### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 46858

- 1

- II Respondent,

v. STEVEN E. PINK, Consolidated with Appellant. In re the Personal Rest raint Petition of No. 48282

- 7



### - II

STEVEN E. PINK, UNPUBLISHED OPINION Petitioner.

L EE , J

. — Steven E. Pink appeals the sentence imposed following his guilty plea to first degree assault, alleging the sentencing court miscalculated his offender score. In calculating Pink’s offender score as 8, the sentencing court included in Pink’s criminal history two 1981 convictions, a 1983 Ore g o n conviction f or second degree robbery , and a 199 5 Washington conviction for unlawful delivery of a controlled substance

– methamphetamine . Pink argues the 1995 conviction should not have been included. Additionally, i n his statement of additional
grou nds (SAG), Pink argues the 1983 conviction should not have been included

. In Pink’s consolidated personal restraint petition (PRP) , Pink argues the trial court miscalculated his Filed Washington State Court of Appeals Division Two November 8, 2016No. 46858

- 1

- II / No. 48282

- 7

- II

2 offender score by counting the two 1981 convictions separately and further al leges he was denied effective assist ance of counsel for counsel’s failure to raise th i s issue below. We hold that there was no sentencing error and counsel provided effective assistance. Therefore , we affirm Pink’s

sentence and deny his PRP , including his request for counsel

. FACTS In 1999, a jury found Pink guilty of c onspiracy to commit first degree murder and first degree assault for placing a bomb at his community correction officer’s (CCO’s) home. State v. Pink , noted at 118 W n . App. 1049 , 2003 WL 22183943 at *1 ( 200 5 )

. The bomb exploded when the CCO picked it up, causing severe injuries. Id. The sentencing court imposed an exceptional sentence, which this court overturned

. Id. a t * 7

. Pink was returned to Grays Harbor County for re

- senten cing

. State v. Pink , noted at 144 Wn. App. 1001, 2008 WL 1723597 at *2 (2008)

. He had an extensive criminal history, which included a 1981 second degree theft conviction, a 1981 taking a motor vehicle without permission conviction, a 1983 Oregon conviction for second degree robbery , a 1990 Washington conviction for possession of a controlled substance

— more than 40 grams of marijuana, and a 1995 Washington conviction for unlawful delivery of a controlled substance

— methamphetamine

. A t the re

- senten cing, Pink challenged the legal comparability of the Oregon conviction for second degree robbery. Id. at *4. The sentencing court found the Oregon robbery conviction was properly included in Pink’s offender score and imposed a standard range sentence. I d. at *2

- 3. Pink appealed. Th is c ourt affirmed the sentence, holding that the Oregon conviction was comparable
to second degree robbery und er Washington law. Id. at *5.No. 46858

- 1

- II / No. 48282

- 7

- II

3 In 2009, Pink filed a PRP with our Supreme C ourt , arguing his conviction should be reversed becau s e his public trial rights were violated when portions of voir dire were conducted in chambers. In re Pers

. Res traint of Pink , 322 P.3d 790 , ¶ 1 (mem) (2014). The c ourt agreed and reversed his conviction. Id. In 2014, t he State filed a second a mended information , charging Pink with first degree assault. Pink agreed to plead guilty to first degree assa u lt in exchange for the State dropping the conspiracy to commit first degree murder charge. Pink agreed to the P rosecutor’s S tatement of Defendant’s C riminal H istory, but wrote on the plea agreement, “point calculation is disputed.” Clerk’s Papers (CP) at 3. The criminal history included the convictions detailed above

. T h e trial court accepted Pink’s plea and calculated his offender sco re at 8 , which included four points for the 1995, 1983, and two 1981 convictions. The trial court then sentenced Pink to 277 months , the high end of a standard range sentence

. Pink challeng es his new sentence through both a direct appeal and a PRP, which we consolidated.
ANALYSIS
A. D IRECT A PPEAL Pink first contends the sentencing court miscalculated his offender score. He argues the 1995 conviction is faciall y invalid and cannot be counted in his offender score. 1 We disagree.

1 Pink noted his objection to his offender score on his plea agreement; nevertheless, the general rule is that a defendant may challenge his offender score for the first time on appeal. State v. Mendoza , 165 Wn.2d 913, 919

- 20, 205 P.3d 113 (2009).No. 46858

- 1

- II / No. 48282

- 7

- II

4 1. Standard of R e view
We review offender score calculations de novo. State v. Hernandez , 185 Wn. App. 680, 684, 342 P.3d 820 (2015), review denied , 185 Wn.2d 1002 (2016). The appropriate remedy for an improperly calculated offender score is remand for resentencing. Sta te v. Cobos , 182 Wn.2d 12, 15

- 16, 338 P.3d 283 (2014).
2. 1995 Washington C o nviction
Pink argues that the trial court erred when it considered his 199 5 conviction because it is unconstitutional on its face. We disagree.

a. Legal principles The State is not required to prove the constitutional validity of prior convictions before they can be used at sentencing. State v. Ammons , 105 W n .2d 175, 188, 713 P.2d 719 , cert. denied , 479 U.S. 930 (1986). Moreover, a defendant generally has no right to contest prior convictions at a subsequent sentencing because there are more appropriate methods for contesting the validity of prior convictions. Id. But a prior conviction that is unconstitutionally invalid “ on its face ” may not be considered
at se ntencing. Id at 187

- 88. “ ‘ On its face ’ includes the judgment and sentence and documents signed as part of a plea bargain. ” State v. Webb , 183 W n . A pp . 242, 250, 333 P.3 d 470 (2014) (quoting State v. Thompson , 143 W n . App. 861, 866

- 67, 181 P.3d 858 , review denied , 164 Wn.2d
1035 (2008) ) , review denied , 18 2 W n .2 d 1005 (2015) . In other words, a conviction is facially invalid if constitutional invalidities are evident without further elaboration. Ammons , 105 W n .2d
at 188.No. 46858

- 1

- II / No. 48282

- 7

- II

5

b. 1995 Washington conviction facially valid
Pink claims the 1995 plea statement and ju d gment and sentence are invalid b ecau s e they incorrectly list the maxi m um penalty for his offense as five years imprisonment and a $10,000
fine. Pink claims his maximum was actually double that amount because of his prior 1990 f or possession of more than 40 grams of marijuana conviction. He is incorrect. Pink was convicted in 1995 of violating former RCW 69.50.401 (1989)

. Under that statute, “Any person who violates this subsection is guilty of a crime, and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.” Former RCW 69.50.401(d). Former RCW 69.50.408 ( a ) (1989), howev er, states, “ [ a ] ny person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authoriz ed, or both.” Pink ’s prior conviction for d elivery of more than 40 grams of marijuana was under chapter 69.50 RCW

. Thus, Pink argues that his statutory maximum was double what he was informed.
A t the time of Pink’s offense, convictions under RCW 69.50.401 were excluded from the doubling statute. Specifically, former RCW 69.50.408( c) (1989) provides, “this section does not apply to offenses under RCW 69.50.401

. ” Accordingly, Pink ’s sentence for his former RCW 69.50.401 offense was not subject to doubling. He was correctly advised of the maximum sentence when he pleaded guilty in 1995 to delivery of methamphetamine. We also note that any claimed error would be inconsequential because the 1995 trial court sentenced him to 46 months , 2 which

2 We note that the trial court also sentenced Pink to one year community custody. The law that confinement and community custody cannot e x ceed the statutory maximum was not enacted until 2009. See former RCW 9.94A.701(8) , L AWS OF 2009 , c . 375 § 5 ( eff. July 26, 2009 )

.No. 46858

- 1

- II / No. 48282

- 7

- II

6 is less than the statutory maximum that Pink claims was erroneous. Thus, we hold Pink’s offender score was not miscalculated based on the inclusion of his 1995 conviction.
3. SAG In his SAG, Pink argues the trial court should not have in cluded his 1983 Oregon conviction in calculating his offender score b ecause the Oregon court did not read Pink his constitutional rights before accepting his guilty plea. He claims, therefore, that his plea was involuntary. This issue, however, is not properly before this court

. As stated above, a defendant generally ha s no right to contest prior convictions at a subsequent sentencing because there are more appropriate methods for contesting the validity of prior convictions. Ammons , 105 W n .2d at 188 . The exception would be a conviction that is unconstitutionally inval id on its face

. Id

. at 187

- 88. Pink’s challenge to his 1983 conviction would require further elaboration than th e judgment and sentence and plea statement ; f or instance, the verbatim report of proceedings would need to be reviewed. See State v. McFarlan d , 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) ( i ssues dependent on matters outside the record are not properly before the court on direct appeal)

. Without more, Pink’s challenge to his 1983 conviction is not properly before us.
B. P RP 1. Standard of Review To prevail on his PRP , because it is not based on constitutional grounds, Pink must establish that he is being unlawfully restrained due to a “‘ fundamental defect which inherently results in a complete miscarriage of justice. ’” In re Pers

. Rest rai nt of Goodwin , 146 W n .2d 861, 867, 50 P.3d 618 (2002) (quoting In re Pers. Restraint of Fleming , 129 Wn.2d 529, 532, 919 P.2dNo. 46858

- 1

- II / No. 48282

- 7

- II

7 66 (1996))

. This test is satisfied by showing that a sentence was based upon a miscalculated offender score. Goodwin , 146 Wn.2d at 876. A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. Id. at 868.
2. 1981 Conviction s Pink argues his 1981 convictions were sentenced concurrently; therefore, they should have only counted as one point in calculating his offender score instead of two. We disagree.
Former RCW 9.94A.360 (5)( a ) (ii) (199 9 ) ( re codified a s RCW 9.94A.525(5)(a)(ii) L AWS OF 2001 , chapter 10, section 6) r eads in part: “In the case of mul tiple 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

. ” T he fact that a court orders a subsequent sentence be served concurrently with the remainder of a previous sentence does not automatically convert the two sentences into one concurrent sentence for the purpose of the statute

. State v. Hartley , 41
W n . App. 669, 673, 705 P.2d 821, review denied , 104 W n .2d 1028 (1985 ).
In July 1981 , the sentencing court entered an order deferring Pink’s sentence on his second degree theft conviction

. I n December 1981, the court revoked Pink’s probation an d sentence d him on the theft conviction . On the same day, Pink was sentenced for a subsequ ent taking a motor vehicle without permission conviction. The sentencing court ordered that the taking a motor vehicle sentence be served concurrent with the remainder of Pink’s second degree theft sentence.
Former RCW 9.94A.360(5)(b)(iii) provides that prior convictions are concurrent if “ the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense. ” Here, t he concurren t nature of the prior sentences only arise s due to Pink’s probation on the e arlier cause number being revoked.No. 46858

- 1

- II / No. 48282

- 7

- II

8 Pink argues former RCW 9.94A.360(5)(b)(iii) and the recodified statute, RCW
9. 94A.525(5)(b)(iii) ), were not enacted at the time of his 1981 offense and do not apply retroactively. He is mistaken. F ormer RCW 9.94A.360(5)(b)(iii) became effective on January 1, 1999 , before the January 26, 1999 offense for which he was being sentenced

. The date of the off e nse for which he is being sentenced is the rele v ant date, not the date of the prior convi c tions.
See R CW 9.94A.345 (sentence determined in accordance with law in effect at time of offense). Accordingly, the 1981 convictions were not sentenc ed concurrently for offender score calculation purposes on Pink’s 1999 offense . The sentencing court properly counted the convictions separately.
Pink next alleges he was denied effective assistance of counsel because counsel did not object to the 1981 convictions being counted separately. Based on the above disposition, though, he ca nnot sho w deficient performance. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (a claim of ineffective assistance of counsel requires a showing that both counsel ’ s performance was deficient, and the deficient performance prejudiced the defendant ). Likewise, Pink’s request for remand for resen te ncing and p re - hearing r elease are
moot. C

. A PPELLATE C OSTS Pink filed a supplemental brief opposing appellate costs in light of State v. Sinclair , 192 Wn. App. 380, 367 P.3d 612 (2016), asserting that he does not have th e ability to pay. In light of Pink’s indigent status, and our presumption under RAP 15.2(f) that he remains indigent “throughout the review” unless the trial court finds that his financial condition h as improved, we exercise our discretion to waive appellate costs in this matter. RCW 10.73.160(1).No. 46858

- 1

- II / No. 48282

- 7

- II

9 We affirm Pink’s sentence and deny his PRP, including his request for counsel. A majority of the panel having determined that this opinion will not be pr inted in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Lee, J. We concur:

Worswick, P.J.

Sutton, J.