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State v. Hernandez

Court of Appeals of Washington, Division 3

February 3, 2015

The State of Washington, Respondent
v.
Enrique Hernandez, Appellant

Appeal from Yakima Superior Court. Docket No: 12-1-01769-2. Judge signing: Honorable David A Elofson. Judgment or order under review. Date filed: 04/03/2013.

David L. Donnan and Gregory C. Link (of Washington Appellate Project ), for appellant.

Joseph A. Brusic, Prosecuting Attorney, and David B. Trefry, Deputy, for respondent.

Authored by Stephen M. Brown. Concurring: Robert E. Lawrence-Berrey, Laurel H. Siddoway.

OPINION

Stephen M. Brown, J.

[185 Wn.App. 682] [¶1]  Enrique Hernandez pleaded guilty to felony driving while under the influence of alcohol (felony DUI) and third degree assault. He appeals his offender score computation and two sentencing conditions. Mr. Hernandez contends the trial court (1) impermissibly considered offenses other than those listed in former RCW 9.94A.525(2)(e) (2011) when calculating his offender score, (2) erred when it imposed a term of confinement and community [185 Wn.App. 683] custody greater than the statutory maximum for third degree assault, and (3) erred when it imposed a term of confinement coupled with a 10-year ignition interlock requirement in excess of the statutory maximum for felony DUI. We disagree with Mr. Hernandez's first contention but agree with his second and third

Page 821

contentions and remand for resentencing in a manner consistent with this opinion.

FACTS

[¶2] The State charged Mr. Hernandez with felony DUI and third degree assault. Before trial, Mr. Hernandez moved the court to declare his offender score. He argued his felony DUI offender score should be 5 while the State believed his offender score was 9. Mr. Hernandez pleaded guilty to the felony DUI and assault charges. The court calculated his offender score for the felony DUI at 9 and his offender score for third degree assault at 8. In calculating the offender score, the court considered the following criminal history: a 1994 juvenile conviction for second degree robbery, a 1998 forgery conviction, a 2001 DUI, physical control convictions in 2003 and 2006, a 2007 DUI, a 2003 second degree malicious mischief conviction, a 2003 conviction for attempt to elude, a 2006 second degree possession of stolen property conviction, and a 2009 felony DUI. The court sentenced Mr. Hernandez to 60 months for the felony DUI and 57 months for third degree assault, with the sentences running concurrently. The court ordered community custody for 12 months after his release and required use of an ignition interlock device for 10 years. Mr. Hernandez appealed.

ANALYSIS

A. Felony DUI Offender Score

[¶3] The issue is whether the trial court incorrectly calculated Mr. Hernandez's offender score for his felony DUI [185 Wn.App. 684] conviction by including all of his prior offenses in that calculation. Mr. Hernandez contends former RCW 9.94A.525(2)(e) limits the prior offenses that can be used in his offender score calculation to felony DUI convictions, misdemeanor DUI convictions, and felony physical control convictions. Thus, he argues, the court should not have included any of his other prior convictions in his offender score calculation, making his maximum offender score 6 instead of 9.

[¶4] Our fundamental objective in statutory interpretation " is to ascertain and carry out the legislature's intent." State v. Martinez Morales, 168 Wn.App. 489, 492, 278 P.3d 668 (2012). A court must give effect to a statute's plain meaning if the meaning is plain on the statute's face. Id. " Such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question." Id. Interpretations rendering any portion of a statute ...


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