State Of Washington, Respondent V. Zapp Malelega Tivao, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 77278-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
ZAPP MALELEGA TIVAO,
Appellant. NOV 79 2016
) FILED:

PER CURIAM — Zapp Tivao appeals his conviction and sentence for
residential burglary, arguing that the trial court miscalculated his offender score.
The calculation of an individual's offender score is grounded in statute and based
on the individual’s prior convictions. Tivao has failed to show that his offender
score was miscalculated. We affirm.

FACTS

Zapp Tivao was charged with residential burglary. At the time, he had one
felony conviction for possession of a controlled substance from Texas. Tivao also
had pending charges for second degree burglary, a felony, and second degree
vehicle prowl, a gross misdemeanor, which occurred on the same day as the
residential burglary. Tivao pleaded guilty to all three offenses at the same hearing

on January 11, 2017. Tivao’s offender score was calculated at a 3, which is

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reflected in the judgment and sentence. The offender score included the Texas
felony, which was calculated as a 1, and the second degree burglary conviction,
which was calculated as a 2, to equal a total offender score of 3.'

Tivao contends that his offender score should have included only the Texas
conviction because that is the sole conviction listed in Appendix B, the list of
Tivao's prior crimes. In his guilty plea, Tivao agreed that his offender score would
be a3. The second degree burglary conviction was not listed in Appendix B to the
judgment and sentence. Paragraph 2.2 of the judgment and sentence indicated
that another current conviction with a separate cause number, 16-1-01707-6, was
“used in calculating the offender score.” Tivao asserts that the failure to specifically
identify the second degree burglary conviction in the judgment and sentence or to
list it in Appendix B should result in an offender score of 1. Thus, Tivao requests
a reversal of his sentence.

ANALYSIS

We review the calculation of an offender score de novo. State v. Howell,

102 Wn. App. 288, 292, 6 P.3d 1201 (2000). To calculate an offender score, the
court takes three basic steps. First, the court identifies the defendant's prior

convictions. State v. Moeurn, 170 Wn.2d 169, 175, 240 P.3d 1158 (2010). Next,

the court determines which convictions have been “washed out” and eliminates
them from the calculation. Id. Finally, the court counts ail the remaining prior
convictions to generate an offender score. Id. RCW 9.944.525 provides a formula

for assigning a numerical value to each prior conviction. Furthermore, when the

1 Because second degree vehicle prowl is a gross misdemeanor, it is not used to calculate an
individual’s offender score. RCW 9.944.525.

2.

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defendant is being sentenced for multiple crimes, “the sentence range for each
current offense shall be determined by using all other current and prior convictions
as if they were prior convictions for the purpose of the offender score.” RCW

9.94A,589(1)(a). A current offense is defined as “convictions entered or sentenced

on the same day.” In re the Pers. Restraint of Finstad, 177 Wn.2d 501, 507, 301
P.3d 450 (2013) (citing RCW 9.94A.525(1)).

Tivao pleaded guilty to residential burglary and second degree burglary, as
well as to the vehicle prowling charge, during the same hearing. Tivao’s pre-
sentence report included all three charges. He was sentenced on all three charges
on the same day. Under the statute, the second degree burglary conviction is
considered a prior conviction for purposes of calculating Tivao’s offender score for
the residential burglary charge. RCW 9.94A.589(1)(a). The State provided Tivao
and the sentencing court with a scoring worksheet illustrating how it calculated
Tivao’s score. The State listed one point for Tivao’s Texas conviction and two
points for the second degree burglary conviction.”

This court agrees that the judgment and sentence technically should have
listed by name the identity of any current convictions included in the offender score,
rather than just the separate case’s cause number. But this error, if one could
categorize it as such, is no more than a clerical error. This is not an issue for
appeal; rather, it should be brought to the trial court’s attention for correction. State

v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000). Nevertheless, the oral and

2 Under RCW 9.944.525, if the prior or other current offense is for Burglary 2 or residential
burglary, the court must “count two points for each adult and juvenile prior Burglary 1 conviction,
two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each
juvenile prior Burglary 2 or residential burglary conviction.” RCW 9.94A.525(16).

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written records demonstrate that Tivao’s offender score was correctly calculated
at 3 to reflect his prior Texas conviction and the second degree burglary conviction.

Affirmed.

WE CONCUR: