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In re Griffin

October 21, 1996

IN THE MATTER OF THE PERSONAL RESTRAINT OF: LADARR GRIFFIN, A/K/A MORRIS E. HOLMES, PETITIONER.


Date first document (petition, etc) was filed in Court of Appeals: 02/14/96.

PER CURIAM. -- Petitioner LaDarr Griffin is seeking collateral review of the judgment and sentence entered following his convictions of one count of second degree attempted robbery and one count of first degree robbery.

He contends the sentencing court miscalculated his offender score. To prevail here, petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a "complete miscarriage of Justice." In re Cook, 114 Wash. 2d 802, 803, 792 P.2d 506 (1990); In re Hews, 99 Wash. 2d 80, 88, 660 P.2d 263 (1983). Bare assertions and conclusory allegations are not sufficient to command judicial consideration and Discussion in a personal restraint proceeding. In re Rice, 118 Wash. 2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 121 L. Ed. 2d 344, 113 S. Ct. 421 (1992).

Petitioner claims the trial court improperly relied on several out-of-state convictions in setting his offender score and in establishing the standard range sentence for his two robbery convictions. The State of Washington concedes the court erred in computing petitioner's offender score. We accept the State's concession of error. The record shows that a dismissed California conviction of robbery under No. A763327 was improperly used by the sentencing court in setting petitioner's offender score at 10.

"It is axiomatic that a sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score." State v. Roche, 75 Wash. App. 500, 513, 878 P.2d 497 (1994). Because the court did not use the correct offender score or correct standard range when it sentenced petitioner, the matter must be remanded to the trial court for resentencing. We therefore need not decide whether petitioner's current offender score is also subject to attack on additional grounds. Counsel should be appointed to represent petitioner in the new sentencing proceeding.

We vacate the portion of the judgment and sentence that establishes the length of the sentences imposed and remand the matter to King County Superior Court for resentencing.

In all other respects, the judgment of conviction remains in effect.

19961021 ...


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