State Of Washington, Respondent V. Ronald C. Markovich, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RONALD CHARLES MARKOVICH,
Appellant,
v.
STATE OF WASHINGTON,
Respondent.
No. 83827-0-I
DIVISION ONE
UNPUBLISHED OPINION
PER CURIAM. Ronald Markovich appeals the sentence imposed following
a resentencing hearing. 	Markovich contends, and the State concedes, that the
trial court erroneously calculated his offender score. 	We accept the State’s
concession of error and remand for resentencing.
BACKGROUND
In February 2020, a jury found Markovich guilty of possession of a controlled
substance with intent to manufacture or deliver. 	Markovich’s criminal history
included two prior Montana convictions for Criminal Possession of Dangerous
Drugs, one from 1996 and one from 2001. 	Based on an offender score of 8, the
court sentenced Markovich to a high-end standard range sentence of 108 months
of confinement plus 12 months of community custody.
Markovich subsequently sought resentencing pursuant to State v. Blake,
197 Wn.2d 170, 481 P.3d 521 (2021) (holding that Washington’s strict liability drug

No. 83827-0-I/2
2
possession 	statute, 	was 	unconstitutional 	and 	void). 	We 	remanded 	for
resentencing in a published opinion. See State v. Markovich, 19 Wn. App. 2d 157,
492 P.3d 206 (2021) (holding that under Blake, out-of-state possession convictions
cannot be included in an offender score because they are not comparable to any
valid Washington offense).
At the resentencing hearing in February 2022, the trial court determined that
Markovich’s void drug possession convictions interrupted the “washout” of four
prior Montana convictions that were arguably comparable to class C felonies in
Washington. Based on an offender score of 6, the court sentenced Markovich to
85 months of incarceration plus 12 months of community custody. 	Markovich
appealed.
DISCUSSION
The State must prove an individual’s criminal history, including foreign
convictions, by a preponderance of the evidence. State v. Collins, 144 Wn. App.
547, 554, 182 P.3d 1016 (2008). 	Class C felony convictions wash out if, after
imposition of the sentence or release, five years pass without commission of a new
crime. 	RCW 9.94A.525(2)(c). 	We review de novo the trial court’s application of
the relevant statutes to make sentencing determinations under the Sentencing
Reform Act (SRA). In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245,
955 P.2d 798 (1998).
Markovich contends, and the State concedes, that the trial court erred in
finding that his 1996 and 2001 Montana drug possession convictions prevented
washout of his four 1994 Montana convictions that are arguably comparable to

No. 83827-0-I/3
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class C felonies under Washington’s SRA. In State v. Marquette, 6 Wn. App. 2d
700, 707, 431 P.3d 1040 (2018), we held that a crime that is not comparable to a
Washington 	crime 	does 	not 	interrupt 	the 	washout 	provision 	of 	RCW
9.94A.525(2)(c). Because Markovich’s Montana drug possession convictions are
no longer comparable to any valid Washington crime, they did not trigger the
washout period.
We accept the State's concession and remand to the superior court to
resentence Markovich with an offender score that comports with this court’s
decision in Marquette.1 See State v. Wilson, 170 Wn.2d 682, 691, 244 P.3d 950
(2010) (remedy for miscalculated offender score is resentencing using correct
offender score).
Remanded for further proceedings consistent with this opinion.
FOR THE COURT:
1 Markovich also argues that the trial court erred in failing to consider whether his prior
convictions constituted the same criminal conduct. Markovich did not raise this issue below, and
we need not address it now. See RAP 2.5(a)(3) (on appeal, party may not raise claim of error not
properly preserved at trial absent manifest constitutional error). However, Markovich may raise it
at resentencing.