IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DARRELL PARNEL BERRIAN,

Appellant.

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No. 36652-9-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J. — Darrell Berrian appeals his sentence. He argues the 

trial court abused its discretion when, contrary to law, it applied a presumption that his 

sentence should run consecutive with another sentence. The State agrees. In a 

supplemental brief, he requests that we direct the trial court to waive his criminal filing 

fee and his deoxyribonucleic acid (DNA) collection fee. The State agrees again. 

In a statement of additional grounds for review, Berrian challenges his offender 

score on two grounds. We reject both challenges. 

We remand this matter for resentencing, direct the trial court to apply a 

presumption that Berrian’s sentence should run concurrent to the other sentence, and 

direct the trial court to strike Berrian’s criminal filing fee and DNA collection fee.

FILED

JULY 11, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36652-9-III

State v. Berrian

2

FACTS

Darrell Berrian committed attempted robbery in the first degree and unlawful 

possession of a firearm in the first degree on July 7, 2013. Two months later, on 

September 5, 2013, Berrian committed first degree assault, the crime in this appeal. 

On February 14, 2014, Berrian was convicted and sentenced on the attempted 

robbery and firearm case. On September 12, 2014, Berrian was convicted and sentenced 

on this case. 

In his first direct appeal of this case, this court ordered resentencing because a 

prior conviction from Georgia was erroneously counted as 1 point instead of 1⁄2 point. At 

resentencing on this case, the trial court ran Berrian’s sentence consecutive with his 

sentence in the other case. In doing so, it stated:

Okay. Mr. Berrian, I see no good reason to run your sentence concurrent 

with an entirely separate case. I’m not going to do that. The presumption is 

that it’s going to be consecutive, and that’s what I’m going to do.

Report of Proceedings (RP) at 11-12 (emphasis added).

Berrian timely appealed to this court.
No. 36652-9-III

State v. Berrian

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ANALYSIS

NO PRESUMPTION FAVORING A CONSECUTIVE SENTENCE

Berrian argues the trial court abused its discretion by applying an incorrect legal 

presumption when it imposed a consecutive sentence. The State correctly concedes error.

A trial court’s decision regarding concurrent or consecutive sentences is reviewed 

for an abuse of discretion. In re Pers. Restraint of Delgado, 149 Wn. App. 223, 239, 204 

P.3d 936 (2009). A trial court abuses its discretion when it applies the incorrect legal 

standard. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).

The correct legal standard is set forth at RCW 9.94A.589(3):

[W]henever a person is sentenced for a felony that was committed while the 

person was not under sentence for conviction of a felony, the sentence shall 

run concurrently with any felony sentence which has been imposed by any 

court in this or another state or by a federal court subsequent to the 

commission of the crime being sentenced unless the court pronouncing the 

current sentence expressly orders that they be served consecutively.

“RCW 9.94A.589(3) ‘applies when (1) a person who is not under sentence of a 

felony (2) commits a felony and (3) before sentencing (4) is sentenced for a different 

felony.’” State v. Jones, 137 Wn. App. 119, 124, 151 P.3d 1056 (2007) (internal 

quotation marks omitted) (quoting State v. Shilling, 77 Wn. App. 166, 175, 889 P.2d 948 

(1995)). Under these circumstances, the sentences must run concurrent unless the judge 

orders otherwise. State v. King, 135 Wn. App. 662, 675, 145 P.3d 1224 (2006). 
No. 36652-9-III

State v. Berrian

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Here, the four conditions outlined in Jones were satisfied, so there was no 

presumption favoring a consecutive sentence. We conclude the trial court abused its 

discretion by applying an incorrect presumption. 

CRIMINAL FILING FEE AND DNA COLLECTION FEE MUST BE STRUCK

Berrian is an indigent defendant, and the State acknowledges his DNA has been 

previously collected. Berrian contends that State v. Ramirez, 191 Wn.2d 732, 426 P.3d 

714 (2018) requires his criminal filing fee and DNA collection fee to be struck. The State

concedes, and we grant Berrian’s requests.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

SAG GROUND 1—OFFENDER SCORE

In his first direct appeal, we determined that Berrian’s correct offender score 

rounded down to 4. In his second direct appeal, Berrian contends that his correct offender 

score should be rounded down to 3. We disagree.

We review a trial court’s calculation of a defendant’s offender score de novo. 

State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014).
No. 36652-9-III

State v. Berrian

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RCW 9.94A.525(9) provides:

If the present conviction is for a serious violent offense, count three points 

for prior adult and juvenile convictions for crimes in this category, two 

points for each prior adult and juvenile violent conviction (not already 

counted), one point for each prior adult nonviolent felony conviction, and 

1/2 point for each prior juvenile nonviolent felony conviction.

Assault in the first degree is a serious violent offense; thus, RCW 9.94A.525(9) 

applies. Former RCW 9.94A.030(45)(a)(v) (2012). Berrian’s February 14, 2014 

conviction for the crime of attempted robbery in the first degree counts as 2 points 

because it is a prior violent offense.

1

 See RCW 9.94A.525(9); Clerk’s Papers at 512.

Next, the prior sale of cocaine committed on May 18, 2010, scores 1 point as a 

nonviolent felony conviction.2 Similarly, as a class B felony, unlawful possession of a 

firearm scores 1 point. RCW 9.41.040(1)(b). 

Lastly, Berrian’s juvenile conviction in Georgia for possession of a controlled 

substance on May 7, 1999, scores 1⁄2 point. 

 

1

“‘Violent offense’ means . . . [a]ny felony defined under any law as a class A 

felony or an attempt to commit a class A felony.” Former RCW 9.94A.030(54)(a)(i). 

Robbery in the first degree is a class A felony. RCW 9A.56.200. 

2

“Nonviolent offense” means an offense that is not a violent offense. 

Former RCW 9.94A.030(33). Cocaine is a Schedule II drug, and manufacture, 

delivery, or possession with intent to deliver a Schedule II drug is a class B felony. 

RCW 69.50.206(4); RCW 69.50.401.
No. 36652-9-III

State v. Berrian

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Berrian’s total points equal 41⁄2. RCW 9.94A.525 dictates that the offender score is 

the sum of the total points rounded down to the nearest whole number. Thus, Berrian’s 

offender score is 4. RCW 9.94A.525(9). We conclude that Berrian’s offender score was 

correctly calculated.

SAG GROUND 2—COMPARABILITY ANALYSIS

Berrian argues that the trial court erred by including his two Georgia convictions in

his offender score without conducting a comparability analysis. He claims that he did not 

affirmatively acknowledge that the foreign crimes were comparable to Washington State 

crimes. This argument fails.

At the beginning of Berrian’s resentencing hearing, the trial court asked the State 

if it agreed with the offender score calculation as set forth in Berrian’s sentencing 

memorandum:

[THE COURT:] Let me ask first if the State is in agreement with the 

calculation of the offender score as put forth by [defense counsel] in the 

Sentencing Memorandum.

[THE STATE]: Yes, sir. . . .

. . . .

[DEFENSE COUNSEL]: That’s correct, Your Honor.

RP at 3-4.
No. 36652-9-III

State v. Berrian

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In Berrian’s sentencing memorandum, his counsel dedicated an entire section of 

the brief to comparability analysis. There, defense counsel set forth that the juvenile 

conviction only scored 1⁄2 point. Because no other offenses scored 1⁄2 point, the offense 

would be eliminated by RCW 9.94A.525’s requirement to round down. Thus, no 

comparability analysis was conducted on the juvenile possession of controlled substance 

charge.

Next, defense counsel addressed the second Georgia conviction and set forth the 

Georgia controlled substance statute—GA. CODE ANN. § 16-13-30(b):

Except as authorized by this article, it is unlawful for any person to 

manufacture, deliver, distribute, dispense, administer, sell, or possess 

with intent to distribute any controlled substance.

He then set forth RCW 69.50.401(1):

Except as authorized by this chapter, it is unlawful for any person to 

manufacture, deliver, or possess with intent to manufacture or deliver, a 

controlled substance.

Defense counsel correctly concluded that the Georgia statute was not broader than 

the Washington statute and acknowledged that the Georgia crime was legally comparable 

to a Washington crime. We conclude the trial court did not err when it agreed that the 

Georgia crime was comparable to a Washington crime.
No. 36652-9-111 

State v. Berrian 

Remanded for resentencing and striking two court costs. 

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. 

Lawrence-Berrey, C.J. 

WE CONCUR: 

7)) Ucv ~ . ddoway, J. ~ ' Fearing, J. 

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