### FILED FEB. 3,2015 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OFWASHINGTON, ) No. 31595-9-111 ) Respondent, ) ) v. ) ) ENRIQUE HERNANDEZ, 

### ) PUBLISHED OPINION 

### ) Appellant. 

### ) BROWN, 

### J.

- Enrique Hernandez pled guiltytofelony driving while underthe influence ofalcohol (felony DUI) and third degree assault. He appeals his offender
score computation and two sentencing conditions. Mr. Hernandez contendsthe trial court (1) impermissibly considered offenses otherthan those listed in RCW 9.94A.525(2)(e) when calculating his offenderscore, (2) erred when it imposed a term ofconfinement and community custody greaterthan the statutory maximum forthird degree assault, and (3) erred when it imposed a term ofconfinement coupled with a 10­ year ignition interlock requirement in excess ofthe statutory maximum forfelony DUI. We disagree with Mr. Hernandez'first contention butagree with his second and third contentions and remand for resentencing in a manner consistentwith this opinion.No. 31595-9-111 State v. Hernandez
FACTS The State charged Mr. Hernandezwith felony DUI and third degree assault. Before trial, Mr. Hernandez moved the courtto declare his offenderscore. He argued his felony DUI offenderscore should be 5 while the State believed his offender score was 9. Mr. Hernandez pled guiltyto the felony DUI and assault charges. The court calculated his offenderscoreforthefelony DUI at 9+ and his offender score forthird degree assault at 8. In calculating the offender score, the court considered the following criminal history: a 1994juvenile conviction for second degree robbery, a 1998forgery conviction, a 2001 DUI, physical control convictions in 2003 and 2006, a 2007 DUI, a 2003 second degree malicious mischiefconviction, a 2003 conviction for attemptto elude, a 2006 second degree possession ofstolen property conviction, and a 2009 felony DUI. The court sentenced Mr. Hernandez to 60 months forthe felony DUI and 57 monthsforthird degree assault, with the sentences running concurrently. The court ordered community custody for 12 months after his release and required use ofan ignition interlock device for 10 years. Mr. Hernandez appealed. ANALYSIS A. Felony DUI Offender Score The issue is whetherthe trial court incorrectly calculated Mr. Hernandez' offender
scorefor his felony DUI conviction by including all of his prior offenses in that calculation. Mr. Hernandez contends RCW 9.94A.525(2)(e) limits the prioroffenses that
can be used in his offender score calculation to felony DUI convictions, misdemeanor

2No. 31595-9-111 State v. Hernandez
QUI convictions, and felony physical control convictions. Thus, he argues, the court should not have included any of his other prior convictions in his offender score calculation, making his maximum offender score 6 instead of9+. Ourfundamental objective in statutory interpretation "is to ascertain and carry out the legislature's intent." State v. Morales, 168Wn. App. 489, 492, 278 P.3d 668 (2012). A court mustgive effectto a statute's plain meaning ifthe meaning is plain on the statute's face. Id. "Such meaning is derived from all thatthe legislature has said in the statute and related statutes that disclose legislative intent aboutthe provision in question." Id. Interpretations rendering any portion ofa statute meaningless should not be adopted. Id. "[S]trained meanings and absurd results should be avoided." Id. We review offenderscore calculations de novo. State v. Wilson, 113Wn. App. 122, 136,52 P.3d 545 (2002). Offender scores are calculated in three steps: U(1) identify all prior convictions; (2) eliminate those thatwash out; (3) 'count' the prior convictions that remain in orderto arrive atthe offenderscore." State v. Moeurn, 170 Wn.2d 169, 175,240 P.3d 1158 (2010). Former RCW 9.94A.525 (2011) applies here. Subsection (2)(e) states: Ifthe present conviction is felony driving while underthe influence of intoxicating liquor or any drug (RCW 46.61.502(6)) orfelony physical control ofa vehicle while underthe influence of intoxicating liquoror any drug (RCW46.61.504(6)), prior convictions offelony driving while under the influence ofintoxicating liquororany drug, felony physical control ofa vehicle while underthe influence of intoxicating liquor orany drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the lastdate of release from confinement (including full-time residential treatment) orentry



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ofjudgment and sentence; or (ii) the priorconvictions would be considered "prior convictions within ten years" as defined in RCW46.55.5055. According to the Morales court, "the '[t]he prior convictions' that shall be included in the calculation ofthe offenderscore are limited to these: 'felony driving underthe influence ofintoxicating liquororanydrug, felony physical control ofa vehicle while underthe influence of intoxicating liquoror any drug, and serious traffic offenses.'" Morales, 168Wn. App. at 493 (quoting RCW 9.94A.525(2)(e) (2011)). Mr. Morales had
seven prior serious traffic offense convictions and a fourth degree assault conviction. Id. at 493-94,497. The court stated RCW 9.94A.525(2)(e) was applicable and RCW 9.94A.525(2)(d), discussing when serious traffic offenses wash out, had no bearing on the offender score calculation. Id. at 500-01. The court determined four ofthe serious traffic convictions washed out and the fourth degree assault conviction should not have been counted because "it [was] not among th[e] limited classes of prior offenses." Id. at 497,501. Including the current attempting to elude conviction, the defendant's offender
score was 4 instead of8 as calculated by the trial court. Id. at 491, 501. Division Two ofthis court recently adopted part of Division One's Morales holding in State v. Jacob, 176 Wn. App. 351, 360, 308 P.3d 800 (2013). The court decided "under subsection (i) only RCW 9.94A.525-specified prior convictions count as offender
score points for purposes ofsentencing a defendant convicted offormer RCW 46.61.502(6) (2008) felony DUI." Id. The court reasoned the sentencing court erred by including the defendant's drug convictions in his offenderscore "because drug



### 4No. 31595-9-111 State v. Hernandez
convictions are not among the statutorily specified prior convictions for offender score inclusion under subsection (i) of RCW 9.94A.525(2)[(e)]." 

### Id. When calculating Enrique Hernandez' offender score, the sentencing court identified 10 prior convictions. Ourfocus is the second step: determining whether any ofthese prior convictions wash out. RCW 9.94A.525(2) contains several provisions detailing when certain types of prior convictions wash out. For example, subsection (2)(a) provides class A and sexfelonies neverwash out, subsection (2)(b) provides class Bfelonies other than sex offenses wash out afterthe offender spends 10 crimefree years in the community, and subsections (2)(c) and (d) provide class C felonies and serious traffic offenses wash out afterthe offender spends five crime-free years in the community exceptas provided in subsection (2}(e). The holdings in Morales Jacob do not bind us. While Divisions One and Two
were persuaded the plain meaning ofsubsection (2}(e) means solely those crimes specifically enumerated in the subsection could count in an offender score calculation for afelony DUI, we reason the plain meaning is that subsection (2}(e) acts as an exception to the wash out provisions seen in subsections (2}(c) and (d). Subsection (2)(e) revives certain offenses thatwould wash out under (2}(c) and (d), but solely in
cases where the current conviction is for felony DUI orfelony physical control. Reading subsection (2)(e) differently leads to strained and absurd results. Subsection (2)(a) provides class A and sex felonies neverwash out. Under Mr. Hernandez' interpretation ofsubsection (2)(e), class A and sex felonies cannot be



### 5No. 31595-9-111 State v. Hernandez
included in calculating the offender score for a felony OUI. And, RCW 9.94A.525(11) states howto score offenses when the present conviction is for a felonytraffic offense: "foreach felony offense countone pointfor each adult and 

### % pointfor eachjuvenile conviction."1 Nothing in subsection (11) limits calculating an offender score for a felony traffic offense to solelythose crimes enumerated in subsection (2)(e). Considering the statute as a whole supports the argumentthat subsection (2)(e) does not limit prior convictions to onlythose laid out in that subsection. See State v. Wright, 84 Wn.2d 645, 650,529 P.2d 453 (1974). Nothing in the legislative history indicates the legislature intended to limit sUbsection (2)(e) as decided in Morales and Jacob. Mr. Hernandezargues the legislature was unconcerned with unrelated class C felony offenses when writing subsection (2)(e). He relies on sections ofthe bill reports stating "prior offenses" are those under OUllaws. See, e.g., House Bill Report on H.B. 3317, at 1-2, 59th Leg., Reg. Sess. (Wash. 2006). But, that discussion was in relation to misdemeanor OUls, notfelony OUls. The bill reports then discuss felony sentencing, including how offender
scores are calculated underthe Sentencing Reform Act of 1981 (SRA). chapter 9.94A

1 RCW 9.94A.525(11) provides: (11) Ifthe present conviction is for a felony traffic offense counttwo points for each adult orjuvenile prior conviction forVehicular Homicide or VehicularAssault; for each felony offense count one pointfor each adult and 

### %pointfor each juvenile prior conviction; for each serious traffic offense, otherthan those used for an enhancement pursuantto RCW 46.61.520(2). count one pointfor each adult and % pointfor eachjuvenile prior conviction; count one pointfor each adult and % pointfor each 6No. 31595-9-111 State v. Hernandez RCW, specifically noting the provisions of RCW9.94A525(11) and when certain nonfelony crimes, such as serious traffic offenses, count in an offender score. See, e.g., Final Bill Report on H.B. 3317, at 1-2, 59th Leg., Reg. Sess. (Wash. 2006). This discussion does not evince an intention totreat differentlyfelony DUlsfrom otherfelony crimes. We note the legislature amended subsection (2)(e) in 2013: Ifthe present conviction is felony driving while underthe influence of intoxicating liquor orany drug (RCW46.61.502(6» or felony physical control ofa vehicle while underthe influence of intoxicating liquor or any drug (RCW46.61.504(6», all predicate crimes for the offense as defined by RCW46.61.5055(14) shall be included in the offender score, and prior convictions forfelony driving while underthe influence ofintoxicating liquor or any drug (RCW46.61.502(6» orfelony physical control ofa vehicle while underthe influence ofintoxicating liquororany drug (RCW 46.61.504(6»shall always be included in the offender score. Allother convictions ofthe defendantshallbe scoredaccording to this section. RCW 9.94A525(2)(e) (emphasis added). Given our analysis, we conclude the trial court did not err by including all ofMr. Hernandez' prior convictions. B. Community Custody Exceeding Statutory Maximum The State correctly concedes the trial court erred when it imposed a term of confinement plus a term ofcommunity custody exceeding the statutory maximum for assault in the third degree. Thus, we remand to the trial court to resentence Mr. Hernandez on the third degree assault consistent with RCW 9.94A701(9).

juvenile prior conviction for operation ofa vessel while Linderthe influence 

### 7No. 31595-9-111 State v. Hernandez
C. Ignition Interlock Requirement The issue is whether the trial court erred when it imposed a 1O-year ignition interlock requirement on Mr. Hernandez. He contends the court exceeded its authority because imposing the 10-year ignition interlock requirement exceeded the statutory maximum: his 60-month sentence was the statutory maximum. We review erroneous sentence claims de novo. In re Pers. RestraintofBrooks, 166Wn.2d 664,667,211 P.3d 1023 (2009). When someone is convicted ofa felony, a court must impose a sentence as provided in the SRA RCW 9.94A505(2)(a). The SRA applies to those convicted offelony OUI. RCW 9.94A505(2)(a)(xii); RCW 9.94A603. As it relates to community custody, a court cannot impose an aggregate term ofconfinement and community custody beyond the statutory maximum. State v. Boyd, 174Wn.2d 470, 472-73,275 P.3d 321 (2012) (interpreting RCW 9.94A701(9». A felony OUI is a class C felony and carries with it a maximum five-year sentence. RCW46.61.502(6); RCW 9A20.021(1)(c). Under RCW 46.61.5055(5)(a), a court must "require any person convicted ofa violation of RCW 46.61.502

... to comply with the rules and requirements ofthe department [of licensing] regarding the installation and use ofa functioning ignition interlock device." RCW46.20.720(1) provides a court may orderthat after a period ofsuspension, revocation, or denial of driving privileges, and for up to as long as the court has jurisdiction, any person convicted ofany offense involving the use, consumption, or possession ofalcohol while operating a motorvehicle may drive only a motorvehicle equipped with a functioning ignition interlock. of intoxicating liquor or any drug. 

### 8No.**31595~9~111** State v. Hernandez

The court must state how long the ignition interlock is required. RCW46.20.720(1). The sentencing court gave Mr. Hernandezthe statutory maximum of**60~month'** confinement and ordered him to use an ignition interlock device for 10 years after his driver's license was restored. The court was required to order Mr. Hernandezto comply with the requirements ofthe department of licensing regarding the use ofan ignition interlock device, however, the court exceeded its authority in ordering him to use such a device for 10 years after his release from confinement. The court had the discretion to orderthe use ofan ignition interlock device under RCW 46.20.720(1). But that discretion is limited to the length oftime the court retains jurisdiction; here five years was the limit. The legislature knows howto create an exception to thejurisdictional requirement; it did not do so here. See RCW 9.94A.750; RCW 9.94A.753. The Department may require the use ofan ignition interlock device for ten years, butthe court erred in imposing the 1O-year requirement because its sentencing discretion was limited to the**5~year** maximum. Remanded for resentencing consistent with this opinion.

Brown, 

### J. WE CONCUR:

Lawrence-Berrey, 

### J.

9