                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         August 22, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 In the Matter of                                                 No. 48069-7-II
 the Personal Restraint Petition of                   Consolidated with No. 49119-2-II and No.
                                                                    49139-7-II
 DARRELL P. BERRIAN.



                                                              UNPUBLISHED OPINION



       JOHANSON, P.J. — Darrell Berrian seeks relief from personal restraint imposed following

his 2014 conviction for first degree assault with a deadly weapon and his deadly weapon

sentencing enhancement. In his first petition, No. 48069-7-II, he argues that (1) the deadly weapon

sentencing enhancement was improperly imposed because the knife he employed had a blade less

than three inches in length and so did not meet the definition of a deadly weapon, and (2) his

offender score was improperly calculated because he committed his first Georgia prior conviction

when he was a juvenile and so that conviction should have counted as ½ point toward his offender

score, not 1 point. In his second petition, No. 49119-2-II, he argues that (1) the photomontage

used to identify him was impermissibly suggestive, (2) his first Georgia prior conviction should

have washed out of his offender score, and (3) he received ineffective assistance of counsel for not

arguing that the prior conviction should have washed out. And in his third petition, No. 49139-7-
Consolidated Nos. 48069-7-II / 49119-2-II / 49139-7-II


II, he again argues that his first Georgia prior conviction should have washed out of his offender

score.1

          RCW 10.73.090(1) requires that personal restraint petitions be filed within one year of the

petitioner’s judgment and sentence becoming final, with exceptions not applicable here. Berrian’s

judgment and sentence became final on June 7, 2016, when we issued the mandate from his direct

appeal. RCW 10.73.090(3)(b). He filed his petitions on September 28, 2015 and July 11, 2016,

making each timely filed.

          After filing his petitions, Berrian moved to dismiss his deadly weapon and photomontage

arguments. We grant his motion. We also grant his motion to dismiss his earlier motion to

supplement cause number 48069-7-II.

          As to Berrian’s offender score arguments, the State concedes that the trial court erred in

counting his first Georgia prior conviction as 1 point instead of as ½ point, that his offender score

of 4½ should have been rounded down to 4 under RCW 9.94A.525, and that Berrian is entitled to

be resentenced under the correct offender score and standard sentence range. Because the State

concedes that Berrian’s offender score should have been 4, not 5, we need not address whether his

first Georgia conviction should have washed out of his offender score or whether he was denied

effective assistance of counsel.




1
  Berrian filed a motion to modify his judgment and sentence in the trial court. That court
transferred his motion to us under CrR 7.8(c) to be considered as a personal restraint petition.
                                                 2
Consolidated Nos. 48069-7-II / 49119-2-II / 49139-7-II


        We accept the State’s concession and remand to the trial court for resentencing. In all other

regards, we dismiss Berrian’s petitions.

        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.



                                                      JOHANSON, P.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




                                                  3
