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In re Proctor

November 18, 1996

IN THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: BRADLEY D. PROCTOR, PETITIONER.


Date first document (petition, etc) was filed in Court of Appeals: 07/25/96.

PER CURIAM. -- Petitioner Bradley Proctor is seeking collateral review of the judgment and sentence entered following his conviction 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).

Proctor claims the trial court improperly relied on certain information in setting his offender score at 6 and in establishing the standard range sentence for his robbery conviction at 77 to 102 months. The State of Washington in its written response to the petition "agrees with [Proctor's] calculation of his offender score as 5." *fn1 We accept the State's concession of error. The offender score was incorrectly calculated at 6 because, as the State indicated in its response, Proctor "was falsely believed to have been on Community Placement at the time of the commission of the instant offense." *fn2 "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 determined that Proctor should be punished by serving a determinate sentence of 102 months, the matter must be remanded to the trial court for resentencing. We therefore need not decide whether Proctor's current offender score is also subject to attack on additional grounds. Counsel should be appointed to represent Proctor in the new sentencing proceeding.

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

In all other respects, the judgment of conviction ...


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