State Of Washington v. Rance M. Pointec

29!9 JAN lh AH 8= 37 EN THE COURT OF APPEAE_S OF `{HE STATE OF WASH|NGTON DIVIS|ON ONE `E`HE STATE OF WASHJNGTON, No. 77375-5-i (consolidated with No. 77376~3-|) Respondent, v. UNPUBL|SHED OPENION RANCE lV| PO|NTEC AKA IVIEADOWS, -...¢*-,J\-...d-.,d\.,f\-.,J\.,»_'\...r\_/ Appe|iant. FlLED: January ’i4, 2019 SCH|NDLER, J. - in these consolidated appeals, Rance Nl. Pointec chafienges the sentence imposed fotiowing his guilty plea to the King County charges of second degree assauit 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 DNA1 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 lVl. Pointec’s crimes as a teenager inciude drug offenses and a three-year prison term for attempted robberyl After his refease from prison, Pointec married, had a 1 Deoxyribonuc|eic acid l\io. 77375-5-! (consol. with No. 77376~3-§)/2 child1 and started his own auto repair and maintenance business |n October 2015, the Pierce County Prosecuting Attorney’s Office charged Pointec with two counts of uniawfu| possession of a firearm and one count of promoting prostitution The court reieased Pointec pending trial on the condition he not engage in unlawqu conduct or “possess any weapons or firearms.” in Augu.st 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 unlawqu 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. |n lVlarch 2017, a Pierce County jury convicted Pointec cf the 2015 charges for uniawfu| possession of a firearm and promoting prostitution The court imposed a 78monti'i sentence |n duiy, Pointec pleaded guilty to the separate King County charges of uniawfni possession of a firearm and second degree assauit 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 “rea| and material facts” for purposes of sentencing The certification of probable cause for the assauit charge stated Pointec initiaily toid investigating officers No. 77375-5-| (consol. with No. 77376-3-|)/3 that he had “video proof that wiil exonerate him from these charges" and that he would later "provide us with tire evidence.” ln 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 ANAL¥S|S Under RCW 9.94A.589(3), there is a presumption that muitip|e sentences Wili run concurrentiy “uniess the court pronouncing tne 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-tnat Pointec failed to take responsibility for his oftenses_is contrary to the record At sentencing, Pointec apologized to his iamiiy, community, and the court but not to his victims Pointec spoke of his “conscious decision” to allow drugs and alcohol to take controi of his iife and his “poorjudgment.” Pointec told the court, “l do accept responsibility for my actions," but spent most of his time teiiing 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 . . . for a number of reasons lt’s `a completely . . . separate set of facts and a fairiy distinct period of time in addition, they were committed at a time when lVir. Pointec was subject to orders that he flagrantly vioiated. And l am struck by the fact that he had just been charged with an unlawful possession cfa firearm and was on conditions related to an unlawful possession cfa firearm and ne violated that, No. 77375-5-| (COnSOi. With NO. 77376-3-|)/4 . . . [i-l]e has pled guiity to an assauit. . . . l’m very troubled by the behavior that occurred during [the assauit], having read the information . . . . l have every reason to believe the victim and i do beiieve the victim and her account of what happened . . . And lthink the fact that Nlr. Pointec has changed his version of event§__and not taken a_p_y §§D[g]nsibiiitv for it . . . doesn’t help him in terms of mv sentence with The court did not abuse its discretion First, Pointec’s failure to take responsibility for his crimes was not a materiai 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 pretriai 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 responsibiiity for his actions “doesn’t heip” his request for concurrent sentences The record shows these facts were tangential to the oourt‘s decision Second, Pointec does not dispute that his story about the assault changed over time Third, we do not review the court's credibiiity determination that Pointec did not accept responsibility at sentencingl State v. i.indahi, 114 Wn. App. 1, 18-19 , 56 P.3d 589 (2002) (we defer to the triai court on issues of defendants credibility during the piea and sentencing hearings). We note, however, that Pointec did not apologize to the assauit victim and spent most of his time talking about his accomplishments The court did not abuse its discretion in expressiy ordering the King County sentence to run consecutively to the Pierce County sentence 2 Emphasis added. No. 77375-5-| (consoi. with l\io. 77376~3-1)/5 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 Pointeo’s “DNA was previously coilected prior to sentencing and _ is on file with the Washington State Patroi Crime Lab,” the DNA fees must be stricken under RCW 43.43.75413 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: 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 doilars uniess the state has previously co|iected the offenders D|\iA as a result of a prior conviction.”