NO. 35629-9-III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DAREN J. MILLER,

Appellant.

APPELLANT’S BRIEF

Kristen V. Murray, WSBA No. 36008

Attorney for Appellant

HART JARVIS MURRAY CHANG PLLC

155 NE 100th Street, Ste. 210

Seattle, WA 98125

(206) 735-7474

kmurray@hjmc-law.com

TABLE OF CONTENTS

I.	INTRODUCTION	1

II.	ASSIGNMENTS OF ERROR	1

III.	ISSUES PRESENTED	2

IV.	STATEMENT OF THE CASE	2

V.	ARGUMENT	8

A. The trial court miscaluculated Mr. Miller's offender score………8

B. The trial court exceeding its statutory authority by imposing several conditions of community custody that were not crime-related…..…………………………………………………………...13

VI.	CONCLUSION	15

TABLE OF AUTHORITIES

Cases:

In re the Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002)…………………………………………………………………...8, 9

In re Personal Restraint of Williams, 111 Wn.2d 353, 759 P.2d 436 (1988)……………………………………………………………………...9

State v. Ammons, 105 Wn.2d 175, 713 P.2d 719 (1986)………….............8

State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007)…………………8

State v. Blackwell, 120 Wash.2d 822, 845 P.2d 1017 (1993)……………13

State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975)………...........10

State v. Cabrera, 73 Wn. App. 165, 868 P.2d 179 (1994)………………...9

State v. Davis, 3 Wn. App.2d 763, 418 P.3d 199 (2018)………………...11

State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999)…….…………8, 9, 10

State v. Irwin, 191 Wn. App. 644, 364 P.3d 830 (2015)…………………13

State v. Johnson, 180 Wn. App. 318, 327 P.3d 704 (2014)………….13, 14

State v. Munoz-Rivera, 190 Wn. App. 870, 361 P.3d 182 (2015)……….13

State v. Runquist, 79 Wn. App. 786, 905 P.2d 922 (1995)………………13

State v. Thiefault, 160 Wash. 2d 409, 158 P.3d 580, 583 (2007) .........…12

State v. Thomas, 135 Wn. App. 474, 144 P.3d 1178 (2006)………..........11

State v. Wilson, 170 Wn.2d 682, 244 P.3d 950 (2010)………………........8

Statutes:

RCW 9.94A.030………………………………………………………….13

RCW 9.94A.500……………………………………………………...10, 12

RCW 9.94A.505………………………………………………………….13

RCW 9.94A.525 …….………………………………………………….…9

RCW 9.94A.703………………………………………………………….13

RCW 9A.36.021……………………………………………………….…..2

RCW10.99.020............................................................................................2

INTRODUCTION

Mr. Miller was found guilty after trial of assault in the second degree against a household member. At sentencing, the State argued Mr. Miller’s criminal history included multiple felony convictions from California. RP II 46. While the State presented some documentation regarding those out-of-state convictions, the trial court did not conduct a comparability analysis to determine whether those convictions could properly be included in Mr. Miller’s offender score. Additionally, the court ordered Mr. Miller not use alcohol or marijuana and to obtain a substance abuse evaluation as conditions of his community custody. However, these conditions were not crime-related because there was no evidence before the court indicating chemical dependency or substance use contributed to the offense.

ASSIGNMENTS OF ERROR

A.	At sentencing, the trial court miscalculated Mr. Miller’s offender score by including out-of-state convictions from California without first conducting a comparability analysis.

B.	The trial court exceeded its statutory authority by imposing conditions of community custody that were not crime-related.

ISSUES PRESENTED

A.	Was Mr. Miller’s offender score properly calculated? Did the trial court err when it included California convictions as part of Mr. Miller’s offender score at sentencing? Was the trial court required to conduct a comparability analysis prior to including out-of-state convictions in the offender score? Should the sentence be vacated and the matter remanded for re-sentencing?

B.	Did the trial court exceed its statutory authority when prohibiting Mr. Miller from the use and possession of alcohol and marijuana as conditions of his community custody? Did the court have authority to order Mr. Miller to undergo a substance abuse evaluation as part of his sentence? Were these conditions “crime-related”?

STATEMENT OF THE CASE

Mr. Miller was found guilty after trial of one count of assault in the second degree against a household member in violation of RCW 9A.36.021 and 10.99.020(3). CP 220; 236-250. During trial, the State presented the testimony of several witnesses including Monica Jones. Ms. Jones testified Mr. Miller was her boyfriend and they lived together. RP I 246; 247-248. Mr. Miller had medical issues and qualified for in-home care. RP I 247. Ms. Jones was a certified nursing assistance and provided his in-home care. RP I 247-248.

Mr. Miller was prescribed medications for his medical condition including hydrocodone. RP 252. He took his medications independently. RP I 253. “He would be in pain but he would take his own medications.” Id. Ms. Jones added, “Sometimes not properly or as prescribed.” Id.

On August 26, 2016, Ms. Jones was home with Mr. Miller during the day. RP I 254. Mr. Miller did not seem like he felt well and spent much of the day in bed. RP I 254-55. Ms. Jones testified Mr. Miller seemed angry and got worse throughout the day. RP I 255. According to Ms. Jones, an argument ensued between the two that night. RP I 256-260. During the argument, Mr. Miller hit Ms. Jones repeatedly, sprayed her with mace, strangled her and pulled her hair out. RP I 260-164.

Mr. Miller disputed Ms. Jones’s version of events and testified that he hit Ms. Jones in self-defense. RP I 418-421. He denied ever putting his hands on her throat or strangling her. RP I 424. He testified he did not pull her hair out deliberately. Her hair was pulled out during the struggle. RP I 425.

A sentencing hearing was originally held on September 29, 2017. RP II 41. At that hearing, the State argued Mr. Miller had several prior felony convictions from California. RP II 45-46. Mr. Miller contested the criminal history presented by the State. RP II 51-52. “In fact, I’m gonna contest them all. I’d like to see all certified transcripts or all certified judgments on these. I’d like to contest them all and the one in 2007 there, that one there is a civil commitment.” RP II 51. The hearing was then continued to allow the parties and the court more time to review certified records of the prior convictions. RP II 71. “[B]ased upon your request for certified records, I am going to order that Mr. Zeller go through those so that they match up with the criminal history that has been provided.” Id.

The case was heard again on October 4, 2017. RP II 2. The trial court asked defense counsel whether the certified records provided by the State “suffice for today’s purposes to move forward with sentencing.” RP II 2. Defense counsel responded:

I believe that the issue is not whether or not that criminal history is there, I think the issue is whether or not some are same course of conduct . . . I think we’re saying these are here, but he believes that a couple of them might be same course of conduct, and that one of them was more a civil commitment rather than a felony conviction.

Id. The trial court then proceeded with sentencing. “[B]ased upon the fact . . . the stipulated records appear to be acceptable, I will move forward with regards to this matter.” RP II 3.

Defense counsel argued two of the prior convictions constituted same criminal conduct. RP II 4. “[T]he burglary from 1999 and then right under that a conspiracy grand theft from 1999. Both of those are on the [sic] same.” Id. Defense also argued that the receiving stolen property conviction from 2007 should not count as a prior felony conviction. RP II 5. “Mr. Miller believes that that is more akin to a civil commitment, a civil order, as opposed to a criminal conviction, and therefore not counting as a point[.]” Id. After hearing argument from both parties on the criminal history, the trial court made the following determination:

Under these circumstances based upon what I have looked at, I am going to call them same course of conduct and count that as 1 point versus 2. And then in addition to that, I did spend some time going through the CRC issue because that was something that Mr. Miller had brought up on Friday. So in reviewing those records, it appears as if he was initially sent to the drug program. The term was a six-year term. He was not able to finish that and finished it in prison, so I am going to call that a point, and a felony conviction that we’re dealing with here. So by my totaling of all that, it puts him at a 9 plus. So from that aspect we’ve got the 9 plus we’re dealing with for sentencing purposes.

RP II 8-9. The Felony Judgment and Sentence listed Mr. Miller’s offender score as “9”. CP 236-250.

A document entitled “Understanding of Defendant’s Criminal History” was filed as part of the sentencing record and listed eleven prior convictions from the State of California. CP 227-228. The same criminal history was listed in section 2.2 of the Felony Judgment and Sentence. CP 236-250. The “Understanding of Defendant’s Criminal History” contained the following provision:

1.5	Defendant’s understanding and agreement that his/her criminal history is set forth above in this document. Defendant affirmatively agrees that the State has proven, by a preponderance of the evidence, defendant’s prior convictions and stipulates without objection, by his/her signature below, unless a specific objection is otherwise stated in writing within this document – UNDERSTANDING OF DEFENDANT’S CRIMINAL HISTORY, each of the listed criminal convictions contained within this document count in the computation of the offender score and sentencing range and that any out-of-state or foreign conviction(s) is the equivalent of a Washington State criminal felony offense and conviction for the purposes of computation of the resultant offender score and sentencing range. The defendant further stipulates and agrees he/she has read or has had the contents of the document read to him/her and he/she understands and agrees with the entirety of the contents of this document.

CP 228. The space for “defendant’s initials” was left blank. Id. The prosecuting attorney and defense counsel both signed the document. Id. Mr. Miller did not sign the document. Id.

Once the court concluded argument with respect to Mr. Miller’s offender score, the parties proceeded with their respective sentencing recommendations. RP II 9. As part of its recommendation, the State requested the court impose several conditions of community custody including a substance abuse evaluation, a prohibition on the use of alcohol or marijuana, a domestic violence assessment, and a mental health evaluation. RP II 10-11 The State argued Mr. Miller had a prior substance abuse issue based on treatment being ordered in the prior conviction from California. RP II 10.

It sounds like, at least at some point, he had a substance abuse issue, and that looks to be why the CRC was originally made available. I’m not sure today what all of his issues are, whether it’s controlled substances, prescription issues. I know obviously from his own testimony, that he has significant medical issues in his own mind that need to be addressed and cause him several issues.

RP II 10. The State further argued, “[T]he only reason I’m recommending the substance abuse is trying to figure out . . . what some of his issues are and if they involve prescription drugs or not. I don’t know, but I think that should be explored.” RP II 10-11. The defense objected and argued there was no evidence presented that drugs or alcohol contributed to the offense. RP II 13-14.

So probably at some point in his distant past he did have maybe an addiction issue or something that was leading to that. Certainly he doesn’t now. I don’t think drugs or alcohol were really ever testified to during the trial as playing a role in Mr. Miller’s part of what happened here, so I don’t think it would be appropriate to find the drugs or alcohol contributed to the current offense. And I disagree that he needs any sort of alcohol monitoring or treatment[.]

Id.

The trial court followed the State’s recommendation and ordered a substance abuse evaluation as a condition of Mr. Miller’s community custody. “[B]ased upon what you have testified to with regards to your prescription pain medication, I am going to recommend and impose a drug and alcohol evaluation with any treatment that may apply. It may not, I don’t know.” RP II 24-25. The trial court further ordered that he not possess any alcohol. RP II 25.

The notice of appeal was filed on October 5, 2017. CP 251-252. A motion and supporting declaration to seek appellate review at public expense was presented to the trial court. CP 253-256. The order of indigency was signed on October 9, 2017. CP 257-258.

ARGUMENT AND AUTHORITIES

The trial court miscalculated Mr. Miller’s offender score.

A trial court’s sentencing authority derives directly from statute. State v. Ammons, 105 Wn.2d 175, 180-81, 713 P.2d 719 (1986). A sentencing court’s calculation of an offender score is reviewed de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). “[I]llegal or erroneous sentences may be challenged for the first time on appeal.” State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999); In re the Personal Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). “[A] defendant cannot waive a challenge to a miscalculated offender score.” State v. Wilson, 170 Wn.2d 682, 688, 244 P.3d 950 (2010). A sentence “based on an improperly calculated score lack[s] statutory authority” and “cannot stand.” Id. Such a sentence “is a fundamental defect that inherently results in a miscarriage of justice.” Id. at 688-89 (quoting In re the Personal Restraint of Goodwin, 146 Wn.2d at 867-68).

RCW 9.94A.525 provides the framework for calculation of an offender score. Out-of-state convictions “shall be classified according to the comparable offense definitions and sentences provided by Washington law.” RCW 9.94A.525(3) (Emphasis added). This is a mandatory step in the sentencing process. “Determinations regarding the severity of criminal sanctions are not to be rendered in a cursory fashion.” State v. Ford, 137 Wn.2d 472, 484, 973 P.2d 452 (1999).

In order for an out-of-state conviction to be included in an offender score, the State must prove the conviction would be a felony under Washington law. State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994). The burden is placed on the State because it is “inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove.” In re Personal Restraint of Williams, 111 Wn.2d 353, 357, 759 P.2d 436 (1988). The sentencing court must ultimately determine the existence of the convictions.

If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record.

RCW 9.94A.500. Washington courts have long held that facts relied upon by sentencing courts must “have some basis in the record.” State v. Ford, 137 Wn.2d 472, 482, 973 P.2d 452 (1999) (quoting State v. Bresolin, 13 Wn. App. 386, 396, 534 P.2d 1394 (1975)).

Here, the trial court did not engage in any sort of comparability analysis before concluding that Mr. Miller’s California convictions would be classified as felony convictions under Washington law and, therefore, be included in his offender score. Though defense counsel did not specifically argue against inclusion of the California convictions in the offender score, Mr. Miller clearly objected. RP II 51. Additionally, from the record, it is not even clear which of the California convictions the trial court included in Mr. Miller’s offender score. The court simply indicated, “So by my totaling of all that, it puts him at a 9 plus.” RP II 9.

The State presented documentation for eleven California convictions. However, there was no clear argument made by the State as to which convictions it believed should be included in the offender score. At the initial hearing on September 29, 2017, the State agreed the older California convictions from 1981 and 1983 would wash. RP II 45. However, at the sentencing hearing on October 4, 2017, no mention was made as to whether these convictions should be included in Mr. Miller’s offender score. All of the convictions were listed on the Felony Judgment and Sentence in section 2.2. CP 236-250. Additionally, at the hearing held on September 29, 2017, the State agreed to calculate the 2011 California assault conviction as a “felony assault but not a violent offense because of equivalency issues.” RP II 46. At the sentencing hearing on October 4, 2017, no mention was made as to how this conviction would be counted in Mr. Miller’s offender score.

Further, the documentation provided to the court for Mr. Miller’s out-of-state convictions is insufficient to prove the offenses would be classified as felony offenses in Washington at the very least for the three burglary convictions included in Mr. Miller’s criminal history. Washington courts have held that California burglary convictions are not legally comparable to a Washington felony. State v. Thomas, 135 Wn. App. 474, 483, 144 P.3d 1178 (2006); State v. Davis, 3 Wn. App.2d 763, 772-773, 418 P.3d 199 (2018). Washington employs a two-part test to determine comparability of an out-of-state conviction.

A court must first query whether the foreign offense is legally comparable—that is, whether the elements of the foreign offense are substantially similar to the elements of the Washington offense. If the elements of the foreign offense are broader than the Washington counterpart, the sentencing court must then determine whether the offense is factually comparable—that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute.

State v. Thiefault, 160 Wash. 2d 409, 415, 158 P.3d 580, 583 (2007). The State provided an “Abstract of Judgment” for the three burglary convictions. No other information was provided for these offenses. Because the documentation provided by the State only included abstracts of judgments and none of the underlying facts of the conviction, the sentencing court could not have determined whether the California burglary convictions were factually comparable.

The trial court did not make sufficient findings as to the criminal history it relied upon as required by RCW 9.94A.500 thereby undermining the offender score calculation used to impose Mr. Miller’s sentence. An incorrect calculation of the offender score is a fundamental defect in the sentence. Consequently, remand for resentencing is required for the trial court to engage in comparability analysis before any of the California convictions can be included in the offender score.

The trial court exceeded its statutory authority by imposing conditions of community custody that were not crime-related.

Trial courts have statutory power to impose “crime related prohibitions and affirmative conditions” as part of a sentence. RCW 9.94A.505(9); RCW 9.94A.703. “Any condition imposed in excess of this statutory grant of power is void.” State v. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704 (2014). Sentencing conditions are reviewed for abuse of discretion. State v. Munoz-Rivera, 190 Wn. App. 870, 890, 361 P.3d 182 (2015). A court abuses its discretion when it bases its decision on untenable grounds or acts for an untenable reason. State v. Runquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995) (citing State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993)). The factual basis for the crime-related condition is reviewed under the “substantial evidence” standard. State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015).

As part of a term of community custody, a trial court may order a defendant to participate in crime-related treatment and comply with any crime-related prohibitions. RCW 9.94A.703(3). What constitutes a “crime-related prohibition” is specifically defined by statute. “‘Crime-related prohibition’ means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted[.]” RCW 9.94A.030(10). To impose a “crime-related prohibition”, there must be a nexus between the crime convicted and the community custody condition. Without the requisite nexus, the trial court exceeds its statutory sentencing powers and the condition must be stricken. State v. Johnson, 180 Wn. App. 318, 330, 327 P.3d 704 (2014).

Here, the sentencing court ordered that Mr. Miller consume no alcohol, not use or possess marijuana or products containing THC and undergo a substance abuse evaluation. CP 236-250; RP II 24-25. There was no evidence presented either during the trial or at sentencing that drug or alcohol use contributed to the crime for which Mr. Miller was convicted. To the contrary, the evidence at trial was that Mr. Miller was in pain on the day of the incident because he could not find his prescribed pain medications. RP I 254-55; RP I 288; RP I 292; RP I 386-409. The trial court did not make the requisite findings concerning a nexus between drug and alcohol use and the crime for which Mr. Miller was convicted. Rather, the court simply stated:

[B]ased upon what you have testified to with regards to your prescription pain medication, I am going to recommend and impose a drug and alcohol evaluation with any treatment that may apply. It may not, I don’t know.

RP II 24-25. Because there was no nexus between alcohol or drug use and the crime for which Mr. Miller was convicted, the trial court lacked statutory authority to impose the conditions. Accordingly, the conditions should be stricken.

CONCLUSION

Mr. Miller’s sentence should be vacated and a new sentencing hearing held for proper calculation of his offender score. Additionally, the conditions of community custody that are not crime-related should be stricken.

Respectfully submitted this 28th day of September, 2018.

_____________________________

Kristen V. Murray, WSBA# 36008

Attorney for Appellant

DECLARATION OF SERVICE

I hereby declare that on September 28, 2018, I filed the Appellant’s Brief via Electronic Filing for the Court of Appeals for Division III and delivered via E-mail the same to:

Brian O’Brian

Spokane County Prosecuting Attorney

1100 W. Mallon Avenue

Spokane, WA 99260-2043

bobrian@spokancecounty.org

I further declare that I delivered via United States Postal Service the same to:

Mr. Daren Miller, DOC# 403578

Coyote Ridge Corrections Center

P.O. Box 769

Connell, WA 99326

I declare under penalty of perjury of the laws of the State of Washington that the foregoing is true and correct.

Dated September 28, 2018.

____________________________

Kristen V. Murray, WSBA # 36008

RP I references the transcript of the jury trial held on August 28, 2017 and August 29, 2017. RP II references the transcript of the sentencing hearings held on September 13, 2017, September 29, 2017 and October 4, 2017.

Mr. Miller requested to proceed pro se during this hearing. After a colloquy, his request was denied. RP II 57-71; CP 229-230.

On September 28, 2018, a Supplemental Designation of Clerk’s Papers was filed pursuant to RAP 9.6(a) requesting the Spokane County Superior Court Clerk prepare and transmit a copy of the criminal history documents filed in this case.