Opinion
No. 33563-8-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Mason County, No. 03-1-00153-8, James B. Sawyer II, J., entered June 27, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law, Centralia, WA.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, Shelton, WA.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
Ronald J. Radford appeals his sentence for his jury conviction for possession of Pseudoephedrine with intent to manufacture methamphetamine. He argues that the trial court erred (1) in adding one point to his offender score for committing the offense while on community placement, because under Blakely, a jury must make this determination; and (2) in failing to allow him his right to allocution at the sentencing hearing.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004).
We stayed this appeal pending our Supreme Court's decision in State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006). After the Supreme Court filed its opinion in Jones, we lifted the stay. Finding Jones controlling, we affirm Radford's sentence.
FACTS
A jury found Radford guilty of possession of Pseudoephedrine with intent to manufacture methamphetamine. Radford submitted a written statement to the sentencing court in which he admitted that he was in a drug program under the supervision of the Department of Corrections.
It appears from the record that the sentencing court relied on more than just this admission in finding that Radford was on community placement.
The sentencing court determined that Radford's offender score, based on his criminal history, was a seven. This offender score also included a point added under RCW 9.94A.525(18) because Radford was on community placement at the time he committed the offense for which he was being sentenced.
Radford appealed his conviction and calculation of his offender score. In an unpublished opinion, we affirmed Radford's conviction but found that his offender score had improperly included a conviction for trafficking stolen property. We remanded for resentencing with the correct offender score.
State v. Radford, No. 31253-1-II (Apr. 26, 2005).
At Radford's resentencing, he argued that the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004), mandated that, in order to add an extra point to his offender score, a jury must determine whether he committed the offense while on community placement. The sentencing court concluded that even if Blakely applied, Radford had admitted that he was in community custody when he possessed the Pseudoephedrine with intent to manufacture methamphetamine, therefore negating the need for a jury to make that determination. Thus, the sentencing court found that Radford's offender score was a six, not a five, as Radford argued.
Blakely was decided before Radford's resentencing, but apparently after Radford filed his first appeal.
Radford appeals his resentencing.
ANALYSIS I. Community Placement and Calculation of Offender Score
Radford argues that the sentencing court erred in adding one point to his offender score for his community custody status when he possessed Pseudoephedrine with intent to manufacture methamphetamine because (1) a jury did not first determine that he was on community custody when he committed this possession offense; (2) the sentencing court relied on Radford's admission that he was on community placement, even though he had not knowingly, intelligently, and voluntarily waived his Blakely right to have this fact determined by a jury; and (3) he was under "community supervision," not on "community placement," when he committed the current offense. These arguments fail.
As we note above, it appears that the original sentencing court based its conclusion that Radford was on community placement on additional information, not solely on Radford's admission, which, we further note, would have been sufficient. The record before us on this appeal does not indicate the nature of this additional information.
A. Judge Determines Community Custody Status
Our Supreme Court recently resolved the issues Radford raises in his first two arguments in State v. Jones. With respect to the first issue, the Court held:
[B]ecause community custody is directly related to and follows from the fact of a prior conviction and that the attendant factual determinations involve nothing more than a review of the nature of the defendant's criminal history and the defendant's offender characteristics, such a determination is properly made by the sentencing judge.
Jones, 159 Wn.2d at 234. With respect to the second issue, because Jones holds that a sentencing judge may make this community custody determination, Radford had no Blakely jury rights to waive in order for the trial court to make this determination.
B. "Community Placement" or "Community Supervision"
With respect to his third issue, Radford further argues that (1) as part of his Drug Offender Sentencing Alternative (DOSA) under RCW 9.94A.660, he was under "community supervision," not under "community placement"; and (2) because "community supervision" and "community placement" are not the same, the sentencing court erred in adding a point based on his "community placement" under RCW 9.94A.525(18).
RCW 9.94A.525(18) provides: "If the present conviction is for an offense committed while the offender was under community placement, add one point." Radford misapprehends the DOSA statute, RCW 9.94A.660(5)(b), which provides that a portion of a defendant's sentence shall be served "as a term of community custody." (Emphasis added.) Under RCW 9.94A.030(7), "community placement" includes such "community custody." Thus, as part of his DOSA community custody, Radford was on "community placement" when he committed the current possession offense.
"'Community placement' means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision[.]" RCW 9.94A.030(7) (emphasis added).
We hold, therefore, that the sentencing court correctly added one point to Radford's offender score under RCW 9.94A.525(18) for committing the current offense while on community placement.
II. Right to Allocution
Radford next argues that we must remand for resentencing a third time because the sentencing court did not extend to him his right to allocution when he was resentenced the second time. We disagree.
Radford raises this issue for the first time on appeal. And, contrary to Radford's assertion, this issue does not involve a manifest error of constitutional magnitude. Therefore, we do not consider it. RAP 2.5(a); In re Personal Restraint of Echeverria, 141 Wn.2d 323, 340, 6 P.3d 573 (2000) (denial of right to allocution does not involve a constitutional issue).
Affirmed.
A majority of this panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, C.J., Bridgewater, J., concur.