State Of Washington v. Thomas H. Boyer ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
February 2, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46710-1-II
Respondent, UNPUBLISHED OPINION
v.
THOMAS H. BOYER,
Appellant.
BJORGEN— Thomas Boyer appeals his sentence for attempting to elude a police vehicle,
arguing that the trial court miscalculated his offender score.1 We affirm.
FACTS
In 2014, Boyer pled guilty to attempting to elude a police vehicle. The State calculated an
offender score of nine, which was included in Boyer’ s statement on plea of guilty. The statement
further provided, “ The prosecuting attorney’ s statement of my criminal history is attached to this
agreement. Unless I have attached a different statement, I agree that the prosecuting attorney’ s
statement is correct and complete.” Clerk’ s Papers at 2.
At his combined plea and sentencing hearing, Boyer confirmed that he reviewed his
statement on plea of guilty with his counsel and that he understood it. He did not object to his
1
A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18.14 and then transferred it to a panel of judges.
No. 46710-1-II
offender score of nine. Rather, he agreed that the score “ sound[ed] accurate.” Report of
Proceedings (RP) at 7. The State then asked for clarification as to whether this meant Boyer was
agreeing to the fact that his offender score is nine.” RP at 10. Boyer’ s counsel responded, “ Yes,
Your Honor.” RP at 10. The trial court then stated that counsel confirmed that the score was
accurate. Later in the hearing, Boyer’ s counsel again acknowledged that Boyer had an offender
score of nine. Boyer received a sentence of 29 months in custody.
ANALYSIS
Boyer challenges his offender score for the first time on appeal. Specifically, he argues
that two offenses committed on March 21, 2007, were the same criminal conduct and he should
have received only one criminal history point for these offenses, not two. We review the
sentencing court’ s determination that multiple offenses were not the same criminal conduct for
abuse of discretion or misapplication of the law. State v. Maxfield, 125 Wash. 2d 378, 402, 886 P.2d
123 (1994).
The general rule is that a defendant may challenge his offender score for the first time on
appeal. State v. Mendoza, 165 Wash. 2d 913, 919-20, 205 P.3d 113 (2009). A defendant, however,
waives his right to appeal a miscalculated offender score “ where the alleged error involves an
agreement to facts, later disputed, or where the alleged error involves a matter of trial court
discretion.” In re Pers. Restraint of Goodwin, 146 Wash. 2d 861, 874, 50 P.3d 618 (2002); see also
State v. Hickman, 116 Wash. App. 902, 907-08, 68 P.3d 1156 (2003) (citing Goodwin, 146 Wash. 2d
at 875); State v. Nitsch, 100 Wash. App. 512, 518-20, 997 P.2d 1000 ( 2000); see generally In re
Pers. Restraint of Shale, 160 Wash. 2d 489, 495, 158 P.3d 588 (2007).
Determining whether previous crimes constituted the same criminal conduct requires both
factual determinations and the exercise of trial court discretion. Goodwin, 146 Wash. 2d at 875.
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No. 46710-1-II
Thus, because Boyer agreed to an offender score calculated on the basis of the two March 21, 2007
offenses involving separate and distinct criminal conduct, he waived his right to appeal this issue.
Consequently, we decline to review Boyer’ s offender score.
We affirm.
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.
BJORGEN, J.
We concur:
JOHANSON, C.J.
SUTTON, J.
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