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In re Hodge

October 8, 1996

IN THE MATTER OF THE APPLICATION FOR RELIEF FROM PERSONAL RESTRAINT OF JOHN HODGE, PETITIONER.


Appeal from Superior Court of Yakima County. Docket No; 95-1-00416-0. Date first document (petition, etc) was filed in Court of Appeals: 05/21/96.

PER CURIAM John Hodge seeks relief from personal restraint imposed following his guilty plea to second degree assault of a child. He contends the sentencing court miscalculated his offender score.

Mr. Hodge states the judgment correctly reflects his prior criminal history. On May 21, 1984, he was sentenced for second degree burglary occurring on November 3, 1983. Also on May 21, 1984, he was sentenced to 120 days for third degree assault, occurring on January 17, 1984. He asserts the court ordered these sentences to be served concurrently. His offender score for the current offense, counting all his prior felonies as one point each, was six. The standard range for second degree assault of a child with an offender score of six is 77 to 102 months. The court sentenced him to 99 months. The State does not dispute the above facts.

Mr. Hodge contends his prior second degree burglary and third degree assault convictions count only one point, not two points. He cites former RCW 9.94A.360(6), *fn1 which stated: "In the case of multiple prior convictions, . . . count all convictions separately, except: . . . (c) In the case of multiple prior convictions for offenses committed before July 1, 1986 . . . count all adult convictions served concurrently as one offense . . . ." (Emphasis added.) In any event, he contends his third degree assault conviction "washed out," pursuant to subsection (2) of the same statute. Former RCW 9.94A.360(2) *fn2 provided in part:

Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) . . . the offender had spent five consecutive years in the community without being convicted of any felonies. Mr. Hodge declares he was released on the prior burglary and assault convictions in July 1984 and was not convicted of a felony until 1991. The State does not dispute these assertions.

The above quoted subsections of RCW 9.94A.360 apply here. We therefore hold the sentencing court erred when it increased Mr. Hodge's offender score by two for the second degree burglary and the third degree assault. Mr. Hodge's correct offender score is five, which makes his standard range for second degree assault of a child 57 to 75 months. His case is remanded to the superior court for resentencing, using the correct standard range. See In re Sietz, 124 Wash. 2d 645, 652, 880 P.2d 34 (1994).

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for ...


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