The offender score is measured on the horizontal axis of the sentencing grid. The offender score rules are as follows:

The offender score is the sum of points accrued under this section rounded down to the nearest whole number.

(1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589.

(2) Class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction. This subsection applies to both adult and juvenile prior convictions.

(3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.

(4) Score prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses.

(5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used. The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations;

(ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.

(b) As used in this subsection (5), "served concurrently" means that: (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense.

(6) If the present conviction is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense. When these convictions are used as criminal history, score them the same as a completed crime.

(7) If the present conviction is for a nonviolent offense and not covered by subsection (11) or (12) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 1/2 point for each juvenile prior nonviolent felony conviction.

(8) If the present conviction is for a violent offense and not covered in subsection (9), (10), (11), or (12) of this section, count two points for each prior adult and juvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction.

(9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction.

(10) If the present conviction is for Burglary 1, count prior convictions as in subsection (8) of this section; however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction.

(11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense count one point for each adult and 1/2 point for each juvenile prior conviction; for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult and 1/2 point for each juvenile prior conviction.

(12) If the present conviction is for manufacture of methamphetamine count three points for each adult prior manufacture of methamphetamine conviction and two points for each juvenile manufacture of methamphetamine offense. If the present conviction is for a drug offense and the offender has a criminal history that includes a sex offense or serious violent offense, count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense. All other adult and juvenile felonies are scored as in subsection (8) of this section if the current drug offense is violent, or as in subsection (7) of this section if the current drug offense is nonviolent.

(13) If the present conviction is for Escape from Community Custody, RCW 72.09.310, count only prior escape convictions in the offender score. Count adult prior escape convictions as one point and juvenile prior escape convictions as 1/2 point.

(14) If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictions as one point and juvenile prior convictions as 1/2 point.

(15) If the present conviction is for Burglary 2 or residential burglary, count priors as in subsection (7) of this section; however, 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.

(16) If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction.

(17) If the present conviction is for an offense committed while the offender was under community placement, add one point.

(18) The fact that a prior conviction was not included in an offender's offender score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions.

[2002 c 290 § 3; 2002 c 107 § 3; 2001 c 264 § 5; 2000 c 28 § 15. Prior: 1999 c 352 § 10; 1999 c 331 § 1; 1998 c 211 § 4; 1997 c 338 § 5; prior: 1995 c 316 § 1; 1995 c 101 § 1; prior: 1992 c 145 § 10; 1992 c 75 § 4; 1990 c 3 § 706; 1989 c 271 § 103; prior: 1988 c 157 § 3; 1988 c 153 § 12; 1987 c 456 § 4; 1986 c 257 § 25; 1984 c 209 § 19; 1983 c 115 § 7. Formerly RCW 9.94A.360.]

Notes:

Comment

Misdemeanors:  The Commission decided not to include misdemeanors in the offender score for two reasons:  1) the emphasis of the legislation was on felonies, and 2) the reliability of court records varies greatly throughout the state.  An exception to this policy was made in the case of felony traffic offenses. The Commission decided that for these crimes, previous serious driving misdemeanors are relevant in establishing the offender's history of similar behavior. The Commission anticipates that in some instances an offender's history of misdemeanors may be used by the court in selecting a sentence within the standard sentence range or in departing from the range to administer an exceptional sentence.

Role of Criminal History:  The Commission's mandate from the Legislature was to consider both the seriousness of the crime and the nature and extent of criminal history.  The Commission decided to emphasize the current offense in establishing standard sentence ranges but also to give weight to a person's past convictions, including the pattern of those convictions.  Given the legislation's emphasis on sanctions for violent crimes, the Commission decided that repeat violent offenders needed to be identified and dealt with severely.  As a result, the grid places an accelerated emphasis on criminal history for the repeat violent offender.

Prior Offenses:  The Commission decided that the weighing of prior offenses should vary depending on the present offense.  Thus, a criminal history with serious violent crime convictions counts most heavily when the current offense is also a serious violent offense; previous convictions for violent offenses count more heavily when the current offense is violent; prior burglary convictions count more heavily when the current offense is a burglary; prior drug offenses count more heavily when the current offense is a drug offense; and prior violent felony traffic offenses count more heavily when the current offense is a felony traffic offense.  The Legislature has subsequently provided for counting sex offenses more heavily when the current offense is a sex offense.  Subsection 5(b) refers to prior convictions "served concurrently."  The meaning of this term was addressed in State v. Hartley, 41 Wn. App. 669 (1985).

Anticipatory Offenses:  A prior conviction for an anticipatory crime (attempt, solicitation, conspiracy) counts as two points if the completed crime constitutes a “violent offense.” State v. Becker, 59 Wn. App. 848(1990).   In 1999, The Supreme Court clarified that solicitations to commit violations of the Uniform Controlled Substances Act (“VUCSA”) fall under RCW 9A.28.030 and are not “drug offenses” under RCW 69.50.  Solicitations to commit VUCSA offenses are not subject to community placement requirements for completed VUCSA offenses.  See In re Hopkins, 137 Wn.2d 897 (1999); but see State vs. Howell, 902 Wn. App. 288 (2000) (scoring anticipatory VUSCA offenses as completed).

Juvenile Criminal History:  Since the legislation required that certain prior juvenile felony adjudications be included as part of criminal history, the Commission needed to establish the relative weight of these felonies in comparison to adult prior felonies. The Commission decided that prior violent felony convictions, whether committed by an adult or a juvenile, should receive the same number of points if the instant offense was violent.  The Commission believed that a distinction was necessary between nonviolent adult felonies and nonviolent juvenile felonies because nonviolent juvenile felonies often represent less serious conduct.

In addition, under the definition of juvenile criminal history in RCW 9.94.030, the legislation originally specified that prior juvenile convictions are not considered after the offender reaches age 23; the Commission therefore wanted to avoid a significant disparity between the potential Offender Score for someone at age 22 and someone at age 23.  Thus, the decision was to count juvenile nonviolent felony adjudications at one-half point (rounding down to the nearest whole number).  In 1986 and 1997, the Legislature expanded the definition of criminal history to include all juvenile felony adjudications. 

In 1999, the Court of Appeals, Division I, ruled that pre-1997 plea agreements, providing that certain juvenile offenses would not be counted in criminal history, do not insulate current offenders from changes in the law and cannot be relied upon when an offender is sentenced for a subsequent conviction for an offense committed after the effective date of the change in 1997.  See State v. McRae, 96 Wn. App. 298 (1999).

"Wash Out" of Priors:  The Commission decided that adult Class A felonies should always be considered as part of the Offender Score. The Commission decided that prior Class B and C felonies should eventually "wash out" and be eliminated from the Offender Score. The 1995 Legislature amended the “wash-out” rule to preclude “wash-out” based on misdemeanor as well as felony convictions.  In State V. Watkins, 86 Wn. App. 852 (1997), the court held that the 1995 amendment applies to all prior felony convictions, regardless of whether the conviction was previously washed out.

Out-of-state Convictions:  In calculating the Offender Score, out-of-state convictions must be compared to Washington law.

The question of whether a foreign conviction constituted a felony was discussed in State v. Southerland, 43 Wn. App. 246 (1986).

The 1986 Amendments:  

The 1986 amendments made several changes to this section:

·        Added a definition of "prior conviction" and a definition of "other current offenses" in subsection (1);

·        Provided that Class A juvenile convictions always count in the criminal history score if a juvenile was at least 15 at the time of the offense (previously, juvenile convictions no longer counted after the person was 23 years of age);

·        Changed the scoring rules for felony traffic offenses;

·        Clarified the fact that anticipatory offenses are to be counted the same as completed offenses for the purpose of scoring current convictions; and

·        Allowed post-1986 prior adult convictions which were served concurrently to be counted separately.

The 1987 Amendments:

 The 1987 amendments changed the scoring rules for First and Second Degree Escape.  All prior felony convictions count in the criminal history score instead of only prior escapes counting.  However, only prior escape convictions count against Willful Failure to Return from Furlough and Willful Failure to Return from Work Release or Escape from Community Custody.

The 1988 Amendments: 

The Commission recommended some changes to this section to clarify ambiguities and correct previous drafting errors.  The rule on scoring for serious violent offenses (RCW 9.94A.360(10)) as amended to include Homicide by Abuse.  The 1987 Legislature defined this crime as a serious violent offense, but neglected to reference it in the rules on offender scoring.

The scoring rules for felony traffic offenses were amended to clarify that prior Vehicular Assaults also receive two points.  This scoring procedure was previously reflected in the Offender Score Matrix, but the narrative was not accurate.  Because of drafting errors caused by having the scoring rules in two sections, the Commission recommended the Offender Score Matrix (RCW 9.94A.330) be repealed, which it was in 1988.

The 1988 Legislature added a point to the offender score if the current offense was committed while the offender was on community placement.

 The 1990 Amendments:

 Several scoring rules were changed by the 1990 Legislature.  These changes are effective for crimes committed after June 30, 1990, and include:

·        Adult and juvenile prior sex offenses are always included in the offender score; they do not wash out.

·        Juvenile sex offenses are counted regardless of the age of the offender at the time of commission of the juvenile offense or the current offense.

·        Juvenile prior convictions for violent offenses that are sentenced on the same day now count as separate crimes in cases involving separate victims.

·        Residential Burglary was included with First and Second Degree Burglary in the offender scoring rules.  The 1989 Legislature neglected to amend this section in the bill creating the crime of Residential Burglary.

·        Prior and other current sex offenses count three points when the current conviction is a sex offense.

The 1995 Amendments: 

The 1995 Legislature required that juvenile convictions for serious violent offenses (as defined in RCW 9.94A.030(29)) always be counted in the offender score, regardless of the offender’s age at the time of the offense.  The Legislature also prohibited “wash out” of a prior conviction if, within the prescribed time period, an offender commits a crime for which he or she is subsequently convicted.  Thus the qualifying period is measured not from release until a subsequent conviction, but from release until a subsequent offense.  Intervening misdemeanors and gross misdemeanors, as well as felonies, appear to preclude “wash out.”  The legislation also amended (3) to classify federal convictions according to comparable Washington definitions and sentences, and to classify federal felony convictions as class C felonies, for purposes of calculating the offender score, when there is no clearly comparable Washington offense. In addition, (6) was amended to permit a sentencing court to presume that certain prior offenses did not encompass the same criminal conduct for scoring purposes.  The term “served concurrently” in (6) was defined by adding (6)(b). 

The 1997 Amendments: 

The 1997 Legislature required that all prior juvenile felonies be counted as criminal history if they were sentenced consecutively, unless the court determines that they constituted the “same criminal conduct” as defined in RCW 9.94A.400.  The Legislature did not change the fractional point values assigned to certain juvenile offenses.

The 1999 Amendments:

The 1999 Legislature amended RCW 9.94A.360 to ensure that all “serious violent” offenses are “triples scored” as criminal history when the current offense is another “serious violent” offense, including Manslaughter 1, which was added to the list of “serious violent” offenses in 1997.

The 1999 Legislature also clarified that, although prior DUI-related convictions may not be considered in history when the current offenses is Vehicular Homicide by Being Under the Influence of Intoxicating Liquor or Any Drug (because a two-year enhancement results from each prior DUI-related offense in such cases), other prior non-DUI-related serious traffic offenses should be included in the offender score when the current offense is Vehicular Homicide by Being Under the Influence of Intoxicating Liquor or Any Drug.

(1) The intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the standard sentence range (see RCW 9.94A.510, (Table 1) and RCW 9.94A.517, (Table 3)). The additional time for deadly weapon findings or for other adjustments as specified in RCW 9.94A.533 shall be added to the entire standard sentence range. The court may impose any sentence within the range that it deems appropriate. All standard sentence ranges are expressed in terms of total confinement.

(2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537.

(3) In determining any sentence above the standard sentence range, the court shall follow the procedures set forth in RCW 9.94A.537. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the standard sentence range except upon stipulation or when specifically provided for in *RCW 9.94A.535(2) (d), (e), (g), and (h).

[2005 c 68 § 2; 2002 c 290 § 18; 2000 c 28 § 12; 1999 c 143 § 16; 1996 c 248 § 1; 1989 c 124 § 2; 1987 c 131 § 1; 1986 c 257 § 26; 1984 c 209 § 20; 1983 c 115 § 8. Formerly RCW 9.94A.370.]

Notes:

Comment

The Commission believed that defendants should be sentenced on the basis of facts which are acknowledged, proven, or pleaded to.  Concerns were raised about facts which were not proven as an element of the conviction or the plea being used as a basis for sentence decisions, including decisions to depart from the sentence range.  As a result, the "real facts policy" was adopted.  Amendments in 1986 clarified that facts proven in a trial can be used by a court in determining a sentence.

If the defendant disputes information in the presentence investigation, it is anticipated that an evidentiary hearing will be held to resolve the issue.

(1) The provisions of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or 9.94A.517.

(2) For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the standard sentence range is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the completed crime, and multiplying the range by seventy-five percent.

(3) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the firearm enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm enhancement. If the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any firearm enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

(a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection;

(b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection;

(c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection;

(d) If the offender is being sentenced for any firearm enhancements under (a), (b), and/or (c) of this subsection and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (4)(a), (b), and/or (c) of this section, or both, all firearm enhancements under this subsection shall be twice the amount of the enhancement listed;

(e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(4);

(f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony;

(g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

(4) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement. If the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any deadly weapon enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

(a) Two years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection;

(b) One year for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection;

(c) Six months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection;

(d) If the offender is being sentenced under (a), (b), and/or (c) of this subsection for any deadly weapon enhancements and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (3)(a), (b), and/or (c) of this section, or both, all deadly weapon enhancements under this subsection shall be twice the amount of the enhancement listed;

(e) Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(4);

(f) The deadly weapon enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony;

(g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a deadly weapon enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

(5) The following additional times shall be added to the standard sentence range if the offender or an accomplice committed the offense while in a county jail or state correctional facility and the offender is being sentenced for one of the crimes listed in this subsection. If the offender or an accomplice committed one of the crimes listed in this subsection while in a county jail or state correctional facility, and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section:

(a) Eighteen months for offenses committed under RCW 69.50.401(2) (a) or (b) or 69.50.410;

(b) Fifteen months for offenses committed under RCW 69.50.401(2) (c), (d), or (e);

(c) Twelve months for offenses committed under RCW 69.50.4013.

For the purposes of this subsection, all of the real property of a state correctional facility or county jail shall be deemed to be part of that facility or county jail.

(6) An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.605.

(7) An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055.

[2003 c 53 § 58; 2002 c 290 § 11.]

Notes:

 Continue to Part 9 RCW 9.94A.535