IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ERIC ALLEN HAGGIN,

Appellant.

In the Matter of the Personal Restraint of

ERIC ALLEN HAGGIN,

Petitioner.

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No. 34763-0-III

(consolidated with

No. 35537-3-III)

UNPUBLISHED OPINION

KORSMO, J. — Eric Haggin, by appeal and personal restraint petition (PRP), 

challenges the outcome of a resentencing hearing directed by this court following his first 

appeal. State v. Haggin, 195 Wn. App. 315, 381 P.3d 137 (2016) (published in part). We 

affirm the sentence and dismiss the PRP.

FACTS

A Kittitas County jury convicted Mr. Haggin of eight offenses: two counts of first 

degree unlawful possession of a firearm (UPF), possession of methamphetamine with 

FILED

AUGUST 9, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

2

intent to deliver, possession of heroin with intent to deliver, second degree theft, witness 

tampering, and two counts of use of drug paraphernalia. The latter two offenses are 

misdemeanors, while the remainder are felony crimes subject to sentencing under the 

Sentencing Reform Act OF 1981 (SRA), chapter 9.94A RCW. The two drug possession 

offenses were found by the jury to have been committed while armed with a firearm.

In the first appeal, this court affirmed the eight convictions, but identified 

sentencing error related to the two UPF convictions and directed that they be sentenced 

concurrently. Haggin, 195 Wn. App. at 324. The case was remanded to the superior 

court for resentencing. Id. In the unpublished portion of the case, we also remanded for 

the trial court to determine whether any of Mr. Haggin’s prior drug convictions served to 

double the maximum sentence for the two drug offenses. Haggin, No. 33280-2-III, slip 

op. (unpublished portion) at 31-33, http://courts.wa.gov/opinions/pdf/332802.pdf. No 

arguments were raised concerning the offender score.

The remand resulted in two hearings. At the first resentencing hearing, the parties 

addressed the prior drug convictions that operated to double the maximum sentence for 

the two drug offenses. Report of Proceedings (RP) (Sept. 19, 2016) at 8-10. Defense 

counsel agreed that they had been presented at the original sentencing hearing, but argued 

that they should not be considered at resentencing because they had not been entered as 

exhibits at the earlier hearing. Id. at 11. Defense counsel also argued that the two drug 

offenses and the two UPF offenses each should only be counted as one offense for 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

3

scoring purposes and requested that the trial court impose a sentence at the low end of the 

range. Id. at 12. 

The trial court recognized an offender score of “9+” and imposed a sentence of 

192 months by imposing the top end sentence of 120 months for each drug offense, to be 

served concurrently, and imposing firearm enhancements on each count that would run 

consecutively. Id. at 17-18; Clerk’s Papers (CP) at 169. The new sentence was 250 

months less than the previous sentence. Mr. Haggin again appealed to this court. 

While this second appeal was pending, the parties agreed to conduct a second 

resentencing hearing in order to clarify the judgment and sentence for the department of 

corrections and make a better record for the appeal. RP (April 24, 2017) at 3-5. At the 

second resentencing hearing, the parties discussed Mr. Haggin’s prior misdemeanor 

convictions that served to prevent his oldest felony offenses from “washing out” of the 

offender score. Id. at 3-5. Defense counsel conceded that the offenses did not wash out 

and the offender score was at least 10. Id. at 5. 

Defense counsel also again argued that the two drug offenses and the two UPF 

offenses should each only be counted as one offense for scoring purposes, thereby 

keeping the offender score at 10 rather than being 11 or 12. Id. at 5-6. He pointed out 

that the court had previously rejected this argument. Id. at 6. He asked the court to 

consider treating the drug and firearm offenses as one each and decide whether the court 

would still impose a maximum sentence if the offender score was 10 instead of 12. Id. 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

4

After clarifying that he could act while the case was on appeal, the trial court 

rejected the resentencing request:

I haven’t heard anything today that makes me thing I should change 

(inaudible). Okay? 

So, I guess that would mean that I’m affirming what I did before. . . .

And,—the high end of the standard range is a standard range 

sentence. (Inaudible) nine,—twelve, (inaudible)—the high end of the 

standard range—(Inaudible) standard range. It’s a standard range sentence. 

I don’t know how—(inaudible) novel to me (inaudible).

Id. at 8. After the prosecutor noted that the offender score needed to be correct, the court 

agreed: “It has to be right. It has to be right. I appreciate that.” Id. 

This court empowered the trial court to enter an order amending judgment and 

sentence and allowed the parties to supplement the record. The trial court entered a 

written order “amending certain portions” of the judgment and sentence. CP at 184. A 

panel subsequently considered this appeal without hearing argument.

ANALYSIS

The sole issue remaining in the direct appeal is a contention that the trial court 

erred in calculating the offender score due to the same criminal conduct argument and 

asks for a remand to once again ask the court to consider a lesser sentence. The PRP 

argues that the firearm enhancements were not authorized by the jury verdict. We 

address the two arguments in the order listed.
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

5

Offender Score

Mr. Haggin contends that he can challenge his standard range sentence because his 

offender score was 10 instead of 12. Since the trial court correctly computed the score at 

9+ and rejected his argument that a more precise offender score mattered to his sentence, 

he cannot show error.

The basic sentence computation rules have not changed since the enactment of the 

current statutory scheme. Under the SRA, a felon will be sentenced within a specified 

sentence range dependent on the seriousness of the offense and the offender’s prior 

criminal history, unless aggravating or mitigating circumstances exist. RCW 

9.94A.505(2)(x), .530(1), .535; see generally State v. Jones, 159 Wn.2d 231, 236-237, 

149 P.3d 636 (2006); State v. Nordby, 106 Wn.2d 514, 516, 723 P.2d 1117 (1986). The 

offender score is calculated by counting the prior and current felony convictions in 

accordance with the rules for each offense. RCW 9.94A.525. Current felony offenses 

are treated as if they were prior offenses when scoring the other crimes being sentenced. 

RCW 9.94A.525(1); RCW 9.94A.589(1)(a). In cases, like this one, where a sentence 

enhancement exists, the enhancement is added to the base sentence. RCW 9.94A.530(1).

The legislature capped the offender score side of the sentencing grid at “9 or 

more.” RCW 9.94A.510. In calculating the offender score, the trial court has discretion 

to count multiple offenses that encompass the same criminal conduct as one. RCW 

9.94A.525(5)(a)(i); RCW 9.94A.589(1)(a). Crimes encompass the “same criminal 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

6

conduct” if they occur at the same time and place, involve the same victim, and have the 

same criminal intent. RCW 9.94A.589(1)(a). Discretion is abused when it is exercised 

on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971). 

The legislature also has prohibited challenges to standard range sentences. “A 

sentence within the standard sentence range . . . for an offense shall not be appealed.” 

RCW 9.94A.585(1). This means, generally, that a party cannot appeal a standard range 

sentence. State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). Thus, “so long 

as the sentence falls within the proper presumptive sentencing ranges set by the 

legislature, there can be no abuse of discretion as a matter of law as to the sentence’s 

length.” Id. at 146-147. However, an appellate court may review a standard range 

sentence resulting from constitutional error, procedural error, an error of law, or the 

failure to exercise discretion. E.g., id. (State can appeal determination of a defendant’s 

eligibility for a sentencing alternative); State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 

(1993) (defendant can challenge a trial court’s failure to follow a specific sentencing 

provision); State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986) 

(defendant can challenge trial court’s failure to comply with mandatory procedures). 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

7

Mr. Haggin argues that the trial court erroneously failed to treat the two drug 

offenses as one and the two firearms as one, a failing that would reduce his offender 

score from 12 points to 10 points.1 He contends that the court can not impose even a 

standard range sentence without correctly calculating the offender score. His arguments 

fail for a couple of reasons.

Initially, it is doubtful that Mr. Haggin can show that the court abused its 

discretion in concluding that each of the offenses would score separately. He did not 

raise this issue until the first resentencing and the trial court did not comment on why it 

rejected the argument. Mr. Haggin has not provided any authority suggesting that the 

trial judge was required to place his reasoning on the record, nor did the defense ask the 

court to articulate its ruling on this issue. It is difficult to demonstrate that reasoning was 

untenable where that reasoning is not in the record.

But even assuming that the court erred in its treatment of the same criminal 

conduct issue, it did not err in its computation of the offender score. The court scored the 

defendant as “9+”. When more than 8 points count toward the offender score, the 

legislature categorizes the offender score as “9 or more.” RCW 9.94A.510. Even under 

 

1

In his reply brief, appellant contends that the trial judge failed to reconsider the 

same criminal conduct issue at the second resentencing. However, after deciding that he 

could consider the issue because this court had not ruled on it, the trial judge squarely 

stated that he was affirming his previous ruling. RP (April 24, 2017) at 8. The judge did 

consider the issue; he simply did not change his position.
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

8

the defense theory that there are 10 points that count toward the offender score, the trial 

court correctly placed Mr. Haggin in the “9 or more” category. The offender score is 

correct. Mr. Haggin has not demonstrated any error.

Mr. Haggin points out that our court on several occasions has stated that the trial 

court must always correctly calculate the sentence range, citing to State v. Tili, 148 

Wn.2d 350, 358, 60 P.3d 1192 (2003).2 While it is axiomatic under the SRA that a 

correct offender score must be determined in order to ascertain the proper sentencing 

range, Mr. Haggin cites to no authority suggesting that a specific number must be 

assigned to an offender score that correctly belongs in the “9 or more” scoring category. 

In dealing with cases, such as Tili, where the scoring category is less than “9 or more,” an 

error in the offender score leads to an erroneous sentence range. Id. (offender score of 2); 

State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461 (1999) (possible offender score ranged 

from 6 to 13). That is not the situation when an offender score is 10 or 12 or 252. All of 

 

2 This statement was first used by the Washington Supreme Court in State v. 

Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997). There, the sentencing range for the 

offense had been increased by the legislature during the latter half of the period of time 

covered by the charging document. The jury did not determine when the crimes occurred, 

so the court determined that the trial judge had erred by applying the current range rather 

than the more lenient range in effect at the beginning of the charging period. The court 

also had imposed an exceptional sentence by running the two offenses consecutively to 

each other, although the basis for the exceptional sentence was not identified in the 

opinion. Since the exceptional sentence was based on the incorrect sentence range, the 

court refused to find the error harmless. Id. at 190. Subsequent courts read the Parker

language as requiring trial courts to correctly calculate the sentence range before an 

exceptional sentence could be upheld. E.g., Tili, 148 Wn.2d at 358.
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

9

those scores are simply “9 or more.” The associated sentencing range does not change 

due to the specific number of points beyond 8 that apply to the offender before the court.

In those instances where appellate courts have even discussed the accuracy of an 

offender score in the “9 or more” category, it has always been either in the context of 

determining the applicable range or in the application of the “free crimes” aggravating 

factor.3 E.g., McCorkle, 137 Wn.2d at 494 (potential range ran from 6 to 10). 

Although the foregoing demonstrates that Mr. Haggin has not proven any error 

occurred at the resentencing, his appeal also fails because the error he does assert, if it 

existed, was clearly harmless. This aspect of the case is controlled by the decision in 

State v. Bobenhouse, 166 Wn.2d 881, 214 P.3d 907 (2009). There, as here, the trial court 

allegedly abused its discretion when it failed to find that two of the offenses constituted 

the same criminal conduct. Id. at 896. Unlike this case, the trial court had relied on the 

free crimes aggravating factor to impose an exceptional sentence. Id. Due to the high 

offender score, any error was harmless:

Here, Bobenhouse’s offender score for each of the child rape 

sentences is 20. A score of 9 permits imposing a sentence at the highest

end of the standard sentencing range. . . . In other words, even if 

Bobenhouse’s current offenses were treated as the “same criminal conduct” 

for purposes of sentencing, his offender score is greater than 9, which 

 

3 A sentence can be “too lenient” under the aggravating factor found in RCW 

9.94A.535(2)(c) if the high offender score results in other current offenses going 

unpunished. As a result, the additional offenses inflict no punishment because they do 

not increase the offender’s range and are served concurrently to the other sentences. E.g.,

State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345 (2008).
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

10

would result in some current offenses going unpunished if an exceptional 

sentence was not imposed. Any error in not treating Bobenhouse’s crimes 

as the “same criminal conduct” was harmless.

Id. at 896-897. The court stated its conclusion on this point: “the trial court’s failure to 

treat a defendant’s crimes as the same criminal conduct for purposes of calculating the 

defendant’s offender score can constitute harmless error.” Id. at 897.

That point is even stronger in this case where the court did not impose an 

exceptional sentence based on a high offender score. Instead, the defense made its 

argument that the trial judge should not impose a high-end standard range sentence 

because Mr. Haggin’s offender score was only 10 instead of 12. The court heard the 

defendant’s theory and rejected it. If there was error on the same criminal conduct issue, 

it most assuredly did not affect the outcome of this standard range sentence.

The appeal fails to establish error or prejudice. The judgment is affirmed.

Personal Restraint Petition

The PRP presents a claim that the amended information only charged a deadly 

weapons enhancement instead of a firearm enhancement. Rather than treat this as a 

notice issue, however, the petition likens the alleged error to the jury returning an 

unauthorized verdict. Because the first contention fails on the facts, both aspects of his 

claim are without merit. 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

11

Relief will only be granted in a PRP if there is constitutional error that caused 

substantial actual prejudice or if a nonconstitutional error resulted in a fundamental defect 

constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154 

Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner’s burden to establish this 

“threshold requirement.” Id. To do so, a PRP must present competent evidence in 

support of its claims. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-886, 828 P.2d 

1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially entitle the 

petitioner to relief, a reference hearing may be ordered to resolve the factual allegations. 

Id. at 886-887. 

Here, the amended information in each of the drug counts alleges the crime of 

possession of a controlled substance with intent to deliver, and then states:

And furthermore, at the time of the commission of the crime, the Defendant 

or an accomplice was armed with a firearm; contrary to Revised Code of 

Washington 9.94A.825.

CP at 10. Each of the two special verdict forms asked the jury if Mr. Haggin was “armed 

with a firearm” during the commission of the controlled substance crime. CP at 81, 83. 

The jury also was instructed on the definitions of “firearm” and “deadly weapon.” CP at 

49, 75. 

Since prior to the effective date of the SRA, the statute has authorized special 

allegations and findings regarding use of a deadly weapon, with firearms being the 

epitome of a deadly weapon. See LAWS OF 1983, ch. 163, § 3. In 1995, as part of the 
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin

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Hard Time for Armed Crime Initiative, firearms were singled out from other deadly 

weapons for even harsher additional punishment.4 See, generally, LAWS OF 1995, ch. 

129, § 2 (Initiative 159). The firearm enhancement was codified together with the deadly 

weapon enhancement. See former RCW 9.94A.310 (1996). The firearm enhancement 

currently is found in RCW 9.94A.533(3) and the deadly weapon enhancement is in RCW 

9.94A.533(4). Throughout the existence of the SRA, the deadly weapon definition and 

special allegation have been divorced from the punishment imposed for the finding. 

Compare former RCW 9.94A.125 (1985) and former RCW 9.94A.310 (1985) with 

current RCW 9.94A.533 and RCW 9.94A.825. 

The first paragraph of RCW 9.94A.825 authorizes the return of a deadly weapon 

finding by the trier-of-fact for the case, whether it be a judge or a jury. The second 

paragraph defines the meaning of “deadly weapon” and includes “pistol, revolver, or any 

other firearm” within that definition. Id. As it has been since the enactment of the SRA, 

a firearm is a deadly weapon as a matter of law. There is no separate statute authorizing 

the filing of a firearm enhancement or the return of a firearm finding apart from the 

inclusion in the finding authorized by RCW 9.94A.825.

 

4 The Initiative also increased the punishment for other deadly weapons.
No. 34763-0-III (Consolidated with 35537-3-III)

State v. Haggin; In re Pers. Restraint of Haggin 

13

Mr. Haggin argues that since the charging document made reference to subsection 

.825, he assumed that it was merely putting him on notice that a deadly weapon, as 

opposed to a firearm, was being charged. He provides no factual or legal support for that 

claim. He did not assert surprise or lack of notice at trial, nor in the first appeal, nor at 

any of the three sentencing proceedings held in this case. He did not challenge the jury 

verdict forms at any time. He has not met his burden of establishing this factual 

assertion. Rice, 118 Wn.2d at 885-886. 

The claim also is without legal merit. The charging document clearly told Mr. 

Haggin that he was armed with a “firearm” in each of the two drug cases. He has no 

basis for claiming that the statutory deadly weapon definition countermanded the 

assertion of the language of the charging document merely because there was a 

subsequent citation to RCW 9.94A.825. Properly read, the charging document put Mr. 

Haggin on notice that the firearm allegation would be determined at trial by the trier-offact. There was no reference to the statutes defining the amount of punishment that 

follows from either a firearm or a deadly weapon finding. In short, there was no reason 

to believe that the deadly weapon enhancement of RCW 9.94A.533(4) applied in place of 

the firearm enhancement of RCW 9.94A.533(3). 

The PRP has not met its heavy burden of establishing significant prejudicial error. 

It is without merit.
No. 34763-0-III (Consolidated with 35537-3-III) 

State v. Haggin; In re Pers. Restraint of Haggin 

The judgment and sentence is affirmed. The petition is dismissed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Pennell, A.CJ. 

Siddoway, J. 

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