State Of Washington v. Ryan Brett Johnson ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78099-9-I
V.
UNPUBLISHED OPINION
RYAN BRETT JOHNSON,
Appellant. FILED: July 22, 2019
DwYER, J. — An offender sentenced for a felony conviction is sentenced
based on the offender score the offender has accumulated as of the day of
sentencing. The sentencing court correctly applied this rule in resentencing
Ryan Johnson. However, the sentencing court erred by requiring Johnson to pay
a $200 criminal filing fee. Thus, we remand the matter to the superior court to
strike the imposition of the filing fee. We affirm in all other respects.
The underlying facts of this case are set forth in our prior decision, State v.
Johnson, No. 74262-1-I (Wash. Ct. App. May 1, 2017) (unpublished),
htt~://www.courts.wa.qov/o~inions/pdf/742621 .pdf, review denied, 189 Wn.2d
1013 (2017), but will be briefly summarized here. In 2015, Ryan Johnson and
Billy Jo Arnold entered Anthony Williams’s home and forced him to hand over
money that he had won at a casino. Arnold also struck Williams on the head with
No. 78099-9-1/2
a blunt instrument that Johnson had handed to him before they entered the
house, leaving a gaping wound that required stitches.
Johnson was charged by amended information with robbery in the first
degree, burglary in the first degree, and assault in the second degree with a
deadly weapon enhancement. After a trial, a jury convicted Johnson on all
charges. At sentencing, his offender score was calculated as 10 for the robbery
and burglary counts.1 The trial court imposed standard range sentences of 129
months for the robbery conviction, 116 months for the burglary conviction, and 6
months for assault. The robbery and burglary sentences were to be served
concurrently, while the assault sentence was to run consecutively to both of
these, for a total of 135 months’ confinement.
Johnson appealed his convictions and sentences. While we affirmed his
convictions, we held that Johnson’s robbery and assault convictions merged and
that the trial court violated double jeopardy when it entered judgment and
imposed sentences for both. Thus, we ordered dismissal of the assault charge
and remanded the matter for resentencing. Johnson anticipated being
resentenced with an offender score of 8 based on our decision.
During the pendency of his appeal, however, Johnson was convicted of
theft in the second degree in an unrelated case. Johnson’s offender score was
thus a 9 when he appeared for resentencing on the robbery and burglary
1 Offender scores in excess of 9 are treated as a score of 9 pursuant to statute. ROW
9.94A.51 0.
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No. 78099-9-1/3
convictions. This resulted in his being sentenced with the same standard ranges
as before.
The trial court denied Johnson’s request for a sentence below the
standard range and imposed a total term of 129 months’ confinement—the same
as the original term of confinement, less the six months’ sentence for assault.
Crying foul—but blind to the irony of his plight—Johnson again appeals.
Johnson avers that the trial court erred by sentencing him based on an
offender score that accounted for a conviction entered after his original
sentencing. This is so, he asserts, because the later conviction would not have
modified his offender score but for the trial court’s error in imposing the first
sentence. We disagree. The court correctly calculated his offender score as of
the date of resentencing.
A standard range sentence is determined through a mathematical formula,
the inputs for which are a defendant’s offender score and the offense
seriousness score of the crime(s) of which he or she was convicted. RCW
9.94A.530(1). The offender score is a sum of points, representing past and
current offenses, accrued by the defendant as determined by the trial court at the
date of the sentencing hearing pursuant to RCW 9.94A.525. The first subsection
of that statute provides:
A prior conviction is a conviction which exists before the date of
sentencing for the offense for which the offender score is being
computed. Convictions entered or sentenced on the same date as
the conviction for which the offender score is being computed shall
be deemed “other current offenses” within the meaning of RCW
9.94A.589.
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No. 78099-9-1/4
RCW 9.94A.525(1).
Barring certain exceptions not applicable herein, “whenever a person is to
be sentenced for two or more current offenses, the sentence range for each
current offense shall be determined by using all other current and prior
convictions as if they were prior convictions for the purpose of the offender
score.” RCW 9.94A.589(1)(a).
The applicability of these statutes when a defendant has accrued new
convictions between a sentencing and a resentencing has been previously
challenged and upheld. State v. Collicott, 118 Wn.2d 649, 664, 827 P.2d 263(1992). In Collicott, a defendant’s sentence had been remanded for re
determination of his offender score and resentencing. 118 Wn.2d at 651-52. In
the time between his original sentencing hearing and the resentencing, however,
he had been convicted of burglary in the first degree—a crime that he had
committed before the original sentencing but to which he did not plead guilty until
after the sentencing. Collicott, 118 Wn.2d at 652-53. On remand, the sentencing
court did not consider this conviction in re-determining the defendant’s offender
score. Collicott, 118 Wn.2d at 654.
The Supreme Court reversed, holding that this resulted in an erroneous
calculation of the defendant’s offender score. On resentencing, the court
explained, the sentencing court must include the subsequent burglary conviction
as required by the language of the statute. Collicott, 11 8 Wn.2d at 668-69.
We, along with the other divisions of our court, have applied Collicott’s
holding in subsequent cases. See, e.g. State v. Bryan, 145 Wn. App. 353, 360,
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No. 78099-9-1/5
185 P.3d 1230 (2008); State v. Clark, 123 Wn. App. 515, 517-18, 94 P.3d 335(2004); State v. Shilling, 77 Wn. App. 166, 173-75, 889 P.2d 948 (1995). As
stated in Clark, an “offender score includes all prior convictions (as defined by
[former] RCW 9.94A.030(9)) existing at the time of that particular sentencing,
without regard to when the underlying incidents occurred, the chronological
relationship among the convictions, or the sentencing or resentencing
chronology.” 123 Wn. App. at 519 (alteration in original) (quoting Shilling, 77
Wn. App. at 175).
Johnson views his situation as a type of perverse, dirty trick. After his
appellate victory, he expected to be sentenced with a score of 8 and receive a
lower sentence. Instead, his intervening conviction left him back where he
started. Surely, he argues, he must have a remedy. But this equitable argument
fails. “Equitable principles cannot be asserted to establish equitable relief in
derogation of statutory mandates.” Dep’t of Labor & Indus. v. Dillon, 28 Wn. App.
853, 855, 626 P.2d 1004 (1981) (citing Norlin v. Montgomery, 59 Wn.2d 268,
273, 367 P.2d 621 (1961)). Further, “[i]t is well settled that a party with unclean
hands cannot recover in equity.” Miller v. Paul M. Wolff Co., 178 Wn. App. 957,
965, 316 P.3d 1113 (2014). Resort to equity cannot rescue Johnson from the
simple arithmetic that designates his offender score as 9.
Ill
Upon resentencing, the trial court also imposed a $200 mandatory criminal
filing fee. However, after resentencing, our legislature amended RCW
36.18.020(2)(h) to proscribe imposition of such a filing fee “on a defendant who is
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No. 78099-9-1/6
indigent as defined in RCW 10.101.010(3)(a) through (c).” RCW 36.18.020(2)(h).
Our Supreme Court has clarified that this amendment applies to defendants with
appeals pending at the time of its enactment. State v. Ramirez, 191 Wn.2d 732,
426 P.3d 714 (2018). Johnson contends, and the State concedes, that Johnson
meets the statutory definition of indigency, and both parties request that we
remand for striking of the criminal filing fee. Thus, we remand this matter to the
sentencing court for entry of a ministerial order striking the filing fee. In all other
respects, Johnson’s sentence is affirmed.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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