F ILEO
C`OURT OF APPEALS
DIVISION 11
2015 AUG: 18 AM 9: 01
STATE OF WASHINGTON
BY
D' t1TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46072 -6 -II
Respondent,
V.
JOEL DUANE McANINCH, Consolidated with:
I1
In re the Personal Restraint Petition
of
JOEL DUANE McANINCH,
PUBLISHED OPINION
Petitioner,
LEE, J. — Joel Duane McAninch appeals the trial court' s denial of his CrR 7. 8 motion for
relief from judgment, arguing that the sentencing court miscalculated the offender score for his
2013 felony conviction for driving under the influence (DUI). In his pro se statement of additional
grounds ( SAG) and his consolidated personal restraint petition, McAninch also challenges the
offender score supporting his sentence for a 2011 felony DUI conviction.
Because the sentencing court did not err in including points for McAninch' s 2004
conviction for attempting to elude and his active community custody status in his 2013 offender
score, the trial court did not abuse its discretion in denying his CrR 7. 8 motion. We do not address
the SAG challenge to the 2011 judgment and sentence because it is untimely and beyond the scope
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of this appeal. And, because McAninch has served the term of confinement imposed in 2011, we
deny his personal restraint petition as moot. Accordingly, we affirm the trial court' s order denying
relief under CrR 7. 8 and deny the personal restraint petition.
FACTS
On March 7, 2013, McAninch pleaded guilty to felony DUI and three gross misdemeanors:
first degree driving while license suspended, third degree malicious mischief, and first degree
criminal trespass. McAninch' s offender score of 6 included one point for a 2004 attempting to
elude conviction, one point for a prior felony DUI conviction, three points for prior nonfelony DUI
convictions, and one point because McAninch was on community custody at the time of his current
offenses.
At his sentencing on March 12, the trial court addressed McAninch: " You' re a really,
really dangerous individual. We sent you to prison and you lasted about two months before you
were driving drunk again." Verbatim Report of Proceedings ( Mar. 12, 2013) at 7. The trial court
imposed a high- end sentence of 54 months on the felony DUI and suspended most or all of the
364 -day sentences on each of the gross misdemeanors.
On January 23, 2014, McAninch filed a pro se CrR 7. 8 motion for relief from judgment in
which he sought resentencing on his 2013 felony DUI conviction. McAninch argued that the trial
court erred in including his 2004 conviction for attempting to elude in his offender score and cited
authority supporting his argument. After a brief hearing on the motion, the trial court concluded
that McAninch' s offender score was correct.
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McAninch appealed that ruling and filed a personal restraint petition that challenged his
2013 offender score as well as the offender score in his 2011 judgment and sentence for felony
DUI. He then submitted a SAG raising the same offender score challenges. At his request,. we
consolidated the appeal and the personal restraint petition. We first address his direct appeal and
then turn to his personal restraint petition.
ANALYSIS
A. STANDARD OF REVIEW
A trial court may . relieve a defendant from a final judgment because of mistake,
inadvertence, fraud, avoid judgment, or for any other reason justifying relief. CrR 7. 8( b); State v.
Gomez-Florencio, 88 Wn. App. 254, 258, 945 P. 2d 228 ( 1997), review denied, 134 Wn.2d 1026
1998). A trial court has jurisdiction under CrR 7. 8 to correct an' erroneous sentence. State v.
Hardesty, 129 Wn.2d 303, 315, 915 P. 2d 1080 ( 1996). We review the trial court' s decision on a
CrR 7. 8 motion for abuse of discretion. Gomez- Florencio, 88 Wn. App. at 258. A trial court
abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. State
v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). A decision is based on untenable grounds
if it is based on an erroneous view of the law. State v. Slocum, 183 Wn. App. 438, 449, 333 P.3d
541 ( 2014).
B. OFFENDER SCORE CALCULATION
McAninch argues that the trial court abused its discretion in denying his CrR 7. 8 motion
because his sentence was erroneous. McAninch contends that the sentencing court incorrectly
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applied the offender score rules set forth in the Sentencing Reform Act of 1981 ( SRA). We
disagree.
The statute that applies to McAninch' s sentence is former RCW 9. 9A.525 ( 2011). 1 Our
objective in interpreting this statute is to ascertain and carry out the legislature' s intent. State v.
Kintz, 169 Wn.2d 537, 547, 238 P. 3d 470 ( 2010). We first look to the statute' s plain meaning to
determine legislative intent. State v. Polk, _ Wn. App. , 348 P. 3d 1255, 1260 ( 2015). Where
the meaning of statutory language is plain on its face, we must give effect to that plain meaning as
an expression of legislative intent. State v. Alvarado, 164 Wn.2d 556, 562, 192 P. 3d 345 ( 2008).
In discerning the plain meaning of a statute, we consider all that the legislature has said in the
statute and related statutes that disclose legislative intent. State v. Winkle, 159 Wn. App. 323, 328,
245 P. 3d 249 ( 2011), review denied, 173 Wn.2d 1007 ( 2012). Interpretations rendering any
portion of a statute meaningless should not be adopted, and we avoid constructions that result in
unlikely or absurd results. State v. Keller, 143 Wn.2d 267, 277, 19 P. 3d 1030 ( 2001), cert. denied,
534 U. S. 1130 ( 2002).
RCW 9.94A.525( 11) sets forth the calculation of an offender score for a felony traffic
offense: " for each felony offense count one point for each adult and 1/ 2 point for each juvenile
prior conviction." See State v. Rodriguez, 183 Wn. App. 947, 955 n. 4, 335 P. 3d 448 ( 2014) ( citing
RCW 9. 94A. 525( 11) in referring to SRA rules for calculating offender scores), review denied, 182
Wn.2d 1022 ( 2015).
1
Some subsections of RCW 9. 94A. 525 have been amended since 2011 but others have not. In
discussing the subsections individually, we refer only to those that have been amended as
former."
Gd
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Despite this seemingly unambiguous directive, McAninch argues that former RCW
9. 94A.525( 2)( e) controls the calculation of the offender score for his felony DUI conviction, not
RCW 9. 94A. 525( 11). Former subsection ( 2)( e) states:
If the present conviction is felony driving while under the influence of intoxicating
liquor or any drug (RCW 46. 61. 502( 6)) or felony physical control of a vehicle while
under the influence of intoxicating liquor or any drug ( RCW 46. 61. 504( 6)), prior
convictions of felony driving while under the influence of intoxicating liquor or
any drug, felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug, and serious traffic offenses shall be included in the
offender score if. (i) The prior convictions were committed within five years since
the last date of release from confinement (including full-time residential treatment)
or entry ofjudgment and sentence; or (ii) the prior convictions would be considered
prior offenses within ten years" as defined in RCW 46. 61. 5055.
Former RCW 9. 94A. 525( 2)( e). McAninch asserts that this provision shows that the only prior
convictions that can be included in an offender score for felony DUI are those it expressly identifies
i.e., felony DUI, felony physical control of a vehicle while under the influence of liquor or drugs,
and serious traffic offenses2).
As support for his argument, McAninch cites State v. Jacob, 176 Wn. App. 351, 308 P. 3d
800 ( 2013) and State v. Morales, 168 Wn. App. 489, 278 P. 3d 668 ( 2012). In Morales, Division
One held that when calculating a defendant' s offender score for felony DUI, the only relevant
offenses are those listed in former RCW 9. 94A. 525( 2)( e). 168 Wn. App. at 493`. Consequently,
the Morales court held that the defendant' s prior assault conviction could not be considered in
calculating his offender score. Id. at 497- 98. In Jacob, this court relied on Morales in concluding
2 Serious traffic offenses include nonfelony DUI, nonfelony physical control, reckless driving,
and hit-and- run of an attended vehicle. Former RCW 9. 94A.030( 44) ( 2012).
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that the trial court erred in including the defendant' s prior drug conviction in his offender score fog'
felony DUI. 176 Wn. App. at 360. The Jacob court so held because drug convictions were not
among the offenses listed for offender score inclusion in former RCW 9. 94A.525( 2)( e). 3 Id.
Neither Morales nor Jacob cited RCW 9. 94A.525( 11) and the fact that subsection ( 11)
directly addresses offender score calculations for felony traffic offenses. In relying exclusively on
former RCW 9. 94A.525( 2)( e) to determine an offender score for felony DUI, both Morales and
Jacob effectively read subsection ( 11) out of the statute and failed to consider the statute as a
whole.
As Division Three recently noted, Morales and Jacob overlooked other provisions of RCW
9. 94A.525, as well as the overall purpose of the statute. State v. Hernandez, 185 Wn. App. 680,
686, 342 P. 3d 820 ( 2015). The Hernandez court observed that offender scores are calculated in
3
McAninch committed his current DUI on January 11, 2013. In an amendment that took effect
on September 28, 2013, the legislature revised subsection (2)( e) as follows:
If the present conviction is felony driving while under the influence of intoxicating
liquor or any drug ( RCW 46. 61. 502( 6)) or felony physical control of a vehicle while
under the influence of intoxicating liquor or any drug ( RCW 46. 61. 504( 6)), all
predicate crimes for the offense as defined by RCW 46. 61. 5055( 14) shall be
included in the offender score, and prior convictions for felony driving while under
the influence of intoxicating liquor or any drug ( RCW 46. 61. 502( 6)) or felony
physical control of a vehicle while under the influence of intoxicating liquor or any
drug ( RCW 46. 61. 504( 6)) shall always be included in the offender score. All other
convictions ofthe defendant shall be scored according to this section.
LAWS of 2013, 2d Spec. Sess., ch. 35, § 8 ( This amendment, which clearly states
emphasis added).
that all of a defendant' s prior convictions are considered in calculating his offender score,
contravenes the construction placed on the original statute by Morales and Jacob and thus does
not apply retroactively. State v. Dunaway, 109 Wn.2d 207, 216 n.6, 743 P. 2d 1237, 749 P. 2d 160
1988).
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1) 2) those that wash out; ( 3) ` count' the
three steps: "`( identify all prior convictions; ( eliminate
prior convictions that remain in order to arrive at the offender score."' 185 Wn. App. at 684
quoting State v. Moeurn, 170 Wn.2d 169, 175, 240 P. 3d 1158 ( 2010)).
RCW 9. 94A.525( 2) addresses the second step. Hernandez, 185 Wn. App. at 686; see State
v. Smith, 137 Wn. App. 431, 439, 153 P. 3d 898 ( 2007) ( referring to RCW 9. 94A.525( 2) as " the
wash out provision"). Subsection ( 2)( a) provides that class A and sex felonies never wash out,
subsection ( 2)( b) provides that class B felonies other than sex offenses wash out after the offender
spends 10 crime -free years in the community, and subsections ( 2)( c) and ( d) provide that class C
felonies and serious traffic offenses wash out after the offender spends five crime -free years in the
community, except as provided in former subsection ( 2)( e). Hernandez, 185 Wn. App. at 686.
Former subsection (2)( e) thus acts as an exception to the wash out provisions in subsections ( 2)( c)
and ( d) by reviving certain offenses that would wash out in those subsections, but only where the
current conviction is for felony DUI or felony physical control. Id.
In addition to rendering subsection ( 11) meaningless, construing RCW 9. 94A.525 so that
the provisions in former subsection ( 2)( e) control the offender score analysis for a felony DUI
leads to other " strained and absurd results." Id. RCW 9. 94A.525( 2)( a) provides that class A and
sex felonies never wash out. Excluding class A and sex felonies from an offender score for a
felony DUI is an absurd result that also renders subsection (2)( a) meaningless. Id.
Furthermore, one purpose of the SRA is to "[ e] nsure that the punishment for a criminal
offense is proportionate to the seriousness of the offense and the offender' s criminal history."
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RCW 9. 94A. 010( 1). Excluding a prior conviction that does not washout under former subsection
2)( e) leads to an inaccurate reflection of the defendant' s criminal history.
The Hernandez court declined to follow Morales and Jacob and held that all of the
defendant' s prior offenses, including convictions for robbery and forgery, were properly included
in the, offender score for his felony DUI conviction. 185 Wn. App. at 682- 83. We likewise reject
the offender score analysis in Morales and Jacob and hold that former subsection ( 2)( e) must be
read in conjunction with the rest of RCW 9. 94A.525, including all of subsection (2) and subsection
11), to adhere to the purposes and intent of the SRA. McAninch' s 2004 conviction for attempting
to elude did not wash out under former RCW 9. 94A.525( 2)( e) and counted as one point toward his
offender score. 4 RCW 9. 94A. 525( 11); see also CASELOAD FORECAST COUNCIL, 2014
WASHINGTON- STATE ADULT SENTENCING GUIDELINES MANUAL 329,
http:// www.cfc.wa.gov/PublicationSentencing/ SentencingManual/ Adult Sentencing_Manual_20
14.pdf. We affirm the trial court' s denial of McAninch' s CrR 7. 8 motion.
C. SAG ISSUES
McAninch raises two issues in his SAG. The first challenges the calculation of his 2013
offender score. In addition to arguing that the trial court should not have included a point for his
2004 attempting to elude conviction, which we addressed above, McAninch contends that the trial
court erred in adding a point due to his community custody status at the time of his offenses.
4
There was no wash because of McAninch' s 2007 and 2009 DUI convictions. Former RCW
9. 94A. 525( 2)( e).
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McAninch bases this contention on his mistaken assumption that former RCW 9. 94A.525( 2)( e)
governs his offender score calculation.
RCW 9. 94A.525( 19) provides that courts should add a point to an offender score if "the
present case is for an offense committed while the offender was under community custody." The
wash provisions in former RCW 9. 94A.525( 2)( e) do not affect this directive, and we reject
McAninch' s claim of error.
McAninch' s SAG also challenges the offender score underlying his 2011 sentence for
felony DUI. This challenge is beyond the scope of his notice of appeal, which addresses only the
2013 CrR 7. 8 ruling. See RAP 2. 4( a) ( appellate court will review decision designated in notice of
appeal). The challenge also is untimely. See RAP 5. 2( a) ( notice of appeal generally must be filed
within 30 days after entry of decision that party wants reviewed). Although we decline to consider
this issue as part of McAninch' s direct appeal, we address it below in the context of his personal
restraint petition.
D. PERSONAL RESTRAINT PETITION
McAninch argues in his petition that his. 2011 judgment and sentence for felony DUI is
invalid on its face because his offender score improperly includes his 2004 conviction for
attempting to elude.
A personal restraint petition challenging a judgment and sentence generally must be filed
within one year after the judgment becomes final. RCW 10. 73. 090( 1). McAninch' s 2011
judgment and sentence became final when the trial court entered it on April 19, 2011. RCW
10. 73. 090( 3)( a). McAninch filed his petition after the one- year time limit expired, but he argues
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that the petition is exempt from the time bar because his judgment and sentence is invalid on its
face. RCW 10. 73. 090( 1).
The State responds that the petition is moot. We agree. At the time of his current 2013
convictions, McAninch had completed his 2011 term of confinement. Even if McAninch' s 2011
sentence was excessive, which we do not concede, we may not order the trial court to credit the
extra period of confinement against his remaining term of community custody. State v. Jones, 172
Wn.2d 236, 247- 49, 257 P. 3d 616 ( 2011). Because there is no longer any meaningful relief from
the alleged offender score error that we can provide, we must deny this petition as moot. In re
Det. of Cross, 99 Wn.2d 373, 376- 77, 662 P. 2d 828 ( 1983).
We affirm the trial court' s order denying relief under CrR 7. 8 and deny the personal
restraint petition.
47
Lee, J.
We concur:
4 Maxa, P.J.
uNn, J.
10
State Of Washington, V Joel Duane Mcaninch
Combined Opinion