### FILED JUNE 06, 2013 In the Office ofthe Clerk ofCourt W A StateCourt ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30575-9-III ) Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION ROBERT TODD WALKER, ) ) Appellant. ) KORSMO, C.J.

- Robert Walker appeals his conviction for manufacturing methamphetamine and the accompanying exceptional sentence, raising numerous arguments. Concludingthathe has not established anyprejudicial error, we affirm. FACTS An effortto manufacture methamphetamine caused a fire in Joe Leckenby's bedroom on September 14, 2003. Robert Walker's cousin observedhimjump out of Leckenby's bedroom window, climb back inside and throw something from theroom out the window, and thenjumpback outside again. While his cousin calledthe fire department, Mr. Walker leftthe scene. A responding fire fighter saw him depart in a car.No.30575-9-III State v. Walker
Outside the window ofthe bedroom, investigators found a can ofacetone and a brown liquorbottle with a white substance on the bottle opening. Inside the bedroom, police found the remnants ofa methamphetamine lab, including: dry ice, a propane torch,
a water coolerwith two pieces ofclearplastic tubing with tape, a one-pint glass mason jarcontaining a cleartan liquid that had an I8-inch tube attachedto it that was tied at one end and contained a white granular substance, a plasticDr. Pepperbottle containing a yellow liquid and clear granules, a two-quart glassjarcontaining rock salt andyellow liquid, small Ziploc "baggies" with residue, a mirrorwith residue, two glass smoking pipes, a can ofacetone, and ajarcontaining acetone. The granules, liquid, and residue
were found tobe methamphetamine. Ex. 23. The report from the crime laboratory, Exhibit 23, was entered into evidence at trial without objection; defense counsel recognized that it was "self-authenticating." The prosecutor charged Mr. Walker with one count ofmanufacturing methamphetamine in June 2004. He subsequently failed to appear for an omnibus hearing, resulting in the addition ofa bailjumping charge. He later failed to appear for a trial date. I Trial eventually began in July 2007. Atthat time, the prosecutor removed the bailjumpingcharge.

I Mr. Walker's sporadic appearances for mandatory court hearings ultimately became the basis for several bailjumpingcharges. 

### See State 

### v. Walker, 153 Wn. App. 701,224 P.3d 814 (2009). 2No.30575-9-Ill State v. Walker
A deputy clerktestified to Mr. Walker's failure to appear for three different court dates. Thetrial court, over defense objection, instructed thejury on accomplice liability. The defense theory ofthe case was toblame his uncle, Mr. Leckenby, for the manufacturing. Nonetheless, thejury found Mr. Walker guilty on the manufacturing count. The defense successfully movedto consolidatethree bailjumping convictions undertwo other cause numbers for sentencing withthis case. The trial court subsequently granted a motion to dismiss the manufacturing charge. This courtreversed and remanded for sentencing. 

### See cause no. 27286-9-Ill. On remand, the trial court imposed an exceptional sentence by running the IOO-month manufacturing sentence consecutive to the 51-month sentence imposed for three bailjumping convictions. Mr. Walker then timely appealed to this court. ANALYSIS 

### Mr. Walkerraises nine issues on appeal. We will address, sometimes quite briefly, eight ofthose contentions largely inthe order in whichthey are presented inthe briefing?

2His final contention is a claim ofcumulative error, which we need notdiscuss at all because we conclude he has failed to establish anyprejudicial error. 3No.30575-9-III State v. Walker LaboratoryReport Appellant first contends that his Sixth Amendmentright ofconfrontation was violatedwhen Exhibit 23 was entered at trial. He also contends thathis counsel was ineffective by notrequiring the laboratory analyst to testify attrial. Both ofthese contentions have been rejected in recent decisions. Theright of confrontation is not violatedby the admission oflaboratory reports in accordance with CrR6.l3(b). State v. Schroeder, 164 Wn. App. 164, 168,262 P.3d 1237 (2011). The right must be asserted or itis waived. Id.; State v. O'Cain, 169 Wn. App. 228, 247-48, 279 P.3d 926 (2012). Furthermore, the tactical decision whether or notto demandthe presence ofthe witness is one for trial counsel to make. O'Cain, 169 Wn. App. at 244­ 45. Typically, tactical decisions are not subjectto an ineffectiveness challenge. Stricklandv. Washington, 466 U.S.668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We can see many reasons why defense counsel would notwant an analystto testify attrial and buttress the conclusions expressed in the report. It is far easierto raise questions to ajury in closing argument than it is to obtain useful answers from the opposing side's expert witness. Seldom will there be a needto have the experttestify. The Sixth Amendmentright to confrontation was notviolated. Counsel similarly
was not ineffective by declining to demand the analysttestify at trial. 4No. 30S7S-9-III State v. Walker FlightEvidence Mr. Walker next contends that the trial court erred by permitting evidence at trial that he fled from the area and thathe missed several court dates. This argument was waived by his failure to object at trial. RAP 2.S(a) states the general rule-except for manifest constitutional and jurisdictional matters, a party must object at trial in order topreserve an issue for appellate review. With respect to evidentiary issues, the rules are eventighter. In order topresent an evidentiary argument on appeal, the party must have challengedthe admission ofevidence attrial on the same grounds that it raises on appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). As explained in Guloy: As to statement (d), counsel objected but onthe basis that it was not proper impeachment nor was 

### itwithin the scope ofredirect. A party may only assign error in the appellate court on the specific ground ofthe evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review. 

### Id. (citation omitted). The admission ofother "badacts" evidence under ER404(b) does not present a constitutional issue. Dowlingv. UnitedStates, 493 U.S. 342,352, 110 S. Ct. 668, 107 

### L. Ed. 2d 708 (1990). Itlikewise does not implicate thejurisdiction ofthe trial court. Accordingly, there is no basis for this court to considerthe argument. RAP 2.5(a).


### 5No.30575-9-III State v. Walker
The challenge to the flight evidence was waived by the failure to presentthe matter to the trial court. Prosecutor's ClosingArgument Mr. Walker next argues that the prosecutor erred in closing argumentby allegedly commenting on his right to remain silent, telling thejurythe right decision was to find the defendant guilty, and expressing theprosecutor'spersonal opinion. He did not challenge any ofthese statements at trial. We concludethathe has notmetthehigh burden applicable to this type ofchallenge. The appellant bears the burden ofdemonstrating prosecutorial misconduct on appeal. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). The appellant must establish that the conductwas both improper and prejudicial. Id. Prejudice occurs where there is a substantial likelihood that the misconduct affected thejury's verdict. Id. at 718­ 19. Reversal is notrequired where the alleged error could have been obviated by a curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). Moreover, the failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned that it evinced an enduring andresultingprejudice that could nothave been neutralized by an admonition to thejury. Id. Moreover, a prosecutorhas "wide latitude" in arguing inferences from the evidencepresented. Stenson, 132 Wn.2d at 727.

6No. 30575-9-III State v. Walker Right to Remain Silent. Mr. Walker argues first that by mentioning his flight and failure to appear in court during closing argument, the prosecutorcommented on his right to remain silent in derogation ofthe Fifth Amendment. This novel argument has no support in law or fact. A statement will only be considered a comment on the right to remain silent ifit
was intended to be a comment on the right; otherwise, mention ofsilence constitutes a**"~mere** reference'"that is not a violation unless prejudice is shown. State 

### v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1(2008) (citing State v. Crane, 116 Wn.2d 315, 804 P.2d 10 (1991) and State v. Lewis, 130 Wn.2d 700,927 P.2d 235 (1996». A subtle and brief remark does not normally amount to a comment on the right to remain silent. Burke, 163 Wn.2d at 216; Crane, 116 Wn.2d at 331. The prosecutor did discuss Mr. Walker's flight at some length, as well as his failures to appear in court and his "omissions by conduct." The discussion was not "subtle and brief." The question remaining is whetherthe discussion was clearly intended to be a comment on the rightto remain silent. Itwas not. The trial courtpermittedthe prosecutorto offer flight evidence. He therefore was free to comment on it during argument. Mr. Walker did more than flee the scene ofa fire; he also abruptly departed the area and had to be extradited back from Oklahoma.3 It

3State v. Walker, 153Wn. App. 701, 707, 224 P.3d 814 (2009). 7

### No. 30575-9-111 State v. Walker
is very difficult to understand how this evidence should beconsidered an assertion ofthe right to remain silent. Itis even more difficultto classity the prosecutor's discussion of the evidence as commentary onthe defendant's exercise ofa constitutional right. Theprosecutor's argument addressing the flight evidence did not constitute misconduct. "Get This Right." Mr. Walker next argues that the prosecutor erred by telling the juryto "getthis right" and find the defendant gUilty. In the context ofthe argument, the statement was not improper, andto the extent it couldhave been viewed otherwise, it was capable ofcorrection by timely objection. During rebuttal argument, the prosecutor addressed defense counsel's statements about the testimony ofthe defendant's cousin and the first responding fire fighter, stating
nearthe end ofhis remarks: The fact is Ms. Brown and John Hodge are consistent on that. It's him. He was the one there at the scene actively going in, going out, tossing things out the window. Hewas the one that fled. Ladies and gentlemen, I'm asking youto hold this person accountable for what he did. You needto get this right, andthe right decision, the right verdict is tofind the defendantgUilty. Report ofProceedings (RP) at 163 (emphasis added). In context, this statement appears to be little more than indicating that the proper conclusion to be drawn from the testimony was thatMr. Walkerwas thepersontossing

8No.30575-9-III State v. Walker
items out ofthe bedroom and then fleeing the scene. Telling thejury to rejectthe defense argument and return the correct verdict was not improper. Other states have found similar arguments by the prosecutor to be improper when they do not relate to the evidence. E.g., State v. Musser, 721 N.W.2d 734 (Iowa 2006); Impson v. State, 721 N.E.2d 1275, 1283 (Ind. Ct. App. 2000); Lisle v. State, 113 Nev. 540, 937 P.2d 473 (1997). In Musser, for instance, the Iowa Supreme Court interpreted the prosecutor's remarks as arguing that thejury could find the evidence insufficient but still convictthe defendant because it was the right thing to do. 721 N.W.2d at 755-56. That same problem does not arise here. The prosecutor's argument was grounded in a discussion ofthe evidence as he transitioned to the conclusion ofhis remarks. He did not argue that thejury should convict despite the evidence. Under these circumstances, the statement was not erroneous. Lastly, Mr. Walker contends thatthe prosecutortwice expressed his personal opinion ofthe defendant's guilt during closing argument. Onthe first occasion, the prosecutor stated: "Now, I'm not here telling you the only person involved in this is the defendant. I do not know, but I know that he - I think the evidence shows that he is involved without any question." RP at 151. On the second occasion, the prosecutor explained why the defendant had fled when he should have been letting ajury decide the

9No. 30575-9-III State v. Walker

case: "Thereason he doesn't is that he knows-I know he knows what the outcome should be." RP at 154. A prosecuting attorney is not allowed to state his personal opinionregarding the defendant's guilt. State v. Copeland, 130 Wn.2d 244,290,922 P.2d 1304 (1996). Neither ofthe now-challenged remarks is a statement ofpersonal opinion concerning the defendant's guilt. The first comment was quickly corrected from "I know"to "I thinkthe evidence shows" and did not come across as a personal opinion ofgUilt. The second statement ("I know he knowsB) does come across as apersonal opinion, but it is not an opinion about guilt. Instead, itis apersonal opinion about the defendant's own opinion ofthe case as demonstrated by his repeated flight. The challenged statements do not amount to misconduct. The statements, to the extent any ofthem were erroneous, also were not so tlagrant or ill-intentioned that they
werebeyond cure from a timely objection. Any misperception easily could have been corrected by atimely word from the trial court. Forthat reason, too, this issue is without merit. IneffectiveAssistance Mr. Walker next argues that his trial counsel failed him in several ways, including trial preparation and theory ofthe case, and by not objecting to certain evidence orthe

10No.30575-9-III State v. Walker prosecutor's closing argument. He has failed to satisfY the heavy burden that governs this challenge. Well understood standards govern ourreview ofthe Sixth Amendment guarantee ofthe rightto counsel. The mere presence ofan attorney does not satisfY the constitutional command. Instead, the attorney must perform to the standards ofthe profession. Counsel's failure to live up to those standards will require a new trial when the client has beenprejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland, 466 U.S. at 689-91. To prevail on a claim ofineffective assistance, the defendant must show both that his counsel erred and thatthe error was so significant, in light ofthe entire trial record, that it deprived him ofa fair trial. Id. at 690­ 92. When a claim can be disposed on one ofthe Stricklandprongs, a reviewing court need not considerboth prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). Mr. Walker's varied challenges to his counsel's performance implicate many of these principles. We will address his complaints in a somewhat different order than he presents them.



### 11No. 30575-9-III State v. Walker
One ofMr. Walker's complaints is that trial counsel did not subpoena witnesses for apretrial hearing and did not investigate his uncle's role inthe case. Since the witnesses did testify at the pretrial hearing, counsel apparently had no need to compel them to do so. Itis doubtful there was any error and most certainly there was no harm. The record does reflect that Mr. Leckenby was no longer living in the area when Mr. Walker's case finally was tried; it does not tell us whether or not defense counsel
ever spoke with him. In light ofMr. Leckenby's statementto police that Mr. Walker was manufacturing the methamphetamine, there is no basis for believingthat he would have beenhelpful to the defense. Mr. Walkerhas simply not established eitherthat his counsel failed him in this regard orthathe was harmed by counsel's actions. Mr. Walker also contends that counsel erred by not pursuing a third party perpetrator theory at trial. This was clearly a strategic decision by counsel; the theory of the case is a matter left to trial counsel. 

### In re Pers. Restrainta/Stenson, 142 Wn.2d 710, 734-35,16 P.3d 1(2001). Moreover, it was a sound one. The presence ofothers at the scene-whetherMr. Leckenby or the mysterious "Raymond"-didnot establish Mr. Walker's innocence. Counsel understandably focused on the evidence suggestingMr. Walkerwas not involved rather than taking on the task ofproving who did manufacture the methamphetamine. The approach to the case was a strategic matter left to counsel. The fact that other approaches could have been tried does not establishthat counsel erred. 12No. 30575-9-111 Statev. Walker
For similar reasons, counsel's failure to challenge the testimony ofwitnesses who addressed defendant's flight and howthe manufacturing operation could cause a fire does not establish ineffective assistance. These likewise were tactical decisions by counsel. The flight evidence was admissible; an objection would likely have been fruitless. 

### See, e.g., Neal v. 

### Green, 68 Wn.2d 415, 421-22,413 P.2d 339 (1966); 

### State v. 

### Price, 126 Wn. App. 617,645, 109 P.3d 27 (2005). The fact that a fire occurred was undisputed; evidence ofhow the fire might have been started helped complete the story for thejury, but it was not a matter thejury needed to resolve. There was no reason to object to the testimony and no harm to the defense by failing to challenge it-ifthere even was abasis for doing so. Neither ofthese tactical choices suggests that counsel erred in some manner, let alone that the defense was prejudiced. Finally, Mr. Walker argues that his counsel shouldhave challengedthepreviously noted arguments by the prosecutor. We have concluded that there was no error. Thus, there is no basis for further analyzing the derivative claim ofineffective assistance of counsel. The prosecutor did not err, so defense counsel could nothave erred. There are many ways to try a criminal case. Mr. Walker has not established that his trial counsel's approach to this case failed to conformto the standards ofthe profession orthat he suffered prejudicial error. Accordingly, he has not shown that counselperformed ineffectively. 13No.30575-9-II1 State v. 'Walker AccompliceLiabilityInstruction Mr. Walker next argues thatthe court erred by instructing thejury on accomplice liability. The evidence supported the instruction; there was no error. Trial courts have an obligation to provide instructions that correctly state the law,
are not misleading, and allow theparties to argue theirrespective theories ofthe case. State
V. Dana, 73 Wn.2d 533, 536-37,439 P.2d403 (1968). Thetrial court also is granted broad discretion in determiningthe wording and number of juryinstructions. Petersen v. State, 100 Wn.2d 421, 440,671 P.2d 230 (1983). Discretion is abused when itis exercised on untenable grounds or for untenable reasons. State ex reI. Carroll

### v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). A person is an accomplice ofanother person in the commission ofa crime if: (a) With knowledge that it will promote or facilitate the commission ofthe crime, he or she: (i) Solicits, commands, encourages, orrequests such otherperson to commit it; or (ii) Aids or agrees to aid such otherperson in planning or committing it. RCW 9A.08.020(3)(a)(i)-(ii). The State's case showedthat someone was manufacturing methamphetamine at Leckenby's house and that Mr. Walker was seen trying to dismantle some ofthe operationbefore fleeing the scene. There also was evidence that the crime occurred in Leckenby'sbedroom, notMr. Walker's, and that 14No. 30575-9-III State v. Walker Leckenby and a "Raymond" were also present. On this evidence, itwas unclear whetherthe operation was solely attributable to the efforts ofMr. Walker or ifhe
was working in conjunction with the others. Accordingly, the evidence supported giving this instruction and it"was necessary in order for the State to argue its theory ofthe case. The instruction also did not harm the defense. Mr. Walker was able to argue that he was notpresent and, even ifhe was, it was someone else's operation
.. Thus, the trial courtproperly gavethe instruction. JuryInquiries The trial court responded to threejuryinquiries, butthe record does not reflect whether counsel was consultedbefore the responses. From this, the appellant argues that his CrR 6.15 and due process rights were violated, while respondent contends that Mr. Walker has not established any error occurred. The court responded to the three inquiries by telling thejury (1) it could not have a transcript ofMs. Brown's testimony, (2) it mustrely on its own memory of the evidence, and (3) it should continue its deliberation. The responses came 3, 16, and less than 1minute after the inquiries were received. CrR6.15(t) requires that the court notify the parties ofanyjury inquiry and allow comment thereon. Italso requires the court to make a record ofthe inquiry, 15No.30575-9-II1 State v. Walker
any response, and any objectionto the response. The rule does notrequire the court to make a record ofits'compliance with the duty to notify and consultthe parties. Here, it is highly likely the court did not consult the parties unless counsel happened to be present when the questions were received. Recent authority, however, is suggestive to the contrary. On a record where the court responded to
an inquiry eight minutes after it was received, Division One ofthis court concluded in the face ofa silentrecord that the trial court had not notified the parties as required. State v. Jasper, 174 Wn.2d 96, 102,271 P.3d 876 (2012). The Washington Supreme Courtdisagreed and refused to considerthe defendant's argument in light ofthe fact he had not shown that the courthadnot contacted him. Id. at 124. Under the reasoning ofJasper, we cannotpresume error from a silent record.4 This issue was better leftto a personal restraintpetition. State v. Norman, 61 Wn. App. 16,27-28,808 P.2d 1159 (1991). We do not decide the

4 "'Ona partial or incomplete record, the appellate courtwill presume any conceivable state offacts withinthe scope ofthe pleadings and not inconsistent with the record which will sustain and supportthe ruling ordecision complained of; but it will not, for the purpose offinding reversible error, presume the existence offacts as to which the record is silent.'" Barker 

### v. Weeks, 182 Wash. 384, 391,47 P.2d 

### 1(1935) (quoting 4 C.J. AppealandError 

### §2666, at 736 (1916). 16No. 30575-9-III State v. Walker
issue on this basis, however. Previous authority establishes that any errorhere
was harmless. A "negative" communication between the court and thejuryis one that conveys no information. State v. Safford, 24 Wn. App. 783, 794, 604 P.2d 980 (1979) (citing cases). Itlong has been settled that a negative communication to thejury is harmless error. State v. Co/son, 9 Wn.2d 424,426-27, 115 P.2d 677 (1941); State v. Russell, 25 Wn. App. 933, 948, 611 P.2d 1320 (1980); Safford, 24 Wn. App. at 794. The court's responses to thejury in this case all were "negative" in nature. They conveyed no new information to thejury. Thus, the errors in responding to the inquiries without notice to and consultation with the parties, ifsuch was the case, were harmless. Sufficiency of the Evidence Mr. Walker also contends thatthe evidence did not support the conviction, primarily arguing thatthe State failed to establish his activeparticipation as an accomplice. Properly viewed, the evidence permitted thejury to draw the conclusion that it did. The question presented is whether there is sufficient evidence to support the determinationthat each element ofthe crime was proved beyond a reasonable 17No.30575-9-III State v. Walker
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). The reviewing court will considerthe evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-22. There is noneed for the reviewing court to weigh evidence or sift through competing testimony. A person is guilty ofmanufacturing a controlled substance when he prepares, processes, orproduces a controlled substance. RCW 69.50.101(p); RCW 69.50.401(1). An accomplice is someone who, with knowledge that he is facilitating the commission ofa crime, aids another in committing the offense. RCW9A.08.020(3)(a)(ii). The evidence easily supports thejury's determination thatmanufacture ofa controlled substance occurred atthe Leckenby residence. While not as overwhelming, the evidence also supported the determination thatMr. Walkerwas assisting the operation and knew whathe was doing. He was with the operation when the fire broke out, left and returned into the room through the window, threw an object outside, and fled when the authorities were contactedrather than attempt to fight the fire as his uncle was doing. Two incriminating objects-abottle with methamphetamine on it and a can ofacetone-wererecovered nearthe window Mr. Walker used for ingress and egress. 18No. 30575-9-III State v. Walker
On this evidence, thejurywas quitejustified in deciding that Mr. Walker knew what was going on and attempted to dismantle the operation (or at least
remove the incriminating components) before choosing to flee rather than face the authorities. These are notthe actions ofan innocentperson; rather, they reflect
someone who had somethingto hide. He was at least an assistant in the operation ifnot the primary figure. The evidence supportedthejury's determination. ExceptionalSentence The final challenge is to the court's imposition ofan exceptional sentence by ordering theterm ofthe manufacturing sentence served consecutively to the term ofthe bailjumping convictions. The courtproperly exercised its sentencing discretion in imposing this exceptional sentence. An exceptional sentence may be imposed ifthetrial court finds "substantial and compelling" reasons to go outside the standard range. RCW 9.94A.535. Thetrial court must enter written findings offact and conclusions oflaw ifit does impose an exceptional sentence. ld. A nonexclusive list ofmitigating factors is recognized by statute. RCW 9.94A.535(1). However, an exceptional sentence above the standard range must be based on a recognized statutory factor. RCW 9.94A.535(2), (3).



### 19No. 30575-9-III State v. Walker
Eitherparty may appeal an exceptional sentence. RCW 9.94A.585(2). The statutory scheme for review ofan exceptional sentence has long been in place. An exceptional sentence is reviewed to see ifeither (a) the reasons for the exceptional sentence are not supported by the record or do notjustify an exceptional sentence,
or (b) the sentence imposed is clearly excessive or clearly too lenient. RCW 9.94A.585(4). Thus, appellate courts review to see ifthe exceptional sentence has
a factual basis in the record, is a legallyjustifiedreason, and is nottoo excessive
or lenient. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Differing standards ofdeference ornondeference apply to those three issues. 

### Id. Itis an aggravating factor, entitling the courtto exceed the standard range, if"[t]he defendant has committed multiple current offenses andthe defendant's high offender score results in some ofthe current offenses going unpunished." RCW 9.94A.535(2)(c). For a level 3 drug offense, the range for an offender with
a score of6 or higher is 100 to 120 months. RCW 9.94A.517. Mr. Walkerhad prior criminal history totaling 6points based on 4 adult felonies (one point each) and 4 priorjuvenile felonies (112 point each). The 3 currentbailjumping offenses raised his offender score to 9. The trial court correctly recognized that the bailjumping counts did not increase Mr. Walker's standard range on the manufacturing conviction and that if 20No. 30575-9-III State v. Walker
served concurrently, there would be no additional punishmentresulting from those 3 convictions.5 The exceptional sentence ordering consecutive terms was authorized by RCW 9.94A.535(2)(c). The court did not errby imposing the exceptional sentence. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuant to RCW 2.06.040. Korsmo, C.J. WE CONCUR:
Brown, 1.

5In part this situation resulted from the defendant's request tojointhe bail jumpingconvictions for sentencing on the same day, thus squarely treating them as other current offenses subject to concurrent sentences underRCW 9.94A.589(1)(a). The timing ofthese convictions is not in ourrecord, but it is possible that they might otherwise have been subjectto RCW 9.94A.589(3), which accords trialjudges discretion to impose concurrent orconsecutive sentences to cases that are sentenced serially. 

### 21