State Of Washington, Respondent V. Richard Eliot York, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56754-7-II
Respondent,
v.
RICHARD ELIOT YORK, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Richard York appeals his sentence arguing that the trial court erred in
including one point in his offender score for his being on community custody at the time of his
offense. His community custody was based on a conviction for unlawful possession of a controlled
substance, a vacated and void conviction. The State concedes this error. We accept the State’s
concession and remand this case for resentencing.
FACTS
In 2007, York pleaded guilty to one count of unlawful possession of a controlled substance
and one count of possession of stolen property in the first degree. York’s sentence included 12
months of community custody based on his unlawful possession conviction.
In 2009, York was convicted of three counts of rape of a child in the second degree. The
trial court set York’s offender score at 10 points. York’s offender score included one point for his
previous unlawful possession of a controlled substance conviction and one point for committing
the current offense while on community custody.
Filed
Washington State
Court of Appeals
Division Two
March 14, 2023

56754-7-II
2
Following our Supreme Court’s decision in State v. Blake,1 York’s unlawful possession of
a controlled substance conviction was deemed unconstitutional and was vacated. Subsequently,
York filed a CrR 7.8 motion to modify his judgment and sentence, arguing that his vacated
conviction resulted in an incorrect offender score. The trial court granted York’s motion.
At resentencing, York argued that the trial court should not include an offender point based
on his community custody because the trial court vacated his underlying unlawful possession
conviction. The trial court disagreed and included the additional point to York’s offender score.
York appeals his sentence.
ANALYSIS
York argues that “the court improperly included a point in [his] offender score based on
community custody imposed as part of his unconstitutional prior conviction.” Br. of Appellant at
2. The State concedes “that subsequent, controlling caselaw requires that the community custody
point be removed from [York’s] offender score and that he should be resentenced under the
corrected offender score.” Br. of Resp’t at 1. We agree.
We have addressed this exact issue in State v. Rahnert, 24 Wn. App. 2d 34, 38, 518 P.3d
1054 (2022), holding “that the sentencing court properly declined to add an offender score point
because [the defendant] committed [a] new offense while on community custody for a void
conviction for possession of a controlled substance.” In reaching this holding, we adopted the
reasoning of Division One in State v. French,2 which came to the same conclusion. Id.
1 197 Wn.2d 170, 195, 481 P.3d 521 (2021) (holding that Washington’s strict liability drug
possession statute “violates the due process clauses of the state and federal constitutions and is
void”).
2 21 Wn. App. 2d 891, 508 P.3d 1036 (2022).

56754-7-II
3
Here, York’s community custody term was imposed based on his conviction for unlawful
possession of a controlled substance. Blake invalidated York’s conviction. Accordingly, York’s
term of community custody is void and may not be considered in computing his offender score.
Thus, the trial court erred in including one point to York’s offender score based on his community
custody status.
CONCLUSION
We hold that the trial court erred in including a point to York’s offender score based on his
community custody for a vacated conviction. Accordingly, we remand for the trial court to correct
York’s offender score and resentence him based on the corrected score.
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.
Veljacic, J.
We concur:
Glasgow, C.J.
Price, J.