State Of Washington v. Jeff L. Harp ( 2015 )

Filed
Washington State
Court of Appeals
Division Two
November 10, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46240-1-II
consolidated with
Respondent, No. 46244-3-II
v.
JEFF LEROY HARP, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Jeff Leroy Harp appeals the denial of a CrR 7.8 motion in which he sought
resentencing after he pleaded guilty to taking a motor vehicle without permission in the second
degree and other offenses. Harp argues that the trial court misidentified a prior conviction and that
this misidentification resulted in an incorrect offender score. The State concedes error but argues
that Harp’s appeal is moot. We agree with the State and dismiss the appeal.
FACTS
In 2013, the State charged Harp under two cause numbers with several property and drug
crimes. The prosecutor’s statement of criminal history showed that Harp’s eight prior felonies
included a conviction for possession of a stolen vehicle.
Under a global plea agreement, Harp pleaded guilty to taking a motor vehicle without
permission in the second degree and possession of clonazepam under one cause number, and to
possession of methamphetamine under the other. Harp’s offender score of 12 for the motor vehicle
conviction included 3 points for his prior possession of a stolen vehicle. The standard range for
the current motor vehicle conviction was 22-29 months. Harp’s offender scores of 10 on each
46240-1-II / 46244-3-II
drug conviction included 1 point for the prior possession of a stolen vehicle. The standard range
for the drug convictions was 12+ to 24 months.
The trial court imposed concurrent sentences of 24 months on the motor vehicle conviction
and 12+ months on each drug conviction. The court also imposed 12 months of community
custody on the drug convictions. In each judgment, the appendix listing Harp’s criminal history
included the prior conviction for possession of a stolen vehicle.
Harp subsequently filed CrR 7.8 motions under each cause number, complaining that his
prior conviction for possession of a stolen vehicle was actually a conviction for illegal transfer of
a vehicle and that his offender score as well as his list of criminal history needed to be corrected.
The trial court denied Harp’s motions in a single order.
Harp now appeals and argues that he is entitled to resentencing because, due to the
misidentification of his prior conviction, the trial court miscalculated his offender score for his
conviction of taking a motor vehicle without permission in the second degree.
ANALYSIS
The State concedes that Harp’s offender score for the motor vehicle conviction should be
10 instead of 12 because his prior conviction was for illegal transfer of a vehicle rather than
possession of a stolen vehicle. RCW 9.94A.525(7), (20). The State argues, however, that Harp’s
appeal is moot because there is no longer any effective remedy for this error. See State v. Ross,
152 Wash. 2d 220, 228, 95 P.3d 1225 (2004) (case is moot if court can no longer provide meaningful
relief). Harp has served his term of confinement for the motor vehicle conviction and is now
serving the community custody imposed for his drug offenses.1
1
The State also points out that Harp’s standard range remains 22-29 months with the correct
offender score of 10. RCW 9.94A.510.
2
46240-1-II / 46244-3-II
Harp responds that his appeal is not moot because, upon resentencing, the trial court may
modify the termination date of his community custody. See State v. Harris, 148 Wash. App. 22, 27,
197 P.3d 1206 (2008) (if an offender is on community custody that should have started earlier
because he should have been released earlier, the trial court may modify the termination date of
his community custody on resentencing). However, the Supreme Court has held that a term of
community custody cannot be adjusted to reflect any excess time that a defendant spent in
confinement. State v. Jones, 172 Wash. 2d 236, 248-49, 257 P.3d 616 (2011); see also State v.
McAninch, No. 46072-6-II, 2015 WL 4916399, at *5 (Wash. Ct. App. Aug. 18, 2015) (holding
that personal restraint petition complaining of offender score error was moot because petitioner
had served his sentence). We find the Jones rule particularly applicable where a mandatory term
of community custody has been imposed for offenses other than the offense for which sentence
credit might be appropriate. See RCW 9.94A.701(3)(c) (court shall impose community custody
of one year for offenders sentenced to DOC custody for felony drug offenses).
Harp also contends that his appeal is not moot because the error in his criminal history may
affect him in future prosecutions. Where a sentencing error could affect a future sentence, the case
is not moot even though the defendant has served his sentence. State v. Vike, 125 Wash. 2d 407, 409
n.2, 885 P.2d 824 (1994). In Vike, the issue was whether the defendant’s two current offenses
constituted the same criminal conduct. 125 Wash. 2d at 409. The issue was not moot because the
question of how the two convictions should be scored would arise during any future sentencing.
125 Wash. 2d at 409 n.2.
The error here is different. Future sentencing courts may not rely on a statement of criminal
history from a previous judgment. Harris, 148 Wash. App. at 28. Instead, the sentencing court must
calculate the offender score on “the date of sentencing for the offense for which the offender score
3
46240-1-II / 46244-3-II
is being computed.” RCW 9.94A.525(1); Harris, 148 Wash. App. at 28. If a defendant objects to
his criminal history at sentencing, the State must prove his prior convictions by the preponderance
of evidence with either a certified judgment and sentence or, if none is available, other comparable
evidence. State v. Bergstrom, 162 Wash. 2d 87, 93, 169 P.3d 816 (2007). Harp has supplemented
the record with the certified judgment and sentence for the prior offense at issue, and it clearly
identifies that offense as one for illegal transfer of a vehicle rather than possession of a stolen
vehicle. The error here will not bind future courts in sentencing Harp.
Because there is no longer any effective relief that we can provide, and because the error
in identifying Harp’s prior conviction will not influence future sentencing decisions, we dismiss
this appeal as moot.
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.
Melnick, J.
We concur:
Johanson, C.J.
Maxa, J.
4