State Of Washington, V Shawn N. Salters ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
January 19, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47147-7-II
Respondent,
v.
SHAWN N. SALTERS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Shawn N. Salters was convicted of unlawful possession of a controlled substance
and third degree theft. On appeal, he challenges the calculation of his offender score, the
imposition of a community custody condition, the imposition of discretionary legal financial
obligations, and argues that his attorney was deficient for failing to object to the calculation of his
offender score. The State concedes all of the sentencing errors. We accept the State’s concessions,
vacate Salters’ sentence, and remand for resentencing.1
FACTS
On September 25, 2014, the Shelton Police Department arrested Salters on suspicion of
shoplifting in Mason County. During the search incident to arrest, the police discovered
methamphetamine in Salters’ pants pocket. Salters was charged and convicted of unlawful
1
Because we vacate Salters’ sentence and remand for resentencing, we decline to consider Salters’
claim that he received ineffective assistance of counsel at sentencing.
No. 47147-7-II
possession of a controlled substance2 and third degree theft.3 None of the facts are in dispute, and
Salters does not challenge his convictions on appeal.
At sentencing, the court relied on the prosecution’s oral recitation of Salters’ criminal
history in determining that Salters’ offender score was 7. Salters did not object, despite no other
evidence of his prior convictions being submitted. As part of Salters’ conditions of community
custody, the sentencing court required that, “The defendant shall not go into bars, taverns, lounges,
or other places whose primary business is the sale of liquor.” Clerk’s Papers (CP) at 33. The
sentencing court also imposed discretionary legal financial obligations (LFOs) without first
conducting an individualized inquiry into Salter’s ability to pay on the record.
On appeal, Salters argues: (1) the sentencing court erred in calculating his offender score
and sentencing range; (2) the sentencing court erred in imposing a community custody condition
prohibiting him from entering places whose primary business is the sale of alcohol; (3) the
sentencing court erred in its imposition of discretionary LFOs; and (4) he received ineffective
assistance of counsel when his attorney did not object to the sentencing court’s calculation of his
offender score. The State concedes that resentencing is necessary because (1) of errors in proving
Salters’ offender score, (2) there was no basis to impose the challenged community custody
condition, and (3) the court did not consider Salters’ ability to pay discretionary LFOs.
We accept the State’s concessions and remand for resentencing.
2
RCW 69.50.4013(1).
3
RCW 9A.56.050.
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No. 47147-7-II
ANALYSIS
A. OFFENDER SCORE CALCULATION
Salters argues that the sentencing court erred in calculating his offender score and
sentencing range. The State concedes this challenge, and we agree.
Following a conviction, the sentencing court considers a defendant’s offender score, which
is calculated based on the defendant’s current offenses and prior convictions. RCW 9.94A.525,
.530(1). Challenges to offender score calculations may be raised for the first time on appeal. State
v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994). “We review a sentencing court’s calculation
of an offender score de novo.” State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
In order to establish a defendant's criminal history for sentencing purposes, the State must
prove a defendant’s prior convictions by a preponderance of the evidence. RCW 9.94A.500(1);
State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). The best evidence of a prior
conviction is a certified copy of the judgment, but the State also may produce other comparable
documents or transcripts from prior hearings to prove prior convictions. Hunley, 175 Wn.2d at
910. In addition, the State can meet its burden if the defendant affirmatively acknowledges the
criminal history on the record. Id. at 909. However, the “mere failure to object to State assertions
of criminal history at sentencing does not result in an acknowledgement.” Id. at 912.
Here, the State did not prove Salters’ offender score by a preponderance of evidence. The
only evidence submitted was the prosecutor’s unsupported oral recitation, and Salters did not
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No. 47147-7-II
affirmatively acknowledge all of the convictions recited as his criminal history. Therefore, we
hold that the State did not satisfy its burden to prove Salters’ criminal history. We vacate Salters’
sentence and remand for resentencing.
B. COMMUNITY CUSTODY CONDITION
Salters argues the sentencing court erred in imposing a community custody condition
prohibiting him from entering places whose primary business is the sale of alcohol. We agree.
Sentencing courts are allowed to order offenders to refrain from possessing or consuming
alcohol. RCW 9.94A.703(3)(e). Sentencing courts may also require the defendant to “[c]omply
with any crime-related prohibitions.” RCW 9.94A.703(3)(f). A crime-related prohibition is “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). We review the sentencing court’s
imposition of crime-related prohibitions for an abuse of discretion. State v. Warren, 165 Wn.2d
17, 32, 195 P.3d 940 (2008), cert. denied, 556 U.S. 1192 (2009).
Here, the sentencing court went beyond its authority and ordered Salters to “not go into
bars, taverns, lounges, or other places whose primary business is the sale of liquor.” CP at 33.
However, nothing in the record indicates that alcohol contributed to Salters’ crimes. Therefore,
the sentencing court’s community custody condition prohibiting Salters’ entry into “places whose
primary business is the sale of liquor” is not a crime-related prohibition and was not properly
imposed.
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No. 47147-7-II
C. LEGAL FINANCIAL OBLIGATIONS
Salters argues for the first time on appeal that the sentencing court erred in imposing
discretionary LFOs upon him without first considering his ability to pay. Subject to certain
exceptions, we have discretion to review issues not raised below. RAP 2.5(a); State v. Blazina,
182 Wn.2d 827, 835, 344 P.3d 680 (2015) (“Each appellate court must make its own decision to
accept discretionary review” under RAP 2.5(a)). Because we remand for resentencing on other
sentencing errors, we accept review of this issue and direct the sentencing court to consider Salters’
ability to pay discretionary LFOs on remand.
“RCW 10.01.160(3) requires the record to reflect that the sentencing judge made an
individualized inquiry into the defendant’s current and future ability to pay before the court
imposes LFOs.” Blazina, 182 Wn.2d at 839. Here, the sentencing court did not make an
individualized inquiry into Salters’ ability to pay discretionary LFOs. Therefore, we remand with
instructions to the sentencing court to undertake the required inquiry.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Salters argues he received ineffective assistance of counsel when his attorney
failed to object to the calculation of his offender score. The proper remedy for an ineffective
assistance of counsel challenge here would be a vacation of his sentence and a remand for
resentencing. This is the same remedy we provide to Salters for the other errors that occurred at
sentencing, as discussed above. Therefore, we need not consider this issue.
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No. 47147-7-II
We vacate Salters’ sentence and remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Worswick, J.
Johanson, C.J.
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