State Of Washington, Respondent V. Rance M. Pointec, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

THE STATE OF WASHINGTON, No. 77375-5-I

(consolidated with No. 77376-3-1)
Respondent,
Vv. UNPUBLISHED OPINION

RANCE M POINTEC AKA MEADOWS,

met eee Set! Mae Meet ae Saree? Meee” nae”

Appellant. FILED: January 14, 2019

SCHINDLER, J. — In these consolidated appeals, Rance M. Pointec challenges the
sentence imposed following his guilty plea to the King County charges of second degree
assault and unlawful possession of a firearm. Pointec contends the superior court
abused its discretion by ordering the concurrent standard-range sentence in the two
King County cases to run consecutive to the recent sentence imposed for crimes in
Pierce County. Pointec also contends and the State concedes the DNA! fees imposed
by the sentencing court must be stricken under recent statutory amendments. We
affirm the consecutive sentences but remand to strike the DNA fees.

FACTS
Rance M. Pointec’s crimes as a teenager include drug offenses and a three-year

prison term for attempted robbery. After his release from prison, Pointec married, had a

1 Deoxyribonucleic acid.

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child, and started his own auto repair and maintenance business.

In October 2015, the Pierce County Prosecuting Attorney's Office charged
Pointec with two counts of unlawful possession of a firearm and one count of promoting
prostitution. The court released Pointec pending trial on the condition he not engage in
unlawful conduct or “possess any weapons or firearms.”

In August 2016, Pointec did not appear in Pierce County Superior Court on the
2015 charges. The court issued a bench warrant. On November 15, police in King
County arrested Pointec on the Pierce County warrant and seized a firearm in his
possession.

On January 9, 2017, the King County Prosecuting Attorney's Office charged
Pointec with unlawful possession of a firearm. On January 26, the King County
Prosecuting Attorney's Office charged Pointec under a different cause number with
second degree assault with intent to commit second degree rape in August 2016.

In March 2017, a Pierce County jury convicted Pointec of the 2015 charges for
unlawful possession of a firearm and promoting prostitution. The court imposed a 78-
month sentence.

In July, Pointec pleaded guilty to the separate King County charges of unlawful
possession of a firearm and second degree assault with intent to commit second degree
rape as part of an indivisible plea agreement. Pointec agreed the certification for
determination of probable cause and the “Prosecuting Attorney Case Summary” for
each charge were “real and material facts” for purposes of sentencing. The certification

of probable cause for the assault charge stated Pointec initially told investigating officers

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that he had “video proof that will exonerate him from these charges” and that he would
later “provide us with the evidence.”

In September, the King County Superior Court entered a judgment and sentence
in the two cause numbers and imposed a standard-range concurrent sentence of 84
months on the assault count, 87 months on the firearm count, and $100 DNA collection
fees. The court expressly ordered the King County sentence to run consecutive to the
Pierce County sentence. Pointec appeals.

ANALYSIS

Under RCW 9.94A.589(3), there is a presumption that multiple sentences will run
concurrently “unless the court pronouncing the current sentence expressly orders that
they be served consecutively.” Pointec contends the sentencing court abused its
discretion in imposing consecutive sentences because one of the court's reasons—that
Pointec failed to take responsibility for his offenses—is contrary to the record.

At sentencing, Pointec apologized to his family, community, and the court but not
to his victims. Pointec spoke of his “conscious decision” to allow drugs and alcohol to
take control of his life and his “poor judgment.” Pointec told the court, “I do accept
responsibility for my actions,” but spent most of his time telling the court about his
positive “accomplishments and contributions.”

In its oral ruling, the court explained the reasons to order the King County
sentence to run consecutive to the Pierce County sentence:

I'm doing so... . fora number of reasons. It's a completely . . .

separate set of facts and a fairly distinct period of time. In addition, they

were committed at a time when Mr. Pointec was subject to orders that he

flagrantly violated. And | am struck by the fact that he had just been

charged with an unlawful possession of a firearm.and was on conditions
related to an unlawful possession of a firearm and he violated that.

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...[H]Je has pled guiity to an assault. . . . I'm very troubled by the
behavior that occurred during [the assault], having read the
information... .

| have every reason to believe the victim and | do believe the victim
and her account of what happened. .. . And | think the fact that Mr.
Pointec has changed his version of events and not taken any
responsibility for it... doesn't help him in terms of my sentence with
him,

The court did not abuse its discretion. First, Pointec’s failure to take
responsibility for his crimes was not a material factor in the court's decision. The court
relied primarily on three material facts: (1) the King County and Pierce County offenses
were separate and distinct, (2) the King County offenses violated the express condition
of the Pierce County pretrial release order, and (3) the unlawful possession of a firearm
in King County occurred despite Pointec’s pending Pierce County charge for the same
offense. The court also noted Pointec’s changing story and failure to take responsibility
for his actions “doesn’t help” his request for concurrent sentences. The record shows
these facts were tangential to the court's decision.

Second, Pointec does not dispute that his story about the assault changed over
time. Third, we do not review the court’s credibility determination that Pointec did not

accept responsibility at sentencing. State v. Lindahl, 114 Wn. App. 1, 18-19, 56 P.3d

589 (2002) (we defer to the trial court on issues of defendant's credibility during the plea
and sentencing hearings). We note, however, that Pointec did not apologize to the
assault victim and spent most of his time talking about his accomplishments.

The court did not abuse its discretion in expressly ordering the King County

sentence to run consecutively to the Pierce County sentence.

2 Emphasis added.

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In a supplemental assignment of error, Pointec contends the King County court
erred in imposing the DNA fee in the two judgments and sentences. The State
concedes that because Pointec’s “DNA was previously collected prior to sentencing and .
is on file with the Washington State Patrol Crime Lab,” the DNA fees must be stricken

under RCW 43.43.7541? and State v. Ramirez, 191 Wn.2d 732, 746-50, 426 P.3d 714

(2018). We accept the concession of error.

We affirm the consecutive sentences but remand to strike the DNA fees.

WE CONCUR:

Quip Lat, J

3 RCW 43.43.7541 states, in pertinent part, “Every sentence imposed for a crime specified in
RCW 43.43,.754 must include a fee of one hundred dollars unless the state has previously collected the
offender's DNA as a result of a prior conviction.”