### FILED APRIL 17,2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32151-7-111 Respondent, ) ) 

### v. ) ) RANDYMICHAEL ANDERSON, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO,

### J. -In2012, a Thurston Countyjury found Randy Anderson guilty of
onecount offelony violation ofadomestic violence no contact order. On appeal, Mr. Anderson argues that his trial date violated CrR 3.3 andthathis offender score is
erroneous. We affirm the conviction, butremand for resentencing. FACTS A court orderprevented Mr. Anderson from having any contact with his mother. OnMarch 25, 2012, Mr. Anderson wenttohis mother's home andrequestedto speak withher. His mother's caretaker calledthe police. Officers arrested Mr. Anderson. He
was charged with one count offelony violation ofa post-conviction domestic violence no contact order. Mr. Andersonwas maintained incustodythroughouttheseproceedings.No. 32151-7-111 State v. Anderson
The case initially went to trial on June 7, 2012, but a mistrial was declared the following day. Theparties agreed at thattime to a new trial start date duringthe week of July 30. OnJuly 9, the State asked for a continuance because the deputy prosecutorhad notrealized until recently thatthe new trial date conflicted with herprescheduled vacation. Defense counsel opposed the continuance. The court grantedthe motion and rescheduled the trial start date to the week ofAugust 13. OnJuly 19, the deputy prosecutor sought another continuance becausethe lead investigator was not available duringthe week thattrial was scheduled to start. Defense counsel again opposed the motion. The court granted the motion and reset the trial start date to the week ofSeptember4. On July 24, Mr. Anderson filed a pro se motion to exercise his 60 day speedy trial rights under erR 3.3. OnAugust 14, defense counsel filed a motion to dismiss for violation oferR 3.3. The court deniedthe motion, statingthat it would not second guess the earlier continuance rulings and noting that the defense had failed to file a written objection and motion within 10 days ofthe original ruling as required by erR 3.3(d)(3). Following a second trial that began September 4, thejury found Mr. Anderson guilty as charged. At sentencing, the prosecutorproved Mr. Anderson's prior criminal history for offender score purposes through a mix ofcertified and noncertified documents. The prosecutorprovided certified copies ofMr. Anderson's sixprior felony 2

### No. 32151-7-II1 State v. Anderson
convictions from Washington. Those documents showed that five ofthe prior offenses had the same offense date and same sentencing date in June 2008. Theprosecutor also providednoncertified copies ofseveral government documents establishing that

### Mr. Anderson had been convicted ofa felony drug-related offense in California. Based on this criminal history, the court determined that

### Mr. Anderson had an offender score of
seven and ordered a standard range sentence. 

### Mr. Anderson appealed. ANALYSIS 

### Mr. Anderson raises three issues on appeal. First, he contends thathis retrial occurred outside the limits set by CrR 3.3. Second, he argues thatthe sentencing court erred by relying on the noncertified documents to prove his prior California conviction. Third, he argues that the sentencing court erred by refusing to determine whether his five felony convictions from June 2008 constitutedthe same criminal conduct for offender
scorepurposes. We affirm onthe first two issues, butremand for resentencing onthe third issue.' Timefor Trial Review of

### Mr. Anderson's first argument is barred by his failure to preserve the issue for review. A party that objects to a continuance under CrR 3.3(f) "must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial within

1Mr. Andersonhas also filed a pro se statement ofaddition grounds. We find his three claims without merit and will not discuss them further. 

### 3No. 32151-7-III State 

### v. Anderson
those time limits." CrR 3.3(d)(3). "Aparty who fails, for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date is notwithin the time limits prescribed by this rule." Id.; AccordState v. Farnsworth, 133 Wn. App. 1, 12-13,130 P.3d 389 (2006); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008), aff'd, 166 Wn.2d 881, 214 P.3d 907 (2009). Because 

### Mr. Anderson failed to
move the court for a trial within the original time limits, he waived any objection to the
new trial date. The timeliness argument also was without merit. The decisionto grant a continuance is reviewed for abuse ofdiscretion. State v. Selam, 97 Wn. App. 140, 142, 982 P.2d 679 (1999). Attorney orpolice officervacations have long been recognized as valid reasons for continuing a case. Id. at 143 (citing cases). The effect ofa continuance is to extend the time for trial by excluding the period ofthe continuance from the time to bringthe case to trial. CrR 3.3(e)(3). Thus, under well-settled precedent, the trial court did not abuse its discretion in granting either continuance. Proof of Prior Convictions Mr. Anderson's second argument is that the trial court should not have accepted noncertified documents from the State in establishing his prior felony conviction in California. We review this challenge to 

### Mr. Anderson's offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).

4No. 32151-7-111 

### State 

### v. Anderson
At sentencing, the State bears the burden ofestablishing the defendant's criminal history for offender score calculations. 

### State v. 

### Ford, 137 Wn.2d 472.480,973 P.2d 452 (1999). "[U]se ofa prior conviction as a basis for sentencing under the SRA is constitutionallypermissible ifthe State proves the existence ofthe prior conviction by a preponderance ofthe evidence." 

### Id. at 479-80. "Absent a sufficient record. the sentencing court is without the necessary evidence to reach a proper decision, and it is impossible to determine whetherthe convictions are properly included in the offender score." 

### Id. at480-81. Here, the prosecutor metthis burden by providing numerous documents from the state ofCalifornia showing that Mr. Anderson had aprior felony drug conviction. Citing to 

### Ford, Mr. Anderson argues thatthe State needed to provide certified copies ofthese documents. 

### Ford did state that a certified copy ofa priorjudgmentis "[t]he best evidence ofaprior conviction." 

### Id. at 480. However, 

### Forddid not state that a certified copy was mandatory in all cases. To the contrary, 

### Fordalso stated that "the State may introduce other comparable documents ofrecord or transcripts ofpriorproceedings to establish criminal history." 

### Id. Mr. Anderson contends that the Supreme Court later modified the holding in

### Ford to make a certified copy mandatory. The Supreme Court appearedto do so in 

### State v. 

### Lopez, 147 Wn.2d 515,519,55 P.3d 609 (2002). However, the Supreme Court later abrogated this part of

### Lopez. In re Pers. Restraintof Adolph, 170 Wn.2d 556, 243 P.3d 5No. 32151-7-III State 

### v. Anderson
540 (20 10) (holding that a noncertified driving record abstract, when combinedwith a criminal history printout, was sufficient to prove the existence ofa priorDUI conviction). InAdolph, the Supreme Court explicitly held that "theLopez language
... is, in fact, the product ofamisapplication ofthe so-calledbest evidence rule." ld. at 567. The Supreme Court then went onto hold that Fordremains the rule with regard to proving a prior conviction at sentencing. ld. at 568-69. Becausethe official documents submitted bythe State carried the necessary minimum indicia ofreliability whenput together, we conclude that the State carried its burden ofproving Mr. Anderson's prior conviction from California. Scoring of Prior Convictions Mr. Anderson's third argument is that the sentencing court erred when itrefused to determine whether his June 2008 convictions constituted same criminal conduct for offender score purposes. RCW 9.94A.525(5)(a)(i) requires sentencing courts to determine whether the defendant's prior concurrent sentences should be treated as the
same criminal conduct when calculating his current offender score. The court did not do
so despite the defense request. Accordingly, we must vacate thejudgment and sentence and remand for resentencing. Mr. Anderson also argues that upon remand, the State should be held to the record
as it existed below and not have the opportunity to provide evidence that his prior convictions should not be counted as the same criminal conduct. We disagree. The State 

### 6No. 32151-7-111 State v. Anderson only bears the burden ofestablishing the existence ofthe prior convictions. The defendantbears the burden ofproving that prior crimes should be counted as the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 539,295 P.3d 219 (2013). Thus,
on remand 

### Mr. Andersonhas the burden ofestablishing that the five offenses constituted the same criminal conduct. Affirmed in part, reversed inpart, and remanded for resentencing. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:



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