FILE:D
COURT OF APPEALS DIV I
STATE OF WASHINGTON
2018 FEB 20 Ali 8:36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE No. 76257-5-1
PERSONAL RESTRAINT OF:
DIVISION ONE
MICHAEL ALEXANDER WADE, JR.,
UNPUBLISHED OPINION
Petitioner.
FILED: February 20, 2018
PER CURIAM. Michael Wade filed a timely personal restraint petition
challenging the consecutive sentences imposed pursuant to his conviction for
multiple firearm-related convictions. Wade contends that trial counsel was
ineffective for failing to argue that the convictions were the same criminal
conduct and for not requesting an exceptional sentence below the standard
range. To successfully challenge a judgment and sentence by means of a
personal restraint petition, a petitioner must establish either(1) actual and
substantial prejudice arising from constitutional error, or(2) nonconstitutional error
that inherently results in a "complete miscarriage of justice." In re Pers. Restraint
of Cook, 114 Wn.2d 802, 813, 792 P.2d 506(1990); In re Pers. Restraint of Hews,
99 Wn.2d 80, 88,660 P.2d 263(1983). Because Wade has met this burden, we
grant the petition and remand for resentencing.
Wade was found guilty by the court, after waiving his right to a jury, of
three counts of residential burglary (counts 1 through 3), six counts of theft of a
firearm (counts 4 through 9), one count of second-degree theft (count 10), one
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count of first-degree trafficking in stolen property (count 11) and one count of
unlawful possession of a firearm (count 12). The State recommended a low-end
sentence of 549 months confinement, noting that each of the six counts of theft
of a firearm "would be served consecutively under the statute." The State
stipulated that count 10 constituted the same criminal conduct as count 3.
Wade's attorney noted that "had [Wade]committed a crime or crimes
that resulted in severe disfigurement of another human being that he would be
serving less time than he'll be serving to this sentence." Nonetheless, Wade's
attorney agreed with the State's recommendation and did not argue for
concurrent sentences or request an exceptional sentence below the standard
range.
The trial court imposed a total sentence of 549 months. This included
concurrent sentences for each of the theft of a firearm convictions pursuant to
RCW 9.94A.589(1)(c).1 The trial court stated:
As the Court is aware, the defendant is being sentenced today on
six counts of theft of a firearm and one count of unlawful
possession of a firearm in the first degree. Each of those standard
ranges therefore would be served consecutively under the statute.
Okay. Well, it's a bit distressing what we have to do here this
morning. The low end of the standard range is a very, very long
1 RCW 9.94A.589(1)(c) provides: "If an offender is convicted under RCW 9.41.040 for
unlawful possession of a firearm in the first or second degree and for the felony crimes
of theft of a firearm or possession of a stolen firearm, or both, the standard sentence
range for each of these current offenses shall be determined by using all other current
and prior convictions, except other current convictions for the felony crimes listed in
this subsection (1)(c), as if they were prior convictions. The offender shall serve
consecutive sentences for each conviction of the felony crimes listed in this subsection
(1)(c), and for each firearm unlawfully possessed."
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No. 76257-5-1/3
time. But that's the only option I have right now. There's no —
there's no basis for mitigation. There's no basis for a sentence
below the standard range...[F]rankly I would much rather impose
a lower sentence if I had the opportunity. But I don't.
And, Mr. Wade, I don't know what to tell you. I wish we weren't
doing this right now, in all honesty, I really do. I was hopeful that
we would be here talking about a sentence that was about half the
length of what we're talking about now, but that's not going to
happen and — I just don't know what else to say other than I wish
we weren't doing this.
In the judgment and sentence, the trial court crossed out "theft in the second
degree" and added the handwritten notation "same criminal conduct as count
3."
In State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017), the
Washington Supreme Court, relying on its analysis in In re Pers. Restraint of
Mulholland, 161 Wn.2d 322, 166 P.3d 677(2007), held that "in a case in which
standard range consecutive sentencing for multiple firearm-related convictions
'results in a presumptive sentence that is clearly excessive in light of the
purpose of[the SRA],' a sentencing court has discretion to impose an
exceptional, mitigated sentence by imposing concurrent firearm-related
sentences." McFarland, 189 Wn.2d 47 at 55 (quoting RCW 9.94A.535(1)(g)).
The State concedes that Wade is entitled to resentencing under
McFarland.2 We accept the State's concession. We vacate Wade's sentence
and remand for resentencing in accordance with McFarland.
2In McFarland, the defendant argued that the trial court erred in declining to impose
concurrent sentences because it erroneously believed it could not do so, and in the
alternative, that trial counsel was ineffective for failing to request an exceptional
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No. 76257-5-1/4
The State additionally argues that the trial court erred in failing to impose
a sentence for count 10. The State notes, correctly, that a determination that
two crimes constitute the same criminal conduct affects only scoring of the
offenses, but does not preclude imposition of a sentence. See RCW
9.94A.589(1)(a)(if a trial court makes 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."). The same criminal conduct doctrine does not "affect
the underlying convictions' validity." State v. Wilkins, 200 Wn. App. 794, 806,
403 P.3d 890(2017). On remand, the trial court shall be directed to impose a
sentence for count 10.
For the court:
f.f-1.;d-< 1)
sentence. The court in McFarland did not address the ineffective assistance of counsel
claim. Here, Wade frames his argument only in the context of an ineffective assistance
of counsel claim. Nonetheless, in light of the State's concession, we remand for
resentencing.
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