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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. NAPOLEON HAYES, JR., Appellant. No. 68907-0-1 DIVISION ONE

UNPUBLISHED OPINION FILED: September 23, 2013 

### Becker, J. —AppellantNapoleon Hayes Jr., convicted of three counts of 

### first degree robbery, contends that the sentencing courtfailed to resolve a dispute concerning his offenderscore when itcalculated his offenderscore as 12. He asks that the case be returned for resentencing. Because the sentencing 

### court did resolve the dispute, the trial court did not committhe error claimed by Hayes. We affirm. FACTS 

### Hayes pleadedguilty to three counts ofrobbery in thefirst degree. The 

### plea agreementleft him free to contest atsentencing the State's calculation ofhis offender score as 12. 

### Hayesfiled a sentencing memorandum, asserting that hisoffender score
was 6 because several convictions had "washed" under RCW 9.94A.525(2)(c),No. 68907-0-1/2 the State was collaterally estopped from using certain prior convictions, and two of his current offenses involved the same criminal conduct under RCW 9.94A.525(5)(a)(i). The court rejected these arguments and sentenced Hayes, using an offender score of 12. The standard range for that offender score was 129 to 171 months. The court imposed concurrent terms of 144 months. The sentencing hearing occurred on June 11, 2012. Toward the end ofthe 

### sentencing hearing, Hayes raised an offender score issue in addition to those previously briefed. Hayes' criminal history included two 1992juvenile convictions for forgery and possession ofstolen property. He asked the court to treatthese two convictions as the same criminal conduct. The parties agree on appeal that ifthe two convictions are treated as the same criminal conduct, Hayes' offender
score would be 11 rather than 12. The court heard Hayes' objection concerning 

### the twojuvenile convictions, butdid notexplicitly acknowledgeit, and instead proceeded to impose sentence using an offender score of 12. Where a defendant disputes his offender score calculation at sentencing 

### byarguing that prioroffenses involved the same criminal conduct, it is errorfor the sentencing court not to hold an evidentiary hearing on the issue. State v. Berastrom. 162 Wn.2d 87, 96-97, 169 P3d 816 (2007). Citing Bergstrom, Hayes 

### contends the court erred byfailing to hold an evidentiary hearing. He also claims 

### the court erred byfailing to rule on his objection that the two offenses were the
same criminal conduct. See RCW 9.94A.441 ("All disputed issues as to criminal 

### history shallbe decidedat the sentencing hearing.") (emphasis added). TheNo. 68907-0-1/3 

### remedy he requests isremand for reconsideration of his sentence in light ofthe
reduced offender score. In Berastrom, defense counsel and the State were in agreement as to the 

### defendant's criminal history and standard range. Bergstrom, 162Wn.2d at 90. 

### Consequently, the State presented noevidence bearing on theoffender score. There were several continuances ofsentencing for various reasons. At the last 

### sentencing hearing, thedefendant, acting pro se, objected thatsome ofhis prior offenses encompassed the same criminal conductand asked thathis offender score be reducedaccordingly. Thetrial court refused to grant another continuance and advised Bergstrom to seekpostconviction relief. Berastrom, 

### 162Wn.2d at91. On appeal, theSupreme Court reversed and remanded for an evidentiary hearing. 

### Thiscase is notlike Bergstrom. Hayes'offender score was in dispute and 

## his objection concerning thejuvenileconvictions was raised inthe course ofan evidentiary hearing. The State presented ample evidence ofHayes' criminal history. The courthad before itcertified copies ofthe documents onwhich Hayes relies onfor his argumentthatthetwo convictions constitutedthe same criminal conduct. The fact that the courtdid not expresslyaddress the 1992juvenile 

### convictionswhen imposing sentence doesnotmeanthecourtfailed toresolve 

## the issue Hayes raised atthe hearing. The court's decision to maintain the offender score at 12, afterreviewing the documents and hearing argument, shows that the court resolved the issue against Hayes.No. 68907-0-1/4 

### The court may have erred in concluding thatthe offenses were not the

same criminal conduct. The documents before the court showed that the two 

### 1992juvenile offenses—forgery and possession of stolen property—were charged in the same informationas offenses occurring on the same date, in the
same location, involving a credit card belonging to the same victim. But Hayes does not argue that itwas reversible error for the court to treat the two offenses
as separate crimes. His only assignment oferror is that the courtfailed to resolve a dispute concerning his offender score. Because the court did not fail to resolve any dispute concerning his offender score, we conclude his assignment of error is not well taken. The State contends that even ifthe court had failed to decide the issue, the errorwould be harmless. The parties agree that even ifthe case were remanded and the court decided that Hayes' offender score is 11 rather than 12, the standard range would remain the same. An error in determining a defendant's offender score is harmless where the standard range is not affected by the error. State v.Argo. 81 Wn. App. 552, 569, 915 P2d 1103 (1996). Hayes claims he is entitled to a new sentencing hearing notwithstanding Argo. He contends that ifthe sentencing court on remand decided that his offender score should be 11 rather than 12, there is a reasonable possibility that the court would vacate the original sentence of 144 months and instead grant his requestfor a sentence closerto 129 months at the low end ofthe standard range. Therefore, he argues, the errorwas not harmless.No. 68907-0-1/5
Because we conclude the court decided the issue of same criminal conduct in an evidentiary hearing, the court did not committhe error claimed by Hayes. We need not reach the State's claim that any errorwas harmless. STATEMENT OFADDITIONAL GROUNDS FOR REVIEW Hayes lists five additional issues in a Statement ofAdditional Grounds presented under RAP 10.10. The first three are directed at the criminal history the State compiled for Hayes and submitted in connection with the evidentiary hearing on June 11, 2012. The State's compilation shows an extensive criminal 

### history that includes, in addition to the three recent convictions for robbery, a robbery conviction in2000, another robbery in 1996, more than two dozen adult misdemeanors, almost 20 juvenile felonies, and 7 juvenile misdemeanors. Most of this history was not used to determine Hayes' offender score, but the misdemeanor convictions allowed the State to prove thatthe older priorfelonies did not wash out. 

### Hayes contends that some ofthe adult misdemeanors should actually have been classified asjuvenile misdemeanors and that the two 1992 juvenile convictions discussed in his direct appeal should have been classified as same criminal conduct. He contends these two claimed errors make the criminal 

### history completely unreliable. Hissecond ground is that his three current convictions for robbery for which he was sentenced on June 11, 2012, should 

### "merge" and be counted as 2, rather than 4, points toward his offender score. His third ground is that two juvenile assault convictions in 1993 that were not used in the calculation ofhis offender score should have been classified as theNo. 68907-0-1/6

same criminal conduct. Hayes' fourth and fifth grounds allege that the prosecutor committed misconduct in responding to the court's request for a copy of a prior judgment and sentence and in misrepresenting the facts and law concerning the calculation ofthe offender score. Because we perceive no way that these arguments could lead to a reduction in his offender score, they do not merit further review.
Affirmed. 

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WE CONCUR: 

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