IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 78761-6-I
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
MICHAEL ANTHONY WADE, JR., )
)
Appellant. )
_________________________________ ) FILED: November 4, 2019
HAZELRIGG-HERNANDEZ, J. — Michael Anthony Wade, Jr. seeks remand for
resentencing, alleging that the superior court erred in determining that RCW
9.94A.589(1)(c) governed the calculation of his offender score and therefore the
same criminal conduct analysis in subsection (1)(a) was inapplicable. Because
the plain language of the statute supports the superior court’s interpretation, we
affirm.
FACTS
Michael A. Wade, Jr. (Wade) and three co-defendants were charged with
crimes related to three burglaries that took place on October 9, 2012. The charges
against Wade included six counts of theft of a firearm and one count of unlawful
possession of a firearm in the first degree. Following a bench trial, he was found
guilty on all counts. The court imposed low-end standard range sentences on all
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counts but ordered that the sentences for each of the firearm-related convictions
run consecutively for a total of 549 months confinement.
On appeal, Wade argued for the first time that the trial court erred in failing
to treat his six theft of a firearm convictions as the same criminal conduct for
purposes of calculating his offender score. We found that Wade had waived this
argument by failing to raise it at sentencing and affirmed.
Wade then filed a personal restraint petition arguing that his trial counsel
was ineffective for failing to argue the same criminal conduct issue and failing to
request an exceptional sentence below the standard range. The State conceded
that Wade was entitled to resentencing under State v. McFarland, 189 Wn.2d 47,
399 P.3d 1106 (2017), because the trial court clearly expressed on the record that
it did not believe it had discretion to depart from the standard sentencing range.
We accepted the concession and remanded for resentencing. The State also
argued that the trial court erred in failing to impose a sentence for count 10 under
the rationale that counts 3 and 10 constituted the same criminal conduct. We
agreed with the State and directed the court to impose a sentence for count 10 on
remand.
At resentencing, Wade argued that the six theft of a firearm convictions
encompassed the same criminal conduct or, in the alternative, that the court should
impose an exceptional downward sentence because the presumptive sentence
was clearly excessive. The State argued that the analysis for same criminal
conduct laid out in RCW 9.94A.589(1)(a) was inapplicable because the firearm
offenses fell under the sentencing scheme in RCW 9.94A.589(1)(c). However, the
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State agreed that a downward departure from the standard sentence was
warranted.
In its oral ruling, the court explained that it agreed with the State’s
interpretation of RCW 9.94A.589:
“[Wade’s argument] is that this conduct constitutes same
criminal conduct and therefore, it should be under the first section of
the statute 9.9A.589(1)(a) and should be sentenced concurrently.
I disagree with that analysis, because as I indicated in my
questioning, there’s a specific statute under Subsection 1(c) which
states without any ambiguity that the offender shall serve
consecutive sentences for each conviction of the felony crime listed
in Subsection 1(c) and for which firearm is unlawfully possessed. The
legislature is presumed to know what they’re doing, and my job is to
interpret and follow the law. I do not believe that that statute is
ambiguous at all.”
The resentencing court imposed low-end standard sentences for all of the
convictions but ruled that some of the sentences would run concurrently, rather
than consecutively, for a total of 241 months confinement. The written findings of
fact and conclusions of law reflected the court’s finding that the presumptive range
was clearly excessive, which justified the imposition of an exceptional sentence
below the standard range.
DISCUSSION
Wade contends that the resentencing court erred in concluding that the
same criminal conduct analysis was inapplicable and in failing to treat his six
convictions for theft of a firearm as one crime for purposes of sentencing. The
State argues that the court properly interpreted RCW 9.94A.589 when it applied
subsection (1)(c), rather than subsection (1)(a), to Wade’s offender score
calculation.
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When interpreting the provisions of a statute, our objective is to ascertain
and carry out the legislature’s intent in enacting the statute. DeID’t of Ecology v.
Camrbell & Gwinn, L.L.C., 146 Wn.2d 1, 9,43 P.3d 4(2002). If the meaning of a
statute is plain on its face, we will “give effect to that plain meaning as an
expression of legislative intent.” j~ at 9—10. To determine the plain meaning of a
statute, we consider “the text of the provision in question, the context of the statute
in which the provision is found, related provisions, amendments to the provision,
and the statutory scheme as a whole.” Columbia Riverkeeper v. Port of Vancouver
USA, 188 Wn.2d 421,432,395 P.3d 1031 (2017). We review the interpretation of
a statute de novo as a question of law. State v. Dreewes, 192 Wn.2d 812, 819,
432 P.3d 795 (2019).
Generally, when a person is convicted of multiple current offenses, the
sentencing court will calculate the appropriate offender score by “using all other
current and prior convictions as if they were prior convictions for the purpose of the
offender score.” RCW 9.94A.589(1)(a). If the court determines that two or more of
the current offenses encompass the same criminal conduct, the convictions will be
counted as one crime for the purpose of the offender score calculation. ki.
Sentences under this general rule presumptively run concurrently. Id.
The statute provides an exception to the general rule for certain firearm
related offenses. RCW 9.94A.589(1)(a), (C). This exception applies when a person
is convicted of unlawful possession of a firearm as well as felony theft of a firearm
and/or possession of a stolen firearm. RCW 9.94A.589(1)(c). In this instance, the
standard sentence range for each of those current offenses is determined using
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the general method for multiple current offenses, except that the other current
firearm offenses are not treated as prior convictions. k1. The sentences for each
of the firearm offenses run consecutively. Id.
Wade contends that the ‘same criminal conduct” provision is an exception
to each of the subsections of RCW 9.94A.589(1), including the subsection
concerning the firearm-related offenses. The structure of the statute does not
support this interpretation. Subsection (1)(a) begins:
Except as provided in (b), (c), or (d) of this subsection, whenever a
person is to be sentenced for two or more current offenses, the
sentence range for each current offense shall be determined by
using all other current and prior convictions as if they were prior
convictions for the purpose of the offender score: PROVIDED, [t]hat
if the court enters 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.
RCW 9.94A.589(1)(a). Subsection (1)(a) details the general rule, which includes
the same criminal conduct provision. Subsection (1)(c), governing certain firearm-
related offenses, is an exception to that general rule in its entirety.
Wade also argues that the phrasing of the same criminal conduct provision
precludes a trial court from imposing multiple sentences for multiple convictions
encompassing the same criminal conduct because they are considered to be “one
crime.” This is not an accurate reading of the statute. Convictions stemming from
the same criminal conduct are “counted as one crime” only for the purpose of
determining the offender score. Although the sentences for these crimes
presumptively run concurrently, separate sentences are imposed for each
conviction. We made this clear in our decision on Wade’s personal restraint
petition when we remanded for imposition of a sentence on count 10, even though
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the trial court had found count 10 to encompass the same criminal conduct as
count 3. In re Pers. Restraint of Wade, No. 76257-5-I, slip op. at 4 (Wash. Ct. App.
Feb. 20, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/762575.pdf
(“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.”).
The resentencing court did not err in concluding that the exception for
firearm-related offenses to the general rule governing offender score calculation
applied in this case and that the same criminal conduct analysis was inapplicable.
The statute is not ambiguous in this regard, and its plain language supports the
superior court’s interpretation.
Affirmed.
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WE CONCUR: 7 / 7 F
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