State Of Washington, Respondent V. Glen Earl Sims, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
GLEN EARL SIMS,
Appellant.
No. 73240-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 25, 2016
Appelwick, J. — Sims was convicted of possession of methamphetamine.
During 	sentencing, 	Sims 	argued 	that 	his 	previous federal 	convictions 	for
possession of methamphetamine with intent to distribute and possession of a
firearm in furtherance of a drug trafficking offense constituted the same criminal
conduct. 	The trial court rejected this argument and counted each conviction
separately in Sims's offender score. 	We reverse and remand for resentencing.
FACTS
The State charged Glen Sims with Violation of the 	Uniform Controlled
Substances Act1 for the possession of methamphetamine (meth). 	A jury found
Sims guilty 	as 	charged 	on 	February 24, 2015. 	At sentencing, 	the 	parties
RCW 69.50.4013.

No. 73240-4/2
disagreed about whether Sims's prior federal convictions constituted the same
criminal conduct. 	Consequently, the parties disputed how to calculate Sims's
offender score.
Sims's criminal history includes convictions for five federal offenses based
on events that took place on July 31, 2004: (1) felon in possession of a firearm,
(2) felon in possession of ammunition, (3) felon in possession of body armor, (4)
possession of meth with intent to distribute, and (5) possession of a firearm in
furtherance of a drug trafficking offense. 	Sims was sentenced on April 28, 2006.
The 	offenses were sentenced 	concurrently. 	Sims also 	had 	a 	1995 federal
conviction for felon in possession of a firearm, a 1993 conviction for a controlled
substance violation, and a 1990 assault conviction.
During sentencing for Sims's current offense, 	Sims conceded that the
three earliest convictions counted as one point each toward his offender score.
But, he argued that the 2004 federal convictions should merge together and be
scored as only a single point, resulting in an offender score of four.2 	By contrast,
the 	State 	argued 	that 	the 	proper offender score was 	a 	seven. 	The 	State
2 Below, 	Sims 	argued 	that 	a 	federal 	court 	had 	already 	made 	the
determination that the federal offenses constituted the same criminal conduct.
He noted that the offenses were sentenced concurrently. 	Although the State did
not dispute that the offenses were sentenced concurrently, it asserted there was
nothing in the record indicating that the federal court made a finding of same
criminal conduct. 	We see nothing in the record indicating that the federal court
made a finding of same criminal conduct. 	If there was no such finding, and even
if the 	court ordered 	that the 	sentences 	be served 	concurrently, 	the 	current
sentencing court needed to make its own determination using the same criminal
conduct analysis in RCW9.94A.589(1)(a). 	RCW 9.94A.525(5)(a)(i); 	State v.
Johnson, 180 Wn. App. 92, 101, n.1, 320 P.3d 197, review denied, 181 Wn.2d
1003, 332 P.3d 984 (2014).

No. 73240-4/3
conceded that possession of a firearm in furtherance of a drug trafficking offense
is the same criminal conduct as felon in possession of a firearm. 	But, it argued
that the remaining 2004 crimes—possession of ammunition, possession of body
armor, and possession of meth with intent to distribute—did not constitute the
same criminal conduct as possession of a firearm, because they did not share a
common 	criminal 	purpose 	and 	were 	not 	in 	furtherance 	of 	one 	another.
Therefore, it argued that the five 2004 offenses be counted as four points total.
The trial court concluded that the felon in possession of a firearm, the
felon in possession of ammunition, and the possession of a firearm in furtherance
of a drug trafficking offense counts constituted the same criminal conduct. 	But, it
concluded that the possession of body armor and possession of meth with intent
to distribute were independent offenses. 	Consequently, it scored the five 2004
offenses as a three. 	And, it sentenced Sims based on an offender score of six.
The trial court imposed a standard range sentence of 12 months plus one day.
The trial court also ordered $1,104 in financial obligations—a $500 victim penalty
assessment, a $100 DNA (deoxyribonucleic acid) fee, and $504 in court costs.
Sims appeals.
DISCUSSION
Sims makes two arguments on appeal. 	First, he asserts that the trial court
erred by miscalculating his offender score. 	Then, 	he maintains the trial court
erred 	by failing 	to 	consider 	his 	ability 	to 	pay 	discretionary 	legal 	financial
obligations before imposing them.

No. 73240-4/4
I. 	Same Criminal Conduct
Sims argues that the trial court erred by failing to accurately count his
2004 federal convictions for purposes of his offender score. 	He claims that his
conviction for possession of meth with intent to distribute should be considered
the 	same criminal 	conduct as 	his 	conviction for 	possession 	of a 	firearm 	in
furtherance of a drug trafficking offense.
When calculating an offender score, the trial court is to count all prior
convictions separately unless two or more of the prior convictions encompass the
same criminal conduct. 	RCW 9.94A.525(5)(a)(i). 	Crimes constitute the same
criminal conduct when they "require the same criminal intent, are committed at
the same time and place, and involve the same victim." 	RCW 9.94A.589(1)(a).
Unless all elements are present, the offenses must be counted separately. 	State
v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). 	The defendant bears the
burden of proving same criminal conduct. 	State v. Graciano, 176 Wn.2d 531,
539, 295 P.3d 219 (2013). 	This court reviews determinations of same criminal
conduct for abuse of discretion or misapplication of law. ]a\ at 535.
Here, only whether the criminal intent of the two offenses is the same is at
issue. 	The parties agree that the offenses were committed at the same time and
place and involve the same victim—the public. 	But, they disagree as to whether
possession 	of meth with intent to distribute 	and 	possession 	of a firearm in
furtherance of a drug trafficking offense share the same criminal intent.

No. 73240-4/5
In order to be convicted of possession of meth with intent to distribute,
Sims had to knowingly or intentionally possess meth with the intent to distribute
it. 21 U.S.C. § 841(a)(1) (2004). 	In order to be convicted of possessing a firearm
in furtherance of a drug trafficking offense, Sims had to use or carry a firearm
during and in relation to any drug trafficking crime. 	18 U.S.C. § 924(c)(1)(A)
(2004). 	Or, Sims had to possess a firearm in furtherance of a drug trafficking
crime.3 	Id.
Offenses have the same criminal intent when, 	viewed 	objectively, the
intent does not change from one offense to the next. 	State v. Dunawav, 109
Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). 	Intent, in this context is
not the particular mens rea element of the 	particular crime, but rather is the
offender's objective criminal purpose in committing the crime. 	State v. Kloepper,
179 Wn. App. 343, 357, 317 P.3d 1088, review denied, 180 Wn.2d 1017, 327
P.3d 55 (2014); State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990).4
3 Although not explicitly indicated in the statute, federal case law indicates
that "knowingly" is also a required element. 	See United States v. Woodward, 531
F.3d 1352, 1362 (11th Cir. 2008).
4 In Adame, 	Adame 	argued 	that 	his 	convictions 	for 	possession 	of
controlled substances and unlawful possession of a firearm constituted the same
criminal conduct. 	56 Wn. App. at 809. 	The Adame court reasoned that the
purpose of possessing drugs is to use or sell them, whereas the purpose of
possessing a firearm is less clear. 	jd at 811. 	Consequently, for the firearm
conviction, the Adame court turned to the facts. 	Id. 	And, it concluded that,
based on the facts, the crimes did not constitute the same criminal conduct, ]d.

No. 73240-4/6
Possession of meth with intent to distribute and possession of a firearm in
furtherance of a drug trafficking offense are not mere possession crimes like
those found not to constitute same criminal conduct in Adame. 	Here, it is clear
that the statutory criminal intent of possession of meth with intent to distribute
and possession of a firearm in furtherance of a drug trafficking offense does not
preclude a finding of same criminal conduct.5 	The statutory criminal intent of
possession of meth with intent to distribute is clearly to traffic drugs. 	Similarly,
the statutory criminal 	intent of possessing a firearm 	in furtherance of a drug
trafficking offense is to traffic drugs.
Moreover, Sims's objective criminal purpose was to traffic drugs. 	Sims's
intent did not change from one crime to the next. 	Here, the basis for these
federal 	convictions began with a traffic stop. 	On July 31, 2004, 	King County
Sheriff deputies conducted a traffic stop of a vehicle. 	Sims was a passenger in
the vehicle. 	The deputies recognized Sims as a suspect for an assault that had
taken place a few days earlier. 	The deputies asked Sims to exit the vehicle, and
asked him if he had any weapons. 	Sims told them he had knives. 	The deputies
noticed that Sims was wearing a bulletproof vest. 	Officers then found a pistol in
the passenger area of the vehicle where Sims had been sitting. 	The driver of the
vehicle informed the deputies that when he had picked Sims up, Sims had a blue
cooler with him. The driver also informed the deputies that Sims had said he had
5 We note that Sims was sentenced prior to the Washington Supreme
Court's recent decision in State v. Chenoweth. No. 91366-8 (Wash. March 17,
2016). 	Similarly, 	the 	parties 	submitted 	their briefs prior to the 	decision 	in
Chenoweth. 	Our analysis is not inconsistent with Chenoweth.

No. 73240-4/7
a gun. 	Deputies searched the car and found the blue cooler. 	Inside the cooler,
the deputies found 	a 	locked safe box and 	nine millimeter ammunition. 	The
deputies also located keys for the locked safe, and obtained a warrant to search
it. 	Inside, they found meth and a digital scale and baggies often used to measure
and package meth. 	These facts were the basis of the federal complaint filed
against Sims. 	The jury convicted Sims of both crimes at issue here. 	The jury
was instructed that it could convict Sims of the firearm charge only if it first found
Sims guilty of the possession of meth charge.
Therefore, we hold that the trial court misapplied the law when it declined
to find that Sims's convictions of possession of meth with intent to distribute and
possession of a firearm in furtherance of a drug trafficking offense constituted the
same criminal conduct.
The State argues that even if the trial court erred in declining to count the
possession of meth offense as the same criminal conduct as the possession of
the firearm offense, that it still calculated Sims's offender score correctly. 	In
other words, it argues that any error was harmless. 	It argues this is so, because
Sims does not argue that those two offenses are also the same criminal conduct
as the felon in possession of a firearm and felon in possession of ammunition
offenses. 	And, 	the 	State 	notes the 	trial court explicitly concluded 	that the
possession of meth offense was a crime separate from those two offenses.

No. 73240-4/8
We reject the State's unsupported assertion. 	If the possession of meth
offense and the possession of firearm in furtherance of a drug trafficking offense
constitute the same criminal conduct, and if the firearm in furtherance offense is
a part of the same criminal conduct as the felon in possession of a firearm and
felon in possession of ammunition offenses (which the State does not challenge)
then, necessarily, they all constitute same criminal conduct for offender score
purposes. 	The trial court miscalculated Sims's offender score. 	We reverse and
remand for resentencing.
II. 	Legal Financial Obligations
Next, 	Sims 	argues 	that 	the 	trial 	court 	erred 	in 	imposing 	$504 	in
discretionary court costs as a legal financial obligation (LFO), because it failed to
make an individualized inquiry into Sims's current and future ability to pay. 	A trial
court 	has 	a 	statutory 	obligation 	to 	make 	an 	individualized 	inquiry 	into 	a
defendant's 	current 	and 	future 	ability 	to 	pay 	before 	the 	court 	imposes
discretionary LFOs. 	State v. Blazina. 182 Wn.2d 827, 830, 344 P.3d 680 (2015).
Sims 	did 	not 	object 	to 	the 	imposition 	of 	the 	discretionary 	LFOs 	at
sentencing. 	A defendant who does not object to the imposition of these costs at
sentencing is not automatically entitled to review. 	Blazina, 182 Wn.2d at 832.
But, we exercise our discretion under RAP 2.5(a) to reach the merits of Sims's
LFO claim. 	See id. at 834-35 (noting that an appellate court may exercise its
discretion in reviewing unpreserved LFO claims). 	The State concedes that the
trial court's failure to make an individualized inquiry into Sims's ability to pay was
8

No. 73240-4/9
error in light of Blazina. 	As a result, we remand to the trial court to make the
individualized inquiry into Sims's ability to pay as is required under Blazina.
We reverse and remand for resentencing.
V
WE CONCUR:
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