Appeal from Clark Superior Court. Docket No: 12-1-02039-6. Judge signing: Honorable Daniel L Stahnke. Judgment or order under review. Date filed: 12/21/2012.
Casey Grannis (of Nielsen Broman & Koch PLLC ), for appellant.
Anthony F. Golik, Prosecuting Attorney, and Anne M. Cruser, Deputy, for respondent.
Authored by Linda CJ Lee. Concurring: J. Robin Hunt, Bradley A. Maxa.
[183 Wn.App. 949] Lee,
¶ 1 Angela Marie Rodriguez appeals two domestic violence (DV) violation of a no-contact order [183 Wn.App. 950] (VNCO) sentences. She argues that the trial court improperly calculated her offender score for the felony DV-VNCO by counting her concurrent gross misdemeanor DV-VNCO conviction as one point under the repetitive domestic violence provision of the Sentencing Reform Act of 1981 (SRA). She also challenges the length of the suspended sentence, community custody, and no-contact order imposed on her gross misdemeanor DV-VNCO conviction. The State concedes these alleged errors.
¶ 2 We accept the State's concession of error regarding the length of Rodriguez's suspended gross misdemeanor sentence, community custody, and no-contact order. However, we reject the State's concession of error regarding the calculation of her offender score on the felony DV-VNCO. Accordingly, we affirm the trial court's offender score calculation and sentence for the felony DV-VNCO conviction. We reverse the sentence for the gross misdemeanor DV-VNCO conviction and remand to the trial court to resentence Rodriguez on the gross misdemeanor DV-VNCO by correcting the length of the suspended sentence, community custody, and no-contact order.
¶ 3 On November 13, 2012, the State charged Rodriguez with one count of felony DV-VNCO and one count of gross misdemeanor DV-VNCO. These charges resulted from the same incident, but involved different victims. Rodriguez pleaded guilty to both charges on December 14, 2012.
¶ 4 Rodriguez was sentenced on December 21, 2012. For purposes of calculating Rodriguez's offender score for the felony DV-VNCO, the trial court determined that Rodriguez's [183 Wn.App. 951] gross misdemeanor DV-VNCO would be considered a " prior conviction" and, thus, calculated her offender score as 1 rather than 0. Based on an offender score of 1, the trial court sentenced Rodriguez to 14 months' total confinement and 12 months of community custody on the felony DV-VNCO conviction. On the gross misdemeanor DV-VNCO conviction, the trial court sentenced Rodriguez to 364 days' confinement with 50 days of credit for time served, and suspended the remaining 314 days for 60 months on community custody. Rodriguez's community custody provisions on the suspended sentence included a 60 month no-contact order with the victim. Rodriguez appeals the calculation of her offender score on the felony DV-VNCO conviction and the length of her suspended sentence, community custody, and no-contact order on her gross misdemeanor DV-VNCO conviction.
A. Felony DV-VNCO Offender Score
¶ 5 Rodriguez first argues that the trial court miscalculated her offender score on the felony DV-VNCO sentence by counting her gross misdemeanor DV-VNCO conviction as a prior conviction under RCW 9.94A.525(21)(c) of the SRA. Rodriguez asserts that under RCW 9.94A.525(21)(c), a gross misdemeanor or misdemeanor DV conviction may be included in an offender score only if it (1) was committed prior to (temporally before) the felony being sentenced and (2) is repetitive (part of a pattern). We disagree. Interpreting RCW 9.94A.525(21)(c) together with related statutes shows that the legislature intended to have a gross misdemeanor DV conviction count as one point in the offender score for a felony DV conviction even if ...