FILED 

APRIL 27, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

MAXWELL DEL VON JONES, 

Appellant. 

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No. 34038-4-111 

UNPUBLISHED OPINION 

SIDDOWAY, J. - Maxwell Jones appeals his sentence following a bench trial at 

which he was convicted of first degree robbery, arguing the State failed to show that 

convictions included in his offender score had not washed out or did not constitute the 

same criminal conduct. He makes a related argument that his trial lawyer provided 

ineffective assistance when he failed to challenge the offender score used by the court. 

As Mr. Jones fails to demonstrate that a sentencing error actually occurred, or that he was 

prejudiced by his lawyer's failure to object, we affirm. 

FACTS AND PROCEDURAL BACKGROUND 

The State charged Maxwell Jones with one count of first degree robbery and one 

count of second degree assault on April 5, 2013. Following a bench trial, the trial court 
No. 34038-4-III 

State v. Jones 

convicted Mr. Jones of first degree robbery, but acquitted him on the assault charge. 

At sentencing, the State presented a document entitled "Understanding of 

Defendant's Criminal History," which contained the following information: 

Crime Date of Crime Adult Place of Conviction Sent. 

----···-·· .... ---------·-·············Crillle ____ Type ______ or_.Juv ______ ················ ·······--------··- . ____________ ;Q_~!~-----------

FELON POSS 080612 A US DISTRICT OF 111814 

FIREARM EASTERN 

FELON POSS 

FIREARM 

042012 

WASHINGTON ·--··························· . ·--·-·· - .. ·-········· - --·------·····-····-···-······---------- ·------- ·-·---·-··-------··-·--·····--

A US DISTRICT OF 111814 

EASTERN 

WASHINGTON ·-· ---·--·-------·--- ···----·---·--·-----·--·--·--- ----------- -- --····-·-·-··--··-··--·-----·--- ···············-·-·-----·--·--··---·-··--··----·-···-··--··--·-- ----· ·--------·····-···· 

FELON POSS 

FIREARM 

102811 A US DISTRICT OF 111814 

EASTERN 

WASHINGTON ·----------···--------------···----------·-·-----·--··-··-----··----·--·-··--------------·--·-·····-·-·-------·-·-···-·------·--------·--------····---·--··--

PCS CONSP 122511 DRUG A SPOKANE WA 062712 ---·-------------·-····-----·---- -·-·-- ·---··---··------~-·-

POSS WEAPON 021005 A US DISTRICT OF 032106 

EASTERN 

WASHINGTON - - ---·-·-·------ --··- ·-·---------··--···------·--·-···---·······--· --- -·--··----···-·-···--·····-

PSP 2 090303 NV SPOKANE WA 121703 

DCS CONSP 011703 DRUG A SPOKANE WA 112603 - ----·-------··-····-··-··-· -- -····----------· 

DCS CONSP 011703 DRUG A SPOKANE WA 112603 

R0BBERY2 030403 V A SPOKANE WA 112403 

ASSAULT 2 ATT 062601 V A SPOKANE WA 112403 

Clerk's Papers (CP) at 47-48. 

Mr. Jones's counsel signed this document, but noted above his signature that Mr. 

Jones refused to sign it because he believed the conspiracy to possess a controlled 

substance conviction from June 27, 2012, was a misdemeanor rather than a felony. The 

trial court located the guilty plea for that crime and concluded it was a felony. Defense 

counsel raised no other challenges to the statement of criminal history. 

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No. 34038-4-111 

State v. Jones 

Based on the statement of criminal history, the State calculated Mr. Jones's 

offender score at a 9+ (12 to be exact). The court then asked: "Are you disputing that 

he's a 9-plus?" Report of Proceedings (RP) at 204. Defense counsel responded: "No, 

Your Honor." Id. The trial court found the standard range for first degree robbery based 

on an offender score of 9+ was 129 to 171 months, and sentenced him to 171 months. 

Mr. Jones appeals. 

ANALYSIS 

Mr. Jones makes two assignments of error on appeal: (1) his offender score was 

miscalculated, and (2) he received ineffective assistance of counsel at sentencing. 

1. Offender score 

A defendant's offender score, together with the seriousness level of his current 

offense, dictates the standard sentence range used in determining his sentence. RCW 

9.94A.530(1). To calculate the offender score, the court relies on its determination of the 

defendant's criminal history, which the Sentencing Reform Act of 1981 (SRA), chapter 

9.94A RCW, defines as "the list of a defendant's prior convictions and juvenile 

adjudications, whether in this state, in federal court, or elsewhere." RCW 9.94A.030(1 l). 

Prior convictions result in offender score "points" as outlined in RCW 9.94A.525. They 

will not result in additional points in the offender score if they have "washed out" due to 

time spent in the community without committing further crimes. Prior convictions for 

class B felonies are not included in the offender score 

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No. 34038-4-111 

State v. Jones 

if since the last date of release from confinement ... pursuant to a felony 

conviction, if any, or entry of judgment and sentence, the offender had 

spent ten consecutive years in the community without committing any 

crime that subsequently results in a conviction. 

RCW 9.94A.525(2)(b). The same terms apply to class C felonies, though they wash out 

in five years. RCW 9.94A.525(2)(c). We review offender score calculations de novo. 

State v. Moeurn, 170 Wn.2d 169, 172,240 P.3d 1158 (2010). 

"In determining the proper offender score, the court 'may rely on no more 

information than is admitted by the plea agreement, or admitted, acknowledged, or 

proved in a trial or at the time of sentencing.'" State v. Hunley, 175 Wn.2d 901, 909, 287 

P.3d 584 (2012) (quoting RCW 9.94A.530(2)). "[T]he State bears the burden to prove 

the existence of prior convictions by a preponderance of the evidence." State v. 

Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). "This reflects fundamental 

principles of due process, which require that a sentencing court base its decision on 

information bearing '" some minimal indicium of reliability beyond mere allegation."'" 

Id. at 920 (quoting State v. Ford, 137 Wn.2d 472,481,973 P.2d 452 (1999)). 

The need for the State to produce evidence may be obviated where there is "an 

affirmative acknowledgment by the defendant of facts and information introduced for the 

purposes of sentencing." Mendoza, 165 Wn.2d at 928. "The mere failure to object to a 

prosecutor's assertions of criminal history does not constitute such an acknowledgment." 

Id. "Nor is a defendant deemed to have affirmatively acknowledged the prosecutor's 

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No. 34038-4-111 

State v. Jones 

asserted criminal history based on his agreement with the ultimate sentencing 

recommendation." Id. 

"Our Supreme Court has held, as a limit on what can be effectively acknowledged 

by a defendant, that 'a defendant cannot agree to punishment in excess of that which the 

Legislature has established."' State v. Zamudio, 192 Wn. App. 503,508,368 P.3d 222 

(2016) (quoting In re Pers. Restraint a/Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 

(2002)). "It has also recognized this type of sentencing error as a non-rule-based 

exception to RAP 2.5(a), which provides, generally, that errors cannot be raised for the 

first time on appeal." Id. at 508. 

But there are limitations on the Supreme Court's holding that a defendant cannot 

agree to a sentence in excess of statutory authority. While a defendant cannot waive 

legal errors that lead to an excessive sentence, "waiver can be found where the alleged 

error involves an agreement to facts, later disputed, or where the alleged error involves a 

matter of trial court discretion." Goodwin, 146 Wn.2d at 874. The application of the 

waiver analysis outlined in Goodwin depends on the defendant's ability to show that a 

sentencing error was actually made, and not merely that one might have been made. 

State v. Ross, 152 Wn.2d 220,231, 95 P.3d 1225 (2004) (holding that "[t]o invoke the 

waiver analysis set forth in Goodwin, a defendant must first show on appeal ... that an 

error of fact or law exists within the four comers of his judgment and sentence"); 

Mendoza, 165 Wn.2d at 927-28 (requiring the defendant to show an obvious error of fact 

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No. 34038-4-111 

State v. Jones 

or law within the four comers of the sentence); cf State v. Wilson, 170 Wn.2d 682, 690 

n.4, 244 P .3d 950 (2010) (indicating that the defendant is required to establish that an 

error in fact occurred, regardless of whether that error is apparent from the face of the 

judgment and sentence). 

Mr. Jones made a very limited objection at sentencing. He argued his conviction 

for conspiracy to possess a controlled substance from June 27, 2012, was a misdemeanor 

rather than a felony. But even after the trial court obtained the plea document for that 

crime, Mr. Jones appears to have refused to sign the State's summary of his criminal 

history. The issues of class C felonies washing out or of certain convictions constituting 

the same criminal conduct were not raised. Whether two convictions constitute the same 

criminal conduct involves "factual determinations and the exercise of discretion" and 

may not be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 523, 

997 P.2d 1000 (2000). We, therefore, decline to review Mr. Jones's challenge on that 

issue. However, whether certain felony convictions have washed out involves legal error, 

which Mr. Jones may raise if he shows that a sentencing error actually occurred. See 

Ross, 152 Wn.2d at 231. This requires an analysis of each prior conviction. 

a. Three Convictions for Felon in Possession of a Firearm-3 Points 

Mr. Jones was convicted of committing three counts of felon in possession of a 

firearm on October 28, 2011, April 20, 2012, and August 6, 2012, respectively. He was 

sentenced for all three convictions on November 18, 2014. The record does not contain 

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No. 34038-4-III 

State v. Jones 

the statute under which Mr. Jones was convicted of those crimes, but presumably it was 

18 U.S.C. § 922. Under 18 U.S.C. § 922(g), it is "unlawful for any person who has been 

convicted in any court of, a crime punishable by imprisonment for a term exceeding one 

year ... to ... possess in or affecting commerce, any firearm or ammunition." "Whoever 

knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this 

title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2). 

"Federal convictions for offenses shall be classified according to the comparable 

offense definitions and sentences provided by Washington law." RCW 9.94A.525(3). 

Under RCW 9.41.040(1)(b), unlawful possession of a firearm in the first degree is a class 

B felony, punishable by imprisonment of more than 8 years but less than 20 years. RCW 

9A.20.040(2). Mr. Jones does not appear to argue that his 3 convictions for felon in 

possession of a firearm washed out or constituted the same criminal conduct. 

Accordingly, as Mr. Jones's present conviction was for first degree robbery-a class A 

felony that constitutes a violent offense--and these appear to be nonviolent adult felony 

convictions, each adds one point to Mr. Jones's offender score. RCW 9A.56.200(2); 

RCW 9.94A.030(55)(a)(i); RCW 9.94A.525(8). 

b. Conspiracy to Commit Possession of a Controlled Substance-I Point 

Mr. Jones's crime of conspiracy to possess a controlled substance was committed 

on December 25, 2011. He was sentenced on June 27, 2012. Possession of a controlled 

substance is a class C felony punishable by up to five years' imprisonment. RCW 

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No. 34038-4-111 

State v. Jones 

69.50.4013(2); RCW 9A.20.020(1)(c). Where a defendant is charged with conspiracy 

under the Uniform Controlled Substances Act, chapter 69.50 RCW-rather than under 

Title 9A RCW, a statute that deals with conspiracy in general-then RCW 9A.28.010, 

which relates to prosecutions of felonies defined outside of Title 9A RCW, applies. 

RCW 9A.28.010 states: 

In any prosecution under this title for ... conspiracy to commit a felony 

defined by a statute of this state which is not in this title, unless otherwise 

provided: 

(3) If the maximum sentence of imprisonment authorized by law 

upon conviction of such felony is less than eight years, such felony shall 

be treated as a class C felony for purposes of this title. 

Under the SRA, the maximum penalty for a drug conspiracy is set by the maximum 

penalty for the offense that is the object of the conspiracy. RCW 69.50.407. As noted, 

the maximum penalty for possession of a controlled substance is five years. The same 

maximum penalty therefore applies to the analogous conspiracy conviction. Because this 

penalty is more than one year but less than eight, Mr. Jones's conviction for conspiracy to 

possess a controlled substance is a class C felony. 

As earlier discussed, class C felonies wash out in five years. RCW 

9.94A.525(2)(c). It is unclear when Mr. Jones was released from confinement on this 

offense, but he was sentenced on June 27, 2012. His sentencing for the three federal 

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No. 34038-4-111 

State v. Jones 

felon in possession of a firearm convictions occurred on November 18, 2014, resetting 

the five-year clock. Presuming that he served no time and was released from 

incarceration on November 18, 2014, the washout period would end November 18, 2019. 

This conviction, therefore, has not washed out and was properly included as one point in 

the offender score. See RCW 9.94A.525(8). 

c. Possession of a Dangerous Weapon-I Point 

Mr. Jones committed the crime of possession of a dangerous weapon on February 

10, 2005, and was sentenced on March 21, 2006. The nature of this crime is unclear. It 

might have been a conviction for possession of a firearm after being convicted of a felony 

under 18 U.S.C. § 922(g). 

However, as Mr. Jones testified to being in prison from 2003 to 2008, it is more 

likely the crime committed was under 18 U.S.C. § 1791, which relates to convictions for 

possession, while in prison, of an object intended to be used as a weapon. 18 U.S.C. § 

179I(a), (d)(l)(B). An offense under this statute is comparable to an offense under RCW 

9.94.040 for possessing any weapon while in a state correctional institution, which is a 

class B felony, or while in a county or local correctional institution, which is a class C 

felony. 

If this was a class B felony, the washout period is 10 years. RCW 9.94A.525(2)(b). 

Accepting Mr. Jones's testimony that he was released in 2008, the washout period would 

not end until 2018. And as Mr. Jones was sentenced for other felonies in 2012 and 2014, 

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No. 34038-4-111 

State v. Jones 

the washout period reset, and would not have ended until 2024. Thus, if the offense was a 

class B felony, it did not wash out. And as it does not appear to be a violent offense, it 

adds one point to Mr. Jones's offender score. RCW 9.94A.525(8); RCW 9.94A.030(55). 

If this was, instead, a class C felony, the washout period would be five years. 

Again accepting Mr. Jones's testimony that he was released in 2008, the washout period 

would not end until 2013. But he was convicted of a felony in 2012, which reset the 

clock to 2017. His subsequent felonies in 2014 again reset the clock to 2019. Thus, 

under any scenario, this crime did not wash out, and counts as one point in Mr. Jones's 

offender score. 

d. Second Degree Possession of Stolen Property-I Point 

Mr. Jones committed. the crime of second degree possession of stolen property on 

September 3, 2003, and was sentenced on December 17, 2003. Second degree possession 

of stolen property is a class C felony. RCW 9A.56.160(2). The washout period is 

therefore five years. Assuming Mr. Jones served no time on this crime, the conviction 

would have washed out on December 17, 2008. However, Mr. Jones was convicted and 

sentenced for the felony possession of a weapon on March 21, 2006, and his testimony 

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No. 34038-4-III 

State v. Jones 

indicates he was incarcerated until 2008, which extended the washout period to 2013. 

But he was convicted and sentenced for conspiracy to possess a controlled substance in 

2012, again extending the washout period to 201 7. At sentencing this crime had not 

washed out, and as a nonviolent felony offense, it added one point to Mr. Jones's 

offender score. 

e. Two Convictions for Conspiracy to Deliver a Controlled Substance-2 Points 

Mr. Jones was convicted and sentenced for two counts of conspiracy to deliver a 

controlled substance on November 26, 2003. Mr. Jones testified that the charges were for 

possession ofmethamphetamine and ecstasy. 

Delivery of methamphetamine is a class B felony with a maximum sentence of 10 

years of incarceration. RCW 69.50.401(2)(b). As previously stated, where a conspiracy 

is charged under the Uniform Controlled Substances Act, RCW 9A.28.010 applies. 

Under that statute, if the maximum sentence for the offense that is the object of the 

conspiracy is 8 years or more but less than 20 years, it is a class B felony, and the 

washout period is 10 years. RCW 9A.28.010(2); RCW 9.94A.525(2)(b). Again, Mr. 

Jones testified to being in prison until 2008, meaning the conviction would not wash out 

until 2018. As such, this conviction was properly included as one point in Mr. Jones' s 

offender score. See RCW 9.94A.525(8). 

Ecstasy (methylenedioxymethamphetamine) is a Schedule I controlled substance, 

delivery of which is a class C felony with a maximum penalty of five years of 

11 
No. 34038-4-III 

State v. Jones 

incarceration. RCW 69.50.401(2)(c); RCW 69.50.204(c)(l 1); RCW 9A.20.021(1)(c). 

As the sentence is less than eight years, the conspiracy to deliver ecstasy is a class C 

felony, for which the washout period is five years. RCW 9A.28.010(3); RCW 

9.94A.525(2)(c). If Mr. Jones was released from incarceration in 2008, this felony would 

not wash out until 2013. But Mr. Jones was convicted and sentenced for conspiracy to 

possess a controlled substance in 2012, which reset the clock to 201 7. Thus, this felony 

was also properly included as one point in Mr. Jones's offender score. See RCW 

9.94A.525(8). 

f. Second Degree Robbery-2 Points 

Mr. Jones committed second degree robbery on March 4, 2003, and was sentenced 

on November 24, 2003. Second degree robbery is a class B felony, with a washout 

period of 10 years. RCW 9A.56.210(2); RCW 9.94A.525(2)(b). As Mr. Jones was not 

released from prison until 2008, the conviction will not wash out until 2018. Because 

second degree robbery is classified as a violent offense, it counts as two points in Mr. 

Jones's offender score. RCW 9.94A.030(55)(xi); RCW 9.94A.525(8). 

g. Attempted Second Degree Assault-2 Points 

Mr. Jones committed second degree attempted assault on June 26, 2001, and was 

sentenced on that charge on November 24, 2003. Second degree assault is a class B 

felony, with a maximum sentence of 10 years. RCW 9A.36.021(2)(a); RCW 

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No. 34038-4-111 

State v. Jones 

9A.20.02l(l)(b). However, because an attempt to commit a class B felony is categorized 

as a class C felony, the washout period is 5 years. RCW 9A.28.020(3)(c); RCW 

9.94A.525(2)(c). As previously discussed, because Mr. Jones was not released from 

prison until 2008, this conviction would not wash out until 2013. Mr. Jones's 2012 

conviction for conspiracy to possess a controlled substance reset the washout clock to 

2017. This conviction had not washed out at the time of sentencing. 

Second degree assault is a violent offense. RCW 9.94A.030(55)(viii). Under 

RCW 9 .. 94A.525(4), felony anticipatory offenses (such as attempt) must be scored "the 

same as if they were convictions for completed offenses." Because prior violent offenses 

count as two points when the current offense is a violent offense, this conviction for 

attempt adds two points to the offender score. See RCW 9.94A.525(8). 

The above analysis shows that Mr. Jones's offender score is 12. Mr. Jones has 

therefore failed to show that an error was actually made and he may not raise this issue 

for the first time on appeal. 

2. Ineffective assistance of counsel 

Mr. Jones argues he received ineffective assistance of counsel when his attorney 

failed to assert that the two convictions for conspiracy to deliver a controlled substance 

constituted the same criminal conduct for the purposes of sentencing, and that four of the 

class C felonies had washed out. 

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No. 34038-4-III 

State v. Jones 

"In order to prove ineffective assistance of counsel, a defendant must show that 

the attorney's performance was deficient and that prejudice resulted." State v. Levy, 156 

Wn.2d 709, 729, 132 P.3d 1076 (2006). A failure to demonstrate either deficient 

performance or prejudice defeats an ineffective assistance claim. State v. McFarland, 

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); see also Strickland v. Washington, 466 

U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A claim of ineffective 

assistance of counsel presents a mixed question of fact and law reviewed de novo." State 

v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 

As detailed above, the record does not show that any of Mr. Jones's prior 

convictions had washed out. Because Mr. Jones "points to no apparent invalidity on the 

face of the judgment and sentence and falls short in his attempt to assert an incorrect 

offender score," he has not shown that counsel was ineffective. State v. Foster, 140 Wn. 

App. 266, 277, 166 P.3d 726 (2007). 

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW 

In a prose statement of additional grounds for review (SAG), Mr. Jones raises 

two. 

SAG 1: Unconstitutional prior convictions. Mr. Jones argues that the Ninth 

Circuit found four of his prior state criminal convictions unconstitutional, and that the 

trial court in the instant matter improperly included those unconstitutional convictions in 

his offender score. This issue involves factual allegations outside the record of this 

14 
No. 34038-4-111 

State v. Jones 

appeal. Mr. Jones's remedy is to seek relief by personal restraint petition. See State v. 

Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). 

SAG 2: First degree robbery with a deadly weapon. Mr. Jones contends the trial 

court improperly found he committed first degree robbery with a deadly weapon when 

the "deadly weapon" was actually a cigarette lighter in the shape of a gun. He asserts that 

the proper charge would have been second degree robbery. 

Under RCW 9A.56.200, "[a] person is guilty of robbery in the first degree if ... 

[i]n the commission of a robbery ... he ... [ d]isplays what appears to be a firearm or 

other deadly weapon." RCW 9A.56.200(l)(a)(ii). Whether an instrument appears to be a 

firearm or deadly weapon is based on the victim 's perspective, regardless of "whether the 

weapon is actually loaded and operable or not, [or] whether the weapon is real or toy." 

State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983); see also State v. Webb, 

162 Wn. App. 195,205,252 P.3d 424 (2011). Blane Peterson, the victim, testified that 

Mr. Jones put a small silver gun to his ribs. Testimony from a detective also shows that 

the cigarette lighter is three to four inches from the hammer to the front of the gun and 

initially appears to be a firearm, which supports Mr. Peterson's belief that it was a gun. 

The record contains sufficient evidence for a finding that Mr. Jones displayed what 

appeared to be a firearm as required by RCW 9A.56.200. There was no error. 

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No. 34038-4-111 

State v. Jones 

Affirmed. 

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. d?~tt) ' . 

Siddoway, J. i:J' o= 

WE CONCUR: 

Pennell, J. 

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