Matter of Personal Restraint of Sietz

Guy, J.

Petitioners Robert Sietz and Marvin Buchmann filed personal restraint petitions to contest their offender score calculations under the Sentencing Reform Act of 1981 (SRA). Both Sietz and Buchmann assert their sentencing judge improperly calculated their offender score, and thus their standard range sentence, by counting judicially ordered concurrent sentences as separate offenses, contrary to RCW 9.94A.360(6)(c). We agree and remand for resentencing.

Facts

Robert Sietz

Robert Sietz entered a plea of guilty to second degree theft in 1981. Sietz received a deferred sentence for a period of 3 years with the following conditions: probation for a period of 3 years, 45 days in jail, and payment of court costs. On July 7, 1983, Sietz was found guilty of possession of stolen property in the second degree and was sentenced to a maximum term of not more than 5 years in jail. The next day, Sietz’s 1981 deferred sentence was revoked, and he was sentenced to a maximum term of not more than 5 years in jail. The superior court judge ordered Sietz’s 1981 conviction to be served concurrently with Seitz’s 1983 conviction.

In 1992, Sietz pleaded guilty to robbery in the first degree and burglary in the second degree. In calculating Sietz’s offender score for his 1992 offenses, Sietz’s 1981 and 1983 convictions were counted separately. Sietz filed a personal restraint petition in the Court of Appeals challenging the computation of his offender score. Sietz contends his 1981 and 1983 convictions were served concurrently under RCW 9.94A.360(6)(c) and should therefore be counted as one offense. The Court of Appeals dismissed Sietz’s personal restraint petition. He appealed and we accepted discretionary review.

Marvin Buchmann

Marvin Buchmann entered a plea of guilty to burglary in the second degree in 1981. Buchmann received a deferred sentence for a period of 3 years with the following conditions: probation for a period of 3 years and payment of court costs. In 1982, Buchmann entered a plea of guilty to burglary in the second degree and was given a suspended sentence with the following conditions: probation for a period of 3 years, 6 months in jail, payment of court costs, and continued probation for the 1981 conviction under its original terms. On June 4, 1984, Buchmann was found guilty of burglary in the second degree. He was sentenced on July 17, 1984, to a maximum term of not more than 10 years in jail. The superior court judge ordered that the 1984 conviction be served concurrently with Buchmann’s 1981 and 1982 convictions. On the same day, Buchmann’s 1981 deferred sentence was revoked and he was sentenced to a maximum term of not more than 10 years in jail. The superior court judge ordered that the 1981 conviction be served concurrently with Buchmann’s 1982 and 1984 convictions. On July 18, 1984, Buchmann’s 1982 suspended sentence was revoked and he was sentenced to a maximum term of not more than 10 years in jail. The superior court judge ordered that the 1982 conviction be served concurrently with Buchmann’s 1981 and 1984 convictions.

In 1989, Marvin Buchmann was found guilty on two counts of robbery in the first degree. In calculating Buchmann’s offender score for his 1989 offenses, Buchmann’s 1981, 1982, and 1984 convictions were counted separately. Buchmann filed a personal restraint petition in this court challenging the computation of his offender score. Buchmann contends the 1981, 1982, and 1984 convictions were served concurrently under RCW 9.94A.360(6)(c) and should therefore be counted as one offense. We accepted review and consolidated the cases pursuant to RAP 3.3(b).

Issue

Whether a revoked sentence, including hut not limited to a deferred sentence, a suspended sentence, or a sentence imposing probation, ordered to be served concurrently with a later conviction, merges all such convictions to establish an "adult conviction served concurrently” for purposes of RCW 9.94A.360(6)(c).

Analysis

The statute governing whether multiple prior convictions committed before July 1,1986, are counted separately or are merged and counted as one offense when calculating an offender score under the SRA is RCW 9.94A.360(6)(c), which provides:

(6) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

(c) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.

(Italics ours.)

The leading case interpreting RCW 9.94A.360(6)(c) and the critical phrase "adult convictions served concurrently” is State v. Roberts, 117 Wn.2d 576, 817 P.2d 855 (1991). In Roberts, we were asked to determine whether under subsection (6)(c) sentences must begin and end on the same date to be served concurrently. Finding no statutory definition for the term "adult convictions served concurrently”, we ruled the phrase ambiguous. Roberts, 117 Wn.2d at 584-85. Next, we applied the rule of lenity and adopted an interpretation of subsection (6)(c) most favorable to the criminal defendant. We held sentences may be served concurrently under RCW 9.94A.360(6)(c) even if the prior sentences do not begin and end at the same time. Roberts, 117 Wn.2d at 586. Lastly, we promulgated a tripartite test for courts to utilize when determining whether an adult sentence is served concurrently. We held sentences are served concurrently within the meaning of RCW 9.94A.360(6)(c) if: (1) the latter sentence was imposed with specific reference to the first; (2) the offenses were committed prior to July 1, 1986; and (3) the concurrent relationship of the sentences was judicially imposed. Roberts, 117 Wn.2d at 586.

Applying the Roberts test to the convictions and sentences received by Sietz and Buchmann, we hold their offender scores were incorrectly calculated under the SRA. The sentence Sietz received for his 1981 conviction, a sentence not exacted until 1983, was imposed with specific reference to his 1983 conviction; both offenses were committed prior to July 1, 1986; and the record reflects that the sentencing judge intended to impose a concurrent sentence. Under Roberts, Sietz’s 1981 and 1983 convictions were served concurrently and should be counted as one offense, not two. Similarly, the sentences Buchmann received for his 1981, 1982, and 1984 convictions were all imposed with specific reference to the other convictions, and the three offenses were committed prior to July 1, 1986. The record demonstrates that the sentencing judge intended to impose a concurrent sentence. Thus, under Roberts, Buchmann’s 1981, 1982, and 1984 convictions were served concurrently and should be counted as one offense, not three.

The State contends Sietz’s and Buchmann’s offender scores were properly calculated pursuant to State v. Chavez, 52 Wn. App. 796, 764 P.2d 659 (1988), an appellate decision we distinguished but did not overrule in Roberts. Roberts, at 582-83, 587. In Chavez, the defendant was convicted of unlawful possession of a controlled substance in 1979 and was placed on probation. In 1983 the defendant was convicted of two other crimes and his 1979 probation was revoked. In sentencing the defendant for the 1983 offenses, the superior court judge ordered the jail term for the 1979 offense to run concurrently with the jail term for the 1983 offenses. When the defendant was convicted of a fourth crime in 1986, the sentencing judge scored the 1979 conviction as 1 point and the two 1983 convictions as 1 point. The sentencing judge concluded the two 1983 convictions were served concurrently, but that the 1979 conviction and 1983 convictions were not served concurrently. The Court of Appeals agreed, holding when a defendant’s probation is revoked and the remainder of the sentence is imposed to run concurrently with a sentence for a later conviction, the convictions are not served concurrently for purposes of calculating a defendant’s offender score under RCW 9.94A.360(6)(c). Chavez, 52 Wn. App. at 798-99; see also State v. Allyn, 63 Wn. App. 592, 821 P.2d 528 (1991) (suspended sentences which were not successfully completed, and which years later were swept into a newly imposed sentence of confinement, do not constitute convictions served concurrently within the meaning of RCW 9.94A.360(6)(c)), review denied, 118 Wn.2d 1029 (1992). Under Chavez, Sietz’s and Buchmann’s offender scores were properly calculated.

While this court need not have overruled Chavez when it decided Roberts, as the issue of a revoked sentence was not before us, a revoked sentence is here before the court and we now reevaluate Chavez. We hold the Court of Appeals decisions in State v. Chavez, supra, and State v. Allyn, supra, are incongruent with the decisions and test this court adopted in Roberts and are therefore overruled.

In reaffirming Roberts and the tripartite test for determining whether adult sentences are served concurrently for purposes of RCW 9.94A.360(6)(c), we rely on the statutory language adopted by the Legislature. In drafting RCW 9.94A.360, the Legislature decided to treat multiple prior convictions committed pre-July 1, 1986, differently than those committed post-July 1, 1986. For post-July 1,1986, offenses, the general rule provides that multiple prior convictions are counted separately. RCW 9.94A.360(6). The language is clear. The message is direct. For pre-July 1, 1986, offenses, however, the language adopted by the Legislature is less clear and was determined by this court to he ambiguous. Roberts, 117 Wn.2d at 584-85. For pre-July 1, 1986, offenses, multiple prior adult convictions are counted as one offense if the adult convictions were served concurrently. RCW 9.94A.360(6)(c). Subsection (6)(c) was held ambiguous because the critical phrase "adult convictions served concurrently” was not defined by the Legislature. Roberts, 117 Wn.2d at 584.

When drafting a statute, if the Legislature uses specific language in one instance and dissimilar language in another, a difference in legislative intent may be inferred. Roberts, 117 Wn.2d at 585-86. Here, the dissimilarity in language between pre-July 1, 1986, offenses and post-July 1, 1986, offenses strongly suggests an intent by the Legislature that all multiple prior convictions for adult offenses committed before July 1, 1986, count as one offense under RCW 9.94A.360(6)(c) if the convictions were to be served concurrently. If the Legislature had wanted multiple prior convictions for adult offenses committed pre-July 1, 1986, to be counted separately, the Legislature could have defined "concurrent sentence” or declined to adopt RCW 9.94A.360(6)(c) and left as controlling RCW 9.94A.360(6)(a) (prior adult offenses which are found to encompass the same criminal conduct are counted as one offense).

The decision to extend the Roberts test to facts involving a revoked sentence is also mandated by our decision in Roberts where we applied the rule of lenity to subsection (6)(c). As mentioned in Roberts, the rule of lenity applies to the SRA and operates to resolve statutory ambiguities, absent legislative intent to the contrary, in favor of a criminal defendant. Roberts, 117 Wn.2d at 586; see also United States v. Granderson, 511 U.S. 39, 127 L. Ed. 2d 611, 626, 114 S. Ct. 1259 (1994) (the Supreme Court applied the rule of lenity and held a federal criminal sentencing statute will not be interpreted so as to increase the penalty when such an interpretation can be based on no more than a guess as to what Congress intended). Under these circumstances neither RCW 9.94A.360(6)(c) nor the legislative history sanctions the interpretation of subsection (6)(c) presented in Chavez and advanced by the State. Accordingly, fairness and stare decisis require that we apply the rule of lenity and interpret RCW 9.94A.360(6)(c) so that all adult offenses committed before July 1, 1986, which satisfy the requirements of Roberts, count as one offense for purposes of calculating a defendant’s offender score under the SRA.

Conclusion

A revoked sentence for an offense committed before July 1, 1986, ordered by a superior court judge to be served concurrently with another offense committed before July 1, 1986, merges the offenses to establish an "adult conviction served concurrently” for purposes of RCW 9.94A.360(6)(c). Because an "adult conviction served concurrently” is counted as one offense, and the superior court judges who calculated Sietz’s and Buchmann’s offender score disjoined their concurrent sentences and counted each offense separately, we remand their cases to the respective Superior Courts for resentencing.

Utter, Dolliver, Smith, Johnson, and Madsen, JJ., concur.