                                                                                                  FILE[:
                                                                                        0011) RT OF APPEALS
                                                                                              b''' I S 1. Pk4 I I

                                                                                      2013 DEC 3 I      AN 9 16
      IN THE COURT OF APPEALS OF THE STATE
                                                                                    OAT        F' *1
                                                                                                J                   1

                                                   DIVISION II                         v,
                                                                                                      lJTY
STATE OF WASHINGTON,                                                              No. 43523 -3 - II


                                          Respondent,


          V.




ROBERT CARL WHITEASH,                                                     UNPUBLISHED OPINION




          PENOYAR, J. —           Robert Carl Whiteash appeals his sentence following the entry of his

guilty   plea.      He alleges, and the State partially concedes, that the sentencing court erred by

          that his                          included four           federal   convictions   from 1977.       Two of his
finding               offender score                        prior




federal convictions washed out because the offenses are generally subject to exclusive federal

jurisdiction.       But the sentencing court correctly included two other federal convictions because

                      to   a   10 -year   wash out period, which     Whiteash did    not meet.   Although the trial
they   are subject




court incorrectly calculated Whiteash' s offender score, this error does not affect the standard

sentence range. Therefore, we affirm Whiteash' s sentence.

                                                        FACTS


          On December            14,   2011,   the State charged Whiteash with six controlled substance


felonies.'     As part of a plea deal, Whiteash pleaded guilty to four of the counts and the State

dismissed the other two.




  These charges include five counts of delivery of a controlled substance in violation of RCW
69. 50. 401( 1),(    2)( a) and one count of possession of a controlled substance with intent to deliver
in   violation of    RCW 69. 50. 401( 1),( 2)(    a).
43523 -3 -II




         At    sentencing,          the State included Whiteash' s six              1977 federal convictions in its

calculation of    Whiteash'          s offender score.   2 Two of the convictions were for conspiracy to import

and deliver heroin, two were for possession of heroin with intent to distribute in violation of 21

U. S. C. § 841(   a)(   1),   and two were for importing heroin into the United States in violation of 21

U. S. C. § 952.    Whiteash argued that all of the convictions had a five -
                                                                          year wash out period and,


therefore, they should have been excluded from his offender score.

         The trial court found that the two conspiracy convictions had a five -
                                                                              year washout period,

which    Whiteash        satisfied.      Thus, the trial court excluded the conspiracy convictions from his

offender score.         But the trial court included both of the possession convictions and both of the

importing convictions in Whiteash' s offender score. The trial court calculated his offender score
at eight and sentenced him to a total of 84 months in prison. Whiteash appeals his sentence.

                                                          ANALYSIS


I.       IMPORTING


         First, Whiteash argues that the trial court should not have included his two federal

convictions     for importing heroin in his             offender score   because the      convictions washed out.       The


State concedes that this was error. We agree.


         We     review a                        court' s offender score calculation         de   novo.   State v. Tili, 148
                                   sentencing


Wn.2d 350, 358, 60 P. 3d 1192 ( 2003).                     Under RCW 9. 94A.525( 3),             prior federal convictions


shall   be   classified       according to      comparable    Washington       offense   definitions   and sentences.   If a


federal felony offense is one that is usually considered subject to exclusive federal jurisdiction,
the offense     will    be    scored as a class     C   felony.    RCW 9. 94A. 525( 3).      Here, the parties agree that


importing      heroin is       a   felony   offense subject   to   exclusive   federal jurisdiction. See United States



2 Whiteash' s other prior convictions were not contested at sentencing or on appeal.
                                                                   2
43523 -3 -II




v.    LaFroscia, 354 F.      Supp.    1338, 1340 ( 1973) ( the Supreme Court has held that Congress has


plenary power, flowing from its constitutional authority to regulate commerce with foreign

nations,   to   prohibit   the importation        of narcotics).       Accordingly, it is scored as a class C felony for

sentencing      purposes.    See RCW 9. 94A. 525( 3).          Class C offenses are not included in the offender


score if, since the last date of release from confinement on a felony conviction or the entry of

judgment and sentence, the offender has spent five consecutive years in the community without

                 a crime    that   results   in   a conviction.        RCW 9. 94A. 525( 2)(   c).   Whiteash satisfied the
committing


five -
     year wash out period for his 1977 convictions, therefore, the trial court erred when it

considered Whiteash' s two federal convictions for importing heroin in his offender score.

II.        POSSESSION


           In calculating an offender score, sentencing courts compare post -1975 offenses from

other jurisdictions to the relevant Washington law existing at the time of the prior offenses. State

v.    McCorkle, 88 Wn.        App.    485, 495, 945 P. 2d 736 ( 1997).             Whiteash argues that the trial court

                                                                                                                               3
should not      have included his two federal           convictions       for heroin   possession   in his   offender score.




He contends that, because the comparable Washington offense was unclassified in 1977, the

court must treat his 1977 federal offense as a class C felony with a five -
                                                                          year wash out period.

Because the comparable Washington offense had a sentence comparable to a class B felony,

which has a 10 -year wash out period, the trial court did not err when it included Whiteash' s

federal possession offenses in his offender score.




 3 Whiteash does not challenge the comparability of the state and federal offenses' elements; he
 argues only that the offenses should be classified as class C felonies rather than class B felonies.
                                                                   3
43523 -3 -II




         Washington' s controlled substance possession statute at the time of Whiteash' s prior


possession offenses stated:



           I] t is unlawful for any person to manufacture, deliver, or possess with intent to
         manufacture or         deliver,      a controlled substance. (         1) Any person who violates this
         subsection with respect    i) a controlled substance classified in Schedule I[41 or
                                            to: (

         II which is a narcotic drug, is guilty of a crime and upon conviction may be
         imprisoned for not more than ten years, or fined not more than twenty - ive
                                                                               f
         thousand dollars, or both."


Former RCW 69. 50. 401(            a)(   1)( i) ( 1973).     This statute did not classify the offense as a specific

level felony and Whiteash argues that RCW 9. 94A.525 does not instruct courts on determining

wash out periods        for   unclassified offenses.          Thus, he asserts that RCW 9. 94A.525 is ambiguous


and the rule of lenity should apply.

         We review a statutory construction argument de novo and interpret statutes to give effect

to the legislature'     s   intent. ' State   v.   Bunker, 169 Wn. 2d 571, 577 -78, 238 P. 3d 487 ( 2010). When


               a statute, we       first   examine     the   statute' s plain   language.    Bunker, 169 Wn.2d at 578.
construing


We consider the language of the statute in question and related statutes that disclose legislative

intent   about   the    statute    in    question.      Bunker, 169 Wn.2d           at   578 (   quoting Chadwick Farms

Owners Ass'      n v.   FHC LLC, 166 Wn.2d 178, 186, 207 P. 3d 1251 ( 2009). A statute is ambiguous


if its language is susceptible to more than one interpretation. State v. Davis, 160 Wn. App. 471,

476, 248 P. 3d 121 ( 2011).          If we determine that a statute is ambiguous, the rule of lenity requires

the court to construe the statute in the defendant' s favor. Davis, 160 Wn. App. at 476 -77.




4 Heroin is a Schedule I controlled substance. RCW 69. 50. 204( b)( 11).
                                                                   4
43523 -3 -II



          RCW 9. 94A. 525( 3) is       not ambiguous.       It   states,   in   relevant part, "   Federal convictions for


offenses shall be classified according to the comparable offense definitions and sentences

provided      by   Washington law."       RCW 9. 94A. 525( 3).          The plain language of the statute requires


sentencing courts to consider comparable sentences as well as comparable offense definitions. In

1977, when Whiteash was convicted of his federal offenses, the sentence for the comparable

Washington         offense was     a maximum     of   10   years.      Former RCW 69. 50. 401(              a)(   1)( i).   This is


equivalent to a class B felony. RCW 9. 94A.035( 2).

          Additionally, the legislature clearly intended heroin possession to be equivalent to a class

B    felony. The possession statute has always stated that the maximum term of imprisonment is

10   years.     Compare former RCW 69. 50. 401( 1971)                  with     RCW 69. 50. 401.       This was true both


before    and after    the legislature   amended     it to specify that         possession   is   a class   B     felony.    LAWS


OF 2003 ch.        53 § 331.


          We previously reached the same conclusion in State v. Cameron, 80 Wn. App. 374, 380,

909 P. 2d 309 ( 1996).          There, the defendant had a prior 1977 federal conviction for conspiracy to

possess marijuana with           intent to distribute in   violation of         21 U.S. C. § 841(   a).     Cameron, 80 Wn.


App.     at   379.    The sentencing court determined that the comparable Washington offense was

RCW 69. 50. 401(         a).   Cameron, 80 Wn.    App.     at   379.   The 1977 version of RCW 69. 50. 401( a) did


not classify offenses, but it did state that the maximum term of imprisonment for possessing
marijuana with         intent to distribute    was    five years.          Cameron, 80 Wn.          App.     at    379 -80.     We


reasoned      that the   offense was   accordingly    equivalent       to a class C    felony. Cameron, 80 Wn. App.

at 380.




                                                                 5
43523 -3 -II




            This case involves the same versions of the same federal and state statutes as Cameron.


And, even though former RCW 69.50. 401( a) did not classify offenses, we concluded in Cameron

that, based on the maximum term of imprisonment, marijuana possession was comparable to a


class   C    felony.      We follow      our    reasoning in Cameron here.                  Accordingly, Whiteash' s 1977

possession convictions are comparable                  to   class    B felonies. Class B felonies have a 10 -year wash


out period, which          Whiteash did        not meet     here.'    RCW 9. 94A.525( 2)( b).           The trial court correctly

included these offenses in his offender score.


            Whiteash' s two federal convictions for importing heroin washed out, and the sentencing

court   erred      when     it included them in his            offender    score.      But the court did not err when it


included his federal              possession     convictions         in the    offender     score.       Therefore, Whiteash' s


corrected      offender      score   is 6. "    When the sentencing court incorrectly calculates the standard

range ...      remand is the remedy unless the record clearly indicates the sentencing court would

have imposed the            same sentence       anyway."       State v. Parker, 132 Wn.2d 182, 189, 937 P. 2d 575

 1997).       Here, the record indicates that the sentencing court would have imposed the same

sentence      anyway.        The change in Whiteash' s offender score does not impact the standard range.

See RCW 9. 94A.517. Under the drug offense sentencing grid, the standard range for an offender

score of      6 to 9 is 60 -to -120      months.        RCW 9. 94A.517.             The court sentenced Whiteash on the


low     end   of   the    standard    range —    he received 60 months ( plus 24 months for the school zone

enhancement).            RCW 9. 94A.517. Therefore, the trial court would have given Whiteash the same

sentence      even       if it   calculated    his   offender    score    at   6   rather   than   8.    We affirm Whiteash' s


sentence.




  The judgment and sentence for Whiteash' s 1977 crimes was entered in July 1977 and he was
again convicted ofheroin possession in May of 1989. Therefore, he did not spend 10 crime -free
years in the community.
                                                                      6
43523 -3 - II




         Affirmed.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




         Hunt, I




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