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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Appellant,

v.

MICHAEL LEE WAYNE BERGMAN,

Respondent.

No. 79465-5-I

DIVISION ONE

UNPUBLISHED OPINION

APPELWICK, J. — Bergman appeals his sentence following convictions for 5 

felony counts. He argues that remand for resentencing is required because the 

trial court mistakenly believed that it lacked discretion to impose concurrent

sentences for his firearm-related convictions. He also contends that his trial 

counsel was ineffective for failing to inform the court of its authority to impose 

concurrent sentences for his firearm-related convictions. We affirm.

FACTS

In the present case, the State charged Michael Bergman with five felony 

counts, including possession of a stolen vehicle, first degree unlawful possession 

of a firearm, possession of a stolen firearm, residential burglary, and second 

degree burglary. The charges were based on the State’s allegation that Bergman 

burglarized a home and tool shed in July 2016. The State alleged that Bergman 

stole a firearm from the home and a motorcycle from the shed. In August 2018, a

jury found Bergman guilty as charged. 
No. 79465-5-I/2

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Bergman also faced charges under 6 separate cause numbers for incidents 

that occurred between July 2016 and July 2018. The charges mainly involved drug 

and stolen property offenses, but also included 2 counts of attempting to elude a 

pursuing police vehicle. Bergman pleaded guilty to all of the charges in November 

2018. Among the present case and 6 other cases, he was convicted of a total of 

17 felony counts. 

In January 2019, the trial court held a single sentencing hearing for 

Bergman’s 17 felony convictions. He had previously been convicted of 5 felony 

and 14 misdemeanor counts. His offender score for each new felony conviction 

ranged from a low of 20 to a high of 31. 

The State asked the trial court to impose an exceptional sentence of 332 

months, or about 28 years, of confinement under RCW 9.94A.535(2)(c). It

explained that in the present case, the controlling sentencing range was 87 to 116 

months for the first degree unlawful possession of a firearm charge. It asked the 

court to impose 116 months for the unlawful possession of a firearm charge and

96 months for the possession of a stolen firearm charge, for a total of 212 months. 

It stated that the two firearm-related charges “must run consecutive” to one 

another. Further, instead of running the sentences in the other six cases 

concurrently, the State asked the court to run one of the sentences consecutively. 

Specifically, it asked the court to impose a high end sentence of 120 months for a 

possession of a controlled substance with intent to manufacture or deliver charge,

and run it consecutive to the 212 month sentence. It explained that imposing a 
No. 79465-5-I/3

3

total sentence of 332 months would ensure that Bergman’s high offender score 

would not result in numerous felony convictions going unpunished:

[W]hen Mr. Bergman was convicted on the five charges [in the 

present case], his offender score was maxed out and any additional 

felony charges at that point would not affect the standard sentencing 

range. If all of those run [con]current, essentially you are looking at 

12 felony counts which are quite serious in nature going unpunished.

In contrast, Bergman sought a prison-based drug offender sentencing 

alternative (DOSA). The DOSA would have resulted in 92 months, or about 8 

years, of confinement, with the second half of the 92 months served on community 

custody. Defense counsel explained that Bergman had a chemical dependency 

issue, and that all of his offenses were driven by that issue. He therefore argued 

that a DOSA was “the right solution or the right option for [Bergman] to take to build 

a foundation of sobriety that he can then rebuild his life on.” 

Alternatively, Bergman requested that the trial court impose a sentence on 

the low end of the standard sentencing range in the present case, for a total of 159 

months, or about 13 years, of confinement. He asked that the sentences in the 

other 6 cases run concurrent to that sentence. In requesting a low end sentence, 

defense counsel agreed with the State that the sentences for Bergman’s two 

firearm-related convictions must run consecutively:

I spent a lot of time in my briefing talking about consecutive versus 

concurrent sentences, and just to reiterate our position, I don’t think 

there is -- there is no doubt that RCW 9.94A.589 requires, subsection 

(1)(c), requires this Court to run the so-called [unlawful possession 

of a firearm], the gun charge, felon in possession of a firearm and 

possession of stolen firearm charges, those must be run 

consecutively.
No. 79465-5-I/4

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He explained that the low ends of the standard ranges for the unlawful possession 

of a firearm and possession of a stolen firearm charges were 87 months and 72 

months, respectively. If the sentences for the other 15 felony counts ran 

concurrent with those, Bergman would face a 159 month sentence. 

The trial court denied Bergman’s request for a DOSA. While recognizing 

his substance abuse disorder, it found that a DOSA was not in the community’s 

best interest given his extensive criminal history. It explained,

There are any number of opportunities that you have had to step off 

the terrible roller coaster ride that you have been on with addiction, 

to seek help, to reach out to your sponsor, to put your sobriety first, 

and throughout all of that, you always had the choice of not 

committing crimes. But you have committed a lot of them, and many 

of these crimes have victimized individuals and have put others at 

risk. Attempting to elude a police vehicle is a very risky crime, [it] all 

too often results in horrible motor vehicle collisions.

Further, the court declined the State’s recommendation to impose an exceptional 

sentence of 332 months. It stated,

In looking at the overall nature of your crimes and what the Court 

considers to be a just and equitable sentence given the matters in 

front of me and your criminal conviction history, I have concluded that 

I am not going to impose consecutive sentence[s] beyond that which 

I am required to impose, and I am also not going to impose an 

exceptional sentence.

The trial court imposed 100 months for the unlawful possession of a firearm 

charge and 80 months for the possession of a stolen firearm charge. It explained 

that both charges “must be run consecutive” to one another. It ran the sentences 

for the other 15 felony counts across all 7 cases concurrently. Thus, the court 

imposed a total of 180 months, or 15 years, of confinement. 

Bergman appeals. 
No. 79465-5-I/5

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DISCUSSION

Bergman makes two arguments. First, he argues that remand for 

resentencing is required because the trial court mistakenly believed that it lacked 

discretion to impose concurrent sentences for his firearm-related convictions. 

Alternatively, he argues that he was denied effective assistance of counsel when 

defense counsel failed to (1) apprise the court of case law allowing it to impose 

concurrent sentences for his firearm-related convictions and (2) seek an 

exceptional sentence in the form of concurrent sentences. 

I. Concurrent Sentences for Firearm-Related Convictions

Bergman argues first that the trial court mistakenly believed that it lacked 

discretion to impose concurrent sentences for his firearm-related convictions. As 

a result, he contends that remand for resentencing is warranted. 

A discretionary sentence within the standard range is reviewable where the 

trial court has refused to exercise its discretion at all or has relied on an 

impermissible basis for refusing to impose an exceptional sentence below the 

standard range. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). A 

trial court errs when (1) “it refuses categorically to impose an exceptional sentence 

below the standard range under any circumstances” or (2) when it operates under 

the “mistaken belief that it did not have the discretion to impose a mitigated 

exceptional sentence for which [the defendant] may have been eligible.” State v. 

Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997); In re Pers. 

Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677 (2007).
No. 79465-5-I/6

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RCW 9.94A.589(1)(c) provides,

If an offender is convicted under RCW 9.41.040 for unlawful 

possession of a firearm in the first or second degree and for the 

felony crimes of theft of a firearm or possession of a stolen firearm, 

or both, the standard range sentence for each of these current 

offenses shall be determined by using all other current and prior 

convictions, except other current convictions for the felony crimes 

listed in this subsection (1)(c), as if they were prior convictions. The 

offender shall serve consecutive sentences for each conviction of the 

felony crimes listed in this subsection (1)(c), and for each firearm 

unlawfully possessed.

(Emphasis added.) But, if a court finds that a presumptive sentence under RCW 

9.94A.589 is “clearly excessive in light of the purpose of the [Sentencing Reform 

Act of 1981 (SRA), chapter 9.94A RCW],” it has discretion to impose an 

exceptional mitigated sentence. RCW 9.94A.535(1)(g). Among the purposes of 

the SRA is to “[e]nsure that the punishment for a criminal offense is proportionate 

to the seriousness of the offense and the offender’s criminal history.” RCW 

9.94A.010(1).

Bergman relies primarily on McFarland. There, McFarland’s trial counsel 

had agreed with the State as to running his firearm-related sentences 

consecutively, but had expressed concern about the overall sentence length. 

McFarland, 189 Wn.2d at 50-51. In responding to that concern, the trial court 

remarked that the almost 20 year sentence McFarland faced was typically the 

sentence people receive for second degree murder. Id. at 51. But, neither 

McFarland’s counsel nor the trial court considered imposing an exceptional 

sentence downward by running the firearm-related sentences concurrently. Id. 

The trial court stated, “‘I don’t have—apparently [I] don’t have much discretion 
No. 79465-5-I/7

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here. Given the fact that these charges are going to be stacked one on top of 

another, I don’t think—I don’t think [the] high end is called for, here.’” Id.

(alterations in original).

On appeal, the Washington Supreme Court clarified that “nothing in the 

SRA preclud[es] concurrent exceptional sentences for firearm-related 

convictions.”1 Id. at 54. Specifically, it held, “[I]n a case in which standard range 

consecutive sentencing for multiple firearm-related convictions ‘results in a 

presumptive sentence that is clearly excessive in light of the purpose of [the SRA],’ 

a sentencing court has discretion to impose an exceptional, mitigated sentence by 

imposing concurrent firearm-related sentences.” Id. at 55 (alterations in original) 

(quoting RCW 9.94A.535(1)(g)). It further held that remand for resentencing was 

warranted because the record suggested “at least the possibility that the 

sentencing court would have considered imposing concurrent firearm-related 

sentences had it properly understood its discretion to do so.” Id. at 59. It cited the 

fact that the trial court indicated some discomfort with its apparent lack of 

discretion, and “commented that McFarland’s standard range sentence was 

equivalent to that imposed for second degree murder.” Id. at 58-59.

Like McFarland, Bergman argues that the record suggests the possibility 

that the trial court would have imposed a different sentence had it understood its 

 

1

In contrast, judicial discretion to impose concurrent sentences as part of 

an exceptional sentence does not extend to firearm enhancements for adult 

offenders. State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999), overruled in 

part by State v. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017)

(overruling Brown’s holding that judicial discretion to impose an exceptional 

sentence does not extend to firearm enhancements with regard to juvenile 

offenders).
No. 79465-5-I/8

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discretion to run his firearm-related sentences concurrently. He cites the court’s 

statement that it was not going to impose consecutive sentences beyond that 

which it was “required to impose.” This statement implies that the court may have 

misunderstood its authority to impose concurrent firearm-related sentences if it 

found that Bergman’s presumptive sentence was clearly excessive in light of the 

SRA.

But, unlike McFarland, the trial court did not state that it lacked discretion to 

impose an exceptional sentence. Nor did it express discomfort in imposing 

consecutive sentences within the standard range for Bergman’s firearm-related 

convictions. Rather, it denied Bergman’s request for a DOSA in light of his 

extensive criminal history. It noted that Bergman had committed “a lot” of crimes, 

many of which had “victimized individuals” and “put others at risk.” The DOSA 

would have resulted in 92 months of confinement, with the second half of that 92 

months served on community custody. Further, the court denied Bergman’s

alternative request for consecutive sentences on the low end of the standard range 

for his firearm-related convictions. Low end sentences for each conviction would 

have resulted in a total sentence of 159 months of confinement. Instead, the court 

imposed an even greater sentence of 180 months of confinement. It explained to 

Bergman, 

[T]he bottom line is the sentence today separates you from society 

for an extended period of time. Given the frequency with which you 

were committing crimes, that’s in the community’s best interest I 

believe, and you certainly know what is in front of you if you get out 

of prison and continue in the same thing.
No. 79465-5-I/9

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The record here does not suggest the possibility that the trial court would 

have imposed a different sentence had it understood its discretion to run his 

firearm-related sentences concurrently. As a result, remand for resentencing is 

not warranted.

II. Ineffective Assistance of Counsel

Bergman argues in the alternative that he was denied effective assistance 

of counsel when defense counsel failed to (1) apprise the court of the decision in 

McFarland and (2) seek an exceptional sentence in the form of concurrent 

sentences. 

We review ineffective assistance of counsel claims de novo. State v. 

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate that he 

received ineffective assistance of counsel, Bergman must show that (1) his 

counsel’s performance fell below an objective standard of reasonableness based 

on consideration of all the circumstances and (2) the deficient performance 

resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 

(2007). The reasonableness inquiry requires the defendant to show the absence 

of legitimate strategic or tactical reasons for the challenged conduct. State v. 

McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice is present if 

there is a reasonable probability that, but for counsel’s error, the result would have 

been different. Id. at 334-35. If one of the two prongs of the test is absent, we 

need not inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 

266, 273, 166 P.3d 726 (2007). 
No. 79465-5-I/10

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As established above, the record here does not suggest that the trial court 

would have imposed an exceptional sentence in the form of concurrent sentences 

for Bergman’s firearm-related convictions had defense counsel made such a 

request. Thus, Bergman cannot establish that he was prejudiced by defense 

counsel’s decision not to request concurrent sentences under McFarland. 

Accordingly, his ineffective assistance of counsel claim fails.

We affirm.

WE CONCUR: