(dissenting) — Jeffrey Connick pleaded guilty to intimidating a witness contrary to RCW 9A.72.110. Intimidation of a witness is a seriousness level VI crime. RCW 9.94A.320. The sentencing matrix sets a standard range sentence based on the seriousness level relative to the prior offender score.
State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999) holds where a defendant’s out-of-state convictions are used to enhance his sentence, the Sentencing Reform Act of 1981 (SRA) requires the offenses be classified according to comparable Washington laws. Ford, 137 Wn.2d at 477. Further, at sentencing
it is the State, not the defendant, which bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions. Absent a sufficient record, the sentencing court is without the necessary evidence to reach a proper decision, and it is impossible to determine whether the convictions are properly included in the offender score.
Id. at 480-81.
Here the state was not aware the presentence investigation report had assigned Connick an offender score of 9 rather than 6 until the morning of sentencing. Oral argument tape 1, side 1. Notwithstanding, the sentencing court set Connick’s prior offender score at 9.
*467A prior offender score of 9 coupled with a current offense which carries a seriousness level of VI yields a standard sentencing range of 77 to 102 months. Connick was given the maximum sentence in this range. Now Connick asserts his prior offender score was erroneously calculated at 9. He contends the score should have been calculated as 6. A prior offender score of 6 coupled with a current offense which carries a seriousness level of VI yields a standard sentencing range of 46 to 61 months. RCW 9.94A.310. If the State is correct that the offender score was properly calculated at 9, Connick’s maximum standard range sentence for his current offense is 8.5 years (102 months). However if Connick is correct that the prior offender score should have been set at 6, then his maximum standard range sentence is only 5.08 years (61 months).
We have recognized “illegal or erroneous sentences may be challenged for the first time on appeal.” Ford, 137 Wn.2d at 477. See also In re Pers. Restraint of Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996) (“[Sentencing error can be addressed for the first time on appeal under RAP 2.5 even if the error is not jurisdictional or constitutional.”). Further, as the majority acknowledges, “This court has determined that incorrect calculation of an offender score constitutes a fundamental defect in sentencing resulting in a complete miscarriage of justice which requires relief in a personal restraint proceeding.” Majority at 462 (citing In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568-69, 933 P.2d 1019 (1997); In re Pers. Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000)).
The majority attaches dispositive importance to Connick’s stipulation to an offender score of 9 during the sentencing hearing. However in State v. Ford we said, “a defendant does not ‘acknowledge’ the State’s position regarding classification absent an affirmative agreement beyond merely failing to object.” Ford, 137 Wn.2d at 483. In that same opinion we continued, “[T]his court “has the power and duty to correct the error upon its discovery’ even where the parties not only failed to object but agreed with the *468sentencing judge? Id. at 477 (quoting State v. Loux, 69 Wn.2d 855, 858, 420 P.2d 693 (1966) (emphasis added), overruled in part on other grounds by State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69 (1996)). Thus defects in the calculation of sentencing range cannot be waived or stipulated away.
Without regard to whether Connick stipulated to his presentence report, this court “has the power and duty” to correct an apparent error in his sentencing calculation. Ford, 137 Wn.2d at 477. We have long held “ ‘the existence of an erroneous sentence requires resentencing.’ ” Id. at 485 (quoting Brooks v. Rhay, 92 Wn.2d 876, 877, 602 P.2d 356 (1979)). This rule also applies to sentences imposed under the SRA where an incorrect offender score is used to calculate the standard range. Id. This precedent is inconsistent with the majority’s assertion that Mr. Connick has somehow waived his right to challenge the imposition of a potentially illegal sentence. Majority at 463.
More fundamentally I disagree with the majority’s conclusion that Connick has failed to demonstrate his prior offender score should have been calculated at 6 rather than 9. Majority at 464.
I remind the majority Mr. Connick is contesting not only his North Carolina convictions, but his Texas convictions as well. Connick’s pro se “Motion to Amend, Motion to Modify Ruling” asserts his Texas convictions were erroneously calculated. Mot. to Amend at 3. He contends the second conviction listed on the presentence investigation report was actually no conviction at all, but rather was a parole revocation relating to his first Texas conviction. Id. Thus he concludes the total offender score for his Texas convictions should be 2 rather than 3. Id. Counsel appointed on Mr. Connick’s behalf was unable to substantiate this claim, Br. of Pet’r at 5; however, it appears the State is willing to concede the point. The State acknowledges the documents70 it received from Texas tend to support Connick’s assertion *469that the latter conviction was actually a parole revocation. Br. of Resp’t at 10 n.5 (citing id. at App. G-4). To mitigate the obvious damage of its concession, the State asserts there is also evidence which suggests Connick has another Texas conviction not listed on the presentence investigation report. Id. At the very least this raises a red flag with respect to the adequacy of the record regarding Connick’s Texas convictions. This inadequacy impedes our ability to resolve the issue on review and requires remand for additional fact finding.
Further at issue are Mr. Connick’s two separate multiple felony convictions in North Carolina. The first is the result of a breaking and entering and larceny that occurred on December 23,1991. The second stems from a breaking and entering and larceny on January 14, 1992.
The gravamen of Mr. Connick’s argument is his breaking and entering and larceny convictions constitute the same criminal conduct for purposes of calculating his offender score, thus his overall offender score based on his North Carolina convictions should have been 3 rather than 5. (Connick also has a third, unrelated, larceny conviction.)
[Wlhenever 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, That 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.400(1)(a). According to Washington law two or more current offenses meet the “same criminal conduct test” if the crimes (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. State v. Garza-Villarreal, 123 Wn.2d 42, 46, 864 P.2d 1378 (1993); RCW 9.94A.400(1)(a).
The majority asserts Connick “has provided nothing in the record before this court to establish any facts relating to his North Carolina convictions such as time, place, circum*470stances of breaking and entering, the nature of the larceny committed, or identification of victims.” Majority at 460. Not so. Connick has provided a copy of his North Carolina “Judgment and Commitment,” which reads in part:
File No.(s) And Offense(s) Date Of Offense
92 CRS 1275 - Larceny 1/7/92
92 CRS 1591 - Break & Enter 12/23/91
92 CRS 1591 - Larceny 12/23/91
92 CRS 1592 - Break & Enter 1/14/92
92 CRS 1592 - Larceny 1/14/92
Pet’r’s Br., App. A.
The breaking and entering and larceny convictions clearly occurred on the same day (on two separate occasions). One may also infer from the record each set occurred at the same place and involved the same victim. Just as the “Judgment and Commitment” lists three different dates on which Connick committed offenses, it lists three different aggrieved parties affected by the crimes:
Mark Locklear - Railroad St., Box 47, St. Pauls, N.C. 28384
Larry Chavis, Rt. 1, Box 61-H, Cousins M.H.P., Shannon, N.C. 28386
Lisa Locklear - Rt. 1, Box 61-H, Cousins M.H.P., Shannon, N.C. 28386
Pet’r’s Br., App. A.
There is at least a reasonable inference that each date of criminal activity coincides with one of the aggrieved parties: Mark Locklear was the victim of a larceny on January 7, 1992; Larry Chavis was the victim of a breaking and entering and larceny on December 23, 1991; and Lisa Locklear was similarly victimized on January 14, 1992. Connick’s North Carolina plea agreement also indicates his breaking and entering and larceny convictions occurred at the same time and place. He pleaded guilty to two counts of *471breaking, entering, and larceny and to one additional count of felonious larceny.
Thus the remaining question is whether the crimes of breaking and entering and larceny involve the same criminal intent. We established the test for determining whether crimes constitute the same criminal conduct in State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987). Trial courts are to “focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next.” Dunaway, 109 Wn.2d at 215. Connick asserts his objective intent did not change from the breaking and entering to the larceny. Rather, he broke in to steal.
The majority here asserts, “One might logically conclude that a person charged with the offense of breaking and entering may have broken into and entered a building with intent to commit a larceny.” Majority at 460. Nevertheless the majority opines such a conclusion is not logical in this case “because of the paucity of facts.” Id. at 460.
However in North Carolina the elements of felonious breaking or entering include: (1) breaking or entering a building (2) with the intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54. Thus under North Carolina law not only is it logical to assume the defendant broke and entered with the intent to commit a larceny, but in some cases it is a necessary element of the crime itself.
I believe Connick has prima facie established his North Carolina convictions for breaking and entering and larceny arose from the same criminal conduct and therefore should have been counted only once in calculating his prior offender score. If this conclusion is subject to reasonable doubt I would remand to determine further facts. Otherwise remand for resentencing is appropriate.
One in particular is a notarized letter from the Texas Department of Criminal Justice State Classification Committee.