State Of Washington, Res/cross-app. v. Xhavier Anthony Terry, App/cross-res. ( 2015 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72810-5-1 r-
Respondent
DIVISION ONE
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XHAVIER TERRY, UNPUBLISHED OPINION V*2 3; "T:-
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Appellant FILED: November 9. 2015
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Spearman, C.J. — Xhavier Anthony Terry appeals the sentencing court's
calculation of his offender score on his guilty plea to unlawful possession of a
firearm. He argues that the State failed to prove that his out-of-state juvenile
adjudication was similar to the Washington offenses of second degree assault,
felony harassment, and second degree unlawful possession of a firearm.
Because Terry's confinement has already ended, we dismiss his appeal as moot.
FACTS
On October 27, 2014, Xhavier Terry pled guilty to the offense of
possession of a firearm and was sentenced to nine months. The sentencing court
calculated his offender score and included a Texas adjudication from when he
was ten years old. In the adjudication, the Texas court had found that Terry had
committed aggravated assault and unlawful carrying weapons places weapons
No. 72810-5-1/2
prohibited, under Texas Pe. Code Ann. Texas Statutes §§ 22.02 and 46.03,
respectively.
The Washington sentencing court found the Texas charges against Terry
to be legally and factually comparable to the Washington offenses of second
degree assault, felony harassment, and factually comparable to second degree
unlawful possession of a firearm. Because second degree assault is a violent
offense, the court counted Terry's juvenile conviction as one point. Terry had two
prior adult felony convictions for harassment and second degree taking of a
motor vehicle without permission. With the juvenile conviction, his offender score
was therefore "3," corresponding to a standard range sentence of 9-12 months.
Terry was sentenced to 9 months. He served his sentence and was released in
February 2015.
DISCUSSION
Terry contends that the sentencing court erred in determining his offender
score and argues that the State failed to prove that his juvenile adjudication was
comparable to the Washington offenses used to compute his score. The State
contends that Terry's case is moot because his confinement ended in February
2015.
"A case is moot if a court can no longer provide effective relief." State v.
Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004) (quoting State v. Gentry, 125
Wn.2d 570, 616, 888 P.2d 1105 (1995). There are only two forms of effective
relief from a sentence that results from an offender score miscalculation. First, if
the defendant received an excessive sentence and is still confined, we can order
No. 72810-5-1/3
resentencing that will result in his or her timely release from confinement.
Second, if a defendant is on community custody or supervision that should have
begun earlier than it did because he or she should have been released earlier,
we can direct the trial court to modify the supervision termination date. ]d_, (citing
State v. Ford. 137 Wn.2d 472, 485, 973 P.2d 452 (1999)). See also State v.
Harris. 148 Wn. App. 22, 26-27, 197 P.3d 1206 (2008). However, even if moot, if
a case presents an issue of continuing and substantial public interest and that
issue will likely reoccur, we may still reach a determination on the merits to
provide guidance to lower courts. State v. Blilie. 132 Wn.2d 484, 488 n.1, 939
P.2d691 (1997).
Here, Terry contends that the sentencing court miscalculated his offender
score because the State failed to prove that his Texas offense was comparable
to any Washington crime. But because it is undisputed that his confinement and
supervision ended on February 3, 2015, this court cannot provide him with any
effective relief. And Terry does not argue that his case presents issues that will
likely reoccur and are of continuing and substantial public interest. We conclude
that Terry's challenge to his offender score is moot and dismiss his appeal.
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WE CONCUR: