                                                                        FILED
                                                                     AUGUST 9, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )       No. 34763-0-III
                     Respondent,               )       (consolidated with
                                               )       No. 35537-3-III)
       v.                                      )
                                               )
ERIC ALLEN HAGGIN,                             )
                                               )
                     Appellant.                )       UNPUBLISHED OPINION
                                               )
                                               )
In the Matter of the Personal Restraint of     )
                                               )
ERIC ALLEN HAGGIN,                             )
                                               )
                     Petitioner.               )

       KORSMO, J. — Eric Haggin, by appeal and personal restraint petition (PRP),

challenges the outcome of a resentencing hearing directed by this court following his first

appeal. State v. Haggin, 195 Wn. App. 315, 381 P.3d 137 (2016) (published in part). We

affirm the sentence and dismiss the PRP.

                                             FACTS

       A Kittitas County jury convicted Mr. Haggin of eight offenses: two counts of first

degree unlawful possession of a firearm (UPF), possession of methamphetamine with
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


intent to deliver, possession of heroin with intent to deliver, second degree theft, witness

tampering, and two counts of use of drug paraphernalia. The latter two offenses are

misdemeanors, while the remainder are felony crimes subject to sentencing under the

Sentencing Reform Act OF 1981 (SRA), chapter 9.94A RCW. The two drug possession

offenses were found by the jury to have been committed while armed with a firearm.

       In the first appeal, this court affirmed the eight convictions, but identified

sentencing error related to the two UPF convictions and directed that they be sentenced

concurrently. Haggin, 195 Wn. App. at 324. The case was remanded to the superior

court for resentencing. Id. In the unpublished portion of the case, we also remanded for

the trial court to determine whether any of Mr. Haggin’s prior drug convictions served to

double the maximum sentence for the two drug offenses. Haggin, No. 33280-2-III, slip

op. (unpublished portion) at 31-33, http://courts.wa.gov/opinions/pdf/332802.pdf. No

arguments were raised concerning the offender score.

       The remand resulted in two hearings. At the first resentencing hearing, the parties

addressed the prior drug convictions that operated to double the maximum sentence for

the two drug offenses. Report of Proceedings (RP) (Sept. 19, 2016) at 8-10. Defense

counsel agreed that they had been presented at the original sentencing hearing, but argued

that they should not be considered at resentencing because they had not been entered as

exhibits at the earlier hearing. Id. at 11. Defense counsel also argued that the two drug

offenses and the two UPF offenses each should only be counted as one offense for

                                              2
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


scoring purposes and requested that the trial court impose a sentence at the low end of the

range. Id. at 12.

       The trial court recognized an offender score of “9+” and imposed a sentence of

192 months by imposing the top end sentence of 120 months for each drug offense, to be

served concurrently, and imposing firearm enhancements on each count that would run

consecutively. Id. at 17-18; Clerk’s Papers (CP) at 169. The new sentence was 250

months less than the previous sentence. Mr. Haggin again appealed to this court.

       While this second appeal was pending, the parties agreed to conduct a second

resentencing hearing in order to clarify the judgment and sentence for the department of

corrections and make a better record for the appeal. RP (April 24, 2017) at 3-5. At the

second resentencing hearing, the parties discussed Mr. Haggin’s prior misdemeanor

convictions that served to prevent his oldest felony offenses from “washing out” of the

offender score. Id. at 3-5. Defense counsel conceded that the offenses did not wash out

and the offender score was at least 10. Id. at 5.

       Defense counsel also again argued that the two drug offenses and the two UPF

offenses should each only be counted as one offense for scoring purposes, thereby

keeping the offender score at 10 rather than being 11 or 12. Id. at 5-6. He pointed out

that the court had previously rejected this argument. Id. at 6. He asked the court to

consider treating the drug and firearm offenses as one each and decide whether the court

would still impose a maximum sentence if the offender score was 10 instead of 12. Id.

                                              3
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


       After clarifying that he could act while the case was on appeal, the trial court

rejected the resentencing request:

              I haven’t heard anything today that makes me thing I should change
       (inaudible). Okay?

              So, I guess that would mean that I’m affirming what I did before. . . .

              And,—the high end of the standard range is a standard range
       sentence. (Inaudible) nine,—twelve, (inaudible)—the high end of the
       standard range—(Inaudible) standard range. It’s a standard range sentence.
       I don’t know how—(inaudible) novel to me (inaudible).

Id. at 8. After the prosecutor noted that the offender score needed to be correct, the court

agreed: “It has to be right. It has to be right. I appreciate that.” Id.

       This court empowered the trial court to enter an order amending judgment and

sentence and allowed the parties to supplement the record. The trial court entered a

written order “amending certain portions” of the judgment and sentence. CP at 184. A

panel subsequently considered this appeal without hearing argument.

                                         ANALYSIS

       The sole issue remaining in the direct appeal is a contention that the trial court

erred in calculating the offender score due to the same criminal conduct argument and

asks for a remand to once again ask the court to consider a lesser sentence. The PRP

argues that the firearm enhancements were not authorized by the jury verdict. We

address the two arguments in the order listed.



                                              4
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


       Offender Score

       Mr. Haggin contends that he can challenge his standard range sentence because his

offender score was 10 instead of 12. Since the trial court correctly computed the score at

9+ and rejected his argument that a more precise offender score mattered to his sentence,

he cannot show error.

       The basic sentence computation rules have not changed since the enactment of the

current statutory scheme. Under the SRA, a felon will be sentenced within a specified

sentence range dependent on the seriousness of the offense and the offender’s prior

criminal history, unless aggravating or mitigating circumstances exist. RCW

9.94A.505(2)(x), .530(1), .535; see generally State v. Jones, 159 Wn.2d 231, 236-237,

149 P.3d 636 (2006); State v. Nordby, 106 Wn.2d 514, 516, 723 P.2d 1117 (1986). The

offender score is calculated by counting the prior and current felony convictions in

accordance with the rules for each offense. RCW 9.94A.525. Current felony offenses

are treated as if they were prior offenses when scoring the other crimes being sentenced.

RCW 9.94A.525(1); RCW 9.94A.589(1)(a). In cases, like this one, where a sentence

enhancement exists, the enhancement is added to the base sentence. RCW 9.94A.530(1).

       The legislature capped the offender score side of the sentencing grid at “9 or

more.” RCW 9.94A.510. In calculating the offender score, the trial court has discretion

to count multiple offenses that encompass the same criminal conduct as one. RCW

9.94A.525(5)(a)(i); RCW 9.94A.589(1)(a). Crimes encompass the “same criminal

                                             5
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


conduct” if they occur at the same time and place, involve the same victim, and have the

same criminal intent. RCW 9.94A.589(1)(a). Discretion is abused when it is exercised

on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d

12, 26, 482 P.2d 775 (1971).

       The legislature also has prohibited challenges to standard range sentences. “A

sentence within the standard sentence range . . . for an offense shall not be appealed.”

RCW 9.94A.585(1). This means, generally, that a party cannot appeal a standard range

sentence. State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). Thus, “so long

as the sentence falls within the proper presumptive sentencing ranges set by the

legislature, there can be no abuse of discretion as a matter of law as to the sentence’s

length.” Id. at 146-147. However, an appellate court may review a standard range

sentence resulting from constitutional error, procedural error, an error of law, or the

failure to exercise discretion. E.g., id. (State can appeal determination of a defendant’s

eligibility for a sentencing alternative); State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042

(1993) (defendant can challenge a trial court’s failure to follow a specific sentencing

provision); State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986)

(defendant can challenge trial court’s failure to comply with mandatory procedures).




                                              6
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


       Mr. Haggin argues that the trial court erroneously failed to treat the two drug

offenses as one and the two firearms as one, a failing that would reduce his offender

score from 12 points to 10 points.1 He contends that the court can not impose even a

standard range sentence without correctly calculating the offender score. His arguments

fail for a couple of reasons.

       Initially, it is doubtful that Mr. Haggin can show that the court abused its

discretion in concluding that each of the offenses would score separately. He did not

raise this issue until the first resentencing and the trial court did not comment on why it

rejected the argument. Mr. Haggin has not provided any authority suggesting that the

trial judge was required to place his reasoning on the record, nor did the defense ask the

court to articulate its ruling on this issue. It is difficult to demonstrate that reasoning was

untenable where that reasoning is not in the record.

       But even assuming that the court erred in its treatment of the same criminal

conduct issue, it did not err in its computation of the offender score. The court scored the

defendant as “9+”. When more than 8 points count toward the offender score, the

legislature categorizes the offender score as “9 or more.” RCW 9.94A.510. Even under


       1
         In his reply brief, appellant contends that the trial judge failed to reconsider the
same criminal conduct issue at the second resentencing. However, after deciding that he
could consider the issue because this court had not ruled on it, the trial judge squarely
stated that he was affirming his previous ruling. RP (April 24, 2017) at 8. The judge did
consider the issue; he simply did not change his position.


                                               7
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


the defense theory that there are 10 points that count toward the offender score, the trial

court correctly placed Mr. Haggin in the “9 or more” category. The offender score is

correct. Mr. Haggin has not demonstrated any error.

       Mr. Haggin points out that our court on several occasions has stated that the trial

court must always correctly calculate the sentence range, citing to State v. Tili, 148

Wn.2d 350, 358, 60 P.3d 1192 (2003).2 While it is axiomatic under the SRA that a

correct offender score must be determined in order to ascertain the proper sentencing

range, Mr. Haggin cites to no authority suggesting that a specific number must be

assigned to an offender score that correctly belongs in the “9 or more” scoring category.

In dealing with cases, such as Tili, where the scoring category is less than “9 or more,” an

error in the offender score leads to an erroneous sentence range. Id. (offender score of 2);

State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461 (1999) (possible offender score ranged

from 6 to 13). That is not the situation when an offender score is 10 or 12 or 252. All of


       2
         This statement was first used by the Washington Supreme Court in State v.
Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997). There, the sentencing range for the
offense had been increased by the legislature during the latter half of the period of time
covered by the charging document. The jury did not determine when the crimes occurred,
so the court determined that the trial judge had erred by applying the current range rather
than the more lenient range in effect at the beginning of the charging period. The court
also had imposed an exceptional sentence by running the two offenses consecutively to
each other, although the basis for the exceptional sentence was not identified in the
opinion. Since the exceptional sentence was based on the incorrect sentence range, the
court refused to find the error harmless. Id. at 190. Subsequent courts read the Parker
language as requiring trial courts to correctly calculate the sentence range before an
exceptional sentence could be upheld. E.g., Tili, 148 Wn.2d at 358.

                                              8
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


those scores are simply “9 or more.” The associated sentencing range does not change

due to the specific number of points beyond 8 that apply to the offender before the court.

       In those instances where appellate courts have even discussed the accuracy of an

offender score in the “9 or more” category, it has always been either in the context of

determining the applicable range or in the application of the “free crimes” aggravating

factor.3 E.g., McCorkle, 137 Wn.2d at 494 (potential range ran from 6 to 10).

       Although the foregoing demonstrates that Mr. Haggin has not proven any error

occurred at the resentencing, his appeal also fails because the error he does assert, if it

existed, was clearly harmless. This aspect of the case is controlled by the decision in

State v. Bobenhouse, 166 Wn.2d 881, 214 P.3d 907 (2009). There, as here, the trial court

allegedly abused its discretion when it failed to find that two of the offenses constituted

the same criminal conduct. Id. at 896. Unlike this case, the trial court had relied on the

free crimes aggravating factor to impose an exceptional sentence. Id. Due to the high

offender score, any error was harmless:

              Here, Bobenhouse’s offender score for each of the child rape
       sentences is 20. A score of 9 permits imposing a sentence at the highest
       end of the standard sentencing range. . . . In other words, even if
       Bobenhouse’s current offenses were treated as the “same criminal conduct”
       for purposes of sentencing, his offender score is greater than 9, which

       3
         A sentence can be “too lenient” under the aggravating factor found in RCW
9.94A.535(2)(c) if the high offender score results in other current offenses going
unpunished. As a result, the additional offenses inflict no punishment because they do
not increase the offender’s range and are served concurrently to the other sentences. E.g.,
State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345 (2008).

                                              9
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


       would result in some current offenses going unpunished if an exceptional
       sentence was not imposed. Any error in not treating Bobenhouse’s crimes
       as the “same criminal conduct” was harmless.

Id. at 896-897. The court stated its conclusion on this point: “the trial court’s failure to

treat a defendant’s crimes as the same criminal conduct for purposes of calculating the

defendant’s offender score can constitute harmless error.” Id. at 897.

       That point is even stronger in this case where the court did not impose an

exceptional sentence based on a high offender score. Instead, the defense made its

argument that the trial judge should not impose a high-end standard range sentence

because Mr. Haggin’s offender score was only 10 instead of 12. The court heard the

defendant’s theory and rejected it. If there was error on the same criminal conduct issue,

it most assuredly did not affect the outcome of this standard range sentence.

       The appeal fails to establish error or prejudice. The judgment is affirmed.

       Personal Restraint Petition

       The PRP presents a claim that the amended information only charged a deadly

weapons enhancement instead of a firearm enhancement. Rather than treat this as a

notice issue, however, the petition likens the alleged error to the jury returning an

unauthorized verdict. Because the first contention fails on the facts, both aspects of his

claim are without merit.




                                              10
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


          Relief will only be granted in a PRP if there is constitutional error that caused

substantial actual prejudice or if a nonconstitutional error resulted in a fundamental defect

constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154

Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner’s burden to establish this

“threshold requirement.” Id. To do so, a PRP must present competent evidence in

support of its claims. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-886, 828 P.2d

1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially entitle the

petitioner to relief, a reference hearing may be ordered to resolve the factual allegations.

Id. at 886-887.

          Here, the amended information in each of the drug counts alleges the crime of

possession of a controlled substance with intent to deliver, and then states:

          And furthermore, at the time of the commission of the crime, the Defendant
          or an accomplice was armed with a firearm; contrary to Revised Code of
          Washington 9.94A.825.

CP at 10. Each of the two special verdict forms asked the jury if Mr. Haggin was “armed

with a firearm” during the commission of the controlled substance crime. CP at 81, 83.

The jury also was instructed on the definitions of “firearm” and “deadly weapon.” CP at

49, 75.

          Since prior to the effective date of the SRA, the statute has authorized special

allegations and findings regarding use of a deadly weapon, with firearms being the

epitome of a deadly weapon. See LAWS OF 1983, ch. 163, § 3. In 1995, as part of the

                                                11
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


Hard Time for Armed Crime Initiative, firearms were singled out from other deadly

weapons for even harsher additional punishment.4 See, generally, LAWS OF 1995, ch.

129, § 2 (Initiative 159). The firearm enhancement was codified together with the deadly

weapon enhancement. See former RCW 9.94A.310 (1996). The firearm enhancement

currently is found in RCW 9.94A.533(3) and the deadly weapon enhancement is in RCW

9.94A.533(4). Throughout the existence of the SRA, the deadly weapon definition and

special allegation have been divorced from the punishment imposed for the finding.

Compare former RCW 9.94A.125 (1985) and former RCW 9.94A.310 (1985) with

current RCW 9.94A.533 and RCW 9.94A.825.

       The first paragraph of RCW 9.94A.825 authorizes the return of a deadly weapon

finding by the trier-of-fact for the case, whether it be a judge or a jury. The second

paragraph defines the meaning of “deadly weapon” and includes “pistol, revolver, or any

other firearm” within that definition. Id. As it has been since the enactment of the SRA,

a firearm is a deadly weapon as a matter of law. There is no separate statute authorizing

the filing of a firearm enhancement or the return of a firearm finding apart from the

inclusion in the finding authorized by RCW 9.94A.825.




       4
           The Initiative also increased the punishment for other deadly weapons.


                                             12
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint of Haggin


       Mr. Haggin argues that since the charging document made reference to subsection

.825, he assumed that it was merely putting him on notice that a deadly weapon, as

opposed to a firearm, was being charged. He provides no factual or legal support for that

claim. He did not assert surprise or lack of notice at trial, nor in the first appeal, nor at

any of the three sentencing proceedings held in this case. He did not challenge the jury

verdict forms at any time. He has not met his burden of establishing this factual

assertion. Rice, 118 Wn.2d at 885-886.

       The claim also is without legal merit. The charging document clearly told Mr.

Haggin that he was armed with a “firearm” in each of the two drug cases. He has no

basis for claiming that the statutory deadly weapon definition countermanded the

assertion of the language of the charging document merely because there was a

subsequent citation to RCW 9.94A.825. Properly read, the charging document put Mr.

Haggin on notice that the firearm allegation would be determined at trial by the trier-of-

fact. There was no reference to the statutes defining the amount of punishment that

follows from either a firearm or a deadly weapon finding. In short, there was no reason

to believe that the deadly weapon enhancement of RCW 9.94A.533(4) applied in place of

the firearm enhancement of RCW 9.94A.533(3).

       The PRP has not met its heavy burden of establishing significant prejudicial error.

It is without merit.



                                               13
No. 34763-0-III (Consolidated with 35537-3-III)
State v. Haggin; In re Pers. Restraint ofHaggin


      The judgment and sentence is affirmed. The petition is dismissed.

      A majority of the panel has determined 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.




WE CONCUR:



      Pennell, A.CJ.




      Siddoway, J.




                                           14
