State Of Washington, Respondent V Thomas Pleasant, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58062-4-II
Respondent,
v.
UNPUBLISHED OPINION
THOMAS LOEL PLEASANT,
Appellant.
PRICE, J. — Thomas L. Pleasant appeals his sentence for first degree robbery. The State
concedes that the superior court erred when calculating Pleasant’s offender score and this case
should be remanded for resentencing. We accept the State’s concession, reverse Pleasant’s
sentence, and remand for resentencing.1
FACTS
In 2016, Pleasant pleaded guilty to first degree robbery and second degree assault, crimes
he committed in 2008. Pleasant was sentenced to life without the possibility of early release as a
persistent offender.2 On appeal, this court held that the superior court did not have authority to
enter judgment on the second degree assault conviction because the statute of limitations had run.
1 Pleasant also argues that the crime victim penalty assessment and community custody
supervision fees should be stricken from his judgment and sentence. Because we reverse and
remand for resentencing, any legal financial obligations can be addressed at resentencing.
Accordingly, we do not address these arguments further.
2 See RCW 9.94A.570.
Filed
Washington State
Court of Appeals
Division Two
September 10, 2024

No. 58062-4-II
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State v. Pleasant, No. 48950-3-II, slip op. at 7 (Wash. Ct. App. Mar. 5, 2019).3 This court
remanded for Pleasant to either waive the statute of limitations and take the benefit of his plea, or
withdraw his plea agreement. Id. at 9.
On remand, Pleasant again pleaded guilty to first degree robbery and second degree assault.
Based on Pleasant’s criminal history, his offender score was calculated at more than nine points.
The superior court found that Pleasant had committed multiple current offenses and Pleasant’s
high offender score resulted in one of the current offenses going unpunished. Accordingly, the
superior court imposed an exceptional sentence of 25 years’ confinement.4
Pleasant appealed again. State v. Pleasant, No. 53832-6-II, slip op. at 2 (Wash. Ct. App.
June 8, 2021) (Pleasant II).5 This court held that Pleasant’s second degree assault conviction had
to be vacated because it merged with Pleasant’s first degree robbery conviction. Id. at 6.
Accordingly, this court vacated Pleasant’s second degree assault conviction and remanded for yet
another resentencing. Id. at 6.
During the resentencing hearing, Pleasant’s defense counsel reviewed Pleasant’s criminal
history with him and explained to both Pleasant and the superior court that Pleasant’s prior
convictions for burglary and robbery were counted separately because of the burglary antimerger
3 https://www.courts.wa.gov/opinions/pdf/D2%2048950-3-II%20Unpublished%20Opinion.pdf.
4 At this resentencing, the State noted that Pleasant had been previously sentenced as a persistent
offender based on Pleasant’s stipulation that he had two prior strike offenses. But the State
conceded that it could not prove that Pleasant had two prior strike offenses, and thus, Pleasant
could not be sentenced as a persistent offender.
5 https://www.courts.wa.gov/opinions/pdf/D2%2053832-6-II%20Unpublished%20Opinion.pdf.

No. 58062-4-II
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statute.6 The superior court agreed that, under the burglary antimerger statute, the convictions for
first degree burglary and first degree robbery should be counted separately. Ultimately, Pleasant
stipulated to his criminal history and calculation of his offender score.
As a result, Pleasant’s offender score was calculated at 10 points based on the following
prior convictions: a 1988 first degree robbery; a 2008 first degree robbery with a deadly weapon
enhancement committed July 19, 2008; a 2008 first degree burglary with a deadly weapon
enhancement committed July 19, 2008; a 2008 first degree robbery committed July 24, 2008; and
a 2008 first degree robbery committed July 29, 2008.7 The superior court imposed a high-end,
standard range sentence of 171 months’ confinement.
Pleasant appeals.
ANALYSIS
Pleasant argues that he received ineffective assistance of counsel because his defense
counsel mistakenly believed that the burglary antimerger statute prevented Pleasant’s prior
convictions for first degree burglary and first degree robbery committed on July 19, 2018, from
being counted as the same criminal conduct for the purposes of calculating his offender score. The
State concedes that the burglary antimerger statute does not prevent the superior court from
considering whether Pleasant’s prior convictions for first degree burglary and first degree robbery
should be counted as the same criminal conduct. The State further concedes that remand for
6 RCW 9A.52.050.
7 All of the 2008 convictions were sentenced on the same day.

No. 58062-4-II
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resentencing is appropriate. We accept the State’s concession, reverse Pleasant’s sentence, and
remand to the trial court for resentencing.8
The burglary antimerger statute, RCW 9A.52.050, provides, “Every person who, in the
commission of a burglary shall commit any other crime, may be punished therefor as well as for
the burglary, and may be prosecuted for each crime separately.” However, the burglary antimerger
statute only applies to sentencing current offenses; it does not apply when determining whether
prior convictions are the same criminal conduct for the purposes of calculating a defendant’s
offender score. State v. Williams, 181 Wn.2d 795, 800, 336 P.3d 1152 (2014).
When calculating a defendant’s offender score, the superior court should instead apply the
same criminal conduct test in RCW 9.9A.589(1)(a).9 Id. at 800-01. Thus, a superior court commits
error if it exclusively uses the burglary antimerger statute to count two prior convictions separately
for the purposes of calculating an offender score. See id. at 801 (holding “the burglary antimerger
statute does not obviate the need for a sentencing court to examine whether prior convictions
constitute the same criminal conduct” under the sentencing statutes).
Here, at the urging of defense counsel, the superior court used the burglary antimerger
statute to count Pleasant’s prior convictions for first degree burglary and first degree robbery
separately, not the same criminal conduct definition in RCW 9.94A.589(1)(a). Even if
understandable, this was still error.
8 Because we accept the State’s concession that application of the burglary antimerger statute to
Pleasant’s prior convictions was error and remand for resentencing, we do not consider whether
Pleasant received ineffective assistance of counsel.
9 Under RCW 9.94A.589(1)(a), same criminal conduct “means two or more crimes that require
the same criminal intent, are committed at the same time and place, and involve the same victim.”

No. 58062-4-II
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CONCLUSION
We accept the State’s concession that there was an error in calculating Pleasant’s offender
score. Accordingly, we reverse and remand for resentencing.10
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J.
We concur:
VELJACIC, A.C.J.
CHE, J.
10 We express no opinion on whether Pleasant’s first degree burglary and first degree robbery are
the same criminal conduct under RCW 9.94A.589(1)(a). Any same criminal conduct
determination is left to the superior court on remand.