    IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,

                        Petitioner,                 NO. 89318-7

            v.                                      ENBANC
CHRISTIAN VERN WILLIAMS,
                                                    Filed - -OCT 3 0 2014
                                                              -----
                        Respondent.


      STEPHENS, J.-The Sentencing Reform Act of 1981 (SRA) reqmres
sentencing courts to count prior convictions that encompass the same criminal
conduct as a single offense when calculating an offender score.             RCW
9.94A.525(5)(a). The burglary antimerger statute permits courts to punish and
prosecute separately crimes committed during the commission of a burglary.
RCW 9A.52.050. At issue is whether sentencing courts have discretion to count

prior convictions separately under the burglary antimerger statute notwithstanding
a finding that they encompass the same criminal conduct under the SRA. The
Court of Appeals held they do not. We affirm.
State v. Williams (Christian), 89318-7




                      FACTS AND PROCEDURAL HISTORY

       On April 12, 2010, Christian Williams stole several items from the home of

his childhood friend and former housemate, Bo Larsen. Tr. of Proceedings (TP)

(Oct. 13, 2010) at 58-60, 64. When Larsen confronted Williams about the stolen
items, Williams admitted his involvement and returned most items, though some

had already been used as collateral for a pawn shop loan. !d. at 72-73, 79. A jury

convicted Williams of residential burglary and trafficking in stolen property in the

first degree. Clerk's Papers (CP) at 103-04.

       At sentencing, the State submitted evidence that Williams had four prior

adult convictions. TP (Nov. 16, 2010) at 2. Two of those convictions stem from a

robbery and burglary sentenced in April 2004. CP at 113. Counting these prior
convictions separately, the State calculated Williams's offender score to be five as

to trafficking and seven as to residential burglary. Williams did not deny the

existence of his prior convictions but debated the accuracy of the State's

calculation. He insisted that his 2004 robbery and burglary convictions count as a
single offense, making his offender score four and six, respectively. According to

Williams, the 2004 sentencing court found the prior robbery and burglary

convictions encompassed the same criminal conduct and therefore the current
sentencing court was bound to that determination under RCW 9.94A.525(5)(a)(i).

TP (Nov. 16, 2010) at 9. The dispute at sentencing centered on whether the 2004

court had made such a determination, and whether the burglary antimerger statute




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State v. Williams (Christian), 89318-7




required the current sentencing court to count the prior convictions separately

regardless of any same criminal conduct finding.

       The record does not establish that the sentencing court reached any

conclusion as to whether a same criminal conduct finding was made in 2004. The
parties discussed some ambiguity in the scoring on the 2004 judgment and

sentence, but the court ultimately concluded that "the legal authority in this area is

the burglaries do not merge." Id. at 11; see also State v. Williams, 176 Wn. App.

138, 145 n.5, 307 P.3d 819 (2013) (Korsmo, C.J., dissenting) (noting confusion in

2004 calculation).      The sentencing court therefore counted Williams's prior
robbery and burglary convictions separately and did not engage in a same criminal

conduct analysis under RCW 9.94A.525(5)(a)(i). TP (Nov. 16, 2010) at 11-12. It

determined Williams's offender score was as the State had calculated and

sentenced him accordingly.

       Williams appealed, argumg that the sentencing court violated RCW
9.94A.525(5)(a)(i) by not conducting a same criminal conduct analysis. The Court

of Appeals agreed with Williams. Williams, 176 Wn. App. at 143-44. The court

held the burglary antimerger statute applies only to sentencing on current offenses,

not to the scoring of prior convictions.        Id. at 143.   Accordingly, the court
concluded that the sentencing court erred in relying on the burglary antimerger

statute and abused its discretion by not conducting a same criminal conduct

analysis. Although the court doubted whether Williams had met his burden of

proving the prior offenses encompass the same criminal conduct under State v.


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State v. Williams (Christian), 89318-7




Aldana Graciano, 176 Wn.2d 531, 295 P.3d 219 (2013), it nevertheless remanded

for resentencing because it found the sentencing court never properly considered

the issue in the first instance.      Williams, 176 Wn. App. at 142. 1 The State

petitioned this court for review, which we granted. State v. Williams, 180 Wn.2d

1001,319 P.3d 800 (2014).

                                         ANALYSIS

       When an offender has multiple prior convictions committed after July 1,

1986, as Williams does, the SRA requires the sentencing court to

       count all convictions separately, except:
              (i) Prior offenses which were found, under RCW 9.94A.589(l)(a), to
       encompass the same criminal conduct, shall be counted as one offense, the
       offense that yields the highest offender score. The current sentencing court
       shall determine with respect to other prior adult offenses for which sentences
       were served concurrently ... whether those offenses shall be counted as one
       offense or as separate offenses using the "same criminal conduct" analysis
       found in RCW 9.94A.589(l)(a), and if the court fmds that they shall be
       counted as one offense, then the offense that yields the highest offender score
       shall be used. The current sentencing court may presume that such other prior
       offenses were not the same criminal conduct from sentences imposed on
       separate dates, or in separate counties or jurisdictions, or in separate
       complaints, indictments, or informations.

RCW 9.94A.525(5)(a).        The question here      IS   whether this statute yields to the

burglary antimerger statute, which states:

       Every person who, in the commission of a burglary shall commit any other
       crime, may be punished therefor as well as for the burglary, and may be
       prosecuted for each crime separately.


       1
         Whether the burden of proof rule in Graciano applies to the same criminal
conduct analysis under RCW 9.94A.525(5)(a)(i) is not before us. The trial court never
reached the issue because it concluded the antimerger statute controlled. At the Court of
Appeals, no one questioned the applicability of Graciano's burden of proof rule. We
decline to address the issue given the lack of briefing and our disposition of this case.

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State v. Williams (Christian), 89318-7




RCW 9A.52.050.

      The State contends the answer is yes, relying on dicta from our decision in

State v. Lessley, 118 Wn.2d 773, 827 P.2d 996 (1992). It acknowledges that Lessley

addressed current convictions, not prior convictions. In Lessley, we suggested that

sentencing judges have discretion to count_currenL offenses __committed_ during the_

commission of a burglary separately in a defendant's offender score notwithstanding

RCW 9.94A.589(1)(a)'s directive that '"if the court enters a finding that some or all of

the current offenses encompass the same criminal conduct then those current offenses

shall be counted as one crime.'"           118 Wn.2d at 777 (quoting former RCW

9.94A.400(1)(a) (1988)). In other words, we read the burglary antimerger statute as

superseding the same criminal conduct analysis of RCW 9.94A.589(1)(a). We said

this reading was necessary because any other reading would allow criminal

defendants to escape punishment on current crimes and would frustrate the purposes

of the SRA framework, given that a defendant generally serves concurrent terms for

crimes arising from a single course of criminal conduct. !d. at 781-82. 2

       The reasons supporting the decision in Lessley do not apply to the scoring of

prior convictions. The burglary antimerger statute by its plain terms applies to the

present punishment and prosecution of offenses. When calculating a defendant's


       2
           The court in Lessley did not discuss the United States Supreme Court's
observation that a second conviction, even if it results in no greater sentence, still inflicts
a real punishment because it has adverse collateral consequences on a defendant's
eligibility for parole, increases the sentence for any future conviction under a recidivist
statute, stigmatizes the defendant, and undermines his or her credibility. Rutledge v.
United States, 517 U.S. 292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996) (discussing
Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)).

                                              -5-
State v. Williams (Christian), 89318-7




offender score based on prior crimes involving burglary, the goal is not to repunish or

reprosecute the defendant for these crimes. Instead, sentencing courts are concerned

with the proportionality of a defendant's punishment in relation to his or her

culpability. To calculate a defendant's culpability, the SRA requires courts to count

all prior convictions separately unless they arose from the same criminal conduct.

RCW 9.94A.525(5)(a). This statute applies regardless of whether the prior conviction

involved a burglary. At the same time, the legislature recognizes that a defendant who

recommits a similar offense is more culpable, and provides a framework for

increasing a defendant's offender score based on the specific offense committed.

RCW 9.94A.525(10) and (16) set forth instances when the legislature considers a

defendant more culpable due to a prior burglary conviction. This framework supports

limiting the burglary antimerger statute to current offenses.

       Limiting the burglary antimerger statute to current offenses is consistent with

the origins of the statute. It is apparent from the statute's legislative history that it was

enacted to address double jeopardy concerns, not offender score computations. The

statute was originally enacted in 1909 as part of Washington's new Criminal Code.

LAWS OF 1909, ch. 249, at 890. Chapter 249 of the Laws of Washington indicates that

"[t]he Criminal Code was taken largely from New York and Minnesota."                    The

Remington's Revised Statutes ascribes section 5045 of the Minnesota Code as the

inspiration for Washington's antimerger statute. REM. & BAL. CODE§ 2581 (1910).

At the time Washington adopted the statute, section 5045 of the ·Minnesota Code was

titled "Crime in building, punished separately." MINN. STAT. § 5045 (1905) (boldface


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State v. Williams (Christian), 89318-7




omitted). Notably, Minnesota has since changed this title to "Double jeopardy." 1963

Minn. Laws 1222 (boldface omitted). This change further supports the conclusion

that the burglary antimerger statute was not intended to address the calculation of a

defendant's offender score based on prior convictions. Moreover, the SRA postdates

the burglary antimerger statute by 70 years. We find no evidence to suggest the

legislature intended the burglary antimerger statute to supersede the SRA's more

recent directive that prior convictions encompassing the same criminal conduct "shall

be counted as one offense." RCW 9.94A.525(5)(a)(i). We hold that the burglary

antimerger statute does not obviate the need for a sentencing court to examine

whether prior convictions constitute the same criminal conduct under RCW

9.94A.525(5)(a).

                                    CONCLUSION

       We affirm.     The sentencing court erred in concluding that the burglary

antimerger statue supersedes the same criminal conduct inquiry under RCW

9.94A.525(5)(a)(i). The burglary antimerger statute relates solely to the prosecution

and punishment of current burglary convictions and has no application to calculating

an offender score based on prior convictions.




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State v. Williams (Christian), 89318-7




WE CONCUR:




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