(dissenting) — The majority reaches its conclusion only by overturning relevant precedent, State v. Chavez, 52 Wn. App. 796, 764 P.2d 659 (1988), and construing State v. Roberts, 117 Wn.2d 576, 817 P.2d 855 (1991) in a *653manner which actually contradicts Roberts’ holding. As a consequence, the majority undermines a primary purpose of RCW 9.94A.360(6)(c), which is to structure sentencing decisions with consideration of the offender’s history. RCW 9.94A.360(1). The majority offers no convincing reason why its interpretation is preferable to that of the existing case law, and so I must dissent.
In Roberts, we held that for purposes of RCW 9.94A.360(6)(c),1 sentences need not begin and end on the same day to be considered "concurrent”. Roberts, at 586-87. Roberts also promulgated a 3-part test to determine concurrency, except in those situations in which probation was revoked. Roberts, at 586-87. Cases involving "remaining probation time” were excluded from the tripartite test, because rigid application of that test would bring absurd results. "We distinguish our holding from the rule in Chavez for situations in which the latter sentence is set to run concurrently with remainder time reinstated for a probation violation.” (Italics mine.) Roberts, at 587. Roberts did not involve the revocation of probation.
In Chavez the defendant was convicted for unlawful possession of a controlled substance in 1979, and received a deferred sentence of 2 years’ probation. In June and July of 1983 he was convicted on separate charges of delivery of a controlled substance, and had his probation revoked. Concurrent sentences were imposed for the 1983 convictions and the probation revocation. On July 10, 1986, the defendant was again convicted of unlawful delivery of a controlled substance. The court held that, for purposes of the statute, the 1983 court order that the remainder of the defendant’s 1979 sentence be served concurrently with his later convictions did not convert it into a concurrent sentence. The court treated the 1979 conviction as a separate offense, and so avoided the "absurd result” of giving a defendant who failed *654probation on a prior conviction and sentence a lower offender score than one who successfully completed probation. Chavez, at 799.
The majority is simply following the wrong precedent. Roberts does not extend to fact situations like Chavez, which involve revoked probation. To the contrary, we specifically excluded such cases as beyond its proper authority. Roberts, at 587. In those cases where probation has been revoked, and where the later sentence runs concurrently with the reinstated sentence, Chavez is controlling. In all other cases, Roberts’ 3-part test determines concurrency.
The majority acknowledges the State’s contention that the offender scores here were properly calculated pursuant to Chavez. Majority, at 650. In the present case, counting all prior convictions as one brings the "absurd result” of giving a lower offender score to a defendant who had failed probation than to one who successfully completes probation. Sietz’s probation violation and Buchmann’s commission of the crime of second degree burglary for the third time in 3 years, in violation of two probations, hardly deserve to be rewarded with the consolidation of their offenses to count as one. In Buchmann’s case this inequity is particularly egregious since the Defendant had already benefited from a continued deferred sentence after his first violation. A primary purpose of the statute was to ensure that punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history. Chavez, at 799 (citing RCW 9.94A.010; State v. Jones, 110 Wn.2d 74, 750 P.2d 620 (1988)). The majority’s decision downplays the significance of criminal history. The factual similarity of the present case to Chavez, coupled with Roberts’ specific exclusion of such situations, mandates that there can be no other reasonable choice but to follow Chavez.
To overrule Chavez, the majority contrives an artificial conflict with Roberts. In creating this impression, the majority diminishes Roberts, effectively equating it solely with its tripartite test, and ignoring its contextual qualifications. The test itself is inaccurately described as absolutely *655determinative of concurrency, despite Roberts’ stipulation that Chavez and its kind were outside its purview. Roberts, at 587. When we decided Roberts, we found no conflict with Chavez, so it is perplexing that the two cases should now be considered incompatible. Viewed within the proper context, and respecting the exception to the test, Roberts and Chavez are compatible and complementary.
Nor am I persuaded by the majority’s claim of "reliance” on ambiguous statutory language, and its misuse of the rule of lenity. There is no support for the majority’s conclusion that the Legislature shared its interpretation of "concurrent sentence”, or else would have specifically defined it otherwise. Majority, at 651. The very ambiguity of the term "concurrent” precipitated this case. The argument depends upon the initial acceptance of the meaning that the majority gives to the statute, an interpretation which is itself at odds with precedent. Additionally, instead of using the rule of lenity to resolve the statutory ambiguity in favor of the Defendants, the majority uses the rule to effectively overrule stare decisis. Majority, at 651-52. "The rule of lenity does not require us to reject an 'available and sensible’ interpretation in favor of a 'fanciful or perverse’ one, and we decline to do so.” State v. McGee, 122 Wn.2d 783, 789, 864 P.2d 912 (1993) (citing Commonwealth v. Tata, 28 Mass. App. Ct. 23, 25-26, 545 N.E.2d 1179 (1989), review denied, 406 Mass. 1103 (1990)). Roberts and Chavez in conjunction provide a sensible and workable interpretation of "concurrence”.
Since the previous case law has already satisfactorily addressed the issues before us, I see no persuasive reason to depart from precedent. Therefore, I dissent.
Andersen, C.J., and Brachtenbach, J., concur with Durham, J.
RCW 9.94A.360(6)(c) governs whether multiple convictions committed before July 1, 1986, are counted separately or are consolidated to count as one in the calculation of an offender score. The section provides that adult convictions should be counted separately unless they are "served concurrently”.