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UNPUBLISHED OPINION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 amendedjudgment and sentence, arguing the court erred in refusing to consider his CrR 7.8 motion challenging the inclusion offour class C felonies in his offender score and in denying his requestfor a continuance. Because his arguments are without merit, we affirm. In2005, a jury convicted Vichai Saly ofmurder inthe first degree while armed 

### with a firearm. "Appendix B" to thejudgment and sentence sets forth the criminal history used to calculate Saly's offender score. Appendix B states, inpertinent 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
.... PERMISSIONNo. 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 of388 months and a mandatory firearm enhancement of 60 months for a total of448 months. In2011, Saly filed a pro se CrR 7.8 motion for relief from thejudgment and sentence. Saly asserted the court miscalculated his offender score by including four 

### prior class Cfelony 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) unlawfulpossession of a firearm inthe second degree (1994), (3) VUCSA(1993), and (4) taking a motor vehicle (1992). TheWashington 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 thatthe court appoint new counsel because he 

### planned to assert a claim of ineffectiveassistance ofcounsel for failure to correctly advise him ofthe offender score. Saly told the court, "IfIhad known that Ihad six points instead ofjust 8, Iprobably - you know, itprobably would have went real 

### different than what it was, you know." The court granted the requestto appoint new counsel and rescheduled the sentencing hearing for September 20, 2013.

1 Violation ofthe Uniform Controlled Substances Act. 2RCW 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) pursuantto a felony conviction, ifany, or entry ofjudgment 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 ofSaly. 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 objectto the otherconditions 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 eightyears."4 Atthe resentencing hearing on September 20, the State agreed that Saly's offender score "actually is a 6." Consistentwiththe sentencing recommendation, Saly's attorney asked the court to impose a sentence at "the lower end ofthe standard range
as itcurrently 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 adultfor the three prior assault crimes. However, the attorney 

### stated that "giventhe age ofthe case Iwas not able to get much ofthat 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 whateverthe status ofnegotiations or investigation

-- howeverthat had progressed throughoutthe 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 otherability to address those before the court at a later time. In addition, what Ithought was most interesting aboutthe history that he does have is that his priors are alljuvenile offenses.

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

### Unfortunately, though, because of his priors, the later ones, being assault inthe second degree, itappears that the State had opted to try him as an 

### adult. And from Mr. Saly's recollection it's unclearto him what happened, ifthere was a decline hearing, what the status ofthat was, and given the age ofthe case Iwas not able to get much ofthat information for him. Saly then addressed the imposition ofsentence. 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 courtto 

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

sentence. I'm pretty sure that you know that... ifIhad the opportunity to present more evidence, Iprobably could have and showed you that Ithink Ihave a lower score than 6. So I'mjust going to let you know that I believe that Ido have a score of like possibly 1, but until I've gotten more information and more evidence to prove it to you, but overall Ireally don't 

### want to go back to prison and then come back again and then go backto prison and come back again, just on likeappeal issues. Iwas wondering ifIcould try to get itdone all at once with you because you have 

### jurisdiction over me for my points on thejuvenile, the Superior Court does, you do. Itjust has to do withsentencing purposes only, and ifyou're willing to hear itbefore or not, it's up to you. 

### The court denied Saly's requestfor a continuance. The court stated that ifSaly filed a motion raising the new issues after sentencing, the court wouldtransfer it to the Court ofAppeals. 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 amendedjudgment 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) unlawfulpossession of a firearm inthe second degree (1994), (3) VUCSA (1993), and (4) taking a motor vehicle (1992).No. 71029-0-1/5 Appendix B to the amendedjudgment 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 ofappeal ofthe amendedjudgment and sentence. Saly also filed a separate pro se CrR 7.8 motion for relief from thejudgment and sentence. Inthe 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 forassault in the second degree are invalid because he was a juvenile, but the State tried himas an adult. In addition, Saly asserts the amendedjudgment 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 offour 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 trialcourt'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 itbases 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 byincluding four priorclass 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 

### withoutpermission (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 onlyone of the challenged convictions from his criminal history. The record does not support his argument. The court did not include any ofthe prior class C felony convictions in the calculation ofthe offender score on remand. Appendix B to the amendedjudgment and 

### sentence clearly shows the court calculated Saly's offender score based solely on the three 1995 convictions as an adult for assault inthe 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 requestto 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 ofdiscretion." 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 broaddiscretion 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 argumentthat the three prior convictions for assault inthe second degree should not be included in his criminal 

### history. We conclude the court did notabuse its discretion in denying his requesttoNo. 71029-0-1/7 

### continue the hearing.5
We affirm.

WE CONCUR: 

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5In a "StatementofAdditional Grounds," Saly contends the court should have calculated his offender score as 0 instead of 6. Saly asserts the three priorconvictions for assault in the second degree are invalidbecause the State charged him as an adult when he was 16 years old. Because Saly does not cite any evidence insupportof his argument, there is not a sufficientbasis to question the correctness of the calculation.