IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON,

Respondent,

v.

VICHAI SALY,

Appellant.

No. 71029-0-1

UNPUBLISHED OPINION

FILED: January 20, 2015

Schindler, J. — Vichai Saly appeals the amended judgment and sentence,

arguing the court erred in refusing to consider his CrR 7.8 motion challenging the

inclusion of four class C felonies in his offender score and in denying his request for a

continuance. Because his arguments are without merit, we affirm.

In 2005, a jury convicted Vichai Saly of murder in the first degree while armed

with a firearm. "Appendix B" to the judgment and sentence sets forth the criminal

history used to calculate Saly's offender score. Appendix B states, in pertinent part:

Adult or

Sentencing Juv[enile]

Crime Date Crime....

ASSAULT 2 01/13/1995 ADULT....

ASSAULT 2 01/13/1995 ADULT....

ASSAULT 2 01/13/1995 ADULT....

TAKING MOTOR VEHICLE WITHOUT 01/13/1995 ADULT ....

PERMISSION
No. 71029-0-1/2

TAKING MOTOR VEHICLE 08/06/1992 JUVENILE ....

VUCSA'1! 12/28/1993 JUVENILE....

UNLAWFUL POSSESION OF A 10/07/1994 JUVENILE ....

FIREARM 2.

With an offender score of 8, the standard sentence range was 370 to 493

months. The court imposed a standard range sentence of 388 months and a mandatory

firearm enhancement of 60 months for a total of 448 months.

In 2011, Saly filed a pro se CrR 7.8 motion for relief from the judgment and

sentence. Saly asserted the court miscalculated his offender score by including four

prior class C felony convictions that "wash[ed] out" under RCW 9.94A.525(2)(c).2

Specifically, Saly challenged the inclusion of (1) taking a motor vehicle without

permission (1995), (2) unlawful possession of a firearm in the second degree (1994), (3)

VUCSA (1993), and (4) taking a motor vehicle (1992). The Washington Supreme Court

granted Saly's motion for discretionary review of the CrR 7.8 motion and the State's

motion to remand for resentencing.3

On remand, Saly requested that the court appoint new counsel because he

planned to assert a claim of ineffective assistance of counsel for failure to correctly

advise him of the offender score. Saly told the court, "If I had known that I had six

points instead of just 8, I probably - you know, it probably would have went real

different than what it was, you know." The court granted the request to appoint new

counsel and rescheduled the sentencing hearing for September 20, 2013.

1 Violation of the Uniform Controlled Substances Act.

2 RCW 9.94A.525(2)(c) states, in pertinent part:

[Cjlass C priorfelony convictions other than sex offenses shall not be included in the

offender score if, since the last date of release from confinement (including full-time

residential treatment) pursuant to a felony conviction, ifany, or entry of judgment and

sentence, the offender had spent five consecutive years in the community without

committing any crime that subsequently results in a conviction.

3 In re Pers. Restraint of Saly. 176 Wn.2d 1017, 293 P.3d 1185(2013).
No. 71029-0-1/3

Before the hearing on September 20, the attorney representing Saly filed

"Defendant's Sentencing Recommendation." The sentencing recommendation states

the offender score is 6, and the standard sentence range is 312 to 416 months plus 60

months for the firearm enhancement. The sentencing recommendation states, in

pertinent part:

His case is remanded for sentencing after Mr. Saly successfully petitioned

the Court and argued his offender score was calculated incorrectly; his

offender score is a 6 rather than an 8.

... Mr. Saly does not object to the other conditions recommended

by the State.

The sentencing recommendation asks the court to impose a low-end standard range

sentence "in consideration of the progress [Saly] has made over the last eight years."4

At the resentencing hearing on September 20, the State agreed that Saly's

offender score "actually is a 6." Consistent with the sentencing recommendation, Saly's

attorney asked the court to impose a sentence at "the lower end of the standard range

as it currently sits with an offender score of 6." Saly's attorney told the court that Saly

intended to raise other issues "at a later time." The attorney also questioned why the

State charged Saly as an adult for the three prior assault crimes. However, the attorney

stated that "given the age of the case Iwas not able to get much of that information for

him."

Mr. Saly . . . does have some other issues to follow up on. One

being how would he have handled this matter had he known that his

offender score was lesser given whatever the status of negotiations or

investigation -- however that had progressed throughout the progress of

his case. Although that is not an issue to be addressed here today, Mr.

Saly will have some follow-up work to do to see if he has any other ability

to address those before the court at a later time.

In addition, what Ithought was most interesting about the history

that he does have is that his priors are all juvenile offenses.

Emphasis omitted.
No. 71029-0-1/4

Unfortunately, though, because of his priors, the later ones, being assault

in the second degree, it appears that the State had opted to try him as an

adult. And from Mr. Saly's recollection it's unclear to him what happened,

ifthere was a decline hearing, what the status of that was, and given the

age of the case Iwas not able to get much of that information for him.

Saly then addressed the imposition of sentence. Saly told the court that he

believed his offender score was lower than 6 but that he had no opportunity to obtain

"more information and more evidence to prove it to you." Saly asked the court to

consider his argument about his juvenile criminal history "all at once" before imposing

sentence.

I'm pretty sure that you know that... if I had the opportunity to

present more evidence, I probably could have and showed you that Ithink

I have a lower score than 6. So I'm just going to let you know that I

believe that I do have a score of like possibly 1, but until I've gotten more

information and more evidence to prove it to you, but overall I really don't

want to go back to prison and then come back again and then go back to

prison and come back again, just on like appeal issues. Iwas wondering

if I could try to get it done all at once with you because you have

jurisdiction over me for my points on the juvenile, the Superior Court does,

you do. Itjust has to do with sentencing purposes only, and ifyou're

willing to hear it before or not, it's up to you.

The court denied Saly's request for a continuance. The court stated that ifSaly

filed a motion raising the new issues after sentencing, the court would transfer it to the

Court of Appeals.

Based on an offender score of 6, the court imposed a standard range sentence

of 372 months and a mandatory firearm enhancement of 60 months for a total of 432

months. Appendix B to the amended judgment and sentence does not include the four

convictions that Saly challenged in the CrR 7.8(a) motion: (1) taking a motor vehicle

without permission (1995), (2) unlawful possession of a firearm in the second degree

(1994), (3) VUCSA (1993), and (4) taking a motor vehicle (1992).
No. 71029-0-1/5

Appendix B to the amended judgment and sentence lists only the three prior

convictions for assault in the second degree:

Crime

Assault 2

Assault 2

Assault 2

On October 16, Saly filed a notice of appeal of the amended judgment and

sentence. Saly also filed a separate pro se CrR 7.8 motion for relief from the judgment

and sentence. In the CrR 7.8 motion, Saly asserts that the attorneys who represented

him in 2005 provided ineffective assistance by miscalculating his offender score. Saly

also argues that the three prior convictions for assault in the second degree are invalid

because he was a juvenile, but the State tried him as an adult. In addition, Saly asserts

the amended judgment and sentence is "invalid on it's [sic] face" because the amended

sentence is "outside the standard sentencing range." The court transferred the CrR

7.8(b) motion to this court as a personal restraint petition.

Saly contends the court erred in refusing to consider his challenge to the

inclusion of four class C felonies that he made in the CrR 7.8 motion and in denying his

request to continue the resentencing hearing.

We review a trial court's ruling on a CrR 7.8 motion for abuse of discretion. State

v. Zavala-Revnoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). A court abuses its

discretion if it bases the decision on untenable grounds or untenable reasons. ZavalaRevnoso, 127 Wn. App. at 122.

In the CrR 7.8 motion, Saly argued the court erred by including four prior class C

felony convictions in the calculation of his offender score: (1) taking a motor vehicle

Adult or

Sentencing Juvfenile]

Date Crime ...

01/13/1995 Adult....

01/13/1995 Adult....

01/13/1995 Adult.
No. 71029-0-1/6

without permission (1995), (2) unlawful possession of a firearm in the second degree

(1994), (3) VUCSA (1993), and (4) taking a motor vehicle (1992). On appeal, Saly

argues the court erred by excluding only one of the challenged convictions from his

criminal history. The record does not support his argument.

The court did not include any of the prior class C felony convictions in the

calculation of the offender score on remand. Appendix B to the amended judgment and

sentence clearly shows the court calculated Saly's offender score based solely on the

three 1995 convictions as an adult for assault in the second degree. Appendix B does

not include taking a motor vehicle without permission (1995), unlawful possession of a

firearm in the second degree (1994), VUCSA (1993), or taking a motor vehicle (1992).

Saly also contends the court erred in denying his pro se request to continue the

hearing to give him an "opportunity to present more evidence" to support a lower

offender score.

The decision to deny a motion to continue "is within the discretion of the trial

court and will not be disturbed absent an abuse of discretion." State v. Ollivier, 178

Wn.2d 813, 822-23, 312 P.3d 1 (2013). Where, as here, the defendant is represented

by counsel, the court has broad discretion to refuse to consider a pro se motion. In re

Pers. Restraint of Quinn, 154 Wn. App. 816, 841, 226 P.3d 208 (2010). Further, Saly

did not inform the court of any material facts to support his argument that the three prior

convictions for assault in the second degree should not be included in his criminal

history. We conclude the court did not abuse its discretion in denying his request to
No. 71029-0-1/7

continue the hearing.5

We affirm.

WE CONCUR:

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5 In a "Statement of Additional Grounds," Saly contends the court should have calculated his

offender score as 0 instead of 6. Saly asserts the three prior convictions for assault in the second degree

are invalid because the State charged him as an adult when he was 16 years old. Because Saly does not

cite any evidence in support of his argument, there is not a sufficient basis to question the correctness of

the calculation.