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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
| Docket Number: |
29507-9 |
| Title of Case: |
State of Washington v. Jimmy George Buckman |
| File Date: |
03/20/2012 |
SOURCE OF APPEAL
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| Appeal from Benton Superior Court |
| Docket No: | 05-1-01261-1 |
| Judgment or order under review |
| Date filed: | 11/04/2010 |
| Judge signing: | Honorable Cameron Mitchell |
JUDGES
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| Authored by | Laurel H. Siddoway |
| Concurring: | Stephen M. Brown |
| Teresa C. Kulik |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Dennis W. Morgan |
| | Attorney at Law |
| | Po Box 1019 |
| | Republic, WA, 99166-1019 |
Counsel for Respondent(s) |
| | Andrew Kelvin Miller |
| | Benton County Prosecutors Office |
| | 7122 W Okanogan Pl Bldg A |
| | Kennewick, WA, 99336-2359 |
|
| | Julie Elizabeth Long |
| | Benton County Prosecutors Office |
| | 7122 W Okanogan Ave |
| | Kennewick, WA, 99336-2341 |
FILED
March 20, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 29507-9-III
)
Respondent, )
) Division Three
v. )
)
JIMMY GEORGE BUCKMAN, )
) UNPUBLISHED OPINION
Appellant. )
)
Siddoway, J. -- Jimmy George Buckman challenges the computation of his
offender score in connection with his 2006 conviction for attempted first degree theft,
despite having fully completed his sentence on that offense. Having no effective relief
that we can provide in the matter, we dismiss his appeal as moot.
FACTS AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, Jimmy George Buckman pleaded guilty on
February 8, 2006 to one count of attempted first degree theft. His plea statement did not
contain a criminal history and none was attached, but he acknowledged that his criminal
history resulted in an offender score of eight. He was sentenced to 24.75 months of
No. 29507-9-III
State v. Buckman
confinement based upon that offender score. He later sought to withdraw his plea,
arguing the offender score had been incorrect. When his motion to withdraw his plea was
denied, he appealed.
Mr. Buckman completed both the confinement and community custody provisions
of his sentence on August 30, 2007. His challenge to the determination of his offender
score in connection with the 2006 theft conviction has nonetheless wended its way to and
from this court in the years since. The initial rationale for continuing to entertain the
appeal was our commissioner's recognition that where a defendant seeks to withdraw a
guilty plea, the issue is not moot. State v. Buckman, noted at 153 Wn. App. 1019, 2009
WL 4043364, at *1 n.1, review denied, 168 Wn.2d 1038 (2010). The following
proceedings had taken place in connection with Mr. Buckman's appeal by November 24,
2009, as set forth in this court's unpublished opinion entered on that date:
April 17, 2008 After being docketed on this court's motion on the
merits, our commissioner denied the motion and
remanded the case to the trial court for entry in the
record of the eight criminal judgments earlier relied
upon by the court and for a determination of the
correct offender score.
2
No. 29507-9-III
State v. Buckman
October 3, 2008 Trial court reference hearing. The State
acknowledged that two of the convictions it had
earlier relied upon were relied upon in error, but
because two others were inadvertently omitted, the
offender score would be the same. The trial court
declined to consider Mr. Buckman's misdemeanor
history, presented for the first time on the record,
concluding that materials in the record nonetheless
established an offender score of 8.
March 26, 2009 Commissioner again denies the motion on the
merits, questioning whether the State has the
burden of showing that the prior class C felony
convictions did not wash out. The appeal is
referred to a panel of judges.
November 24, 2009 In an unpublished decision, this court held that
based on the criminal history established on
remand, there was more than a five-year gap
between Mr. Buckman's release from an eluding
conviction in 2000 and his convictions for property
crime in 2006; thus, absent some other criminal
history not included in the record, all of Mr.
Buckman's class C felony convictions prior to
March 2005 had washed out and his correct
offender score would be three.
This court held that Mr. Buckman was entitled to
resentencing with the correct offender score. It
noted that the legislature had amended the
Sentencing Reform Act of 1981, ch. 9.94A RCW,
in 2008, effective retroactively, to permit the trial
court to consider the offender's actual and
complete criminal history upon resentencing.
3
No. 29507-9-III
State v. Buckman
Id. at *1-3.
Significant for this appeal is the fact we concluded in entering the prior decision
on Mr. Buckman's appeal that remand for correction of the offender score was an
adequate remedy. Mr. Buckman filed a petition for review by the Supreme Court, which
denied review.
At the resentencing hearing conducted on November 4, 2010, the State presented
not only certified copies of Mr. Buckman's eight prior felony convictions but this time
also submitted certified copies of three misdemeanor convictions occurring in 2001,
2002, and 2004, which were entered in the record. The trial court again found that Mr.
Buckman's offender score had been properly calculated as eight. Mr. Buckman appeals
this most recent affirmation of his offender score.
A case is moot if a court can no longer provide effective relief. State v. Turner, 98
Wn.2d 731, 733, 658 P.2d 658 (1983). While Mr. Buckman's appeal was not moot when
he was seeking and might obtain the remedy of withdrawal of his guilty plea, that is no
longer the case. The only relief we would grant on this appeal if the offender score
appeared erroneous would be to remand for yet a further resentencing. There is no point
in a further resentencing in this case where Mr. Buckman has fully served his sentence in
respect to the judgment from which he now appeals. An appeal contesting an offender
score calculation is moot where the appellant "has been released from confinement, is not
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No. 29507-9-III
State v. Buckman
on community custody, and is not subject to another miscalculation based on this alleged
error if he is convicted of another crime in the future." State v. Harris, 148 Wn. App. 22,
26, 197 P.3d 1206 (2008).
Mr. Buckman argues only that his appeal is not moot because the allegedly
incorrect offender score calculation at issue here could and has formed the basis for
determining his offender score at a subsequent sentencing. Mr. Buckman is presently
incarcerated based upon a more recent conviction unrelated to the instant appeal. But the
suggestion that an error in calculating the offender score for his 2006 conviction could
control the calculation of his offender score for a later conviction was expressly rejected
by the Harris court:
A sentencing court is required to calculate the defendant's offender score
on "the date of sentencing for the offense for which the offender score is
being computed." RCW 9.94A.525(1). . . .
. . . Accordingly, a future sentencing court may not simply rely on a
criminal history from a previous judgment but must compute the offender
score anew at any future sentencing hearing.
Id. at 27-28. If Mr. Buckman believes that the court responsible for his most recent
sentencing erred in determining his offender score, he must make an appeal from that
judgment.1
1 This case does not present an issue of "continuing and substantial public interest"
that could otherwise justify review, see Sorenson v. City of Bellingham, 80 Wn.2d 547,
558, 496 P.2d 512 (1972), nor does Mr. Buckman argue that it does.
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No. 29507-9-III
State v. Buckman
We dismiss the appeal as moot.
A majority of the panel has determined this opinion will not be printed in the
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No. 29507-9-III
State v. Buckman
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_______________________________
Siddoway, J.
WE CONCUR:
_______________________________
Kulik, C.J.
_______________________________
Brown, J.
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