### FILED DECEMBER 12, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. LEOPOLDO CUEVAS CARDENAS, Appellant. ) ) ) ) ) ) ) ) ) No. 33888-6-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- Leopoldo Cuevas Cardenas appeals his conviction and sentence for attempted second degreeburglary. The State has reasonably cured orconceded several errors. The sole issues thatremain are whetherMr. Cardenas's offender score was calculated incorrectly andwhetherresentencing is required. AlthoughMr. Cardenas points out a calculation error, an offsetting error leaves his offender score unchanged. Resentencing is notrequired. We remand for correction ofthejudgmentand sentence. PROCEDURAL HISTORY Leopoldo Cuevas Cardenas was chargedwith attempted second degreeburglary after he tried to break into an espresso stand in Wapato onAugust 24, 2015. A CrR 3.5No. 33888-6-III State v. Cardenas hearing was conducted onthe admissibility ofa statementhe made to Deputy Justin Swale before being arrested. Atthe conclusion ofthe hearing, the trial court found that Mr. Cardenas was not in custody at the time he made the statement and thathe made it voluntarily. The court did not enterwritten findings or conclusions in support ofits ruling atthe time. It allowed Deputy Swaleto testify concerning Mr. Cardenas's statement at trial. Ajury found Mr. Cardenas guilty. Thetrial court sentencedMr. Cardenas to 51 months' incarceration based on an offender score of9+. At sentencing, the State asked the trial court to impose $260 in restitution for the damage to the espresso stand. Mr. Cardenas objected to the amount, claiming the victim
was overcharged for the repairs. The trial court entered a $1 restitution award as a "place holder," observing that a hearing to determine restitution wouldbeheld at a later date. Report ofProceedings (RP) 1 at 259. Thathearing never occurred. Mr. Cardenas appealed. Amongthe assignments oferror made in his opening briefwas to the trial court's failure to enter findings and conclusions in support ofits decision at the CrR 3.5 hearing. The State promptly movedthis court to stay the appeal and remand the case to the trial court for entry ofthe findings and conclusions. The

1 All citations to the Report ofProceedings are to the consecutively numbered two volume report thatbegins with proceedings taking place on September 8, 2015. 2No. 33888-6-111 

### State v. Cardenas
motion was granted and onremand, findings and conclusions consistentwiththe trial court's oral ruling were entered. Upon completion ofthe briefing, the appeal was consideredby the panel without oral argument. ANALYSIS Not counting Mr. Cardenas's assignment oferrorto the trial court's failure to enter findings and conclusions following the CrR 3.5 hearing, which is now moot, his opening and supplementalbriefs make four assignments oferror. The trial courtis allegedto have erred in (1) imposing restitution, (2) misstating the maximum penalty for attempted second degree burglary in thejudgment and sentence, (3) misstating dates in the criminal history ofMr. Cardenas set forth inthejudgment and sentence, and (4) scoring too many offenderpoints for Mr. Cardenas's crimes committedbefore July 1, 1986, that were served concurrently. The State concedes thatthe trial court failed to conduct a hearing on the amount of restitution within 180 days ofthe sentencinghearing as required byRCW 9.94A.753(1) and that the remedy is to vacate the restitution order. 

### See State v. Grantham, 174 Wn. App. 399,406,299P.3d 21 (2013). We acceptthe State's concession. The State also concedes thatthejudgment and sentence contains scrivener's
errors. Section 2.5 incorrectly lists the maximum term for attempted burglary inthe second degree as 10 years, when it is actually 5 years. RCW 9A.52.030(2), 3No. 33888-6-111 

### State v. Cardenas 9A.28.020(3)(c), 9A.20.02l(l)(c). In addition, Mr. Cardenas's criminal history set forth in thejudgment and sentence includes 9 entries in the "Date ofCrime" columnthat do not matchthe dates in the criminal history packets preparedbythe State for sentencing. The parties agree that the correct dates are as follows:
Crime Date ofcrime Actual date Citation listed in the ofcrime judgment and sentence Custodial Assault 1-11-1990 11-22-1989 Supp. Br. ofAppellantAppendix B; 90-1-00015-3 State's Ex. D Second Degree Burglary 7-28-1986 6-18-1986 Supp. Br. ofAppellantAppendix A; 86-1-50132-0 State's Ex. D Second Degree Burglary 7-28-1986 6-16-1986 Supp. Br. ofAppellantAppendix A; 86-1-50132-0 State's Ex. D FirstDegree Theft (not FA) 7-28-1986 6-18-1986 Supp. Br. ofAppellantAppendix A; 86-1-50132-0 State's Ex. D Second Degree Theft (not FA) 7-28-1986 6-16-1986 Supp. Br. ofAppellantAppendix A; 86-1-50132-0 State'sEx. D First Degree PSP 6-20-1986 6-18-1986 Supp. Br. ofAppellant Appendix C; 86-1-50107-9 State's Ex. B Second Degree Robbery 12-2-1987 12-1-1987 Supp. Br. ofAppellantAppendix D; 87-1-01598-5 State's Ex. A Second Degree Burglary 1-19-1986 2-22-1986 Supp. Br. ofAppellantAppendix E; 86-1-00226-5 State's Ex. A Willful Fail Return- Work Release 6-9-1988 4-25-1988 Supp. Br. ofAppellantAppendix F; 88-1-0024-7 State's Ex. A We again acceptthe State's concession and will direct the trial court to make the corrections indicated. The only remaining issue raised by Mr. Cardenas's briefs is whetherhis offender
score was miscalculated.

4No. 33888-6-111 State 

### v. Cardenas
Calculation of offender score Forconvictions ofcrimes committedbefore July 1, 1986, all convictions that were served concurrently count as one offense in the defendant's offender score. RCW 9.94A.525(5)(a)(ii). Six ofthe 14 convictions included in Mr. Cardenas's criminal history were for crimes committedbefore July 1, 1986. Ofthose, the sentences for 4 (2 burglary convictions and 2 theft convictions for crimes committed in June 1986) were served concurrently and should be counted as a single offense for scoringpurposes. The State agrees that the 4 convictions count as only 1offense. While Mr. Cardenas points to this scoring rule that causes four ofhis convictions to count as one, he ignores different scoring rules that cause four ofhis convictions to count as eight. Under RCW 9.94A.525(6), prior convictions are counted as ifa defendant's attempted second degree burglary conviction was for a completed second degree burglary. And under RCW 9.94A.525(16), since the present conviction is treated
as one for burglary 2, two points are counted for each ofhis adult priorburglary 1or burglary 2 convictions-ofwhich he has four. This doubling ofpoints for the prior burglaries was pointed out by the prosecutor during the sentencing hearing. See Report ofProceedings (RP) at 239-40. The additional four points added under this rule more than offsetthe three pointreduction for Mr. Cardenas's concurrently-served pre-July 1, 1986 convictions.



### 5

### No. 33888-6-111 State v. Cardenas


### The State correctly argues that even ifthe four pre-July 1, 1986 crimes were correctly scored as a single offense Mr. Cardenas would still have an offender score of 9+, leaving his standard range unaffected. The State contends that resentencing is unnecessary because even ifMr. Cardenas hadpointed outbelowthat four ofhis convictions counted as one, the trial court would have imposed the same sentence. When the sentencing court incorrectly calculates the standard range, remand for resentencing is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence anyway. State v. Tili, 

### 148 Wn.2d 350, 358, 60 P.3d 1192 (2003) (citing State v. Parker, 

### 132 Wn.2d 182, 189, 937 P.2d 575 (1997)). This
case is different, because there is no showing here that the offender score of9+ is wrong. We cannot even determine that the sentencing court was mistaken about how many points above nine would be indicatedby Mr. Cardenas's criminal history, because it appears no one thought it mattered. The trial court offered the following reason for the sentence it imposed: [W]hen sentencing-andthe legislature gives the court a range, then I think what a lot of judges do is kind ofstart in the middle ofthe range and then-determinewhetherthere are factors that indicate that the range should be higher or lower. On the one hand this is probably a pretty routine attempted second degree burglary. Butwe do have Ithink a serious consideration here, given Mr. Cardenas' record. He has a long history of--theft and burglary. I'mnot sure that-muchhas been learned through incarceration. But given--giventhe history, given his criminal history, Ithink a sentence closerto the top ofthe range is more appropriate than one at the bottom ofthe range. 6

# I

No. 33888-6-111 

### State v. Cardenas
I am going to sentence at the top ofthe range, 51 months. RP at 252-53. Whether concurrently-served convictions for pre-July 1, 1986 crimes count as one offense orpriorburglary 2s count as two, the decisive factor for the court

### Mr. Cardenas's "longhistory oftheft andburglary"-remains the same. 

### Mr. Cardenas has not demonstrated an error in calculating the offender score or any basis for remanding for resentencing. STATEMENT OF ADDITIONAL GROUNDS In a prose statement ofadditional grounds (SAG), Mr. Cardenas raises four. 

### Error to admitscrewdriver because noprobable cause to arrest; SAG at 11-13. Pretrial, Mr. Cardenas made a prose motionto dismiss onthe basis thatDeputy Swale lackedprobable cause to arresthim. The motion was denied. No objectionwas made when the screwdriverwas later offered as evidence. Any objectionto admittingthe screwdriver as evidence was waived. RAP 2.5(a). Mr. Cardenas's real quarrel appears to be withthe trial court's ruling that Deputy Swale hadprobable cause to arrest. Where the facts and circumstances knownto the arresting officer are sufficiently trustworthy to cause a reasonable officerto believe an offense has been committed, probable cause exists. 

### State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007). A person is guilty ofattempted second degree burglary if, withthe intent to commit second degree burglary, "he or she does any act which is a substantial step towardthe commission ofthat crime." RCW 9A.28.020(1). 7

### No. 33888-6-III State v. Cardenas


### As Deputy Swale testified at the CrR 3.5 hearing and at trial, upon responding to the report ofthe attemptedburglary he traveled to the espresso stand; examined damage to a door that it appeared someone tried to pry open; spoke with the owner, who said it
was new damage; and viewed security footage ofa man trying to pry open the doorfootage from which he could see the man's face and clothing "pretty well." RP at 51. He then drove around the area and within 20 minutes spotted Mr. Cardenas, whose appearance was consistentwiththe man on the security footage. When he approached Mr. Cardenas and told him nothing more than that he was investigating aburglary, Mr. Cardenas stated "he had only walkedby the coffee shop." RP at 53. There was more than enough trustworthy informationto cause areasonable officerto believe an offense had been committed. Ineffective assistance of counsel; SAG at 16-20. 

### Mr. Cardenas next alleges ineffective assistance ofcounsel. The Sixth Amendmentto the United States Constitution guarantees a criminal defendantthe right to effective assistance ofcounsel. Stricklandv. Washington, 

### 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance ofcounsel, a defendant must demonstrate that a lawyer's representation was deficient and that the deficientrepresentation prejudiced him. State v. McFarland, 

### 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Mr. Cardenas generally describes alleged instances ofineffective assistance

8No. 33888-6-III State v. Cardenas (making no effortto secure the security video, doing nothingto prepare a defense, failing to file motions, and failing to objectto leading questions). But in each case he either fails to identify a specific act or omission, or fails to demonstrate that an act or omission was both deficient andprejudicial. No ineffective assistance ofcounsel is shown. Selectiveprosecution,prosecutorialmisconduct, and insufficient evidence; SAG 20-26. Mr. Cardenas argues he was the victim ofselective prosecution, that the prosecutor committed prosecutorial misconduct during closing argument, and thatthe State presented insufficient evidence to prove beyond a reasonable doubt thatthe man in the security video was him. Mr. Cardenas contends he is the victim ofselectiveprosecutionbased on his race. He did not claim race-based prosecution in the trial court, however, so under RAP 2.S(a)'s general rule, any claim oferror was waived. Therule's exception for "manifest constitutional error," RAP 2.5(a)(3), does not apply. Althoughthe asserted error is constitutional, it was never addressed or explored in the trial court, leaving Mr. Cardenas unable to demonstrate the actual prejudice that makes an error "manifest." State v. Munguia, 107 Wn. App. 328, 340-41, 26 PJd 1017 (2001). Error, ifany, was not preserved. Mr. Cardenas argues that the following statements bythe prosecutor during closing argument amounted to prosecutorial misconduct:

9No. 33888-6-111 

### State v. Cardenas [The espresso shop owner] went and looked at the security video, and he saw the defendanttrying to break in. He saw the defendant taking a screwdriver and prying, over and over again, trying to open up that door
....

. . .Dep. Swale came and responded. He saw the videos, he sawthe pry marks, he tookpictures ofthe door, where the defendanthad tried to pry openthe door. He left the scene, and about 20 minutes after that, five or six blocks away, easy walking distance, he saw the defendant walking along. Andhe contactedhim and the defendant asked, "What are you contacting me for." He said, "I'm investigating the burglary." Deputy testified that's all he said, nothing about a coffee stand; "I'minvestigating the burglary." And the defendant's response, whichthe defendant-whichthe deputy noted in his police report, put quotations marks around, was, "I wasjustwalking by that coffee stand." RP at 173-74. He claims conclusorily thatthe statements were prejudicial and unsupportedby the record. While Mr. Cardenas asserts his innocence and that the shop
owner did not see 

### him on the security video, the prosecutor's statements are supported by evidence and reasonable inferences from the evidence. Mr. Cardenas provides no evidence or argument demonstratingprejudice. Mr. Cardenas argues the State failed to prove beyond a reasonable doubt his identity as the attempted burglar orhis felonious intent. In reviewing a claim of insufficiency, we view the evidence in the light most favorable to the prosecution and ask whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. 

### State v. Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507 (2017). A person acts with intent when he or she acts with the objective orpurpose to accomplish a result which constitutes a crime. RCW 9A.08.0IO(l)(a). 10No. 33888-6-III 

### State v. Cardenas
The same ~vidence we describe above as supporting the trial court's finding of probable cause to arrest is substantial evidence that Mr. Cardenas attempted to enterthe espresso stand with the intentto commit a crime. The use ofa screwdriverto seek entry into a building is sufficient evidence ofa defendant's intent to enter for illegal reasons. 

### State v. Brooks, 107 Wn. App. 925, 929-30, 29 P.3d45 (2001). 

### Offender score miscalculation; SAG 26-30. Finally, Mr. Cardenas argues that the trial court sentencedhim based on a miscalculated offender score, making arguments different from those advanced byhis appellate lawyer. He challenges the validity ofhis prior convictions and contends that some ofhis convictions "washed out." SAG at 27. Prior convictions do not counttoward the offender score ifthey have washed out
as a result ofcrime-free time spent in the community. For class B felonies, an offender must spend 10 consecutive years in the community without committing any crime that subsequently results in a conviction. RCW 9.94A.525(2)(b). For class C felonies, an offendermust spend 5 consecutive crime-free years in the community for the felony to wash out. RCW 9.94A.525(2)(c). AtMr. Cardenas's sentencing, the lawyers were aware that Mr. Cardenas believed
some ofhis convictions had washed out. Certified copies ofthejudgment and sentences and Department ofCorrections' records were available and both lawyers addressedthe issue. As the prosecutorpointed out, "There isn't a span offive years as to any ofthese felony convictions." RP at 236. Even defense counsel stated he hadreviewedthe 11No. 33888-6-111 

### State v. Cardenas
criminal history and "[u]nfortunately, I don't see that underthe [Sentencing Reform Act of 1981] there is anything for me to argue in terms ofa washout. 

### I did look at it carefully. Given the calculations I did not see any washouts." RP at 237. Following Mr. Cardenas's release from custody for his first crime committed in 1986, he committed a crime every yearthrough the year 1989, meaning-sincethe crime-free years must be consecutive-thatthe wash-out clock continually reset. His release from custody on August 5, 1996, startedthe clock running, butMr. Cardenas then committed two first degree robberies in December 1998. He was not released from custody until June 1, 2012. Atthe time ofthe attempted second degree robbery on August 24, 2015, Mr. Cardenas had been crime-free in the community consecutively for only a little overthree years-not enough to wash out a Class B or Class C felony. Finally, as to Mr. Cardenas's challenges to the validity ofhis convictions, [A] criminal defendant generally has no right to contestthe validity ofa previous conviction in connection with a current sentencing. [ 

### State v.] 

### Ammons, 105 Wn.2d [175,] 188, [713 P.2d 719, 718 P.2d 796 (1986)]. Requiring the State to make such a showing, or allowing the defendant to assert such a challenge, would turn the current sentencing proceeding into an appellate review ofall ofthe defendant's prior convictions. 

### Id. Consequently, a defendant seeking to challenge the validity ofa prior conviction must exhaust established postconviction avenues ofrelief, such as apersonal restraint petition. 

### State v. Irish, 173 Wn.2d 787, 789-90, 272 P.3d 207 (2012).

12No. 

### 33888-6-111 State 

### v. Cardenas
We affirm the conviction and remand with directions to vacate the award of restitution and correctthejudgmentand sentence in a manner consistentwith this op1mon. A majority ofthepanel has determinedthis opinionwill notbe printed in the Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, A.CJ.

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