his current
offenses while he was on community placement, thus giving him an offender score of 12. RCW
9.94A.525(19).


                                                4
46386-5-II


court exceeded its authority by ordering forfeiture without procedural due process. Roberts, 185

Wn. App. at 97 (citing State v. McWilliams, 177 Wn. App. 139, 152, 311 P.3d 584 (2013), review

denied, 179 Wn.2d 1020 (2014)). In McWilliams, we rejected the defendant’s due process

challenge because his ability to move for return of the property under both the provisions of the

judgment and sentence and CrR 2.3(e) afforded him due process. 177 Wn. App. at 150-151. The

McWilliams decision did not hold that the trial court could order forfeiture in the absence of

statutory authority. Roberts, 185 Wn. App. at 997.

       The Roberts decision expressly held that a trial court may not order forfeiture without

statutory authority and we apply that holding here. The judgment and sentence does not cite any

statutory authority to support the forfeiture condition, and the State does not supply such authority

on appeal. Accordingly, we remand to strike the forfeiture language from the judgment and

sentence.

III.   SAG

       Roberts raises two issues in his SAG. The first contends that the exclusion of a prior

misdemeanor for a protection order violation shows that his offender score was miscalculated.

       Roberts was convicted of the protection order violation in 2012. This conviction is not

labelled as a domestic violence offense in his current judgment and sentence. Consequently, we

see no error in its exclusion from Roberts’s offender score.4

       Roberts also contends that the provisions in RCW 9.94A.525(21) should have applied to

the calculation of his offender score for his 2012 conviction of domestic violence attempted assault




4
  We also note that Roberts’s judgment and sentence lists his offender score as 9+ and his standard
range as the maximum 60 months. Neither of these references would change with the addition of
a point to the offender score.


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46386-5-II


in the second degree. The calculation of Roberts’s offender score under a prior cause number is

beyond the scope of this appeal, and we do not consider this issue further.

        We remand for the trial court to strike the forfeiture provision from the judgment and

sentence, but otherwise affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                             Melnick, J.

We concur:




        Bjorgen, A.C.J.




        Maxa, J.




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