State Of Washington v. Vichai Saly ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 71029-0-1
Respondent,
v. UNPUBLISHED OPINION
VICHAI SALY,
Appellant. FILED: January 20, 2015
Schindler, J. — Vichai Saly appeals the amended judgment and sentence,
arguing the court erred in refusing to consider his CrR 7.8 motion challenging the
inclusion of four class C felonies in his offender score and in denying his request for a
continuance. Because his arguments are without merit, we affirm.
In 2005, a jury convicted Vichai Saly of murder in the first degree while armed
with a firearm. "Appendix B" to the judgment and sentence sets forth the criminal
history used to calculate Saly's offender score. Appendix B states, in pertinent part:
Adult or
Sentencing Juv[enile]
Crime Date Crime....
ASSAULT 2 01/13/1995 ADULT....
ASSAULT 2 01/13/1995 ADULT....
ASSAULT 2 01/13/1995 ADULT....
TAKING MOTOR VEHICLE WITHOUT 01/13/1995 ADULT ....
PERMISSION
No. 71029-0-1/2
TAKING MOTOR VEHICLE 08/06/1992 JUVENILE ....
VUCSA'1! 12/28/1993 JUVENILE....
UNLAWFUL POSSESION OF A 10/07/1994 JUVENILE ....
FIREARM 2.
With an offender score of 8, the standard sentence range was 370 to 493
months. The court imposed a standard range sentence of 388 months and a mandatory
firearm enhancement of 60 months for a total of 448 months.
In 2011, Saly filed a pro se CrR 7.8 motion for relief from the judgment and
sentence. Saly asserted the court miscalculated his offender score by including four
prior class C felony convictions that "wash[ed] out" under RCW 9.94A.525(2)(c).2
Specifically, Saly challenged the inclusion of (1) taking a motor vehicle without
permission (1995), (2) unlawful possession of a firearm in the second degree (1994), (3)
VUCSA (1993), and (4) taking a motor vehicle (1992). The Washington Supreme Court
granted Saly's motion for discretionary review of the CrR 7.8 motion and the State's
motion to remand for resentencing.3
On remand, Saly requested that the court appoint new counsel because he
planned to assert a claim of ineffective assistance of counsel for failure to correctly
advise him of the offender score. Saly told the court, "If I had known that I had six
points instead of just 8, I probably - you know, it probably would have went real
different than what it was, you know." The court granted the request to appoint new
counsel and rescheduled the sentencing hearing for September 20, 2013.
1 Violation of the Uniform Controlled Substances Act.
2 RCW 9.94A.525(2)(c) states, in pertinent part:
[Cjlass C prior felony convictions other than sex offenses shall not be included in the
offender score if, since the last date of release from confinement (including full-time
residential treatment) pursuant to a felony conviction, if any, or entry of judgment and
sentence, the offender had spent five consecutive years in the community without
committing any crime that subsequently results in a conviction.
3 In re Pers. Restraint of Saly. 176 Wash. 2d 1017, 293 P.3d 1185(2013).
No. 71029-0-1/3
Before the hearing on September 20, the attorney representing Saly filed
"Defendant's Sentencing Recommendation." The sentencing recommendation states
the offender score is 6, and the standard sentence range is 312 to 416 months plus 60
months for the firearm enhancement. The sentencing recommendation states, in
pertinent part:
His case is remanded for sentencing after Mr. Saly successfully petitioned
the Court and argued his offender score was calculated incorrectly; his
offender score is a 6 rather than an 8.
... Mr. Saly does not object to the other conditions recommended
by the State.
The sentencing recommendation asks the court to impose a low-end standard range
sentence "in consideration of the progress [Saly] has made over the last eight years."4
At the resentencing hearing on September 20, the State agreed that Saly's
offender score "actually is a 6." Consistent with the sentencing recommendation, Saly's
attorney asked the court to impose a sentence at "the lower end of the standard range
as it currently sits with an offender score of 6." Saly's attorney told the court that Saly
intended to raise other issues "at a later time." The attorney also questioned why the
State charged Saly as an adult for the three prior assault crimes. However, the attorney
stated that "given the age of the case I was not able to get much of that information for
him."
Mr. Saly . . . does have some other issues to follow up on. One
being how would he have handled this matter had he known that his
offender score was lesser given whatever the status of negotiations or
investigation -- however that had progressed throughout the progress of
his case. Although that is not an issue to be addressed here today, Mr.
Saly will have some follow-up work to do to see if he has any other ability
to address those before the court at a later time.
In addition, what I thought was most interesting about the history
that he does have is that his priors are all juvenile offenses.
Emphasis omitted.
No. 71029-0-1/4
Unfortunately, though, because of his priors, the later ones, being assault
in the second degree, it appears that the State had opted to try him as an
adult. And from Mr. Saly's recollection it's unclear to him what happened,
ifthere was a decline hearing, what the status of that was, and given the
age of the case I was not able to get much of that information for him.
Saly then addressed the imposition of sentence. Saly told the court that he
believed his offender score was lower than 6 but that he had no opportunity to obtain
"more information and more evidence to prove it to you." Saly asked the court to
consider his argument about his juvenile criminal history "all at once" before imposing
sentence.
I'm pretty sure that you know that... if I had the opportunity to
present more evidence, I probably could have and showed you that I think
I have a lower score than 6. So I'm just going to let you know that I
believe that I do have a score of like possibly 1, but until I've gotten more
information and more evidence to prove it to you, but overall I really don't
want to go back to prison and then come back again and then go back to
prison and come back again, just on like appeal issues. I was wondering
if I could try to get it done all at once with you because you have
jurisdiction over me for my points on the juvenile, the Superior Court does,
you do. It just has to do with sentencing purposes only, and ifyou're
willing to hear it before or not, it's up to you.
The court denied Saly's request for a continuance. The court stated that ifSaly
filed a motion raising the new issues after sentencing, the court would transfer it to the
Court of Appeals.
Based on an offender score of 6, the court imposed a standard range sentence
of 372 months and a mandatory firearm enhancement of 60 months for a total of 432
months. Appendix B to the amended judgment and sentence does not include the four
convictions that Saly challenged in the CrR 7.8(a) motion: (1) taking a motor vehicle
without permission (1995), (2) unlawful possession of a firearm in the second degree
(1994), (3) VUCSA (1993), and (4) taking a motor vehicle (1992).
No. 71029-0-1/5
Appendix B to the amended judgment and sentence lists only the three prior
convictions for assault in the second degree:
Adult or
Sentencing Juvfenile]
Crime Date Crime . . .
Assault 2 01/13/1995 Adult....
Assault 2 01/13/1995 Adult....
Assault 2 01/13/1995 Adult.
On October 16, Saly filed a notice of appeal of the amended judgment and
sentence. Saly also filed a separate pro se CrR 7.8 motion for relief from the judgment
and sentence. In the CrR 7.8 motion, Saly asserts that the attorneys who represented
him in 2005 provided ineffective assistance by miscalculating his offender score. Saly
also argues that the three prior convictions for assault in the second degree are invalid
because he was a juvenile, but the State tried him as an adult. In addition, Saly asserts
the amended judgment and sentence is "invalid on it's [sic] face" because the amended
sentence is "outside the standard sentencing range." The court transferred the CrR
7.8(b) motion to this court as a personal restraint petition.
Saly contends the court erred in refusing to consider his challenge to the
inclusion of four class C felonies that he made in the CrR 7.8 motion and in denying his
request to continue the resentencing hearing.
We review a trial court's ruling on a CrR 7.8 motion for abuse of discretion. State
v. Zavala-Revnoso, 127 Wash. App. 119, 122, 110 P.3d 827 (2005). A court abuses its
discretion if it bases the decision on untenable grounds or untenable reasons. Zavala-
Revnoso, 127 Wash. App. at 122.
In the CrR 7.8 motion, Saly argued the court erred by including four prior class C
felony convictions in the calculation of his offender score: (1) taking a motor vehicle
No. 71029-0-1/6
without permission (1995), (2) unlawful possession of a firearm in the second degree
(1994), (3) VUCSA (1993), and (4) taking a motor vehicle (1992). On appeal, Saly
argues the court erred by excluding only one of the challenged convictions from his
criminal history. The record does not support his argument.
The court did not include any of the prior class C felony convictions in the
calculation of the offender score on remand. Appendix B to the amended judgment and
sentence clearly shows the court calculated Saly's offender score based solely on the
three 1995 convictions as an adult for assault in the second degree. Appendix B does
not include taking a motor vehicle without permission (1995), unlawful possession of a
firearm in the second degree (1994), VUCSA (1993), or taking a motor vehicle (1992).
Saly also contends the court erred in denying his pro se request to continue the
hearing to give him an "opportunity to present more evidence" to support a lower
offender score.
The decision to deny a motion to continue "is within the discretion of the trial
court and will not be disturbed absent an abuse of discretion." State v. Ollivier, 178
Wash. 2d 813, 822-23, 312 P.3d 1 (2013). Where, as here, the defendant is represented
by counsel, the court has broad discretion to refuse to consider a pro se motion. In re
Pers. Restraint of Quinn, 154 Wash. App. 816, 841, 226 P.3d 208 (2010). Further, Saly
did not inform the court of any material facts to support his argument that the three prior
convictions for assault in the second degree should not be included in his criminal
history. We conclude the court did not abuse its discretion in denying his request to
No. 71029-0-1/7
continue the hearing.5
We affirm.
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WE CONCUR:
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5 In a "Statement of Additional Grounds," Saly contends the court should have calculated his
offender score as 0 instead of 6. Saly asserts the three prior convictions for assault in the second degree
are invalid because the State charged him as an adult when he was 16 years old. Because Saly does not
cite any evidence in support of his argument, there is not a sufficient basis to question the correctness of
the calculation.