FILED
APRIL 3, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35001-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
CATHE L. McNEILL, )
)
Appellant. )
PENNELL, J. — Cathe McNeill appeals her sentence for delivery of a controlled
substance. Because the sentence imposed by the court exceeded the applicable range set
by the legislature, we reverse the sentence and remand for resentencing.
BACKGROUND
In November 2016, Ms. McNeill pleaded guilty to two counts of delivery of
methamphetamine. The offense conduct dates were July 15 and 22, 2015. Ms. McNeill’s
No. 35001-1-III
State v. McNeill
plea was pursuant to a plea agreement. Under the terms of the agreement, the State
agreed to dismiss three additional charges and to recommend a sentence of 60 months’
incarceration. The 60-month term was the low-end of the applicable range. At
sentencing, the trial court followed the State’s recommendation, imposed a 60-month
sentence, and assessed $3,445 in mandatory and discretionary legal financial obligations
(LFOs), including a $1,000 fine.
At issue in this appeal are the terms of Ms. McNeil’s plea agreement. Pursuant to
the agreement, Ms. McNeil stipulated that her offender score was seven. She also agreed
to the following statement of criminal history:
Clerk’s Papers (CP) at 95. 1
1
The image above was taken from the criminal history that was included in Ms.
McNeill’s guilty plea statement.
2
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Subsequent to sentencing, Ms. McNeill’s appellate counsel obtained additional
information regarding Ms. McNeill’s criminal history. Through a declaration submitted
under RAP 9.11, appellate counsel disclosed that Ms. McNeill was released from her
December 5, 2006, sentence for delivery of methadone in May 2009. 2 The declaration
also states Ms. McNeill had no criminal convictions between 2009 and December 1,
2016. The State does not challenge the accuracy of the information submitted by
appellate counsel.
ANALYSIS
Incorrect offender score
Ms. McNeill claims that, based on the post-conviction information obtained by
appellate counsel, her offender score was miscalculated. She specifically argues that, at
the time of her plea and sentencing in 2016, most of her prior convictions had washed out
from her offender score pursuant to RCW 9.94A.525(2)(c). The State does not challenge
the factual or legal accuracy of Ms. McNeill’s offender score calculation. Instead, the
State claims Ms. McNeill’s plea agreement precludes her from challenging the offender
score at this stage of the proceedings. Our review is de novo. State v. Mutch, 171 Wn.2d
2
Ms. McNeill was granted leave to file the declaration by our court commissioner.
A panel of this court denied the State’s motion to revise the commissioner’s ruling.
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State v. McNeill
646, 653, 254 P.3d 803 (2011).
We begin by assessing whether, as assumed by the parties, Ms. McNeill’s offender
score was miscalculated. An offender score establishes the standard range term of
confinement for a felony offense. See RCW 9.94A.525, .530(1). The sentencing court
calculates an offender score by adding current offenses, prior convictions, and juvenile
adjudications. RCW 9.94A.030(11), .525. A defendant’s current convictions are each
counted separately unless the court finds that some or all of the current offenses constitute
the same criminal conduct. RCW 9.94A.589(1)(a). For nonviolent drug offenses, as here,
a court counts one point for each prior adult felony conviction. RCW 9.94A.525(7), 3 (13);
see also RCW 9.94A.030(34), (55). However, if a prior conviction is for a class C felony
that is not a sex offense, and the offender has remained free of conviction for five
consecutive years since last being released from confinement, the prior conviction washes
out and is not counted toward the offender score. RCW 9.94A.525(2)(c).
Ms. McNeill stipulated that her criminal history was limited to six prior felonies.
Her plea statement and the judgment and sentence both indicate Ms. McNeill was
sentenced for her two most recent prior convictions on December 5, 2006. It is further
3
The provisions of this subsection pertaining to juvenile offenses do not apply
here. Ms. McNeill has no juvenile convictions.
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State v. McNeill
noted that Ms. McNeill served 60 months for the controlled substance conviction, but
there is no term of confinement included for the second degree unlawful possession of a
firearm conviction. But second degree unlawful possession of a firearm is a class C
felony. Former RCW 9.41.040(2)(b) (1995). The statutory maximum sentence for a
class C felony is five years (60 months). RCW 9A.20.021(1)(c). Thus, Ms. McNeill
could not have served more than 60 months on that conviction. Further, according to the
declaration of appellate counsel, Ms. McNeill was last released from confinement in
May 2009. Given the concurrent sentencing date between the controlled substance and
second degree unlawful possession of a firearm convictions, it is apparent Ms. McNeill
was released from confinement on both convictions in May 2009.
With this in mind, we agree with the parties that Ms. McNeill’s offender score
was miscalculated. Five of Ms. McNeill’s six prior convictions are class C felonies.
RCW 69.50.403(1)(c), (3) (attempt to obtain a controlled substance by fraud); former
RCW 9.41.040(2)(b) (second degree unlawful possession of a firearm). The remaining
conviction is a class B felony. RCW 69.50.401(2)(a) (delivery of a controlled substance,
methadone). 4 Over five years elapsed between May 2009 and the date of Ms. McNeill’s
4
Methadone is a schedule II synthetic opiate, which is considered a narcotic drug
under the statute. Former RCW 69.50.101(r)(2), .206(c)(14) (1993).
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plea in 2016. Under RCW 9.94A.525(2)(c), Ms. McNeill’s five prior class C felony
convictions had washed out and should not have been counted toward her offender score.
It appears the proper offender score is two, one point for a current offense, and one point
for the prior delivery of a controlled substance offense. Ms. McNeill was sentenced to 60
months’ confinement. But with this properly calculated offender score, the standard
range for her current convictions is 12-20 months. RCW 9.94A.517, .518. Under the
offender score used by the trial court, Ms. McNeill’s standard range was 60-120 months.
RCW 9.94A.517.
The State’s argument on appeal is that Ms. McNeill has waived her challenge to
the offender score by stipulating to her criminal history and offender score in the plea
agreement. The problem with the State’s position is that a defendant generally cannot
waive a challenge to a miscalculated offender score. In re Pers. Restraint of Goodwin,
146 Wn.2d 861, 874, 50 P.3d 618 (2002). Waiver can be found in situations where the
defendant agrees to incorrect facts. Id. But a defendant does not agree to incorrect facts
merely by signing a plea agreement that contains an agreed offender score calculation and
list of prior convictions. Id. at 874-76. Something more is needed, such as an explicit
agreement as to when the defendant was released from custody or, at the very least, a
specific agreement that the prior convictions had not washed out due to age. Id. at 874
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(“[W]aiver can be found where the alleged error involves an agreement to facts, later
disputed, or where the alleged error involves a matter of trial court discretion.”). See also
State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004) (Waiver occurred when
defendants “affirmatively acknowledged at sentencing that their prior out-of-state and/or
federal convictions were comparable to Washington State crimes.”); In re Pers. Restraint
of Call, 144 Wn.2d 315, 326, 28 P.3d 709 (2001) (There is no waiver when nothing is in
the record to indicate the defendant understood he was electing to have prior convictions
included in his offender score even though they technically washed out.); State v. Huff,
119 Wn. App. 367, 370-72, 80 P.3d 633 (2003) (An explicit stipulation that prior
conviction had not washed out resulted in waiver.).
Here, Ms. McNeill did not stipulate to any facts that are inconsistent with her
current claims regarding the washout of prior convictions. Contrary to the State’s
position, Ms. McNeill’s plea paperwork did not set forth the period of incarceration for
the 2006 methadone conviction. Instead, the agreed statement of criminal history merely
indicated the total sentence was 60 months. At no point during the proceedings in trial
court did Ms. McNeill indicate when the 60-month term began to run or when it ended.
She is therefore not estopped from raising this claim now.
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The State also claims it has relied to its detriment on Ms. McNeill’s offender score
agreement. The State points out that it could have pursued additional charges against Ms.
McNeill had she not pleaded guilty, including a charge that would have precluded
application of any washout provision. According to the State, Ms. McNeill should be
estopped from pursuing a remedy, such as resentencing, that would prevent the State from
renegotiating the terms of Ms. McNeill’s plea.
We find no authority for the claim that Ms. McNeill’s choice of litigation strategy
should be dictated by the State’s reliance interests. While Ms. McNeill could have raised
her offender score concerns through a personal restraint petition or motion to withdraw
her plea, she was not required to do so. State v. Malone, 138 Wn. App. 587, 593 & n.4,
157 P.3d 909 (2007) (A defendant who discovered post-plea that agreed prior convictions
included washed out offenses was not limited in available remedies.). Our cases have
consistently recognized that an incorrect offender score calculation can be raised on direct
appeal. See, e.g., Goodwin, 146 Wn.2d at 877 (Even “on direct appeal . . . the erroneous
portion of a sentence in excess of the statutory authority must be reversed.”); State v.
Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999) (“[I]llegal or erroneous sentences may
be challenged for the first time on appeal.”). The ability to seek relief on direct appeal is
based on the court’s “duty and power to correct an erroneous sentence upon its
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No. 35001-1-III
State v. McNeill
discovery.” Call, 144 Wn.2d at 334. We will not abdicate this responsibility simply
because Ms. McNeill has other avenues of relief available.
The remedy for an incorrect offender score calculation is resentencing unless the
record makes clear the trial court would have imposed the same sentence. State v. Tili,
148 Wn.2d 350, 358, 60 P.3d 1192 (2003). Here, there are no facts indicating that the
trial court would have imposed an exceptional sentence of 60 months, despite knowing
the correct range was 12-20 months. Given this circumstance, resentencing is required. 5
LFOs
For the first time on appeal, Ms. McNeill challenges the trial court’s imposition of
discretionary LFOs based on her inability to pay. We have discretion to review an
unpreserved LFO challenge such as the one raised by Ms. McNeill. RAP 2.5(a). But
because Ms. McNeill’s case must be remanded for resentencing, we opt not to review the
merits of Ms. McNeill’s LFO challenge at this time. Instead, we direct the trial court on
remand to make an individualized inquiry into Ms. McNeill’s ability to pay pursuant to
State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015) prior to imposition of any
discretionary LFOs.
5
We pass no judgment over whether, on remand, the State may be able to continue
to pursue its recommended sentence of 60 months, based on the exceptional circumstance
provision of RCW 9.94A.535(2)(d). Nothing in our opinion precludes this possibility.
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CONCLUSION
We remand for full resentencing and reconsideration of discretionary LFOs.
Because Ms. McNeill is the prevailing party, her request to deny appellate costs is
granted.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
· ~ I
WE CONCUR:
Pennell, J. ' d
Fea~t
10