IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON,

Respondent,

v. DARRELL PARN EL BERRIAN,

Appellant. )

) ) ) ) ) ) ) ) No. 36652

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UNPUBLISHED OPINION

L AWRENCE

- B ERREY , 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 de oxy ribo nuc leic 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 challenge s. 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 IIINo. 36652

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State v. Berrian

2 FACT S 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 th is appeal.
On Feb ruary 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, th is court ordered resentencing because a
pr ior conviction from Georgi a 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

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. Berrian t imely appealed to this court

.No. 36652

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State v. Berrian

3 ANALYSIS
N O PRESUMPTION FAVORI NG A CONSECUTIVE SEN TENCE Berrian argues the trial court abused its discretion by applying an incorrect legal presumption when it imposed a consecutive sentence. The State correctly concedes e rror. 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 inc orrect 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 c onviction 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 th e current sentence expressly orders that they be served consecutively.

“ RCW 9.94A.589(3) ‘ap plies when (1) a person who is n ot 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 sentence s must run concurrent unless the judge
orders otherwise. State v. King , 135 Wn. App. 662, 675, 145 P.3d 1224 (2006).No. 36652

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State v. Berrian

4 Here, the four conditions outlined in Jones were satisfied , so there was no presumption favoring a consecutive sentence. We conclude t he trial court abused its discretion by applying an incorre ct presumption.
C RIMINAL F ILING F EE AND DNA COLLECTION FEE MUST BE STR U CK
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) requ ire s his criminal filing fee and DNA collection fee to be str u ck. The State
concedes , and we grant Berrian’s requests.
S TATEMENT OF A DDITIONAL G ROUNDS FOR REVIEW (SAG)
SAG G ROUND 1

— O FFENDER S CORE In his first direct appeal, we determined that Berrian’s c orrect 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. Olse n , 180 Wn.2d 468, 472, 325 P.3d 187 (2014).No. 36652

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State v. Berrian

5 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(4 5 )(a)(v) (2012) . Berrian’s February 14, 2014 conviction for the crime of attempted robbery i n 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 commi tted on May 18, 2010, scores 1 point as a nonviolent felony conviction. 2 Similarly, as a class B felony, unlawful po ssession 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(3 3 ). Cocaine is a S chedule II drug, and manufacture, delivery, or posse ssion with intent to deliver a S chedule II drug is a class B felony. RCW 69.50.206(4); RC W 69.50.401.No. 36652

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State v. Berrian

6 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
of fender score is 4. RCW 9.94A.525(9). We conclude that Berrian’s offender score was correctly calculated.
SAG G ROUND 2

— C OMPARABILITY ANALYSI S 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 th e 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 Senten cing Memorandum. [THE STATE]: Yes, sir. . . .

. . . . [DEFENSE COUNSEL]: That’s correct, Your Honor.
RP at 3

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State v. Berrian

7 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

— G A

. C ODE A NN . § 16

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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 po ssess with intent to manufacture or deliver, a controlled substance. Defense counsel correctly concluded that the Georgia statute wa s not broader than the Washington statute and acknowledged that the Georgia crime wa s legally comparable

to a Washington c rime. We conclude t he 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: 

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# . ddoway, J.

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