### FILED APRIL 27, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,


### v. MAXWELL DELVONJONES, Appellant. ) ) ) ) ) ) ) ) ) No. 34038-4-111

UNPUBLISHED OPINION
SIDDOWAY, J.

- Maxwell Jones appeals his sentence following a benchtrial at whichhe was convicted offirst degree robbery, arguing the State failed to showthat convictions included inhis offender score had notwashed out or did not constitute the
same criminal conduct. Hemakes a related argumentthathis trial lawyerprovided ineffective assistance whenhe failed to challengethe offender score usedbythe court. As Mr. Jones fails to demonstratethat a sentencing error actually occurred, orthathe was prejudicedbyhis lawyer's failure to object, we affirm. FACTS ANDPROCEDURAL BACKGROUND The State charged MaxwellJones with one count offirst degree robbery and one countofsecond degree assault onApril 5, 2013. Following a benchtrial, the trial courtNo. 34038-4-III State v. Jones
convicted Mr. Jones offirst degree robbery, but acquitted him onthe assault charge. At sentencing, the Statepresented a document entitled "Understanding of Defendant's Criminal History," which contained the following information: 

### Crime Date of Crime Adult Place ofConviction Sent.
----···-·· .... ---------·-·············Crillle
____Type
______or_.Juv
______················ ·······--------··- . ____________

### ;Q_~!~----------- FELONPOSS 080612 A US DISTRICT OF 111814 FIREARM EASTERN FELONPOSS FIREARM 042012 WASHINGTON

·--··························· . ·--·-·· - .. ·-········· - --·------·····-····-···-······---------- ·------- ·-·---·-··-------··-·--·····-- A US DISTRICT OF 111814 EASTERN WASHINGTON

·-· ---·--·-------·--- ···----·---·--·-----·--·--·--- ----------- -- --····-·-·-··--··-··--·-----·--- ···············-·-·-----·--·--··---·-··--··----·-···-··--··--·-- ----· ·--------·····-···· FELONPOSS 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 misdemeanorratherthan a felony. The trial court located the guiltyplea for that crime and concluded it was a felony. Defense counsel raised no other challenges to the statement ofcriminal history.
2No. 34038-4-111 State v. Jones
Based on the statement ofcriminal history, the State calculated Mr. Jones's offender score at a 9+ (12 to be exact). The courtthen asked: "Are you disputing that he's a 9-plus?" Report ofProceedings (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 of9+ was 129 to 171 months, and sentenced himto 171 months. Mr. Jones appeals. ANALYSIS Mr. Jones makes two assignments oferror on appeal: (1) his offender score was miscalculated, and (2) he received ineffective assistance ofcounsel at sentencing. 1. Offender score A defendant's offender score, together withthe seriousness level ofhis current offense, dictates the standard sentence range used in determining his sentence. RCW 9.94A.530(1). To calculate the offender score, the courtrelies on its determination ofthe defendant's criminal history, which the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, defines as "the list ofa defendant's prior convictions andjuvenile 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 ifthey 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 3No. 34038-4-111 State v. Jones
ifsince the last date ofrelease from confinement
...pursuantto a felony conviction, ifany, orentry of judgment and sentence, the offender had spentten 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, 172,240P.3d 1158 (2010). "In determiningthe proper offender score, the court 'mayrely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time ofsentencing.'" State v. Hunley, 175 Wn.2d 901, 909, 287 P.3d 584 (2012) (quoting RCW 9.94A.530(2)). "[T]he State bears the burdento prove the existence ofprior convictions by apreponderance ofthe evidence." State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). "This reflects fundamental principles ofdue process, whichrequire that a sentencing court base its decision on information bearing '"some minimal indicium ofreliability beyondmere allegation."'" Id. at 920 (quoting State v. Ford, 137 Wn.2d 472,481,973 P.2d452 (1999)). The need for the State to produce evidence may be obviated where there is "an affirmative acknowledgment by the defendant of facts andinformation introduced for the purposes ofsentencing." Mendoza, 165 Wn.2d at 928. "The mere failure to objectto a prosecutor's assertions ofcriminal history does not constitute such an acknowledgment." Id. "Noris a defendant deemed to have affirmatively acknowledgedtheprosecutor's
4No. 34038-4-111 State v. Jones
asserted criminal history based on his agreement with the ultimate sentencing recommendation." Id. "Our Supreme Courthas held, as a limit on what can be effectively acknowledged by a defendant, that 'adefendant cannot agree to punishment in excess ofthat which the Legislature has established."' State v. Zamudio, 192 Wn. App. 503,508,368 P.3d 222 (2016) (quotingIn re Pers. Restrainta/Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002)). "Ithas also recognized this type ofsentencing error as a non-rule-based exception to RAP 2.5(a), whichprovides, generally, that errors cannotbe raised for the first time on appeal." Id. at 508. Butthere are limitations on the Supreme Court's holding that a defendant cannot agree to a sentence in excess ofstatutory authority. While a defendant cannotwaive legal errors that lead to an excessive sentence, "waiver can be found where the alleged
error involves an agreementto facts, later disputed, or where the alleged error involves a matter oftrial court discretion." Goodwin, 146 Wn.2d at 874. The application ofthe waiver analysis outlined in Goodwin depends on the defendant's ability to showthat a sentencing errorwas 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 offact or law exists within the four comers ofhisjudgment and sentence"); Mendoza, 165 Wn.2d at 927-28 (requiring the defendant to show an obvious error offact 5No. 34038-4-111 

### State v. Jones

or law withinthe four comers ofthe sentence); 

### cfState v. Wilson, 170 Wn.2d 682, 690 n.4, 244 P.3d 950 (2010) (indicating thatthe defendant is required to establishthat an
error in fact occurred, regardless ofwhether that error is apparent from the face ofthe judgmentand 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 obtainedthe pleadocument for that crime, Mr. Jones appears to have refused to sign the State's summary ofhis criminal history. The issues ofclass C felonies washing out or ofcertain convictions constituting the same criminal conductwere not raised. Whethertwo convictions constitute the same criminal conduct involves "factual determinations and the exercise ofdiscretion" 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 ifhe shows that a sentencing error actually occurred. 

### See Ross, 152 Wn.2d at 231. This requires an analysis ofeachprior conviction.
a. Three Convictions for Felon in Possession ofa Firearm-3 Points Mr. Jones was convicted ofcommittingthree counts offelon in possession ofa firearm on October28, 2011, April 20, 2012, and August 6, 2012, respectively. He was sentenced for all three convictions onNovember 18, 2014. The record does not contain 6No. 34038-4-III State 

### v. Jones
the statute under which Mr. Jones was convicted ofthose crimes, butpresumably it was 18 U.S.C. § 922. Under 18 U.S.C. § 922(g), it is "unlawful for anyperson whohas been convicted in any court of, a crimepunishable by imprisonment for a term exceeding one year ...to ...possess in or affecting commerce, any firearm or ammunition." "Whoever knowingly violates subsection
... (g)
... ofsection 922 shall be fined as provided in this title, imprisoned not more than 10 years, orboth." 18 U.S.C. § 924(a)(2). "Federal convictions for offenses shall be classified accordingto the comparable offense definitions and sentencesprovidedby Washington law." RCW 9.94A.525(3). Under RCW 9.41.040(1)(b), unlawful possession ofa firearm in the first degree is a class B felony, punishable by imprisonment ofmore than 8 years but less than 20 years. RCW 9A.20.040(2). Mr. Jones does not appearto argue that his 3 convictions for felon in possession ofa firearm washed out or constitutedthe same criminal conduct. Accordingly, as Mr. Jones's present conviction was for first degree robbery-a class A felony that constitutes a violent offense--andthese appearto be nonviolent adult felony convictions, each adds onepointto 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 CommitPossession ofa Controlled Substance-I Point Mr. Jones's crime ofconspiracy topossess a controlled substance was committed
on December25, 2011. He was sentenced on June 27, 2012. Possession ofa controlled substance is a class C felony punishable by up to five years' imprisonment. RCW 7No. 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-ratherthan under Title 9A RCW, a statute that deals with conspiracy in general-thenRCW 9A.28.010, which relates to prosecutions offelonies defined outside ofTitle 9A RCW, applies. RCW 9A.28.010 states: In any prosecution underthis title for
... conspiracy to commit a felony defined by a statute ofthis state which is not in this title, unless otherwise provided: (3) Ifthe maximum sentence ofimprisonment authorized by law upon conviction ofsuch felony is less than eightyears, such felony shall be treated as a class C felony for purposes ofthis title. Underthe SRA, the maximum penalty for a drug conspiracy is set by the maximum penalty for the offense that is the object ofthe conspiracy. RCW 69.50.407. As noted, the maximum penalty for possession ofa controlled substance is five years. The same maximum penalty therefore applies to the analogous conspiracy conviction. Becausethis penalty is more than oneyearbut 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, buthe was sentenced on June 27, 2012. His sentencing for the three federal

8No. 34038-4-111 State v. Jones
felon in possession ofa firearm convictions occurred onNovember 18, 2014, resetting the five-year clock. Presumingthat he served no time and was released from incarceration onNovember 18, 2014, the washoutperiodwould endNovember 18, 2019. This conviction, therefore, has notwashed out and was properly included as one pointin the offender score. See RCW 9.94A.525(8).
c. Possession ofa Dangerous Weapon-I Point Mr. Jones committedthe crime ofpossession ofa dangerous weapon onFebruary 10, 2005, andwas sentenced onMarch 21, 2006. The nature ofthis crime is unclear. 

### It mighthave been a conviction for possession ofa firearm afterbeing convicted ofa felony under 18 U.S.C. § 922(g). However, as Mr. Jones testifiedto being in prison from 2003 to 2008, it is more likely the crime committedwas under 18 U.S.C. 

### § 1791, which relates to convictions for possession, while inprison, ofan object intended to be used as a weapon. 18 U.S.C. § 179I(a), (d)(l)(B). An offense underthis statute is comparableto an offense under RCW 9.94.040 for possessing any weapon while in a state correctional institution, which is a class B felony, orwhile in a county orlocal correctional institution, which is a class C felony.Ifthis was a class B felony, the washoutperiod is 10 years. RCW 9.94A.525(2)(b). Accepting Mr. Jones's testimony that he was released in 2008, the washoutperiodwould not enduntil 2018. And as Mr. Jones was sentenced for other felonies in 2012 and 2014, 9No. 34038-4-111 State v. Jones
the washoutperiod reset, andwould not have ended until 2024. Thus, ifthe offense was a class B felony, it did not wash out. And as it does not appearto be a violent offense, it adds onepointto Mr. Jones's offender score. RCW 9.94A.525(8); RCW 9.94A.030(55). Ifthis was, instead, a class C felony, the washoutperiod would be five years. Again accepting Mr. Jones'stestimony thathe was released in 2008, the washoutperiod would not end until 2013. Buthe was convicted ofa felony in 2012, whichreset the clockto 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 ofStolen Property-I Point Mr. Jones committed.the crime ofsecond degree possession ofstolenproperty on September 3, 2003, andwas sentenced on December 17, 2003. Second degreepossession ofstolenproperty is a class C felony. RCW 9A.56.160(2). The washoutperiod 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 ofa weapon onMarch 21, 2006, and his testimony

10No. 34038-4-III State v. Jones
indicates he was incarcerateduntil 2008, which extended the washoutperiodto 2013. Buthe was convicted and sentenced for conspiracy to possess a controlled substance in 2012, again extending the washout period to 2017. At sentencing this crime had not washed out, and as a nonviolent felony offense, it added one pointto Mr. Jones's offender score.
e. Two Convictions for Conspiracy to Deliver a Controlled Substance-2Points Mr. Jones was convicted and sentenced for two counts ofconspiracy to deliver a controlled substance on November 26, 2003. Mr. Jones testified that the charges were for possession ofmethamphetamine and ecstasy. Delivery ofmethamphetamine is a class B felony with a maximum sentence of 10 years ofincarceration. RCW 69.50.401(2)(b). As previously stated, where a conspiracy is charged underthe Uniform Controlled Substances Act, RCW 9A.28.010 applies. Underthat statute, ifthe maximum sentence for the offense that is the object ofthe conspiracy is 8 years or more but less than 20 years, it is a class B felony, and the washoutperiod 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 ofwhich is a class C felony with a maximumpenalty offive years of 11No. 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 washoutperiod is five years. RCW 9A.28.010(3); RCW 9.94A.525(2)(c). IfMr. Jones was released from incarceration in 2008, this felony would not wash outuntil 2013. ButMr. Jones was convicted and sentenced for conspiracy to possess a controlled substance in 2012, which reset the clock to 2017. 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 outuntil 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

12No. 34038-4-111 State v. Jones 9A.20.02l(l)(b). However, because an attemptto commit a class B felony is categorized
as a class C felony, the washoutperiod 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 topossess a controlled substancereset the washout clockto 2017. This conviction had notwashed out at the time ofsentencing. 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) mustbe scored "the
same as ifthey were convictions for completed offenses." Becausepriorviolent offenses count as two points whenthe 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 thatMr. Jones's offender score is 12. Mr. Jones has therefore failed to show that an error was actually made and he may notraise this issue for the first time on appeal. 2. Ineffective assistance of counsel Mr. Jones argues he received ineffective assistance ofcounsel when his attorney failed to assert thatthe two convictions for conspiracy to deliver a controlled substance constituted the same criminal conduct for the purposes ofsentencing, and that four ofthe class C felonies hadwashed out.

13No. 34038-4-III State v. Jones
"In orderto prove ineffective assistance ofcounsel, a defendant must showthat the attorney's performance was deficient and thatprejudice resulted." State v. Levy, 156 Wn.2d 709, 729, 132 P.3d 1076 (2006). A failure to demonstrate either deficient performance orprejudice defeats an ineffective assistance claim. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); see also Stricklandv. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "Aclaim ofineffective assistance ofcounsel presents a mixed question offact 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 ofMr. Jones's prior convictions had washed out. Because Mr. Jones "points to no apparent invalidity on the face ofthejudgment and sentence and falls short in his attemptto 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 FORREVIEW In a prose statement ofadditional grounds for review (SAG), Mr. Jones raises two. SAG 1: Unconstitutionalprior convictions. Mr. Jones argues thatthe Ninth Circuit found four ofhis prior state criminal convictions unconstitutional, and that the trial court in the instant matter improperly includedthose unconstitutional convictions in his offender score. This issue involves factual allegations outside the record ofthis 14No. 34038-4-111 State v. Jones appeal. Mr. Jones's remedy is to seek reliefby personal restraint petition. See State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). SAG2: Firstdegree 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 ofa gun. He asserts that the proper charge would have been second degree robbery. UnderRCW 9A.56.200, "[a] person is guilty ofrobbery in the first degree if
... [i]n the commission ofa 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"whetherthe weapon is actually loaded and operable ornot, [or] whetherthe 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. 195,205,252P.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 hammerto the front ofthe gun and initially appears to be a firearm, which supports 

### Mr. Peterson's beliefthat itwas 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.

15No. 34038-4-111 State v. Jones
Affirmed. A majority ofthe panel has determined this opinionwill not be printed in the WashingtonAppellate Reports, but it will be filed for publicrecordpursuant to RCW 2.06.040. 

# d?~tt) '
. Siddoway, J. 

# i:J'

# o=
WE CONCUR:

Pennell, J.

16