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UNPUBLISHED OPINION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