                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           January 19, 2016


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 47147-7-II

                                Respondent,

         v.

    SHAWN N. SALTERS,                                           UNPUBLISHED OPINION

                                Appellant.


        LEE, J. — Shawn N. Salters was convicted of unlawful possession of a controlled substance

and third degree theft. On appeal, he challenges the calculation of his offender score, the

imposition of a community custody condition, the imposition of discretionary legal financial

obligations, and argues that his attorney was deficient for failing to object to the calculation of his

offender score. The State concedes all of the sentencing errors. We accept the State’s concessions,

vacate Salters’ sentence, and remand for resentencing.1

                                               FACTS

        On September 25, 2014, the Shelton Police Department arrested Salters on suspicion of

shoplifting in Mason County.        During the search incident to arrest, the police discovered

methamphetamine in Salters’ pants pocket. Salters was charged and convicted of unlawful




1
 Because we vacate Salters’ sentence and remand for resentencing, we decline to consider Salters’
claim that he received ineffective assistance of counsel at sentencing.
No. 47147-7-II


possession of a controlled substance2 and third degree theft.3 None of the facts are in dispute, and

Salters does not challenge his convictions on appeal.

         At sentencing, the court relied on the prosecution’s oral recitation of Salters’ criminal

history in determining that Salters’ offender score was 7. Salters did not object, despite no other

evidence of his prior convictions being submitted. As part of Salters’ conditions of community

custody, the sentencing court required that, “The defendant shall not go into bars, taverns, lounges,

or other places whose primary business is the sale of liquor.” Clerk’s Papers (CP) at 33. The

sentencing court also imposed discretionary legal financial obligations (LFOs) without first

conducting an individualized inquiry into Salter’s ability to pay on the record.

         On appeal, Salters argues: (1) the sentencing court erred in calculating his offender score

and sentencing range; (2) the sentencing court erred in imposing a community custody condition

prohibiting him from entering places whose primary business is the sale of alcohol; (3) the

sentencing court erred in its imposition of discretionary LFOs; and (4) he received ineffective

assistance of counsel when his attorney did not object to the sentencing court’s calculation of his

offender score. The State concedes that resentencing is necessary because (1) of errors in proving

Salters’ offender score, (2) there was no basis to impose the challenged community custody

condition, and (3) the court did not consider Salters’ ability to pay discretionary LFOs.

         We accept the State’s concessions and remand for resentencing.




2
    RCW 69.50.4013(1).
3
    RCW 9A.56.050.


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No. 47147-7-II


                                           ANALYSIS

A.     OFFENDER SCORE CALCULATION

       Salters argues that the sentencing court erred in calculating his offender score and

sentencing range. The State concedes this challenge, and we agree.

       Following a conviction, the sentencing court considers a defendant’s offender score, which

is calculated based on the defendant’s current offenses and prior convictions. RCW 9.94A.525,

.530(1). Challenges to offender score calculations may be raised for the first time on appeal. State

v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994). “We review a sentencing court’s calculation

of an offender score de novo.” State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).

       In order to establish a defendant's criminal history for sentencing purposes, the State must

prove a defendant’s prior convictions by a preponderance of the evidence. RCW 9.94A.500(1);

State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). The best evidence of a prior

conviction is a certified copy of the judgment, but the State also may produce other comparable

documents or transcripts from prior hearings to prove prior convictions. Hunley, 175 Wn.2d at

910. In addition, the State can meet its burden if the defendant affirmatively acknowledges the

criminal history on the record. Id. at 909. However, the “mere failure to object to State assertions

of criminal history at sentencing does not result in an acknowledgement.” Id. at 912.

       Here, the State did not prove Salters’ offender score by a preponderance of evidence. The

only evidence submitted was the prosecutor’s unsupported oral recitation, and Salters did not




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No. 47147-7-II


affirmatively acknowledge all of the convictions recited as his criminal history. Therefore, we

hold that the State did not satisfy its burden to prove Salters’ criminal history. We vacate Salters’

sentence and remand for resentencing.

B.     COMMUNITY CUSTODY CONDITION

       Salters argues the sentencing court erred in imposing a community custody condition

prohibiting him from entering places whose primary business is the sale of alcohol. We agree.

       Sentencing courts are allowed to order offenders to refrain from possessing or consuming

alcohol. RCW 9.94A.703(3)(e). Sentencing courts may also require the defendant to “[c]omply

with any crime-related prohibitions.” RCW 9.94A.703(3)(f). A crime-related prohibition is “an

order of a court prohibiting conduct that directly relates to the circumstances of the crime for which

the offender has been convicted.” RCW 9.94A.030(10). We review the sentencing court’s

imposition of crime-related prohibitions for an abuse of discretion. State v. Warren, 165 Wn.2d

17, 32, 195 P.3d 940 (2008), cert. denied, 556 U.S. 1192 (2009).

       Here, the sentencing court went beyond its authority and ordered Salters to “not go into

bars, taverns, lounges, or other places whose primary business is the sale of liquor.” CP at 33.

However, nothing in the record indicates that alcohol contributed to Salters’ crimes. Therefore,

the sentencing court’s community custody condition prohibiting Salters’ entry into “places whose

primary business is the sale of liquor” is not a crime-related prohibition and was not properly

imposed.




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No. 47147-7-II




C.     LEGAL FINANCIAL OBLIGATIONS

       Salters argues for the first time on appeal that the sentencing court erred in imposing

discretionary LFOs upon him without first considering his ability to pay. Subject to certain

exceptions, we have discretion to review issues not raised below. RAP 2.5(a); State v. Blazina,

182 Wn.2d 827, 835, 344 P.3d 680 (2015) (“Each appellate court must make its own decision to

accept discretionary review” under RAP 2.5(a)). Because we remand for resentencing on other

sentencing errors, we accept review of this issue and direct the sentencing court to consider Salters’

ability to pay discretionary LFOs on remand.

       “RCW 10.01.160(3) requires the record to reflect that the sentencing judge made an

individualized inquiry into the defendant’s current and future ability to pay before the court

imposes LFOs.” Blazina, 182 Wn.2d at 839. Here, the sentencing court did not make an

individualized inquiry into Salters’ ability to pay discretionary LFOs. Therefore, we remand with

instructions to the sentencing court to undertake the required inquiry.

D.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, Salters argues he received ineffective assistance of counsel when his attorney

failed to object to the calculation of his offender score. The proper remedy for an ineffective

assistance of counsel challenge here would be a vacation of his sentence and a remand for

resentencing. This is the same remedy we provide to Salters for the other errors that occurred at

sentencing, as discussed above. Therefore, we need not consider this issue.




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No. 47147-7-II


       We vacate Salters’ sentence and remand for resentencing.

       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.



                                                                    Lee, J.
 We concur:



                   Worswick, J.




                  Johanson, C.J.




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