
    [No. 32508-3-III.
    Division Three.
    February 4, 2016.]
    The State of Washington, Respondent, v. Antonio Zamudio, Jr., Appellant.
    
    
      
      Dennis W. Morgan, for appellant.
    
      Steven M. Clem, Prosecuting Attorney, and Jason B. Mercer, Deputy, for respondent.
   Siddoway, C.J.

¶1 Antonio Zamudio Jr. appeals his conviction and sentence following a jury trial at which he was found guilty of second degree assault and first degree unlawful possession of a firearm, with a special finding that he was armed with a firearm in committing the assault. He challenges the sufficiency of the State’s evidence to support the assault conviction and the firearm enhancement, and for the first time on appeal, he contends that the State failed to demonstrate that convictions included in his offender score had not washed out. He makes a related argument that his trial lawyer provided ineffective assistance when he failed to challenge the offender score used by the court.

¶2 Case law permitting unpreserved sentencing errors to be raised for the first time on appeal does not avail Mr. Zamudio because he fails to demonstrate that any error was made. He likewise fails to demonstrate prejudice from the acts or omissions of his lawyer. For those reasons and because the State’s evidence was sufficient, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 Brian Lumsden was standing in the parking lot of a truck stop in Rock Island, Washington, on the night of November 12, 2013, speaking with David Berndt, a trucker he had just met, when a white Toyota Tundra truck pulling a utility trailer pulled into the lot with its bright lights on. As the Toyota truck passed, Mr. Berndt asked the driver to dim his lights. According to Mr. Lumsden, the truck’s lights were “blinding us.” Report of Proceedings (RP) at 90.

¶4 The driver of the Toyota truck, later identified as the defendant, Antonio Zamudio, Jr., stopped his truck, got out, walked up to the two men, and asked if they had a problem. Mr. Berndt answered that he just wanted Mr. Zamudio to dim his headlights. As recounted by Mr. Lumsden, a seemingly innocuous exchange followed.

¶5 It was apparently not innocuous from the point of view of Mr. Zamudio. After first walking away, he turned around, walked up to Mr. Berndt, pulled out a pistol, and held it “[a]bout six inches away from [Mr. Berndt’s] face,” asking again what his problem was. RP at 93. After holding the gun to Mr. Berndt’s face for “about thirty seconds,” according to Mr. Lumsden (although Mr. Lumsden testified it “felt longer”), Mr. Zamudio put the pistol away, got back into his truck, and pulled around front to the fuel pumps. RP at 95.

¶6 Having been informed that someone had pulled a gun on a person in the parking lot, the proprietor of the truck stop notified the county sheriff, providing a description of the truck and trailer and a license plate number. Based on that report, deputy sheriffs located Mr. Zamudio driving eastbound on State Highway 28, stopped him, and placed him under arrest. In checking for any other passengers in his truck, they saw two firearms on the floor behind the passenger’s seat that they left in place while obtaining a search warrant. The firearms turned out to be a black Walther PPS .40 caliber handgun loaded with six live .40 caliber rounds and a .12 gauge Westerfield shotgun loaded with one shell in the chamber and three in the magazine tube.

¶7 Mr. Zamudio had previously been convicted of a serious offense and was charged with first degree unlawful possession of a firearm, second degree assault, and second degree possession of stolen property. The information included a special allegation that he had been armed with a firearm in committing the assault.

¶8 A jury found Mr. Zamudio guilty of second degree assault and unlawful possession of a firearm in the first degree. It returned a special verdict finding that Mr. Zamudio was armed with a firearm at the time of the assault.

¶9 At the sentencing hearing, the trial court asked whether there was agreement as to criminal history. Mr. Zamudio’s lawyer answered, “I believe we do, yes.” RP at 251. But when the prosecutor identified the standard range for the assault count, explaining that it was based on “five prior adult felonies and two juvenile felonies,” Mr. Za-mudio’s lawyer interrupted, stating, “I don’t think that’s accurate.” RP at 251-52. After the two lawyers conferred, the prosecutor told the court, “I stand corrected,” and requested a brief recess to correct the paperwork to include Mr. Zamudio’s 2001 conviction for attempting to elude a pursuing police vehicle. RP at 252. There was no discussion at sentencing about whether any of Mr. Zamudio’s prior convictions had washed out. The defense lawyer’s interruption and correction resulted in an increase in Mr. Zamudio’s offender score from seven to eight.

¶10 The State recommended a sentence at the high end of the standard range for each count, explaining that Mr. Zamudio

[h]as an extensive criminal history starting with juvenile felonies in ’96 and unabated through 2005. [In] 2005 he was sentenced to prison and got out and was only out maybe a year and a half, two years when this offense was committed.

RP at 254.

¶11 The court ultimately imposed 70 months for the assault plus 36 months for the enhancement, and 120 months for the unlawful possession of a firearm, to run concurrently. Mr. Zamudio appeals.

ANALYSIS

¶12 Mr. Zamudio makes four assignments of error on appeal: (1) his offender score was miscalculated, (2) he received ineffective assistance of counsel at sentencing, (3) the State failed to prove that the firearm was “operable” for purposes of the firearm enhancement, and (4) the State failed to establish fear and apprehension on the part of the named victim. Appellant’s Br. at 1. We address the first two assignments of error, which are related, and then turn to the third and fourth.

Right to challenge offender score calculation

¶13 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, 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(11). Prior convictions result in offender score “points” in accordance with rules provided by RCW 9.94A.525. Prior convictions will not be counted as points if, through crime-free time spent in the community, they have “washed out” according to criteria provided by statute. Presently, and at the time Mr. Zamudio was sentenced, class C prior felony convictions other than sex offenses are not included in the offender score

if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(c).

¶14 “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)). Sentencing information or facts are “ ‘admitted! or] acknowledged ... at the time of sentencing’ ” for this purpose if they are affirmatively admitted or acknowledged; the mere failure to object to a prosecutor’s assertions of criminal history does not constitute such an acknowledgment. State v. Mendoza, 165 Wn.2d 913, 922, 205 P.3d 113 (2009) (quoting former RCW 9.94A.530(2) (2005)).

¶15 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.” In re Pers. Restraint of 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. In announcing that a defendant cannot agree to legally excessive punishment, the court observed that “[t]here are limitations on this holding,” explaining:

While waiver does not apply where the alleged sentencing error is a legal error leading 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 trial court discretion.

Id. at 874.

¶16 Goodwin involved legal error arising from a failure to treat prior convictions as washed out, but the court was applying a former statute that did not base “washouts” on a particular defendant’s time spent crime-free in the community. Instead, former RCW 9.94A.030(12)(b) (1989) provided that prior juvenile class B and C felony convictions no longer counted toward an offender score once a defendant turned 23. Id. at 867. From the date of birth and conviction history set forth in Goodwin’s judgment and sentence, it was apparent that crimes the sentencing court had counted toward the offender score had washed out. The State conceded that this indisputable error had been made but argued that Goodwin had waived the issue by agreeing to the criminal history included in his statement on plea of guilty.

¶17 Goodwin involved a collateral attack on a sentence, and it was important that Goodwin’s judgment and sentence appeared invalid on its face so as to avoid the one-year time bar of RCW 10.73.090. But cases following Goodwin have clarified that his clear showing that a sentencing error had been made—not just might have been made—was also critical to his right to raise the issue for the first time on appeal. In State v. Ross, a unanimous Supreme Court explained that “Goodwin turned on the fact that defendant’s sentence contained obvious errors,” and that “[t]o invoke the waiver analysis set forth in Goodwin, a defendant must [either] show on appeal or by way of a personal restraint petition that an error of fact or law exists within the four corners of his judgment and sentence.” 152 Wn.2d 220, 231, 95 P.3d 1225 (2004) (emphasis added); accord Mendoza, 165 Wn.2d at 927-28 (citing Ross, 152 Wn.2d at 232, and adding that “[s]ince neither defendant could show ... an obvious error in his sentence, it was not miscalculated, and any objection to the inclusion of acknowledged criminal history was waived”); cf. State v. Wilson, 170 Wn.2d 682, 690 & n.4, 244 P.3d 950 (2010) (suggesting that what is critical is to demonstrate that an error has in fact been made, not that it can be found within the four corners of the judgment and sentence).

¶18 Ross involved the consolidated cases of three criminal defendants, each of whom argued that the State had failed to prove the comparability of their out-of-state convictions to Washington State felony crimes. Each sought remand for resentencing. By the time of appeal, one defendant’s case was moot and the other two defendants— Hunter and Legrone—asserted that their out-of-state crimes were not comparable to Washington crimes and should not have been counted, but could not demonstrate that in the record on appeal. The Ross court held that “Goodwin does not control the inquiry here.” 152 Wn.2d at 231. It held that neither defendant had met a “threshold requirement” for arguing unpreserved sentencing error because “neither has shown that the sentencing court committed any arguable factual or legal error by including their prior out-of-state and/or federal convictions in their offender score.” Id. at 232. Elsewhere, it noted that in two key cases relied on in Goodwin, the defendants had “pointed to specific errors to support their claims.” Id. at 232 n.3 (citing State v. Majors, 94 Wn.2d 354, 616 P.2d 1237 (1980); State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000)).

¶19 The criminal history agreed to by the defense and reflected on Mr. Zamudio’s judgment and sentence consists of two juvenile adjudications in 1996 and 1999, and six adult convictions for crimes committed between June 2001 and June 2004. Mr. Zamudio’s juvenile adjudications and all of his adult convictions other than his 2005 conviction were for class C felonies. Mr. Zamudio contends for the first time on appeal that because the current crimes were committed in November 2013 and his last prior conviction was for delivery of methamphetamine, for which he was sentenced in February 2005, all of his prior class C felonies had washed out and should not have been included in his offender score and the State failed to offer evidence otherwise. Appellant’s Br. at 7.

¶20 Not only has Mr. Zamudio failed to show that any of his class C felonies had washed out before he committed the current crimes on November 12, 2013, but his suggestion that they might have washed out is dubious at best. Mr. Zamudio’s most recent conviction as of the time of his sentencing in this case was for delivery of methamphetamine in violation of RCW 69.50.401(2)(b). He correctly argues that he was sentenced for the crime on February 2, 2005. Delivery of methamphetamine has a seriousness level of II. Given that seriousness level and Mr. Zamudio’s offender score of 6 at the time, his standard sentence range would have been 60 to 120 months. Even assuming he was sentenced to the low end of the standard range, 60 months would not have passed from the date of his sentence until February 2, 2010. If released at that time, he would not have spent 5 crime-free years in the community until February 2, 2015. Thus, on the face of it, a washout of Mr. Zamudio’s class C felonies appears highly unlikely. For the crimes to have washed out would require some combination of a low-end or exceptional mitigated sentence, time spent in custody beginning shortly after his crime, and significant earned release time or commutation of his sentence by the governor.

¶21 Ross is controlling. Because Mr. Zamudio does not demonstrate any sentencing error, the right to raise unpreserved sentencing errors recognized in Goodwin does not apply. We need not reach the parties’ dispute over whether Mr. Zamudio’s trial lawyer’s statements at the sentencing hearing constituted an acknowledgement.

¶22 Affirmed.

¶23 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished opinions.

Korsmo and Fearing, JJ., concur.  