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In re Smith

December 16, 1996

IN THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: ROBERT S. SMITH, PETITIONER.


Date first document (petition, etc) was filed in Court of Appeals: 07/01/96.

PER CURIAM. Petitioner Robert Smith has filed a personal restraint petition, contending that the sentences imposed on his convictions of one count of burglary and four counts of forgery in Snohomish County Cause Nos. 95-1-00499-1 and 95-1-00763-0 were based on incorrectly calculated offender scores. To prevail here, Smith 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).

Smith contends the Snohomish County court miscalculated his offender score by including a prior California assault conviction as part of his criminal history. He argues the California conviction would be classified as a misdemeanor in Washington and therefore should not have been counted in calculating his offender score for the Snohomish County convictions.

The State of Washington in its written response to the petition concedes that Smith's California conviction should not have been used in setting his offender score for the burglary and forgery offenses, but argues that he is estopped from challenging those scores. Because Smith pleaded guilty to the offenses charged with knowledge that the State had included the California assault conviction in its offender score calculation, the State asserts the doctrine of estoppel bars consideration of the sentencing issue.

For the doctrine of equitable estoppel to apply, the State must establish:

(1) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement or act; (3) injury to such other party resulting from permitting the first party to contradict or repudiate such admission, statement, or act.

Farm Crop Energy, Inc. v. Old Nat'l Bank, 38 Wash. App. 50, 53, 685 P.2d 1097 (1984) quoting Wilson v. Westinghouse Elec. Corp., 85 Wash. 2d 78, 81, 530 P.2d 298 (1975). "The party alleging estoppel must prove all elements."

Department of Ecology v. Adsit, 103 Wash. 2d 698, 703, 694 P.2d 1065 (1985).

Even assuming the doctrine of estoppel can apply in these circumstances, *fn1 the State has not shown that it detrimentally relied on Smith's "admissions" that his California assault conviction counted for scoring purposes. The State simply alleges that it "might" have done things differently had it known that Smith's offender scores were calculated incorrectly. These conclusory allegations are not, however, sufficient to demonstrate that the State would not have entered into the plea agreement with Smith if it had known the offender scores were incorrectly calculated.

See, Kirk v. Moe, 114 Wash. 2d 550, 557, 789 P.2d 84 (1990). Thus, Smith is not estopped from challenging the offender scores.

"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 sentencing court in this case did not use the correct offender scores or correct standard ranges when it imposed sentences at the high end of the standard range on Smith's burglary and forgery convictions, the matter must be remanded to the court for resentencing. Counsel should be appointed to represent Smith in the new sentencing proceeding.

We vacate the portion of the judgments and sentences in Cause Nos. 95-1-00499-1 and 95-1-00763-0 that establish the length of the sentences imposed and remand the matter to Snohomish County Superior Court for resentencing.

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


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