State Of Washington v. Zapp Malelega Tivao ( 2018 )

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lN THE COURT OF APPEALS FOR THE S``E'ATE OF WASHENGTON
STATE OF WASHENGTON, ) No. 77278-3-|
Respondent, § DlVlSlON ONE
v. § UNPUBL|SHED OPINION
ZAPP MALELEGA TlVAO, §
Appeliant. § NUV 11 9 ZiiiS
) F|LED:
PER CURlANl -- Zapp Tivao appeais his conviction and sentence for
residential burgiary, arguing that the trial court miscaicuiated his offender score.
“i'he calculation of an individuals offender score is grounded in statute and based
on the individual’s prior convictions Tivao has failed to show that his offender
score Was miscaiculated. We affirm.
MQ.I.§
Zapp Tivao Was charged With residential burgiary. At the time, he had one
felony conviction for possession of a controlled substance from Texas. Tivao also
had pending charges for second degree burglary, a felony, and second degree
vehicle prowl, a gross misdemeanor, which occurred on the same day as the
residential burglary. Tivao pleaded guilty to all three offenses at the same hearing
on January 11, 2017. Tivao's offender score Was calculated at a 3.,_ which is
NO. 77278-3-|/2
reflected in the judgment and sentence The offender score included the ``i'exas
felony, which was calculated as a 1, and the second degree burglary conviction,
which was calculated as a 2, to equal a total offender score of 3."
Tivao contends that his offender score should have included oniy the Texas
conviction because that is the sole conviction listed in Appendix B, the list of
Tivao’s prior crimes ln his guilty plea, Tivao agreed that his offender score wouid
be a 3. The second degree burglary conviction was not listed in Appendix B to the
judgment and sentence Paragraph 2.2 of the judgment and sentence indicated
that another current conviction with a separate cause number1 16-1-01707-6, was
“used in calculating the offender score." Tivao asserts that the failure to specifically
identify the second degree burglary conviction in the judgment and sentence or to
fist it in Appendix B shouid result in an offender score of ‘l. Thus, iivao requests
a reversai of his sentence
ANALYS|S
We review the caicuiation of an offender score de novo. State v. l-iowell,
102 Wn. App. 288, 292, 6 P.3d 1201 (2000). To caiculate an offender score, the
court takes three basic steps First, the court identifies the defendants prior
convictions State v. Moeurn, 170 Wn.2d 169, 175, 240 P.3d ii58 (2010). Next,
the court determines which convictions have been "washed out” and eliminates
them from the calcuiation. id_. Finally, the court counts ali the remaining prior
convictions to generate an offender score ld_. RCVV 9.94A,525 provides a formula
for assigning a numerical value to each prior conviction Furtherrnore, when the
i Because second degree vehicle prowl is a gross misdemeanor, it is not used to calcuiate an
individua|’s offender scorel RCW 9.94A.525.
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NO. 77278-3-|/3
defendant ls being sentenced for multiple crimes, “the sentence range for each
current offense shall be determined by using ai| other current and prior convictions
as if they were prior convictions for the purpose of the offender score.” RCW
9.94A.589(1)(a). A current offense is defined as “convictions entered or sentenced
on the same day.” ln re the Pers. Restraint of f-'instad1 177 Wn.2d 501, 507, 301
P.3d 450 (2013) (citing RCW 9.94A.525(t)).
iivao pleaded guilty to residentiai burglary and second degree burglary, as
weii as to the vehicie prowiing charge during the same hearing. Tivao’s pre-
sentence report inciuded ail three charges |-ie was sentenced on ali three charges
on the same day. Under the statute the second degree burgiary conviction is
considered a prior conviction for purposes of calcuiating Tivao’s offender score for
the residential burglary charge RCW 9.94A.589(1)(a). The State provided Tivao
and the sentencing court with a scoring worksheet iiiustrating how it calculated
Tivao’s score. The State iisted one point for Tivao’s Texas conviction and two
points for the second degree burglary conviction2
``i``his court agrees that the judgment and sentence technically should have
listed by name the identity of any current convictions inciuded in the offender score,
rather than just the separate case's cause number. But this error, if one could
categorize it as such, is no more than a ciericai error. This is not an issue for
appea|; rather, it should be brought to the trial court's attention for correction M
v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000). Nevertheiess, the oral and
2 Under RCW 9.94A.525, if the prior or other current offense is for Burgiary 2 or residential
burgiary, the court rnust “count two points for each adult and juvenile prior Burglary i conviction,
two points for each adult prior Burgiary 2 or residential burglary conviction, and one point for each
juvenile prior Burglary 2 or residentiai burglary conviction.” RCW 9.94/1\.525(16).
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NO. 77278-3~|/4
written records demonstrate that Tivao’s offender score was correctly calculated
at 3 to reflect his prior Texas conviction and the second degree burglary conviction.
Affirmed.
WE CONCUR:
wyoth
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