State Of Washington v. Ricky Lee Lewis ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE I
Respondent,
No. 72332-4-1 -
RICKY LEE LEWIS, UNPUBLISHED OPINION c?~
Appellant. FILED: January 19, 2016 *°
Dwyer, J. — Ricky Lewis challenges the sentence imposed following his
guilty plea to assault in the second degree and two counts of unlawful
imprisonment, asserting that the trial court miscalculated his offender score.
Because Lewis waived the right to challenge his offender score when he
stipulated to the factual basis of his criminal history, we affirm.
The State charged Lewis with indecent liberties, unlawful imprisonment
with sexual motivation, and two counts of assault in the second degree with
sexual motivation arising from two separate incidents in which Lewis assaulted
women and forced them to engage in sexual intercourse. Lewis pled guilty to
one of the assault charges and two counts of unlawful imprisonment in exchange
for the State's agreement to dismiss another felony case and to not file additional
charges related to another victim. In his statement of defendant on plea of guilty,
No. 72332-4-1/2
Lewis expressly agreed that the prosecutor's statement of his criminal history
was correct and complete, and stipulated to an offender score of 9. The trial
court imposed a standard range sentence. Lewis appeals.
II
For the first time on appeal, Lewis argues that the trial court miscalculated
his offender score by erroneously counting a juvenile conviction as an adult
conviction. Appendix B to Lewis's plea agreement lists the adult felony
convictions included in Lewis's offender score, including a Georgia conviction for
"theft by taking - auto theft" committed on February 9, 1976. Lewis's date of
birth is March 10, 1958. Lewis contends that because he was under the age of
18 at the time of the offense, the conviction must be scored as a juvenile
conviction and assigned one-half point instead of one point.
A criminal defendant's standard sentence range is based upon the
seriousness of the offense and the defendant's offender score. RCW
9.94A.530(1). RCW 9.94A.525 governs the calculation of an offender score. If
the present conviction is for a violent offense, such as assault in the second
degree, each prior adult nonviolent felony conviction counts one point and each
prior juvenile nonviolent felony conviction counts one-half point. RCW
9.94A.525(8). We review a trial court's offender score calculation de novo. State
v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011).
If miscalculation of the offender score involves a legal error, a defendant
may challenge his or her offender score for the first time on appeal because such
a sentence lacks statutory authority. State v. Wilson, 170 Wn.2d 682, 688-89,
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No. 72332-4-1/3
244 P.3d 950 (2010). However, if a defendant stipulates to the facts underlying a
sentence, he or she waives any challenge based on those facts. In re Personal
Restraint of Goodwin. 146 Wn.2d 861, 874, 50 P.3d 618 (2002). Waiver is found
when, "[ajssuming the stipulated fact, the sentence the defendant received was
authorized and constitutional." Goodwin. 146 Wn.2d at 875 (alteration in original)
(quoting In re Personal Restraint of Moore. 116 Wn.2d 30, 38, 803 P.2d 300(1991)).
Here, Lewis expressly agreed with the State's calculation of his criminal
history and resulting offender score, including the fact that the 1976 conviction
was an adultfelony conviction. Whether Lewis was convicted as an adult or a
juvenile is a factual question, not a legal one. Consequently, Lewis has waived
the right to raise this issue for the first time on appeal.
Goodwin and Wilson, to which Lewis cites, are inapposite. In Goodwin,
the defendant pled guilty and stipulated to an offender score containing juvenile
convictions that could not be considered pursuant to a former version of RCW
9.94A.030(12)(b), which provided that such convictions "washed out" once the
defendant turned 23. In Wilson, the defendant stipulated to a prior conviction for
attempted possession of methamphetamine, which the trial court incorrectly
scored as a felony instead ofa gross misdemeanor. These cases both involved
challenges to legal errors. They do not control here.
Ill
Lewis raises several claims in a statement of additional grounds. None
are availing. Lewis contends that trial counsel was ineffective for failing to file
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No. 72332-4-1/4
motions, adequately analyze the strength of the State's case, obtain a
reasonable bail, or secure him a more generous plea offer. He also argues that
the prosecutor committed misconduct by failing to make the victims available for
interviews in a timely fashion. These allegations rest on matters outside the
record and therefore cannot be raised on direct appeal. See State v. McFarland.
127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995). Finally, Lewis contends that a
1988 VUCSA conviction was improperly included in his offender score. He
appears to argue that the inclusion of this conviction is somehow inequitable
because it added 20 months to his standard range, which far exceeded the
sentence on the original conviction. Lewis fails to articulate how this constitutes
legal error entitling him to relief, and we do not consider this claim further. See
RAP 10.10(c) (appellate court will not consider statement of additional grounds
for review unless it adequately informs the court of the nature and occurrence of
alleged errors).
Affirmed.
We concur:
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