                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                              May 29, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 51152-5-II

                                 Respondent,

         v.

 TORY DEANDRE FLETCHER,                                         UNPUBLISHED OPINION

                                 Appellant.

        WORSWICK, J. —Tory Fletcher pleaded guilty to fourth degree assault and, following a

jury trial, was found guilty of two counts of first degree unlawful possession of a firearm.

Fletcher appeals from his convictions and sentence, contending that (1) the trial court erred by

denying his CrR 4.2 motion to withdraw his guilty plea, (2) the State failed to present sufficient

evidence in support of his first degree unlawful possession of a firearm convictions, (3) the trial

court violated his timely trial right by granting defense counsel’s continuance motion over his

objection, (4) the trial court provided a defective limiting instruction, (5) the trial court erred by

admitting evidence of his three prior felony convictions, (6) the trial court sentenced him based

on an improperly calculated offender score because it failed to find that his two first degree

unlawful possession of a firearm convictions encompassed the same criminal conduct, and (7)

his defense counsel was ineffective for failing to object to the purportedly defective limiting

instruction and for failing to argue that his convictions encompassed the same criminal conduct.

        We affirm Fletcher’s convictions but remand to the trial court for resentencing for the

trial court to enter required findings to support the sentence imposed.
No. 51152-5-II


                                                 FACTS

          On March 1, 2017, the State charged Fletcher with unlawful possession of a controlled

substance and fourth degree assault, alleging that he intentionally assaulted his girlfriend,

Jennifer Denney. On May 9, 2017, the State filed an amended information adding two counts of

first degree unlawful possession of a firearm. Fletcher waived his speedy trial right and agreed

to a new commencement date of May 9, 2017. The trial court scheduled Fletcher’s trial to begin

on July 12, 2017, 64 days after the new commencement date.1

          On July 11, 2017, defense counsel moved to continue the trial date over Fletcher’s

objection. Defense counsel asserted that he needed additional time to investigate potential chain

of custody issues regarding the firearms seized by police and to obtain and review previously

undisclosed police reports. The trial court found good cause to continue the trial over Fletcher’s

objection and set a new trial date of September 13, 2017, stating:

          [T]he problem that I see is that you may have more problems going to trial
          tomorrow without this input for [defense counsel] to determine the exact chain of
          custody of these weapons and what may have been said by the alleged victim or the
          complaining witness about these weapons.
                   It may help you in the long run or it may not—I’m not sure. But without
          having that information I would put you at risk for—I would put you at risk and
          have more prejudice to you if I let this trial go tomorrow. So based upon what
          [defense counsel] indicated—based upon what [the State] indicated it’s in your best
          interest and in the administration of justice to protect your constitutional right to a
          fair trial and to ensure that your attorney is properly prepared and provide you
          adequate counsel I’ll go ahead and continue this trial date.

Report of Proceedings (RP) at 36-37.

          On September 12, the trial court dismissed without prejudice Fletcher’s unlawful

possession of a controlled substance charge. On that same date, Fletcher pleaded guilty to the


1
    The parties agree that Fletcher was not being held in custody pending his trial.

                                                    2
No. 51152-5-II


fourth degree assault charge in accordance with State v. Newton, 87 Wn.2d 363, 372-73, 552

P.2d 682 (1976).2 In his statement of defendant on plea of guilty, Fletcher stated that he was

freely and voluntarily pleading guilty to fourth degree assault without any threats of harm or any

promises apart from those set forth in his statement. Fletcher asserted the same during a

colloquy with the trial court, after which the trial court accepted the plea as knowingly,

intelligently, and voluntarily given. The matter proceeded to a jury trial on the remaining two

counts of first degree unlawful possession of a firearm.

        The following day, Fletcher moved pro se to withdraw his guilty plea. Fletcher stated

that he wanted to withdraw his guilty plea so that he could tell the jury “the whole story.” RP at

179. Fletcher did not assert that he had been coerced to plead guilty or that his plea was

otherwise involuntarily made. The trial court denied Fletcher’s pro se motion to withdraw his

guilty plea.

        At trial, Denney testified that Fletcher moved into her home in May 2016 while the two

were in a dating relationship. Denney stated that Fletcher was not added to her lease but that he

had a key and kept his belongings in their home. Denney also stated that when Fletcher moved

in with her, he brought two handguns into the home and showed her where he stored them in a

bedroom closet. Denney said that Fletcher would occasionally move the handguns without

telling her, and she had seen that he moved the handguns to a spare bedroom, different places in

their garage, and his vehicle. Denney stated that Fletcher told her he kept the guns for safety




2
  In a Newton plea, the defendant does not admit guilt but concedes that the State’s evidence is
strong and would most likely result in a conviction. 87 Wn.2d at 372-73; see also North
Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

                                                 3
No. 51152-5-II


reasons. Denney said that she did not have any guns in the home prior to Fletcher moving in

with her.

       Denney testified that Fletcher was at their home on December 17, 2016, and that he left

the home around midnight between December 17 and December 18. Denney stated that she

showed one of Fletcher’s handguns to a Clark County sheriff’s deputy that day and that she gave

both handguns to a Clark County sheriff’s deputy two days later.

       Clark County Sheriff’s Deputy Taylor Bossert testified that he went to Denney’s home

shortly after midnight on December 18. Bossert stated that Denney showed him a black and

silver handgun and asked him to check that it was unloaded; Denney told Bossert that she did not

like having the gun in her house. Deputy Bossert cleared the handgun and placed it in a kitchen

cabinet. Bossert said that Clark County Sheriff’s Deputy Ethan Ogdee later handed him the

same black and silver handgun, as well as a black and brown revolver, after Ogdee had met with

Denney. Bossert then secured the handguns in an evidence locker.

       Deputy Ogdee testified that Denney gave the two handguns to him on December 19.

Ogdee stated that he transported the handguns to the sheriff’s office and handed them to Deputy

Bossert. Clark County Sheriff’s Sergeant Kevin Schmidt testified that he had tested both

firearms and that they were functional.

       Fletcher did not offer to stipulate that he had committed a prior serious offense. Thus, to

prove an element of unlawful possession of a firearm, the State sought to admit evidence of

Fletcher’s three prior convictions for serious offenses. Defense counsel objected on the basis

that the evidence was needlessly cumulative and moved that the State be limited to presenting

evidence of only one prior conviction. The trial court denied defense counsel’s objection and


                                                4
No. 51152-5-II


motion to limit the State’s presentation of evidence concerning Fletcher’s three prior convictions.

The trial court provided the jury with the following limiting instruction based on 11 Washington

Pattern Jury Instructions: Criminal (WPIC) 5.30, at 191 (4th ed. (2016):

               Certain evidence has been admitted in this case for only a limited purpose.
       This evidence consists of documents and testimony relating to previous convictions
       of the defendant and may be considered by you only for the purpose of determining
       whether those convictions have been proved beyond a reasonable doubt. You may
       not consider it for any other purpose. Any discussion of the evidence during your
       deliberations must be consistent with this limitation.

Clerk’s Papers (CP) at 117. Defense counsel did not object to this limiting instruction.

       The jury returned verdicts finding Fletcher guilty of two counts of first degree unlawful

possession of a firearm. At sentencing, the State told the trial court:

       And just to be clear for the record I believe [defense counsel] and I agree that these
       counts—the time for these counts runs concurrently. They are the same criminal
       conduct under the analysis that the statute requires. So it is our position that that
       time does run concurrently.

Suppl. RP at 4. The trial court imposed an 87 month term of confinement on each count, the

bottom of Fletcher’s standard range based on an offender score of 9, to be served concurrently

with each other.3 The trial court did not express at the sentencing hearing any finding regarding

same criminal conduct or an exceptional mitigated sentence. And Fletcher’s judgment and

sentence does not reflect a finding that the convictions encompassed the same criminal conduct

or that substantial and compelling reasons justified an exceptional mitigated sentence. Fletcher

appeals from his convictions and from the sentence imposed for his first degree unlawful

possession of a firearm convictions.



3
 The trial court also imposed sentence with respect to Fletcher’s guilty plea conviction of fourth
degree assault. That sentence is not at issue in this appeal.

                                                  5
No. 51152-5-II


                                           ANALYSIS

                            I. CRR 4.2 MOTION TO WITHDRAW PLEA

       Fletcher first contends that the trial court erred by denying his CrR 4.2 motion to

withdraw his guilty plea to fourth degree assault. We disagree.

       We generally review a trial court’s decision on a motion to withdraw a guilty plea for an

abuse of discretion. State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012). An abuse of

discretion occurs when the trial court’s decision “‘is manifestly unreasonable or based upon

untenable grounds or reasons.’” Lamb, 175 Wn.2d at 127 (quoting State v. Powell, 126 Wn.2d

244, 258, 893 P.2d 615 (1995)).

       Under CrR 4.2(f), “[t]he court shall allow a defendant to withdraw the defendant’s plea of

guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.” A

demonstrated involuntary plea is a manifest injustice warranting withdrawal of the plea. State v.

Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003).

       We determine the voluntariness of a plea by reviewing the relevant circumstances leading

up to the plea. Williams, 117 Wn. App. at 398. A defendant carries a “demanding” burden when

seeking to withdraw a guilty plea “because ample safeguards exist to protect the defendant’s

rights before the trial court accepts the plea.” State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d

377 (2010). When a defendant completes a written plea statement and admits to reading,

understanding, and signing it, a strong presumption arises that the plea was voluntary. State v.

Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). And where, as here, the trial court has

inquired into the voluntariness of the plea on the record, the presumption of voluntariness is

nearly irrefutable. State v. Davis, 125 Wn. App. 59, 68, 104 P.3d 11 (2004).


                                                 6
No. 51152-5-II


       Fletcher asserts that the trial court should have permitted withdrawal of his guilty plea

because he was coerced to plead guilty. The record does not support Fletcher’s assertion that he

was coerced to plead guilty. Fletcher signed a written plea statement in which he declared that

he was freely and voluntarily pleading guilty to fourth degree assault absent any threats. And

Fletcher confirmed the same in a colloquy with the trial court. When seeking to withdraw his

plea, Fletcher did not allege that his plea was the product of coercion, instead stating that he

wanted to withdraw his plea to allow him to tell the jury “the whole story.” RP at 179.

Fletcher’s bare allegation that his plea was the product of coercion, which he asserts for the first

time on appeal absent any support in the record, is insufficient to overcome the strong

presumption that his plea was voluntary. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683

(1984). Accordingly, Fletcher failed to show a manifest injustice warranting withdrawal of his

guilty plea, and we affirm the trial court’s denial of his CrR 4.2(f) motion.

                                II. SUFFICIENCY OF THE EVIDENCE

       Next, Fletcher contends that the State failed to present sufficient evidence to support his

first degree unlawful possession of a firearm convictions. We disagree.

       Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in the light most favorable to the State, could find the elements of the charged crime

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).

When reviewing whether the State presented sufficient evidence in support of a conviction, we

interpret all reasonable inferences from the evidence in the State’s favor. State v. Hosier, 157

Wn.2d 1, 8, 133 P.3d 936 (2006). We consider direct and circumstantial evidence as equally

reliable when evaluating the sufficiency of the evidence. State v. Varga, 151 Wn.2d 179, 201, 86


                                                  7
No. 51152-5-II


P.3d 139 (2004). We also “defer to the trier of fact on issues of conflicting testimony, credibility

of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75,

83 P.3d 970 (2004).

       To convict Fletcher of first degree unlawful possession of a firearm as charged and

instructed here, the State had to prove beyond a reasonable doubt that he (1) had been previously

convicted of a serious offense, and (2) on or about December 17, 2016 through December 18,

2016 knowingly owned or possessed a firearm. Former RCW 9.41.040 (2016). Fletcher

challenges only the sufficiency of evidence in support of the second element, that he knowingly

owned or possessed a firearm during the relevant charging period.

       The State may prove the possession element by showing that Fletcher had actual or

constructive possession of a firearm. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994).

To establish constructive possession, the State had to show that Fletcher had dominion and

control over a firearm. State v. Raleigh, 157 Wn. App. 728, 737, 238 P.3d 1211 (2010). Control

need not be exclusive, but the State must show more than mere proximity to the firearm.

Raleigh, 157 Wn. App. at 737. Here, the State presented sufficient evidence from which the jury

could find that Fletcher had constructive possession of both firearms.

       Denney testified that Fletcher brought both handguns into the home when he moved in

with her, told her that he kept them for safety purposes, showed her where he initially stored the

handguns, and occasionally relocated the handguns to different areas within the home without

telling her. Denney further testified that Fletcher was in the home during the relevant charging

period. This was sufficient evidence from which the jury could find that Fletcher had dominion

and control over both firearms, and thus constructively possessed the firearms, during the


                                                 8
No. 51152-5-II


charging period. Accordingly, Fletcher’s claim that the State failed to present sufficient

evidence to support his first degree unlawful possession of a firearm convictions fails.4

                           III. CONTINUANCE MOTION/TIME FOR TRIAL

       Next, Fletcher contends that the trial court violated his speedy trial right by granting his

defense counsel’s request for a continuance over his objection. Although Fletcher frames this

issue as a violation of his constitutional speedy trial right, his arguments actually encompass a

challenge to the trial court’s continuance motion in relation to his rule-based timely trial right

under CrR 3.3. Accordingly, we address whether the trial court’s decision granting defense

counsel’s request for a continuance violated Fletcher’s time-for-trial right under CrR 3.3.

         CrR 3.3(b)(2)(i) provides that a defendant who is not detained in jail shall be brought to

trial within 90 days after the commencement date. Under CrR 3.3(e)(3) certain periods may be

excluded when computing the required time for trial, including continuances granted by the trial

court. CrR 3.3(f) provides that motions for a continuance may be made upon motion of the court

or a party and that “[t]he bringing of such motion by or on behalf of any party waives that

party’s objection to the requested delay.” (Emphasis added.)

       In State v. Ollivier, 178 Wn.2d 813, 823-25, 312 P.3d 1 (2013), our Supreme Court held

that CrR 3.3 provides defense counsel with authority to make binding decisions to seek trial

continuances and that a defense counsel’s legitimate request for a continuance waives the




4
  Fletcher acknowledges Denney’s testimony but argues “other than Ms. Denney’s accusation
that [the] guns belonged to him,” there was insufficient evidence linking him to the firearms. Br.
of Appellant at 16. This argument clearly misconstrues the test for determining the sufficiency
of evidence supporting a conviction.


                                                  9
No. 51152-5-II


defendant’s right to object to the continuance.5 The Ollivier court noted that a defense counsel

may legitimately seek a continuance to “enable defense investigation and preparation for trial.”

178 Wn.2d at 825.

       Here, Fletcher’s defense counsel sought a continuance to investigate potential chain of

custody issues regarding the firearms seized by police and to obtain and review previously

undisclosed police reports. Because this was a legitimate basis for requesting a continuance,

Fletcher has waived any objection to the granting of the continuance. And because Fletcher was

brought to trial within 90 days of commencement when excluding the continuance period, his

claim of a CrR 3.3 time-for-trial violation fails.

       To the extent that Fletcher is raising a claim of a constitutional speedy trial right

violation, his arguments are insufficient to merit judicial consideration. In Ollivier, our Supreme

Court explained that a defendant claiming a constitutional speedy trial right violation must show

actual prejudice to the ability to prepare a defense unless the prejudice is conclusively presumed

by the length of the delay. 178 Wn.2d at 826.

       Here, Fletcher does not claim actual prejudice to his ability to prepare a defense and does

not claim that prejudice should be presumed by the length of the delay. Instead, he merely

asserts that his constitutional right to a speedy trial was violated because he was tried outside the



5
 In holding that a defense counsel’s legitimate request for a trial continuance waives the
defendant’s right to object to the continuance, the Ollivier court distinguished the facts present in
State v. Saunders, 153 Wn. App. 209, 220 P.3d 1238 (2009). 178 Wn.2d at 824-25. In
Saunders, defense counsel’s requested continuances to permit ongoing plea negotiations over
defendant’s objections were not legitimate because the decision whether to plead guilty is
controlled by the defendant. Ollivier, 178 Wn.2d at 824-25 (citing Saunders, 153 Wn. App. at
220-21). Accordingly, Fletcher’s reliance on Saunders for the proposition that a trial court must
adhere to a defendant’s personal objections to a trial continuance is misplaced.

                                                     10
No. 51152-5-II


90-day time-for-trial period under CrR 3.3 when not excluding the continuance period. This

argument is insufficient to merit review of his constitutional speedy trial right claim. See State v.

Johnson, (“Parties raising constitutional issues must present considered arguments to this court.

We reiterate our previous position: ‘naked castings into the constitutional sea are not sufficient to

command judicial consideration and discussion.’”) 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)

(internal quotation marks omitted) (quoting In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353

(1986)).

                                    IV. LIMITING INSTRUCTION

       Next, Fletcher contends that the trial court provided a defective limiting instruction that

permitted the jury to consider his prior serious offense convictions as propensity evidence. We

disagree.

       Jury instructions are appropriate if they allow the parties to argue their theory of the case,

do not mislead the jury, and do not misstate the applicable law. State v. Stevens, 158 Wn.2d 304,

308, 143 P.3d 817 (2006). We review de novo whether a jury instruction accurately states the

applicable law. Stevens, 158 Wn.2d at 308.

       When evidence of a defendant’s prior crimes, wrongs, or acts is admissible under ER

404(b) for a proper purpose, the defendant is entitled to a limiting instruction upon request. State

v. Gresham, 173 Wn.2d 405, 423, 269 P.3d 207 (2012). Although a trial court does not have a

duty to sua sponte provide an ER 404(b) limiting instruction, if a limiting instruction is

requested, “the trial court has a duty to correctly instruct the jury.” Gresham, 173 Wn.2d at 424;

State v. Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011). “An adequate ER 404(b) limiting

instruction must, at a minimum, inform the jury of the purpose for which the evidence is


                                                 11
No. 51152-5-II


admitted and that the evidence may not be used for the purpose of concluding that the defendant

has a particular character and has acted in conformity with that character.” Gresham, 173 Wn.2d

at 423-24. The limiting instruction provided here meets these requirements.

        The trial court provided a limiting instruction based on WPIC 5.30, which stated:

                Certain evidence has been admitted in this case for only a limited purpose.
        This evidence consists of documents and testimony relating to previous convictions
        of the defendant and may be considered by you only for the purpose of determining
        whether those convictions have been proved beyond a reasonable doubt. You may
        not consider it for any other purpose. Any discussion of the evidence during your
        deliberations must be consistent with this limitation.

CP at 117. Fletcher argues that the limiting instruction was “legally insufficient because it did

not instruct the jury it could only use the fact of the prior convictions to decide an element of

Counts 3 and 4” and instead “left the jury free to consider the fact of the prior convictions as

propensity evidence.” Br. of Appellant at 26. This argument is meritless.

        The instruction specifically limited the jury’s consideration of evidence concerning

Fletcher’s prior convictions to “determining whether those [prior] convictions [had] been proved

beyond a reasonable doubt,” an essential element to Fletcher’s first degree unlawful possession

of a firearm charges. CP at 117. The limiting instruction further provided that the jury could not

consider the evidence “for any other purpose.” CP at 117. Fletcher fails to show any error with

the trial court’s limiting instruction.

                                          V. EVIDENTIARY RULING

        Next, Fletcher contends that the trial court abused its discretion by permitting the State to

present evidence of his three prior convictions for serious offenses. We disagree.

        We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

State v. Ashley, 186 Wn.2d 32, 38-39, 375 P.3d 673 (2016). An abuse of discretion occurs when

                                                   12
No. 51152-5-II


the trial court bases its decision on untenable grounds or reasons. State v. Darden, 145 Wn.2d

612, 619, 41 P.3d 1189 (2002). Under ER 403, “evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.”

       Fletcher agrees that the State was required to prove beyond a reasonable doubt that he

had been previously convicted of a serious offense to sustain convictions for his first degree

unlawful possession of a firearm charges. But Fletcher argues that the trial court abused its

discretion by failing to limit the State to presenting evidence of only one prior serious offense

conviction, asserting that evidence of two additional prior convictions for serious offenses was

needlessly cumulative and unduly prejudicial under ER 403. We disagree.

       In asserting that evidence of three prior serious convictions was needlessly cumulative

and unduly prejudicial, Fletcher relies on State v. Johnson, 90 Wn. App. 54, 63, 950 P.2d 981

(1998). His reliance is misplaced.

       In Johnson, we held that the admission of the defendant’s prior rape conviction to prove

the prior serious offense conviction element of first degree unlawful possession of a firearm was

unduly prejudicial under ER 403 when the defendant had offered to stipulate that he had been

previously convicted of a serious offense. 90 Wn. App. at 61-63. Johnson is clearly

distinguishable because Fletcher did not offer to stipulate to having been previously convicted of

a serious offense. Because, unlike in Johnson, Fletcher did not stipulate to having been

previously convicted of a serious offense, evidence of his prior convictions was highly probative

to prove an element of his first degree unlawful possession of firearm charges. And the


                                                 13
No. 51152-5-II


prejudicial effect of the prior conviction evidence was minimized by the trial court’s instruction

limiting the jury’s consideration of such evidence. Therefore, the trial court did not abuse its

discretion in finding that the prejudicial effect of Fletcher’s three prior convictions did not

substantially outweigh its probative value.

       The trial court also acted within its discretion when finding that evidence of Fletcher’s

prior convictions was not needlessly cumulative. Again, absent a stipulation, the State was

required to present evidence to prove beyond a reasonable doubt Fletcher’s convicted status as an

element of his first degree unlawful possession of a firearm charges. ER 403 does not prohibit

the State from presenting cumulative evidence; rather it grants the trial court with discretion to

exclude the “needless presentation of cumulative evidence.” The trial court acted within its

discretion when determining that evidence of three prior serious offense convictions was not

needlessly cumulative and, thus, it would not restrict “the State with respect to the presentation

of their case-in-chief.” RP at 176.

                                      VI. SENTENCING ISSUES

       Next, Fletcher contends that the trial court sentenced him based on an improperly

calculated offender score because it failed to determine whether his convictions constituted the

same criminal conduct. The State concedes that Fletcher’s convictions constituted the same

criminal conduct and that the trial court failed to denote any same criminal conduct finding on

Fletcher’s judgment and sentence. The State asserts, however, that Fletcher was nonetheless

sentenced within the correct range because the sentencing statutes do not account for offender

scores in excess of 9, and here the trial court calculated his offender score at 9 when his correct

offender score with a same criminal conduct finding should be 10. The State argues that the trial


                                                  14
No. 51152-5-II


court’s failure to check a box on Fletcher’s judgment and sentence was merely a scrivener’s error

and, thus, requests that we remand to the trial court to correct the scrivener’s error.

       We agree that Fletcher was sentenced within the correct range despite the trial court

miscalculating his offender score at 9. But because the trial court did not express any oral or

written findings with regard to a same criminal conduct analysis, we cannot conclude that the

failure to check a box on Fletcher’s judgment and sentence was merely a scrivener’s error for

which remand for correction is an appropriate remedy. Moreover, in light of other sentencing

errors that render Fletcher’s sentence illegal, which we address sua sponte, we remand for

resentencing at which the trial court must properly calculate Fletcher’s offender score and make

the necessary findings in support of the sentence it imposes.

A.     Same Criminal Conduct/Offender Score Calculation

       A defendant’s offender score is calculated based on prior and current convictions.

Former RCW 9.94A.525 (2013); State v. France, 176 Wn. App. 463, 468, 308 P.3d 812 (2013).

At sentencing, the parties filed an agreed declaration of Fletcher’s criminal history, which

calculated his offender score at 10 based on his prior convictions alone. See RCW 9.94A.530(2).

       Under RCW 9.94A.589(1)(a), other current offenses are treated as prior convictions for

purposes of calculating an offender score unless the trial court finds that the other current offense

constitutes the same criminal conduct as the conviction being scored. Therefore, Fletcher’s

offender score of 10 based on his criminal history would increase by one point for a concurrent

offense of first degree unlawful possession of a firearm unless the trial court found that

Fletcher’s first degree unlawful possession of a firearm convictions encompassed the same




                                                  15
No. 51152-5-II


criminal conduct. Former RCW 9.41.040(1)(b); former RCW 9.94A.525(7); former RCW

9.94A.030(34), (55) (2016).

       Here, the trial court sentenced Fletcher at the bottom of the standard range based on an

offender score of 9. RCW 9.94A.510. Because the Sentencing Reform Act of 1981, chapter

9.94A RCW, does not account for offender scores in excess of 9, Fletcher’s standard range

would remain the same regardless of whether the trial court found that his first degree unlawful

possession of a firearm convictions constituted the same criminal conduct. RCW 9.94A.510;

France, 176 Wn. App. at 468.

       Although sentenced within a proper range, the trial court did not conduct a same criminal

conduct analysis or express any findings related thereto despite the parties agreement that his

convictions encompassed the same criminal conduct. Because, as will be discussed below, we

remand for resentencing based on a different sentencing error, the trial court is directed to

indicate its same criminal conduct findings on remand and to properly calculate Fletcher’s

offender score based on those findings.

B.     Exceptional Mitigated Sentence

       Our review of Fletcher’s sentence reveals that the trial court imposed a sentence that is

contrary to law because it ran his first degree unlawful possession of a firearm sentences

concurrently absent a finding supporting an exceptional mitigated sentence. Although neither

party raises an issue with the apparent exceptional mitigated sentence imposed in this matter

absent the necessary findings, we have the authority to “‘raise an issue sua sponte and rest [our]

decision on that issue.’” State v. Collins, 121 Wn. App. 16, 19, 88 P.3d 408 (2004) (quoting

State v. Aho, 137 Wn.2d 736, 741, 975 P.2d 512 (1999)).


                                                 16
No. 51152-5-II


       RCW 9.94A.589(1)(c) provides, “[i]f an offender convicted under RCW 9.41.040 for

unlawful possession of a firearm in the first degree . . . [t]he offender shall serve consecutive

sentences for each [first degree unlawful possession of a firearm] conviction . . . and for each

firearm unlawfully possessed.” Former RCW 9.41.040 similarly provides that each firearm

possessed constitutes a separate crime and that the sentence imposed for each crime be served

consecutively. Former RCW 9.41.040(6)-(7). Under these provisions, the presumptive standard

range sentence for multiple firearm-related offenses is consecutive sentences. State v.

McFarland, 189 Wn.2d 47, 52-55, 399 P.3d 1106 (2017).

       In McFarland, our Supreme Court held that, notwithstanding the language of the above

statutory provisions, a trial court retains discretion to impose concurrent sentences for firearm-

related convictions as part of an exceptional mitigated sentence if it finds that the presumptive

concurrent sentences are clearly excessive under RCW 9.94A.535(1)(g). 189 Wn.2d at 55.

       Here, the trial court imposed an 87 month term of confinement for each of Fletcher’s first

degree unlawful possession of a firearm convictions to run concurrently with each other, but it

did not enter any findings supporting its imposition of concurrent sentences as an exceptional

mitigated sentence.6 Because Fletcher’s multiple convictions of first degree unlawful possession

of a firearm required consecutive sentences absent a finding that the sentence is clearly

excessive, and because the trial court did not enter such a finding, Fletcher’s sentence is contrary


6
  The trial court may have imposed concurrent sentences based upon the State’s incorrect
assertion at sentencing that concurrent sentences were required because the crimes constituted
the same criminal conduct. But a same criminal conduct finding relates only to an offender score
calculation. See, e.g., State v. Mandanas, 168 Wn.2d 84, 89, 228 P.3d 13 (2010). And a trial
court is required to impose consecutive sentences for multiple firearm-related offenses (absent a
finding supporting an exceptional mitigated sentence) even if those offenses constitute the same
criminal conduct. See, e.g., State v. Murphy, 98 Wn. App. 42, 47-51, 98 P.2d 1018 (1999).

                                                 17
No. 51152-5-II


to law. Accordingly, we remand for resentencing at which the trial court should support its

imposition of an exceptional mitigated sentence with the required written findings.

                            VII. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, Fletcher contends that his defense counsel was ineffective for failing to object to

the purportedly defective limiting instruction and for failing to argue that his two convictions for

first degree unlawful possession of a firearm encompassed the same criminal conduct. We

disagree.

       To demonstrate ineffective assistance of counsel, Fletcher must show both (1) that his

counsel’s performance was deficient and (2) that the deficient performance resulted in prejudice.

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Counsel’s performance is deficient

if it falls below an objective standard of reasonableness. Grier, 171 Wn.2d at 33. Prejudice

ensues if there is a reasonable probability that, but for counsel’s deficient performance, the

outcome of the proceeding would have differed. Grier, 171 Wn.2d at 34. Because both prongs

of the ineffective assistance test must be met, a failure to show either prong will end the inquiry.

State v. Davis, 174 Wn. App. 623, 639, 300 P.3d 465 (2013).

       As addressed above, the trial court’s limiting instruction was proper. Accordingly,

Fletcher cannot show that his defense counsel performed deficiently for failing to object to the

instruction and, thus, his ineffective assistance of counsel claim on this ground fails.

       With regard to his claim that defense counsel was ineffective for failing to argue that his

first degree unlawful possession of a firearm convictions encompassed the same criminal

conduct, the State represented to the trial court that the parties were in agreement that the

convictions encompassed the same criminal conduct. Because the same criminal conduct issue


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No. 51152-5-II


was conceded by the State at sentencing, Fletcher cannot show that his counsel performed

deficiently by failing to raise the issue. Accordingly, Fletcher’s ineffective assistance of counsel

claim on this ground also fails.

        We affirm Fletcher’s convictions but remand for resentencing in accordance with this

opinion.

        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.



                                                                       Worswick, J.
 We concur:



 Lee, A.C.J.




 Glasgow, J.




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