FIL.F-
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IV/ IA
IN THE COURT OF APPEALS OF THE STATE OF W.
2013 JUL -9 AM 9: to
Y."
TAW
NG
DIVISION II BY
I
STATE OF WASHINGTON, No. 43768 6 II
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consolidated with
Appellant, Nos. 43775 9 II and 43778 3 II
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rm
SAMANTHA WESTLUND, UNPUBLISHED OPINION
PENOYAR J. — State appeals the trial court's imposition of concurrent sentences when
The
it (1) revoked Samantha Westlund's two drug offender sentencing alternative sentences
DOSAs)and (2)sentenced her on a heroin possession conviction. Agreeing that the trial court
erred, we reverse and remand for resentencing.
FACTS
On January 4,2011, the trial court sentenced Westlund to two concurrent DOSAs under
cause numbers 09 1-
- 00821 1 ( 2009 conviction) and 10 1-
- the - 01102 9 the 2010 conviction). On
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June 6, 2012, the State charged Westlund with heroin possession and moved to revoke her
DOSAs. On July 3, 2012, Westlund pleaded guilty to possessing heroin and also admitted to
violating her DOSA terms. The State recommended.(
1) revoking the DOSAs; 2)imposing
(
concurrent sentences of 12 months and a day on the 2009 conviction and three months on the
2010 conviction; and (3)imposing a consecutive sentence of six months and one day for the
2012 heroin possession conviction. Westlund agreed with the State's recommendations.
1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to
1 a panel of judges.
43768 6 II /43775 9 II /43778 3 II
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When the trial court questioned the sentences because Westlund would have to transfer
from the county jail after serving her sentence on the 2012 conviction to the Department of
Corrections to serve the revoked DOSA sentences, the prosecutor stated, I think by statute,
"
Your Honor, the DOSA has to be consecutive to the newest charge."Report of Proceedings at 5-
6. The court imposed an 18 month sentence on the 2012 conviction and concurrent sentences of
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12 months and one day for the 2009 conviction and three months for the 2010 conviction. The
State appeals the sentences.
ANALYSIS
The State argues that the trial court's imposition of concurrent sentences disregarded the
RCW 9. )( that " henever a person while under sentence for conviction
a)
589( 4A.requirement
2
9 w
of a felony commits another felony and is sentenced to another term of confinement, the latter
term shall not begin until expiration of all prior terms." Because the superior court departed
from RCW 9. )( contends that it imposed an exceptional sentence
a),
589( 4A. the State
2
9
unsupported by the record. See RCW 9. ( "[
535 a]departure from the standards in RCW
94A.
589( 4A. and
9. ) .(2) governing whether sentences are to be served consecutively or
1
9
subject to the limitations in this section "). Westlund
concurrently is an exceptional sentence
responds that RCW 9. )( apply because although she committed the heroin
a)
589( 4A.does not
2
9
possession felony while "under sentence for conviction"for the 2009 and 2010 convictions, the
DOSAs ended when the trial court revoked them. She,therefore, argues that RCW
2
43768 6 II /43775 9 II /43778 3 II
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a),
589( 4A.which covers sentencing for multiple "current offenses" applies and the trial
9. 1)(
9
court was authorized to impose concurrent sentences.
Westlund acknowledges that "current offense" is not defined in RCW 9. but
589
94A.
looks to RCW 525( 4A.which
9. ), provides
1
9 that "[ c] ...
onvictions sentenced on the same date
as the conviction for which the offender score is being computed shall be deemed `other current
offenses' within the meaning of RCW 9.
589." t' at 5. The State counters that
94A. Resp'
s Br.
Westlund ignores the first sentence of RCW 9. ), provides: "A prior conviction
525( 4A.which
1
9
is a conviction which exists before the date of sentencing for which the offender score is being
computed." Because the 2009 and 2010 convictions existed before the 2012 conviction, the
State contends that they are prior convictions, not current offenses. RCW 9. ).
525( 4A.
l
9
The premise of Westlund's argument, that the trial court imposed new sentences when it
revoked her DOSAs, is not persuasive. When the trial court revoked Westlund's DOSAs for the
2009 and 2010 convictions, it did not impose new sentences. It,instead, signed orders to modify
Westlund's existing sentences. This is consistent with the DOSA scheme, which does not treat
DOSA revocation as a resentencing, but rather defines imprisonment as one "sanction"that the
court can impose in the event it concludes that an offender violated any "conditions or
requirements of the sentence." RCW 660( 4A. b) & ( see generally RCW
a),
9. 7)( c);
9 (
2
RCW 9.
a),
589( 4A.provides in part:
1)(
9
Except as provided in (b)or (c)of this .subsection, whenever a person is to be
sentenced for two or more current offenses, the sentence range for each current
offense shall be determined by using all other current and prior convictions as if
they were prior convictions for the purpose of the offender score: PROVIDED,
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. Sentences imposed under this subsection shall be served
concurrently. Consecutive sentences may only be imposed under the exceptional
sentence provisions of RCW 9.
535.
94A.
3
43768 6 II /43. 75 9 II /43778 3 II
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c)
664( 4A.setting
9. )(length of term of imprisonment). Westlund had already been sentenced
4
9 (
on the 2009 and 2010 convictions when she was sentenced on the 2012 conviction. Thus,
Westlund was not "sentenced on the same date" for the 2009, 2010, and 2012 convictions and
they do not fall within the definition of current offenses."RCW 9. ) ( "
" 525( 4A. Convictions . .
1
9
sentenced on the same date as the conviction . shall be deemed `other current offenses."');
see also RCW 9.
a)
589( 4A.providing that " ( a person is to be sentenced for two or
1)(
9 whenever
more current offenses"the sentences "
shall be served concurrently. ").
Accordingly, we Bold that Westlund was convicted of and sentenced on the 2009 and
2010 offenses before the trial court sentenced her on the 2012 heroin possession conviction. The
fact that the trial court modified the 2009 and 2.10
0 sentences on the same date that it sentenced
Westlund on the 2012 conviction does not change the facts that Westlund committed the 2012
felony "while under sentence[s] conviction" for the 2009 and 2010 offenses, requiring
of
consecutive sentences pursuant to RCW 9.
a).
589( 4A.
2)(
9
Because the trial court deviated from RCW 9.
a),
589( 4A.it imposed an exceptional
2)(
9
sentence. 535. Westlund
RCW 9.
94A. does not present any argument in support of the trial
court's decision to impose such a sentence. Accordingly, we reverse and remand for
resentencing.
0
43768 6 II /43775 9 II /43778 3 II
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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
040,
2.6.it is so ordered.
0
We concur:
0
Quinn -
Brintnall, J.
Worswick, 6.
J.
Wi