FILED
COURT OF APPEALS WV I
STATE OF WASHINGTON
2011 HAY - I Ail 9:53
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 74557-3-1
)
Respondent, )
)
v. )
)
BRETT DOMINIC WHITE, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: May 1, 2017
)
VERELLEN, C.J. — Brett White appeals his judgment and sentence for felony
harassment. He argues that his two previous convictions for violation of a no-contact
order encompassed the same criminal conduct and should have counted as a single
crime in calculating his offender score at sentencing. We find no error in the court's
exercise of its discretion to count the two convictions separately and affirm.
FACTS
The State initially charged Brett White with felony violation of a court order.
Pursuant to a plea agreement, the State amended the charge to felony harassment and
White pleaded guilty to the amended charge. The plea form reflects that the parties
disputed White's offender score.
In the plea paperwork, the State calculated White's offender score to be six. This
score was reached, in part, by counting two misdemeanor convictions for domestic
violence violation of a court order from a 2013 King County Superior Court case, no. 13-
No. 74557-3-1/2
1-12075-1, separately as two points. Based on that offender score, the State
recommended a standard range sentence.
In the defense presentence report, defense counsel also calculated White's
offender score to be six. Defense counsel agreed that White's score included two prior
felony convictions, three misdemeanor domestic violence offenses (including the two
convictions in King County cause no. 13-1-12075-1), and one point for being on
community custody at the time of the offense. Defense counsel indicated, however, that
it was "entirely possible that Mr. White will object to this score."1
At sentencing, the State and defense counsel both asserted an offender score of
six. The State argued that the two convictions from King County cause no. 13-1-12075-
1 should count separately as two points. To support its offender score calculation, the
State presented White's statement of on the plea of guilty from the 2013 case. There, in
pleading guilty to an amended information charging two counts of violation of a no-
contact order, White expressly stated that the conduct involved "two separate and
distinct" offenses.2 In addition, the amended information alleged that count 2 was
based on "an act separate and distinct from that alleged in Count 1."3 The certification
for determination of probable cause, incorporated into the plea statement, reflected that
White had crawled through a window of Andregg's apartment in the middle of the night
and held her captive for two days, threatening her and not allowing her to leave.
Andregg was finally able to escape, but fell in a hallway outside her apartment, where
White punched her until neighbors approached.
1 Clerk's Papers(CP) at 67.
2 CP at 87.
3 CP at 89.
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After the sentencing court and the parties reviewed the plea statement from the
2013 case, White's attorney conceded that those two convictions should be counted
separately in White's offender score for the current sentencing. Upon inquiry from the
court, however, White himself argued that those two convictions should only count as
one point because they had "the same cause number." The court concluded that "it's
pretty clear from the statement that you acknowledged by signing the document that
these are two separate and distinct offenses."5
The sentencing court thus found that White's offender score was six, resulting in
a standard range of 22 to 29 months. The court imposed a mid-range sentence of 25
months.
White appeals.
ANALYSIS
White contends the sentencing court erred in calculating his offender score and
including the two convictions for misdemeanor violation of a no-contact order as
separate crimes. We disagree.
When calculating an offender score, the sentencing court is to count all prior
convictions separately unless two or more of the prior convictions encompass the same
criminal conduct.6 Crimes constitute the same criminal conduct when they "require the
same criminal intent, are committed at the same time and place, and involve the same
victim."7 Unless all elements are present, the offenses must be counted separately.5
4 Report of Proceedings(RP)(Dec. 18, 2015) at 77.
5 Id. at 84.
6 RCW 9.94A.525(5)(a)(i).
7 RCW 9.94A.589(1)(a).
8 State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
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The defendant bears the burden of proving same criminal conduct.9 This court reviews
determinations of same criminal conduct for abuse of discretion or misapplication of
law. m
In White's plea statement, he admitted:
Between 7/29/13 and 7/31/13, in King Co., I knowingly and willfully
violated the terms of a court order issued on 3/7/14 by Kent Municipal
Court pursuant to RCW 10.99 and RCW 26.50 for the protection of Christy
Andregg by contacting her on two separate and distinct occasions.(111
At sentencing, White's attorney conceded that there was no argument that the
two misdemeanor convictions for violation of the no-contact order were not separate
and distinct. White simply argued that the two convictions should be counted as one
because they were under the same cause number. But White presented no factual
argument as to why the two convictions met the statutory definition of same criminal
conduct and thus, failed to meet his burden of proving same criminal conduct. Given
White's acknowledgement that the two prior misdemeanor convictions involved
separate and distinct events, the sentencing court did not abuse its discretion in
concluding that the convictions should be scored separately.
For the first time on appeal, White argues that the unit of prosecution for violation
of a court order supports viewing his convictions as same criminal conduct. But White
does not provide any argument or authority supporting review of his argument for the
9 State v. Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013).
I° Id. at 535.
11 CP at 87.
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first time on appea1.12 Therefore, we decline to address his argument.
In his statement of additional grounds, White asserts that the "prosecutor and
State of Washington denied me equal protection of the laws" under the Fourteenth
Amendment.13 Because White fails to inform the court of the nature and occurrence of
the alleged errors, his assertion fails.14 White also asserts his attorney "was not
effective in disputing the State's calculation of prior history."15 But White fails to show
either that his attorney's performance was deficient or that he was prejudiced thereby.16
Therefore, we affirm.
WE CONCUR:
12 See RAP 2.5(a); see State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d
1251 (1995)(Under RAP 2.5(a), an issue cannot be raised for the first time on appeal
unless it is a manifest error affecting a constitutional right. The appellant must show the
alleged error is "manifest" by demonstrating actual prejudice.).
13 Statement of Additional Grounds at 1.
14 RAP 10.10(c).
15 Statement of Additional Grounds at 1.
16 See McFarland, 127 Wn.2d at 334-35(a defendant claiming ineffective
assistance of counsel must demonstrate both deficient performance and prejudice, i.e.,
a reasonable probability that the outcome would have been different but for counsel's
omission).
5