State of Washington v. John R. Gardner

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
JOHN R. GARDNER,
Appellant.
)
)
)
)
)
)
)
)
)
No. 40132-4-III
UNPUBLISHED OPINION
FEARING , J. — John Gardner challenges the calculation of his offender score on
appeal. He contends that, based on a statutory amendment in 2023, the superior court
should not have included earlier juvenile adjudications in his score. We disagree.
FACTS
On August 28, 2023, John Gardner pled guilty to one count of second degree
assault. The assault occurred on May 25, 2023. At the time of the offense, former
RCW 9.94A.525(1) (2021) allowed previous juvenile adjudications to be included in
calculating an offender score. Before Gardner pled guilty, the Legislature amended the
FILED
SEP 18, 2025
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 40132-4-III
State v. Gardner
2
Sentencing Reform Act, Chapter 9.94A RCW, to prohibit the use of most juvenile
adjudications in adult sentencing. This amendment took effect on July 23, 2023.
John Gardner’s criminal history includes juvenile adjudications for second degree
taking of a motor vehicle without permission, second degree possession of stolen
property, and third degree assault. The State included these adjudications in Gardner’s
offender score. Under the plea agreement, the State agreed to recommend a standard
sentencing range of 33 to 43 months based on an offender score of 6. Gardner retained
the right to argue that his offender score should be 5 under the amended statute and to
request a Mental Health Sentencing Alternative (MHSA).
PROCEDURE
At sentencing on November 15, 2023, John Gardner argued that his juvenile
adjudications—for second degree taking a motor vehicle without permission, second
degree possession of stolen property, and third degree assault—could not be used to
calculate his offender score. Gardner maintained the recent amendment to
RCW 9.94A.525(1) applied to his sentencing.
The State maintained that RCW 9.94A.345 required the sentencing score to be
calculated under the law in effect at the time the offense was committed. The superior
court adopted the State’s position, established an offender score of 6, and imposed a

No. 40132-4-III
State v. Gardner
3
standard range sentence of 33 to 43 months to be served on community custody under the
MHSA.
LAW AND ANALYSIS
John Gardner challenges the calculation of his offender score on appeal. He asks
us, as he did the superior court, to remove, from the calculation, juvenile adjudications.
He asserts both statutory and constitutional arguments. We reject the statutory argument
on the merits, and we decline to address the constitutional arguments.
RCW 9.94A.525(1)(b)
John Gardner argues that the version of RCW 9.94A.525(1)(b) in force at the time
of his sentencing in August 2023 governs his sentence. He asserts the statute applies
prospectively. Thus, he contends his case should be remanded for resentencing with an
offender score that excludes his prior juvenile adjudications.
RCW 9.94A.525(1)(b) now reads:
For the purposes of this section [on offender scores], adjudications
of guilt pursuant to Title 13 RCW [the juvenile justice code] which are not
murder in the first or second degree or class A felony sex offenses may not
be included in the offender score.
On May 25, 2023, when John Gardner committed the assault, former RCW 9.94A.525(1)
(2021) contained no provision precluding earlier juvenile adjudications from being
counted when calculating an offender score. State v. Tester, 30 Wn. App. 2d 650, 652,

No. 40132-4-III
State v. Gardner
4
546 P.3d 94, review denied, 3 Wn.3d 1019, 556 P.3d 1094 (2024). The Legislature
amended RCW 9.94A.525(1) to its current reading in 2023. This amendment became
effective on July 23, 2023. L AWS OF 2023, Ch. 415, § 2.
We reject John Gardner’s request that we apply the 2023 amendment retroactively
for two reasons. First, we presume statutes apply prospectively unless the legislature
indicates otherwise. State v. Brake, 15 Wn. App. 2d 740, 744, 476 P.3d 1094 (2020).
Second, under RCW 9.94A.345, a section of the sentencing reform act, the court bases a
sentence on the law in effect when the offender commits the offense, unless the statute
reads to the contrary. State v. Jenks, 197 Wn.2d 708, 716, 487 P.3d 482 (2021). The
savings clause, RCW 10.01.010, similarly provides that statutory amendments or repeals
do not alter the punishment for offenses committed under prior law unless the new law
expressly states otherwise. State v. Gibson, 33 Wn. App. 2d 618, 621, 563 P.3d 1079
(2025).
State v. Tester, 30 Wn. App. 2d 650 (2024) governs our decision. The superior
court sentenced Michael Tester for third degree theft and residential burglary using an
offender score that counted six juvenile adjudications. Tester sought resentencing on the
ground that RCW 9.94A.525(1) should apply prospectively and exclude those juvenile
offenses. This court held that former RCW 9.94A.525(1)—in force when the crimes

No. 40132-4-III
State v. Gardner
5
were committed—governed because there was no evidence that the legislature intended
for the amendment to reach pending cases.
Constitution
For the first time on appeal, John Gardner claims that his sentence violates equal
protection, a jury should have determined the existence of his prior juvenile offenses, and
counting prior juvenile adjudications in his adult offender score constitutes cruel
punishment under the state and federal constitutions. Gardner did not raise these claims
before the sentencing court.
RAP 2.5(a) allows review of unpreserved issues only when they involve a
manifest constitutional error—one so obvious the trial court should have recognized it.
State v. Kirkman, 159 Wn.2d 918, 934, 155 P.3d 125 (2007). John Gardner cites no
authority that holds the inclusion of juvenile offenses in an offender score violates the
equal protection or the cruel punishment clauses in the federal of state constitutions. He
cites no authority that a jury must determine his offender score. Thus, we decline to
review his constitutional challenges.
CONCLUSION
We affirm John Gardner’s offender score and sentence.

No. 40132-4-III
State v. Gardner
6
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Murphy, J.
______________________________
Lawrence-Berry, C.J.