Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           MAR 29, 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. 29819-1-III 
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
MARIO JAY UPHAM,                                )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. ? Mario Jay Upham appeals the offender score calculation and 

sentence for his felony marijuana possession conviction.  He contends the trial court

erred in counting one of his listed juvenile offenses as a felony.  In his statement of 

additional grounds for review (SAG), he argues his plea agreement bound the court to 

a different sentence, including a drug offender sentencing alternative (DOSA).  We 

affirm.  

                                            FACTS  

       In December 2010, Mr. Upham was charged with four crimes.  In February 2011, 

he pleaded guilty to a single, reduced, amended charge of possessing over 40 grams 

of marijuana, a felony.  The plea statement listed his offender score as 6, with a  

No. 29819-1-III
State v. Upham  

standard sentence range of 12+ months to 24 months.  The statement partly provides: 

"The standard sentence range is based on the crime charged and my criminal history"

and "[t]he prosecuting attorney's statement of my criminal history is attached to this 

agreement.  Unless I have attached a different statement, I agree that the prosecuting 

attorney's statement is correct and complete." Clerk's Papers (CP) at 7.  The 

prosecutor's statement of Mr. Upham's criminal history, signed by Mr. Upham, lists four 

adult convictions and four juvenile offense adjudications.  One juvenile offense was

listed as "VUCSA - Poss." and interlineated with the word "marij." CP at 14.  The 

offense was originally listed as "VUCSA - Poss. Meth."  CP at 14.  

       At the plea hearing, the court explained: "The standard range is 12 months plus 

one day to 24 months based on an offender score of 6." Report of Proceedings (RP) 

(Feb. 28, 2011) at 6.  The court asked Mr. Upham if he understood the standard range 

and Mr. Upham replied: "Yes."  Id.  And, in colloquy:  

       THE COURT:  Attached on the last page of this plea statement is a copy 
       of your criminal history.  Have you looked at that and do you believe that 
       is accurate? 
       THE DEFENDANT:  Yeah.  We made one correction on it.  
       THE COURT:  Okay, I see that.  
       THE DEFENDANT:  So it is pretty accurate, yeah.  
       THE COURT:  Okay, I see that.  That was marijuana; correct?  
       THE DEFENDANT:  Yes. 
       THE COURT:  Okay.  Other than that, do you think this is an accurate 
       list?  
       THE DEFENDANT:  Yes.  

RP (Feb. 28, 2011) at 6-7.  After discussing other plea consequences such as fines 

and conditions of community custody, the trial court again discussed the sentencing 

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State v. Upham  

range:  

       THE COURT:  The prosecutor has indicated if you will 
       plead guilty to this amended charge, they would move to
       dismiss the other charges, they would recommend the low 
       end of the standard range of 12 months plus one day in 
       prison.  And you would be requesting a residential DOSA 
       sentence of 3 months of inpatient treatment.  Is that 
       the plea agreement as you understand it?  
       THE DEFENDANT:  Yes, sir.  
       THE COURT:  Do you fully understand the Court does not 
       have to follow either one of those recommendations, I'm 
       free to give you whatever sentence I believe is fair up 
       to the maximum sentence?  
       THE DEFENDANT:  Yes.  
       THE COURT:  If I give you a sentence outside the 
       standard sentencing range, you may appeal that 
       sentence.  Do you          understand that?          
       THE DEFENDANT:  Yes.            
       THE COURT:  I don't recall, I might have misspoke                         [sic]
       myself.      The standard range is 12 months plus 1 day to 
       24 months.  I        might have said 14 months, but it is 24 
       months.      Do you understand that?              
       THE DEFENDANT:  Yes.            

RP (Feb. 28, 2011) at 8.  

       Mr. Upham asked the court about his DOSA eligibility.  The court replied: "that is 

something I can consider, but I can't promise whether you will be eligible 

for it, I can't promise you I will order it, but I certainly will 

consider it."        RP (Feb. 28, 2011) at 4.  Mr. Upham responded: "Okay. 

That's fair enough."  The court reiterated: 

              [E]ven if . . . you are eligible for that program, 
       the Court is not bound to impose that sentence.                         
              As long as I consider their statements about your
       qualifications, look at all the facts, consider whether 
       or  not I think it is in your best interest and the best
       interests of the community and whether it would serve 
       to  protect the community, I am not compelled to impose 
       that sentence, I could still sentence you just to a 
       standard     range sentence.  

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State v. Upham  

              Do you understand that?  

RP (Feb. 28, 2011) at 12-13.  Mr. Upham acknowledged: "Yes."  Id. at 13.  

       At sentencing, Mr. Upham requested a three to six-month DOSA.  The 

prosecutor recommended a low end standard range sentence, 12 months and 1 day.  

Denying the DOSA, the court reasoned Mr. Upham would not comply with a DOSA

program and that it would not be in the community's best interest.  It suggested: "You 

can obtain drug and alcohol treatment in the institutional 

setting if you choose to make use of that."  RP (Mar. 14, 2011) 

at 17.     The court ruled, "based upon your criminal history and 

recent conviction, I don't think you are entitled to a sentence 

at the low end of the range."  Id.  The court sentenced Mr. Upham

to 18 months.  He appealed.  

                                          ANALYSIS  

                               A.  Offender Score Calculation  

       The issue is whether the trial court erred by miscalculating Mr. Upham's offender 

score.  Mr. Upham contends the court erroneously considered one juvenile offense as a 

felony rather than a misdemeanor.  

       A sentencing court acts without statutory authority when it imposes a sentence 

based on a miscalculated offender score.  State v. Roche, 75 Wn. App. 500, 513, 878 

P.2d 497 (1994).  A challenge to the offender score calculation may be raised for the 

first time on appeal.  Id.  We review offender score calculations de novo.  Id.  

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No. 29819-1-III
State v. Upham  

       RCW 9.94A.525 details the offender score calculation process.  If the current 

conviction is for a nonviolent drug offense and the offender's criminal history does not 

include a sex offense or serious violent offense, the offender score is calculated by 

counting one point for each prior adult felony conviction and one-half point for each 

prior juvenile nonviolent felony adjudication. RCW 9.94A.525(8)-(13).  Prior 

misdemeanors are not counted.  RCW 9.94A.525; see also State v. Wiley, 124 Wn.2d 

679, 683, 880 P.2d 983 (1994).  Mr. Upham's current conviction was for a felony 

nonviolent drug offense, possession of marijuana under RCW 69.50.4013.  Mr. 

Upham's criminal history does not include a sex offense and the convictions are all 

listed as nonviolent.  Without support in this record, Mr. Upham asserts one listed 

juvenile offense should not count because it was not a felony.  

       The State accurately responds the offender score was, in context, properly 

calculated as six based on four prior adult felonies and four prior juvenile felonies.  The 

standard sentence range for a current conviction is determined by an intersection of the 

seriousness level of the current conviction and the defendant's offender score.  Mr. 

Upham's current conviction under RCW 69.50.4013(1), possession of over 40 grams of 

marijuana, was a drug offense with seriousness level I.  RCW 9.94A.518.  The standard 

sentence range for a drug offense with seriousness level I is 6 months plus 1 day to 18 

months when the offender score is 3 to 5, but 12 months plus 1 day to 24 months when

the offender score is 6 to 9.  The sentencing court and defense counsel included Mr. 

Upham's challenged juvenile offense in its offender score calculation as a felony.  The 

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No. 29819-1-III
State v. Upham  

record does not show the amount of marijuana concerned in the juvenile offense, the 

determinative factor in deciding the offense level.  See RCW 69.50.4013, .4014.  

       While, Mr. Upham argues we should presume he possessed fewer than 40 

grams of marijuana, the record in context supports the trial court's decision.  The 

parties shared an understanding that the juvenile marijuana possession was a felony, 

and offered that understanding to the sentencing court. Mr. Upham did not disagree 

with the juvenile offense being included in the offender score calculation; solely juvenile 

felonies could have been included to calculate the score.  Indeed, Mr. Upham's 

defense counsel advised the court of the sentencing range, calculated from the now 

challenged offender score.  Given all in this record, the trial court properly concluded

the offender score as six and did not err.  

       If Mr. Upham possesses information outside this record showing the challenged 

juvenile offense was a misdemeanor, his remedy is a personal restraint petition where 

such information may be produced.  State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

1251 (1995).  

                                           B.  SAG  

       Mr. Upham raises two concerns in his SAG.  First, he argues the trial court was 

bound by his plea agreement with the prosecution.  Second, he argues the State broke 

its promise to make a specific sentencing recommendation.  But the recited facts 

undisputedly show Mr. Upham pleaded guilty knowing his DOSA request could be 

denied and that the trial court was not bound by any recommendations.  The 

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No. 29819-1-III
State v. Upham  

sentencing range was correctly explained. More than once, Mr. Upham acknowledged 

his understanding that the court did not have to follow the State's sentencing 

recommendation or grant a DOSA.  The record shows the State promised to 

recommend a sentence of 12 months plus 1 day, and did.  In sum, we conclude Mr. 

Upham's SAG lacks merit.  

       Affirmed.  

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                    ________________________________
                                                    Brown, J.

WE CONCUR:

___________________________                         ________________________________
Korsmo, A.C.J.                                      Sweeney, J.

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