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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTONCOUNTY OF BENTON

P c to. ̂ ̂

THE STATE OF WASHINGTON, ) JAN 1 2 1990i No. 89-1-00385-0U UiVs'Plaantiir, i

9 7c^ ) UODaroff «® SERTENCETjaTpnr.TTn CSSSEENAS aka _

roSE JOHN JIMENEZ ! , iuoGWi-NT UOCI^Cr^0/9/^3 . ; . j<^2i~dih5!kD\

Defendant. ) ^ i. i '

t..»-f:nr-A '"he GoUTt for 3 sentencing hearingThis matter having come before Jie to^this date; the defendant having been convicted by.

, of( ) his/her guilty plea on , of{ X ) jncY verdict on 11/28/89

Burglary in the Seccnd Dsgree BCM 9ft..52.030in Benton .

committed on or about May 16, 1989 and represented by hisCounty, Washington;-lAe defendant ^ having been asked if heattorney, Larry Zeigler , the deteM ̂ ̂ present anywished to Tnake a statement on ^ ̂̂e Court being fullyinformation in mitigation of punishment, and the toadvised/ makes the following-

FIHDINSS OF FACT

1. The defendant's prior convictions are:Burglary 2nd 2/22/86

1986Burglary 2nd 6/86 rv-t-oi^o-r iqrc

Eailnre bo Betum l/22l^i 7/^/88Poss. Ccn. Substance 7/10/89 7/1°/Unlaw. Poss, Pistol 5/7/89 //1U/h»

2. Based on the f-egcing crimnal histo^, th^P«=-^t^^^^sentencing range for the offense(s) for whicn tnefound guilty is as follows:

• 43-57 months

( ) 3. The defendant's current multiple offens^ { ) <5° n°t involve( ) do involve the same criminal conduct. ^ ■

( , 4. The defendant was duly informed by ̂ ecial^egati^^court/jury finds/found that ( ) ^30,^9 94^.125 at the^ aS^with a deadly wea^n ̂ months•fclme of the commission of the offense in oount(s) anais to be added to the presumptive sentencing range.

5. The maximum term for the offense(s) is.10 years and/or $20,000 fine

,,, 6. la. aet.na«.t o«..

Th. <oU».in, ,1«1» torestitution in these amounts:

Tom and Linda Denchel $250.00601 Lincoln Court

Prosser, Wa 99350

Great American Ins. Co. ' $1,329.47PO Box 211D9Seattle, Wa 98111 , ,

sentencing which confinement was soleiy in gfor which the defendant is being sentenced.

-{\Gr

%^13

From the foregoing Findings of Fact, the Court makes the following.OWCLUSIONS OF LSW

1. The court has jurisdiction of the defendant and the subjectmatter.

2. The defendant is guilty of the crime(s) of;

Burglary in the Second Degree BCW 9&..52.030

( ) 3." The defendant is a first time offender pursuant to RCK .9.94A. 120(5), and the Court waives the imposition of a sentenwithin the presumptive sentencing range.

{ ) 4. There are substantial and compelling reasons to justify an exceptional sentence. Findings are attached.

jDOaiEHT Wtt) SQUERCE

The Court having determined that no legal cause exists to snow whyjudgment should not be pronounced, it is therefore OBDEBED, flDJODGED and

■ DECREED as follows:

1. The defendant shaU be sentenced to a term of ^L2_2225i5Z—confinement_tO be served pursuant to RCW 9.94R.190 conEnencing

u 3

2. Credit for time served prior to this date of——days is given.

3. The defendant shall report to and be available fOT contact^tt ̂assigned caannmity corrections officer as directed upon release fron

? A W-C^ fit/ -5^} ^( ) 4. The defendantshall be on community plac&entfor a period of one

vear upon either release from confinement or upon transfer tocommunity custody. Conditions of community placement include thatthe defendant:

■ shall work at Department of Corrections-approved education,i employment, and/or community service;

shall not consume controlled substances except pursuant tolawfully issued prescriptions;

shall pay community.placement fees as determined by theDepartment of Corrections;

shall remain within/outside geographic boundariesas directed by Department of Corrections;

( ) shall not unlawfully possess controlled substances;

( ) shall not have direct or indirect contact with

( ̂ shall oarticioate in crime.-related treatment or counselingservices as directed by community corrections officers;

( ) shall not consume alcohol;

( 1 shall have prior approval of comnvunity corrections officerbefore selecting or changing residence location or -ivingarrangments;

< ) shall comply with the following crime-related prohibitions:

$20.50. BCSO70.00 filing

5. The defendent shell pay court coets in thereiid«ree»nt ct court puruu«.t toWt.SB.OdS ^:„r?iiLTr:!l2- =-• °=?"p.rs ss? .gSi,rs.™S";sn»s=;.s =Be£«;Si2^«"-paywents as scheduled by defendant s cc^nity Vu^./uLtt^ 'with full payment no later than IjLo^/UUt^

6. The defendant shall make restitutwn as i''^""%^2oT^inaulS'^#6 which shall be payable to the Clerk of tourt. 7^0 W. QUinKennewick, Washington by cash, cashier spayments as scheduled by the defendant'sofficer with full payment no later than T

7 The Court hereby retains jurisdiction over defendant for a Per^ often a^veMs to assure payment of the monetary obligations, andS SLSSt S ScroctLT .hull h. cspohjai. t«itel.nd«>t's co^Uhhc ulth thisthe defendant is ordered to report to the Depar^t of Correo^i^within 24 hours of release from confinanent or date of this order=.nr« the Department of Corrections to monitor payments.

( ) 8. Defendant shall not have contact with theten (10) years, a violation of this order is a criminal offenseunder RCW 9R.46 and will subject a violator to arrest.

9. The following counts are dismissed;

DOHE IN OPEN COURT this..,/Vrday of, ^presence of the defendant, his/her attorney and the (Deputy) PAttorney.

Sex:

Pace: hispanic

FINGERPRINTS

(Right four fingers takens imultaneously)

JUDGE

Dated: 1 hnriFingerprints attests by.

!io

WKEOOHT OF COMMX^OIENT

THE STATE OF HASHZNOTC«

TO: The Sheriff of Benton County and to the proper officers of theDepartment of Corrections.

The defendant has been convicted in the Superior Court of the State ofWashington of the cr^(s) of: 9A.52.030

BURGLARY 2

and the Coujct ordered that the defendant be punished by serving notmore than: •57 jjqNTHS TO THE DEPARTMENT, CONCURRENT WITH YAKIMA COUNTY89-1-00775-0. CREDIT 103 DAYS SERVED.

TOD, THE SHERIFF, ARE COMMAHDED to take and deliver the defendant to theproper officers of the Department of Corrections;;

and

TOO, THE PROPER OFFICERS OF THE DEPARIMEHT OF CORHECTICSIS ARE COMMANDEDto receive the defendant for classification, confinement and placementas ordered in the Judgment and Sentence.

Dated this 12 day of JANUARY , 1990

Ny£.>:irT

By_

ALBERT J. YENCOPAL

iTUDGE

E. KAY BACCACLERK

MaAAry/ OkJ>hnr)ajr\^ DEPUTY •

I, E. KAX BACCA,. Clerk Of this Court, certify that the above is a true

copy of the Judgment «uid Sentence and Warrant of Crmnnitinent in this action

on record in sff office.

I S day of v-kln , 19 Ql).Dated this

E. KAY BACCA

CIiEEK

89-1-00385-P

■STATE OF-WASHINGTONVS

LEOPOLDQ'. ClARDENAS AKA JOSE JUANJIMENEZ

By_ QLC^hrrOADEPUTY

HASEANT OF COMMITMENT (7/84)

V

'v^

WSHUHGTONSUPERIOR fOF YTOFffH

•A !^U/]li 775-0 and Mk-wain NO.

■ A- M E N D E

,V^

LEOPOLDO CARDENAS JUDGMENT AND SENTENC^.(FELONY)

8

JUL 181989

Stt) NO.: . WA 12912355I. HEARING

1. Asantsndrsg hearing in this case was —— ?iZ. Pra^nt ware:

0IIN0. "353 ^31

aFTTY UcfiUlEN. YAtlMA COUNTY CLERIC

RACE: M

LEOPOLDO CARDEtBS • • . ■'

cirwru! vtjt.t.TSB cnp?r.i. 'RTEVE KELLER Sll££LL

Defendant,Defendant's LawyerDeputy PiDsecu&tg Attorney

S. Count(8)L__l ■••• ' • havB lieen distntased by the court.4. Defandant was asked if there was any legal cause why judgment should not bje pronounced, and none was tiiown.

II. FINDINGS IBased on testimony heard, statementa by defeitdant and/tor victims, argument of counsel, the presentancs report and caserecord to date, the court finds; ! ^ l*"* verdict

1. CURRENT OFFENSE(S): The defendant vras found guilty on 7-^0-89 X3 by plea of guBty

Count No.-_5^_ROW:

. Crime69.50.401

pate) □ by court trialPOSSESSION OF A CONTROLLED SUBSTANCE; COCAINE

Crime Code: L _______. Law Enforcement Incident No. YPD f 8-9-9IDo

TiTcmrsT.Data of Crima; ^_7-RQ ; i..;:. ,

Count Nn TTT Crime: UNLAWFUL POSSESSION OF A PISTOL9.41 .040(1 ) Crime Code: _J .E;_-7-aQ ^ Law Enforcement fricidant f>to. '^rYPD ■ROW:.

Date of Crime:.C^unt No_: Crime:

RCW: Crime Code:Date of Crime:.

( ) Count(3){ ) Counts

Law Enforcement Incident No.._ Includes a special verdict/finding tor use of a deadly weapon.Current offenses encompassed the same criminal conduct and count 'as ero crime in detarmining

the offender score. _ k—*( ) Additional current offenses are attached in Appendix A _ . ^2. CRIMINAL HISTORY: Prior criminal history used in calculating the offender score (RCW 9;94A.360) is: ̂

CRIME SENTENCING DATE ADULT/JUVENILE CRIME DATE CRIME TYPE4-n-Rfi a ^ 2-22-86 NV2° BURGLAP.Y ^

1° POSST OF STOT.EN PROP. 7-86 JCL

&

TIOBBEHYf =94

iO-Hb2-ii-8b TT

-ft-

)-bb12-1-8/7-25"88

"V""-sv-( ) MrilITmtel SSjfJ'i^'ittachoa In App'A^B.® ° .

3. OTHER CURRENT CONVICTIONS Under other cause number used to determine-offender score.qFIIME CAUSE NUMBER

SENTENCING DATACount Nn - IICount No.:_Count No-L

III

OFFENDER SCORE6

OFFENSE SCORE RANGETT^ : /7-22-^ ^TlX '

MAXIMUM TERM5 Years5 Years

( ) Additional current offensels) sentencing information is sutached in Appendix C.5. EXCEPTIONAL SENTENCE: ( ) Substantial and compelling reasons exist which justify a sentence (atiova) (below) the

standard range for Count(s) — —- See Appendix D. 'III. JUDGMENT.

IT iS ADJUDGED that defendant is guilty of the crime(s) of: — ■Rnhgf-anpPT Pnfrainp anH Tt-.TTT; Ilnl RWful

Possession of a ControlledPngetpfisi r^n of a Pistol

IV. ORDER

IT IS ORDERED thai the defandant serve the determinate sentence and abide by the conditions set forth below. .1. THE DEFENDANT shall pay the-financial obligations as set forth in APPENDIX E. The defendant shall be under the jurisaic-

tlon to this court and the Department of Corrections, Community Corrections Office, Yakima. or such other office as may bedesignated, for up to 10 years for purposes of payment fo the financial obligations. During the time payments rerain due.the Office may order the defendant to report to a communitv corrections officer, remain within prescribed gec^raphaal boundariM,and/or notify the office of changes in address and employment. \

2. OTHER orders and conditions follow on the attached pages of this Judgment. P

LEpPOLliO CARDENAS WA 12912355

DEFENDANrS NAME SID NUMBER

CONF«EM£NT OVER ONE YEA|l1. Osfendsni ia wnuncsd to a tarni of total conrmaoiont h the custody of the Oopanmant of Corrections as follows:

22 —Months for Count Nn II22 Mnnlh« fnr No III.Months for Count No

^Mootto lor Count Na.__

.Months for Count No^

.Months lor Count No._

Months lor Count No.

(X) The terms m Counts TT S, TXT Mmneumntlofatotartarmol 22 months.I ] The tenns in Counts nm mnteemive tor ■ iQlai lenn of tiinnlt«

[ Xl DefenAtnt whaii canplv with all the nandatorv lacovisicns of RCW 9.94A.120(8b) and ets nanvof those in RCW 9.9^.120(8c) as dserned appropriate by his/her Camajnity Ctoections Officer.

CREOft b given fer rfays served.The foBovring Appendicss ate attached to diis Judgment and Senianca and aro incocpoiaiad by refermtce: r t <

) A. Additional Current Oflerisas. , /f) X+ rs H HyfCt.IB, AdtStjonal Crfcrinat H'story f2. ̂ (h i Jf -I C, Current Offenseft) Sentencing Information. t ^I 0, Excaptional Sentencing Finding of Fact and Condu^onscLwWi©yCr CL% / /

XI E. FnanciBi Ordar. . /au«4A^ VPO r%

.TTTT.V in. 1989 h\jC£, biA"- ^ ^• fJUTOEl WUDGE PRO TEMJ

Approved as to form:

DATE:

Fresanted

Deputy Prosecuting Attorney Attorney for Defendant

THE STATE OF WASHINGTON WARRANT OF COMMITMENT ;To: The Sheriff of Yakima County.

Thadafendani T.EOPOLDO CARDENAS | ^ hnsboonconvfetodin theSuperior Court of the State of Washington of the crimefs) ol; d.II: POSSESSION OF A CONTROLLED

SUBSTANCE: COCAINE and CT-III: UNLAWFUL POSSESSION OF A PISTOL! • '

1

and the court has ordered tfral the defandaiit be punisiied as set out in the attached Judgment and Sentonco.

Defendant shaD receive credit for lime served as ordered.

YOU, THE SHERIFF. ARE COMMANDED to take and delver the defendant to the proper officers of the Oepartmem of Corrections.

YOU, THE PROPER OFFICERS OF THE DEPARTMENT OF CORRECTIONS. ARE COMM^DED to receive the defendant lor ctassHieation. confinement end placemeni as ordarad in the Judgment end Sentence.

DATE: .; .TnT.Y 1 0. 1989 By lite Direction ol iho Honorablo- 5>TP1>HrM RgTYtm

tJUDGEI [JUDGE PRO TEM)

BETTY McGILLEN

By: - 9., f]?tvyDepuiy Cluic . k"

■ ■ : 1 . ■' A

Qsuse- (\)o. CQi'^'S

j^ad %W-S353>XORC0 BV

. « I V ^•"-a/ y '' ^^uperiOR Ci^URT OF FOR YAfoofK-

"nte State of Washington,

..if^vs.

LEOPOLDO CUEVAS CARDENAS,

.-A-- rrr 97

|. ■ R » *

I

.

Defendant

lOUNTY

pn H 53

^6r98-1-€2190-5:icuru

retONY JUDGMENT AND SENTENCE

Confinement Over One Year

SID NO.: WA12912355Motor Vehide Involved: Yes__ NoQ I * -

DOB-11/12/62 SEX: MALE RACE: HISPANICSSNft537-0S4575:PCN:

I. HEARING

11 hriri September 27.1999. Presentwere the <»tidaj DOUGLAS B. ROBINSON,and PATRICIA D. POWERS, Deput, Prosecuting fltoKsr.

1.2 Counts was dismtesed by the court under separate order.

1J -me defendant »e. 8i«n tl» rigW of alloctitlon e^ a^ Ifentered. There being no reason why judgment should not be pronounced, toe court finds.

II. FINDINGS

Based on testimony heard, statements by defendant and/or victims, argument of counsel, toe pre-sentence report andrecord to date, the court finds:

2.1 CURRENT OFFENSE(S): On September 27,1999, the defendant was found guilty by a plea of guilty.count NO. 1 °^S.M!i9ofn.fwLM^W(a)a

Date of Crime: December 6,1998Law Enforcement Incident No.: Yakima PD 98-22185

Count No. ROW S!re/I90 aS^i\^^00(1)(a) and 9A.56.200(1)(b)Date of Crime: December 6,1998Law Enforcement Inddent No.: Yakima PD 98-22185

2.2 SPECIAL FINDINGS:

[] Counts. encompass the same criminal conduct and count as one crime In determining offender score,includes a special verdictffinefing for use of a flreaim, attached hereto.

. . _ . - _ ■ ■■ fflnaam[1 Counts iiRiiuuoo o ojrfw-iw "o — •

M Counts land 2 includes a special verdct far use of a deadly weapon other than a flreaimn Counts includes a special verdiclflindlng for sexual motivation, atohed hereto.ncoimts includes a special verxflctffinding for a drug offeiwe protected zone, attad^herrtaAny firearmtoMiz^ from the defendant or used in toe commission of the within offBnse(s) shall be forfeited pursuant toROW 9.41.008 and disposed of l)y ttre above law enforcement agency.

Faony Judanwnt ind SentanoB - Confinament Ovsr Ono YearState V. LEOPOLOO CUEVAS CARDENAS - B8-1-0ZI9MREVOI/BSM

Paget efS

Hi 1 •. ■ ^

Pg-h^ X/2 j • . CRIMINAL HISTORY: Prior criminal history

GRIME

Bursary 2Possession of Stolen Property 1Burglary 2Thefti

TheftiRobb^2Failure to Return to Wbrk ReiraseVUCSA-Posg HeroinUt^awfui Possession of a Firearm

Burglary 2Custodial Assault

lA OTHER CURRENT CONVICTIONS under otherCRIME

NONE

in calculating the offender (RCW 9.94A.360) is;SENTENCING DATE A/J CRIME DATE CRIME TYPE

04-11-88- A 02-22-86

07-22-86^ A 06-18-86

1007^6 j A 07-28-86

10-07-86 J A 07-28-86

10-07-88^ A 07-28-88

02-11-88 A 12-02-87

07-22-88 A 06-09-88

07-10-89 A 05^-89

07-10-89 A 05-07-89

01-12-90 A 05-18-88

02-08-90 A 11-23-89

cause number^s) used to deterrtrine offender score.CAUSE NUMBER

2.S

2.6

SENTENCING DATA:

COUNT OFFENDERSCORE

9+ (12)9+ (12)

1

2

OFFENSESCORE

STANDARDRANGE

129-171 Monttis

129-171 Mcmths

ENHANCEMENT

24Montos

24 Months

ENHANCED MAXrange term

153-195 Months Life153-195 Months Life

EXCEPTIONAL SENTENCE: Substantial and compelling reasons exist which justify a sentenceSndato range for Count(s) as set forth in APPENDIX D. The prosecuting attomey fl has 0 has notrecommend^ a similar sentence.

III. JUDGMENT

IT IS ADJUDGED that defendant is GUILTY of the counts and charges listed in paragraph 2.1 Including Appendix A.IV. SENTENCE AND ORDER - CONFINEMENT OVER ONE YEAR

FT IS ORDERED that ttre defendant serve tfie determinate sentence and abide try the conditions set forth below.

4.1 FINANCIAL: The Defendant shall pay financfel obligations and abWe by the conditions as set forth In ̂ ^^DDC E. Ttedefendant shall be under the jurisdicftin of this court for "P to JO V®®^ tor P"^P^, T°fobligations. The defendant shall be under the supervision of the court and Washinglrm Sty ^Conecfions for up to 10 yrars for purposes of payment of the financial obligations ordered Jhe defendiMt y^l '®Port tothe Department of Corrections, 210 North 2nd Street. YaWma, WA.. r^n 24 hours 5L°iJK2confinemenL During the time payment remains due, ttw l^partment Sa community collection's officer, remain within prescnb^ g^raphi^ ̂ "iV^T^'nernHM hSchange in adrirpag or employmenL Payments made to the department shall be transmitted daily to the Cleric of theCourt

Felory JmlBinBrt SKl SBteMB - Conflnament Ow One Y«rstats V. LEOPOLDO CUEV<%S CARDENAS - 88-1-02100-5REVOI/nMI

PigaScrS

4A-

e_-

.MNFINEMEOTl Defendant Is ̂ ncol to a tenn of tolal conffnement Vihe custody of toe weshtogton StateDejartment of Corrections as fblltjws;

5i«SSsa!IS:l«lSSSlJ»8®WSS»-n,e defendant Shall tooalve otedltfintlme satved on tllla cinige only and any good l»haeloras ceitBed byfte YaWtna County Jail/Department of Corrections.

total term oraw VffiOTa. I^S rntw-rttS •

The ̂itenc^ereb shall mn (concurrentiy)(consecutively) wiBi the sentence in Cau^ No.^ ^WORK ETHIC CAMP: The court finds that the defendant te eligible aite Htely to quality w^natpnthe court recommends that the defendart serve^ ^ fl maIStSwWTOState Department of Corrections In accordance with the provisions of RCW 9.94A.137 and RCW 72.09.410.

COMMUNITY PUtCEMENT: The defendant, tjy virtue of flw offense commHted, is not subject to community placementunder RCW 9.94A.120.

[][][1

4,4 OTHER PROVISIONS: Otiier orders and conditlons:

4,5

NONE

NOTICE TO DEFENDANT: No petition or motion for collateral attack on a judgment and sentence In a criminal casemay be filed more than one year after the judgment becomes final If the judgment and s^nrete valid on itswas rendered by a court of competent jurisdiction. For purposes of this section, collateral^^ means any foim rfDost-convtotion relief other than a direct app^l. "Collateral attack" includes, but is not fimited to. a pe^nal restraintpetition, a habras corpus f^on, a motion to vacate judgment, a motion to virlthdiaw a gu% plra. a motion for a newtrial, and a motion to arrest judgment

4,6 APPENDICES: The following Appendices arereference:

] A - Additional Current Offense(s),] C > Other Current Offense)q E - Finandai Order] G - Sexual Motivation Findingsj 1 - Drug Offense Protect Zone Findings

DATED: SeptemberZT, 1999

by:

^ClADATRDeputy Prosecuting AttorneyWashington State Bar Number6625

attached to this Judgment and Sentence and are incorporated by

[ ] B - Additional Crirrunai History[ ] D - Excqptiona! Sentence Rndingspq F - Firearm/Deafly Vifeapon Rnding[ 1H - Communi^ Pbcement Order[ ] J - Notificatiori of R^istration Requlran^nt

JUDGE

Approved as to fmrt

DOUGLAS B. ROBINSONAttomey for DefendantWashington State Bar Number_

Fsiany Judomnt and SntencB - CoiribHcmit Over Oiw YearSftn V. LEOPOLDO CUEVAS CARDENAS - n-1.02ie>«REV01/9SM1

PageSoTS

AJ WARRANT OF COMMrmiENT (JTHE STATE OF WASHINGTONTO: The Sheriff of Yakima CountyTO: The YaWma County Departn^rfTO: The Wfashington State Departnwnt of Corrections■n,.dri6ndanthasbeencotwlctedln11.e Supertor couitoflheStalBOfWtehingtonofttiecnmeCsjat

COUNT 1 - FIRST DEGREE ROBBERYCOUNT 2 - FIRST DEGREE ROBBERY

and the court has ordered that the defendant be punfehed as set out in the attached Judgment and Sentence.YOU ARE COMMANDED to receive the defend^ for classification, confinement and placement as orderedin the Judgment and Sentence. By the Direction of the Honorable

DATED: SeptBmber27,1999 ju^KIM EATON, Clerit

Deputy Cleric

FetonyJudgmertrndSantgncB-ConaiiemBrtOwrftnYaBr P»Ba4or6Stale V. LEOPOUX) CUEVA5 CARDENAS - OS-1-02190-5REV-01/88/MI

FILED

DECEMBER 12, 2017In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,No. 33888-6-III

UNPUBLISHED OPINION

LEOPOLDO CUEVAS CARDENAS,

Appellant.

SiDDOWAY, J. — Leopoido Cuevas Cardenas appeals his conviction and sentence

for attempted second degree burglary. The State has reasonably cured or conceded

several errors.

The sole issues that remain are whether Mr. Cardenas's offender score was

calculated incorrectly and whether resentencing is required. Although Mr. Cardenas

points out a calculation error, an offsetting error leaves his offender score unchanged.

Resentencing is not required. We remand for correction of the judgment and sentence.

PROCEDURAL HISTORY

Leopoido Cuevas Cardenas was charged with attempted second degree burglary

after he tried to break into an espresso stand in Wapato on August 24, 2015. A CrR 3.5

No. 33888-6-III

State V. Cardenas

hearing was conducted on the admissibility of a statement he made to Deputy Justin

Swale before being arrested. At the conclusion of the hearing, the trial court found that

Mr. Cardenas was not in custody at the time he made the statement and that he made it

voluntarily. The court did not enter written findings or conclusions in support of its

ruling at the time. It allowed Deputy Swale to testily concerning Mr. Cardenas's

statement at trial.

A jury found Mr. Cardenas guilty. The trial court sentenced Mr. Cardenas to 51

months' incarceration based on an offender score of 9+.

At sentencing, the State asked the trial court to impose $260 in restitution for the

damage to the espresso stand. Mr. Cardenas objected to the amount, claiming the victim

was overcharged for the repairs. The trial court entered a $1 restitution award as a "place

holder," observing that a hearing to determine restitution would be held at a later date.

Report of Proceedings (RP)' at 259. That hearing never occurred.

Mr. Cardenas appealed. Among the assignments of error made in his opening

brief was to the trial court's failure to enter findings and conclusions in support of its

decision at the CrR 3.5 hearing. The State promptly moved this court to stay the appeal

and remand the case to the trial court for entry of the findings and conclusions. The

' All citations to the Report of Proceedings are to the consecutively numbered twovolume report that begins with proceedings taking place on September 8,2015.

No. 33888-6-III

State V. Cardenas

motion was granted and on remand, findings and conclusions consistent with the trial

court's oral ruling were entered.

Upon completion of the briefing, the appeal was considered by the panel without

oral argument.

ANALYSIS

Not counting Mr. Cardenas's assignment of error to the trial court's failure to enter

findings and conclusions following the CrR 3.5 hearing, which is now moot, his opening

and supplemental briefs make four assignments of error. The trial court is alleged to have

erred in (1) imposing restitution, (2) misstating the maximum penalty for attempted

second degree burglary in the judgment and sentence, (3) misstating dates in the criminal

history of Mr. Cardenas set forth in the judgment and sentence, and (4) scoring too many

offender points for Mr. Cardenas's crimes committed before July 1, 1986, that were

served concurrently.

The State concedes that the trial court failed to conduct a hearing on the amount of

restitution within 180 days of the sentencing hearing as required by RCW 9.94A.753(1)

and that the remedy is to vacate the restitution order. See State v. Grantham, 174 Wn.

App. 399, 406, 299 P.3d 21 (2013). We accept the State's concession.

The State also concedes that the judgment and sentence contains scrivener's

errors. Section 2.5 incorrectly lists the maximum term for attempted burglary in the

second degree as 10 years, when it is actually 5 years. RCW 9A.52.030(2),

No. 33888-6-III

State V. Cardenas

9A.28.020(3)(c), 9A.20.021(l)(c). In addition, Mr. Cardenas's criminal history set forth

in the judgment and sentence includes 9 entries in the "Date of Crime" column that do

not match the dates in the criminal history packets prepared by the State for sentencing.

The parties agree that the correct dates are as follows:

Crime Date of crime

listed in the

judgment andsentence

Actual date

of crime

Citation

Custodial Assault

90-1-00015-3

1-11-1990 11-22-1989 Supp. Br. of Appellant Appendix B;State's Ex. D

Second Degree Burglary86-1-50132-0

7-28-1986 6-18-1986 Supp. Br. of Appellant Appendix A;State's Ex. D

Second Degree Burglary86-1-50132-0

7-28-1986 6-16-1986 Supp. Br. of Appellant Appendix A;State's Ex. D

First Degree Theft (not FA)86-1-50132-0

7-28-1986 6-18-1986 Supp. Br. of Appellant Appendix A;State's Ex. D

Second Degree Theft (not FA)86-1-50132-0

7-28-1986 6-16-1986 Supp. Br. of Appellant Appendix A;State's Ex. D

First Degree PSP86-1-50107-9

6-20-1986 6-18-1986 Supp. Br. of Appellant Appendix C;State's Ex. B

Second Degree Robbery87-1-01598-5

12-2-1987 12-1-1987 Supp. Br. of Appellant Appendix D;State's Ex. A

Second Degree Burglary86-1-00226-5

1-19-1986 2-22-1986 Supp. Br. of Appellant Appendix E;State's Ex. A

Willful Fail Return - Work Release

88-1-0024-7

6-9-1988 4-25-1988 Supp. Br. of Appellant Appendix F;State's Ex. A

We again accept the State's concession and will direct the trial court to make the

eorrections indicated.

The only remaining issue raised by Mr. Cardenas's briefs is whether his offender

score was miscalculated.

No. 33888-6-III

State V. Cardenas

Calculation of offender score

For convictions of crimes committed before July 1, 1986, all convictions that were

served concurrently count as one offense in the defendant's offender score. RCW

9.94A.525(5)(a)(ii). Six of the 14 convictions included in Mr. Cardenas's criminal

history were for crimes committed before July 1, 1986. Of those, the sentences for 4 (2

burglary convictions and 2 theft convictions for crimes committed in June 1986) were

served concurrently and should be counted as a single offense for scoring purposes. The

State agrees that the 4 convictions count as only 1 offense.

While Mr. Cardenas points to this scoring rule that causes four of his convictions

to count as one, he ignores different scoring rules that cause four of his convictions to

count as eight. Under RCW 9.94A.525(6), prior convictions are counted as if a

defendant's attempted second degree burglary conviction was for a completed second

degree burglary. And under RCW 9.94A.525(16), since the present conviction is treated

as one for burglary 2, two points are counted for each of his adult prior burglary 1 or

burglary 2 convictions—of which he has four. This doubling of points for the prior

burglaries was pointed out by the prosecutor during the sentencing hearing. See Report

of Proceedings (RP) at 239-40. The additional four points added under this rule more

than offset the three point reduction for Mr. Cardenas's concurrently-served pre-July 1,

1986 convictions.

No. 33888-6-III

State V. Cardenas

The State correctly argues that even if the four pre-JuIy 1, 1986 crimes were

correctly scored as a single offense Mr. Cardenas would still have an offender score of

9+, leaving his standard range unaffected. The State contends that resentencing is

unnecessary because even if Mr. Cardenas had pointed out below that four of his

convictions counted as one, the trial court would have imposed the same sentence.

When the sentencing court incorrectly calculates the standard range, remand for

resentencing is the remedy unless the record clearly indicates the sentencing court would

have imposed the same sentence anyway. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d

1192 (2003) (citing State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997)). This

case is different, because there is no showing here that the offender score of 9+ is wrong.

We cannot even determine that the sentencing court was mistaken about how many

points above nine would be indicated by Mr. Cardenas's criminal history, because it

appears no one thought it mattered.

The trial court offered the following reason for the sentence it imposed:

[W]hen sentencing—^and the legislature gives the court a range, then Ithink what a lot of judges do is kind of start in the middle of the range andthen—determine whether there are factors that indicate that the rangeshould be higher or lower. On the one hand this is probably a pretty routineattempted second degree burglary. But we do have I think a seriousconsideration here, given Mr. Cardenas' record. He has a long historyof—theft and burglary. I'm not sure that—much has been learned throughincarceration.

But given—given the history, given his criminal history, I think asentence closer to the top of the range is more appropriate than one at thebottom of the range.

No.33888-6-111

State V. Cardenas

I am going to sentence at the top of the range, 51 months.

RP at 252-53. Whether concurrently-served convictions for pre-July 1, 1986 crimes

count as one offense or prior burglary 2s count as two, the decisive factor for the court—

Mr. Cardenas's "long history of theft and burglary"—remains the same.

Mr. Cardenas has not demonstrated an error in calculating the offender score or

any basis for remanding for resentencing.

STATEMENT OF ADDITIONAL GROUNDS

In a pro se statement of additional grounds (SAG), Mr. Cardenas raises four.

Error to admit screwdriver because no probable cause to arrest; SAG at 11-13.

Pretrial, Mr. Cardenas made a pro se motion to dismiss on the basis that Deputy Swale

lacked probable eause to arrest him. The motion was denied. No objection was made

when the screwdriver was later offered as evidence. Any objection to admitting the

screwdriver as evidence was waived. RAP 2.5(a).

Mr. Cardenas's real quarrel appears to be with the trial court's ruling that Deputy

Swale had probable cause to arrest. Where the facts and circumstances known to the

arresting officer are sufficiently trustworthy to eause a reasonable officer to believe an

offense has been committed, probable cause exists. State v. Moore, 161 Wn.2d 880, 885,

169 P.3d 469 (2007). A person is guilty of attempted second degree burglary if, with the

intent to commit second degree burglary, "he or she does any act which is a substantial

step toward the commission of that crime." RCW 9A.28.020(1).

No. 33888-6-III

State V. Cardenas

As Deputy Swale testified at the CrR 3.5 hearing and at trial, upon responding to

the report of the attempted burglary he traveled to the espresso stand; examined damage

to a door that it appeared someone tried to pry open; spoke with the owner, who said it

was new damage; and viewed security footage of a man trying to pry open the door—

footage from which he could see the man's face and clothing "pretty well." RP at 51.

He then drove around the area and within 20 minutes spotted Mr. Cardenas, whose

appearance was consistent with the man on the security footage. When he approached

Mr. Cardenas and told him nothing more than that he was investigating a burglary, Mr.

Cardenas stated "he had only walked by the coffee shop." RP at 53. There was more

than enough trustworthy information to cause a reasonable officer to believe an offense

had been committed.

Ineffective assistance of counsel; SAG at 16-20. Mr. Cardenas next alleges

ineffective assistance of counsel. The Sixth Amendment to the United States

Constitution guarantees a criminal defendant the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To establish ineffective assistance of counsel, a defendant must demonstrate that a

lawyer's representation was deficient and that the deficient representation prejudiced

him. State v. McFarland, 111 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

Mr. Cardenas generally describes alleged instances of ineffective assistance

No. 33888-6-III

State V. Cardenas

(making no effort to secure the security video, doing nothing to prepare a defense, failing

to file motions, and failing to object to leading questions). But in each case he either fails

to identify a specific act or omission, or fails to demonstrate that an act or omission was

both deficient and prejudicial. No ineffective assistance of counsel is shown.

Selective prosecution, prosecutorial misconduct, and insufficient evidence; SAG

20-26. Mr. Cardenas argues he was the victim of selective prosecution, that the

prosecutor committed prosecutorial misconduct during closing argument, and that the

State presented insufficient evidence to prove beyond a reasonable doubt that the man in

the security video was him.

Mr. Cardenas contends he is the victim of selective prosecution based on his race.

He did not claim race-based prosecution in the trial court, however, so under RAP

2.5(a)'s general rule, any claim of error was waived. The rule's exception for "manifest

constitutional error," RAP 2.5(a)(3), does not apply. Although the asserted error is

constitutional, it was never addressed or explored in the trial court, leaving Mr. Cardenas

unable to demonstrate the actual prejudice that makes an error "manifest." State v.

Munguia, 107 Wn. App. 328, 340-41, 26 P.3d 1017 (2001). Error, if any, was not

preserved.

Mr. Cardenas argues that the following statements by the prosecutor during

closing argument amounted to prosecutorial misconduct:

No. 33888-6-III

State V. Cardenas

[The espresso shop owner] went and looked at the security video,and he saw the defendant trying to break in. He saw the defendant takinga screwdriver and prying, over and over again, trying to open up thatdoor....

... Dep. Swale came and responded. He saw the videos, he saw thepry marks, he took pictures of the door, where the defendant had tried topry open the door.

He left the scene, and about 20 minutes after that, five or six blocksaway, easy walking distance, he saw the defendant walking along. And hecontacted him and the defendant asked, "What are you contacting me for."He said, "I'm investigating the burglary," Deputy testified that's all hesaid, nothing about a coffee stand; "I'm investigating the burglary." Andthe defendant's response, which the defendant—which the deputy noted inhis police report, put quotations marks around, was, "I was just walking bythat coffee stand."

RP at 173-74. He claims conclusorily that the statements were prejudicial and

unsupported by the record. While Mr. Cardenas asserts his innocence and that the shop

owner did not see him on the security video, the prosecutor's statements are supported by

evidence and reasonable inferences from the evidence. Mr. Cardenas provides no

evidence or argument demonstrating prejudice.

Mr. Cardenas argues the State failed to prove beyond a reasonable doubt his

identity as the attempted burglar or his felonious intent. In reviewing a claim of

insufficiency, we view the evidence in the light most favorable to the prosecution and ask

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507

(2017). A person acts with intent when he or she acts with the objective or purpose to

accomplish a result which constitutes a crime. RCW9A.08.010(l)(a).

10

No. 33888-6-III

State V. Cardenas

The same evidence we describe above as supporting the trial court's finding of

probable cause to arrest is substantial evidence that Mr. Cardenas attempted to enter the

espresso stand with the intent to commit a crime. The use of a screwdriver to seek entry

into a building is sufficient evidence of a defendant's intent to enter for illegal reasons.

State V. Brooks, 107 Wn. App. 925, 929-30,29 P.3d 45 (2001).

Offender score miscalculation; SAG 26-30. Finally, Mr. Cardenas argues that the

trial court sentenced him based on a miscalculated offender score, making arguments

different from those advanced by his appellate lawyer. He challenges the validity of his

prior convictions and contends that some of his convictions "washed out." SAG at 27.

Prior convictions do not count toward the offender score if they have washed out

as a result of crime-free time spent in the community. For class B felonies, an offender

must spend 10 consecutive years in the community without committing any crime that

subsequently results in a conviction. RCW 9.94A.525(2)(b). For class C felonies, an

offender must spend 5 consecutive crime-free years in the community for the felony to

wash out. RCW 9.94A.525(2)(c).

At Mr. Cardenas's sentencing, the lawyers were aware that Mr. Cardenas believed

some of his convictions had washed out. Certified copies of the judgment and sentences

and Department of Corrections' records were available and both lawyers addressed the

issue. As the prosecutor pointed out, "There isn't a span of five years as to any of these

felony convictions." RP at 236. Even defense counsel stated he had reviewed the

11

No. 33888-6-III

State V. Cardenas

criminal history and "[u]nfortunateIy, I don't see that under the [Sentencing Reform Act

of 1981] there is anything for me to argue in terms of a washout. I did look at it

carefully. Given the calculations I did not see any washouts." RP at 237.

Following Mr. Cardenas's release from custody for his first crime committed in

1986, he committed a crime every year through the year 1989, meaning—since the

crime-free years must be consecutive—that the wash-out clock continually reset. His

release from custody on August 5, 1996, started the clock running, but Mr. Cardenas then

committed two first degree robberies in December 1998. He was not released from

custody until June 1, 2012. At the time of the attempted second degree robbery on

August 24, 2015, Mr. Cardenas had been crime-free in the community consecutively for

only a little over three years—not enough to wash out a Class B or Class C felony.

Finally, as to Mr. Cardenas's challenges to the validity of his convictions,

[A] criminal defendant generally has no right to contest the validity of aprevious conviction in connection with a current sentencing. [State v.]Ammons, 105 Wn.2d [175,] 188, [713 P.2d 719, 718 P.2d 796 (1986)].Requiring the State to make such a showing, or allowing the defendant toassert such a challenge, would turn the current sentencing proceeding intoan appellate review of all of the defendant's prior convictions. Id.Consequently, a defendant seeking to challenge the validity of a priorconviction must exhaust established postconviction avenues of relief, suchas a personal restraint petition.

State V, Irish, 173 Wn.2d 787, 789-90, 272 P.3d 207 (2012).

12

No. 33888-6-III

State V. Cardenas

We affirm the conviction and remand with directions to vacate the award of

restitution and correct the judgment and sentence in a manner consistent with this

opinion.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

WE CONCUR;

Korsmo, J. ^

Lawrence-Berrey, A.C.J. ( ^

Siddoway, J. %

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