2015 JUL 27 A;i9;3:,

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

ANDREW ST. NICHOLAS BROOKS,

Appellant.

No. 71999-8-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: July 27, 2015

Leach, J. — Andrew Brooks pleaded guilty to second degree

manslaughter and first degree robbery. He appeals the sentencing court's

calculation of his offender score, arguing that two 2006 convictions for forgery

and unlawful possession of payment instruments constitute the same criminal

conduct. Because Brooks failed to show the 2006 convictions had the same

victim as required by RCW 9.94A.589(1)(a), the sentencing court did not err by

counting the two offenses separately. We affirm.

Background

On April 4, 2014, Brooks pleaded guilty to second degree manslaughter

with a nonfirearm deadly weapon enhancement and first degree robbery in

connection with the 2011 death of Kenneth Stewart. The trial court first

calculated Brooks's offender score as 12, based on his previous convictions of

10 felonies and 30 misdemeanors. At sentencing, Brooks argued that his

offender score should be 10, contending that two pairs of prior offenses involved
No. 71999-8-1/2

the same criminal conduct: (1) two 1997 convictions for unlawful possession of a

firearm and (2) 2006 convictions for forgery and unlawful possession of payment

instruments. The trial court agreed that the 1997 firearm convictions constituted

the same criminal conduct, but not the 2006 offenses. The trial court sentenced

Brooks based on an offender score of 11.

The trial court sentenced Brooks to a total of 180 months, which included

a 12-month deadly weapon enhancement. Brooks appeals.

Analysis

RCW 9.94A.525(5)(a)(i) instructs courts how to count a defendant's prior

convictions for offender score purposes:

In the case of multiple prior convictions, for the purpose of

computing the offender score, count all convictions separately,

except:

(i) Prior offenses which were found, under RCW

9.94A.589(1)(a), to encompass the same criminal conduct, shall be

counted as one offense, the offense that yields the highest offender

score. The current sentencing court shall determine with respect to

other prior adult offenses for which sentences were served

concurrently or prior juvenile offenses for which sentences were

served consecutively, whether those offenses shall be counted as

one offense or as separate offenses using the "same criminal

conduct" analysis found in RCW 9.94A.589(1)(a), and if the court

finds that they shall be counted as one offense, then the offense

that yields the highest offender score shall be used.

A defendant can overcome the presumption that each conviction counts

separately for offender score purposes by establishing that two or more

convictions constitute the same criminal conduct.1 RCW 9.94A.589(1)(a) defines

1 State v. Aldana Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013)

(citing State v. Farias Lopez. 142 Wn. App. 341, 351, 174 P.3d 1216 (2007)); In

re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005).
No. 71999-8-1/3

"same criminal conduct" as "two or more crimes that require the same criminal

intent, are committed at the same time and place, and involve the same victim."

If any one of these elements is missing, the court counts the offenses

separately.2 Furthermore, the moving party must establish the components of

RCW 9.94A.589(1)(a) because the finding favors the moving party.3

We review a trial court's calculation of an offender score de novo.4

However, we review a same criminal conduct determination for abuse of

discretion or misapplication of the law.5 When the record supports only one

offender score conclusion, a sentencing court abuses its discretion by arriving at

a contrary result.6 Application of RCW 9.94A.589(1)(a) involves both factual

determinations and the exercise of the trial court's discretion.7 Therefore, we

generally defer to the sentencing court's same criminal conduct finding and

disturb it only for "'clear abuse of discretion or misapplication of the law.'"8

Where the record adequately supports a finding for either a reduced or higher

offender score number, the matter lies in the trial court's discretion.9

2 State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (citing State

v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993)).

3 Aldana Graciano. 176 Wn.2d at 539.

4 State v. Johnson, 180 Wn. App. 92, 100, 320 P.3d 197 (quoting State v.

Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011)), review denied, 181 Wn.2d

1003(2014).

5 Johnson, 180 Wn. App. at 100.

6 Aldana Graciano. 176 Wn.2d at 538.

7 State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).

8 Haddock. 141 Wn.2d at 110 (quoting State v. Elliot. 114 Wn.2d 6, 17,

285 P.2d 440 (1990)).

9 Aldana Graciano. 176 Wn.2d at 538.
No. 71999-8-1/4

Brooks argues the 2006 crimes satisfy all three elements of RCW

9.94A.589(1)(a). He states that the crimes occurred "at the same time and

place—September 20, 2006, in the car he was driving when stopped." He

contends that both crimes involved the same victim, Michael Wichers. And he

argues that "both 2006 crimes were part of the same scheme and involved the

same objective": to commit a financial crime against Wichers.

We disagree. On this record, Brooks does not meet his burden to prove

that both offenses involved the same victim. Brooks's statement on plea of guilty

does not support such a finding. While Brooks explicitly stated the driver's

license belonged to Wichers, he states only that the payment instruments are "in

the name of a person."

To support his contention that Wichers was the victim of both offenses,

Brooks cites his trial counsel's sentencing brief, which includes a summary of the

2006 statement of probable cause. This summary states that Wichers is the

owner of both the driver's license and the payment instruments. However,

Brooks may not rely on unsupported references to pleadings which themselves

contain unsupported factual assertions. He must cite from evidence in the

record.10 On this record, Brooks does not establish that both offenses had the

10 See RAP 10.3(a)(5) (reference to record must be included for each

factual statement); Grobe v. Valley Garbage Serv.. Inc.. 87 Wn.2d 217, 228-29,

551 P.2d 748 (1976) (cases on appeal are decided only from evidence in the

record).
No. 71999-8-1/5

same victim. Therefore, he does not meet his burden to show they were the

same criminal conduct.

Conclusion

Because Brooks failed to meet his burden to show the crimes involved the

same victim, he failed to establish his convictions for forgery and unlawful

possession of payment instruments were the same criminal conduct. The trial

court did not abuse its discretion or misapply the law in counting each offense

separately. We affirm.

AtfksV //_

WE CONCUR:

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