In the Matter of the Personal Restraint of Cole W. Shale, Petitioner, 160 Wash. 2d 489

¶[1 This case asks us to determine whether petitioner Cole Shale’s several convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles and constitute the “same criminal conduct” for sentencing purposes. The Court of Appeals dismissed all of Shale’s claims. We affirm. C. Johnson, J. FACTUAL AND PROCEDURAL HISTORY ¶2 In November 2004, Shale pleaded guilty to 12 crimes charged under seven separate cause numbers in Spokane County Superior Court.

Relevant to this case, Shale pleaded guilty to two counts of first degree possession of stolen property under cause 04-1-02713-7, and one count of the same crime under cause 04-1-02873-7. Additionally, Shale pleaded guilty to three counts of unlawful possession of payment instruments under cause 04-1-02816-8. The superior court calculated Shale’s offender scores at 9+ after treating his crimes as separate from one another.

Shale received concurrent standard range sentences on each cause number. ¶3 In February 2005, Shale moved to vacate his judgment and sentence as to each charge on only three of his seven cause numbers, claiming double jeopardy violations and errors in the calculation of his offender scores. Shale claimed no dispute on the remaining four cause numbers. The superior court transferred the case to Division Three of the Court of Appeals for consideration as a personal restraint petition, where the chief judge dismissed all of Shale’s claims. We granted discretionary review.

ISSUES Whether Shale’s multiple convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles. A. Whether the trial court erroneously failed to treat some of Shale’s crimes as the “same criminal conduct” for offender score purposes. B. ANALYSIS Double Jeopardy ¶4 The double jeopardy clauses of the Washington State and United States Constitutions prohibit convicting a person more than once under the same criminal statute if he or she committed only one “unit” of the crime. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005).

Shale argues that his convictions violate double jeopardy principles because the counts of possession of stolen property and unlawful possession of payment instruments constitute one “unit of prosecution” rather than the separate units to which he pleaded guilty. ¶5 The State argues that Shale pleaded guilty to all of the cause numbers in an indivisible package deal and therefore may not challenge any part of that deal without challenging the entire deal by requesting withdrawal of all of his pleas.

First, every one of Shale’s guilty pleas were signed by Shale and entered on the same day, November 16, 2004; and all of Shale’s guilty pleas were accepted on the same day, November 16, 2004, in the same proceeding. Second, each of Shale’s guilty pleas references one another on page 3,

section g, of his statement on plea of guilty.

Section g provides the recommendation that the prosecuting attorney will make to the judge. In each of Shale’s statements on plea of guilty forms, the recommendation is for concurrent time to all matters pleaded to on the same day and a standard range sentence. Finally, all three cause numbers challenged by Shale issue from crimes he committed on the same day, July 2, 2004. Suppl. Br. of Resp’t at 2.

Shale does not request withdrawal of all of his pleas but asks only for “specific performance” of his plea agreements after vacation of the convictions that violate double jeopardy. ¶6 The State’s position is supported by our previous holdings where we have held indivisible plea bargains involving multiple charges are found where pleas were made at the same time, described in one document, and accepted in a single proceeding. State v. Turley, 149 Wn.2d 395, 398, 69 P.3d 338 (2003); see also State v. Ermels, 156 Wn.2d 528, 541, 131 P.3d 299 (2006); State v.

Bisson, 156 Wn.2d 507, 519, 130 P.3d 820 (2006). ¶7 In Turley, the State incorrectly represented to the defendant that no mandatory community placement would be required on one of two charges to which the defendant pleaded guilty. When Turley discovered the error, he requested to withdraw his entire plea agreement. We allowed Turley to do so because we reasoned that a plea agreement is essentially a contract made between a defendant and the State; and, under normal contract principles, it is dependent upon the intent of the parties whether a contract is considered separable or indivisible.

Turley negotiated and pleaded guilty to two charges contemporaneously, and one document contained the plea to and conditions for both charges. The State argued to allow Turley to withdraw only one of the two charges to which he pleaded guilty. We disagreed and held that a trial court must treat a plea agreement as indivisible when pleas to multiple counts or charges were made at the same time, described in one document, and accepted in a single proceeding. Turley, 149 Wn.2d at 400. ¶8 Here, all of Shale’s pleas were entered and accepted in the same proceeding, but the pleas were described in different documents.

However, because the different documents challenged by Shale are for crimes he committed on the same day, and the documents were all signed the same day, and refer to one another, we find Shale is challenging only a portion of an indivisible package deal. Therefore, we find Shale cannot challenge a portion of the plea agreement. Accordingly, we affirm the Court of the Appeals’ dismissal of these claims. Same Criminal Conduct ¶9 Shale argues that the trial court erroneously failed to treat some of his crimes as the “same criminal conduct” for offender score purposes. See RCW 9.94A-.589(l)(a).

In contrast, the State argues that Shale did not ask the trial court to make a discretionary call on the issue of “same criminal conduct.” Specifically, the State asserts that without contesting the issue at the trial level and alerting the trial court to make a discretionary call, Shale waives his right to raise the issue now. f 10 We have held that a sentence in excess of statutory authority is subject to collateral attack, that a sentence is excessive if based upon a miscalculated offender score (miscalculated upward), and that a defendant cannot agree to punishment in excess of that which the legislature has established.

In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). However, in Goodwin, we clarified that waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion. Goodwin, 146 Wn.2d at 873. ¶11 In fact, the rule we applied in Goodwin established that waiver may be found under certain circumstances, and we adopted an analogy from State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000, review denied, 141 Wn.2d 1030, 11 P.3d 827 (2000).

In Nitsch, the defendant argued for the first time on appeal that the two crimes he was convicted of constituted the same criminal conduct and therefore neither could be counted as part of his offender score for sentencing the other crime. He had, however, agreed in his own pre-sentence memorandum that his offender score had been properly calculated. The Court of Appeals noted that application of the same criminal conduct inquiry involves both factual determinations and the exercise of discretion.

The court held that the defendant’s “failure to identify a factual dispute for the court’s resolution and . . . failure to request an exercise of the court’s discretion” waived the challenge to his offender score. Nitsch, 100 Wn. App. at 520-23. ¶12 We again adopt that reasoning and conclude that it controls in this case. Here, Shale agreed to the offender scores as part of his plea bargain, and he did not challenge the offender score computation. The relevant portion of the record provides: The Court: Did Mr. Krzyminski [Shale’s attorney] go over all of these standard sentencing ranges with you?

The Defendant: Yes. The Court: Do you understand that the standard sentencing range is derived by looking at any prior countable criminal history in addition to looking at any concurrent offenses charged? The Defendant: Yes, ma’am. The Court: Do you understand or — I am going to explain to you what my understanding is and you tell me if this is your understanding. You had no prior felony history; is that correct? The Defendant: None. The Court: And that the reason we are looking at an offender score of 9 here is because of all of the concurrent offenses; is your [sic] understanding? The Defendant: Yes.

The Court: All right. You understand that an offender score of 9 puts you at the top end of the standard sentencing ranges for all of these offenses? The Defendant: Yes. Verbatim Report of Proceedings at 14-15. ¶13 The statement of defendant on plea of guilty is signed by Shale in each of the seven cases, and those documents acknowledge the calculation of the offender score. Further, the record shows that Shale failed to ask the court to make a discretionary call of any factual dispute regarding the issue of “same criminal conduct” and he did not contest the issue at the trial level.

Accordingly, we hold that Shale’s offender scores are not now subject to challenge. ¶14 While we have recognized and granted relief from plea agreements in limited circumstances, those cases involved pleas, convictions, or sentences that were invalid on the face of the judgment and sentence. Here, no invalidity is apparent. Shale made no factual statements supporting the guilty pleas and instead allowed the judge to review the police reports and statement of probable cause supplied by the prosecution to establish a factual basis for the plea. These facts establish the separate nature of each charge.

See Statement on Plea of Guilty at 6 (Spokane County Super. Ct., Wash., Nos. 04-1-02713-7, 04-1-02873-7, 04-1-02816-8). ¶[15 We affirm the Court of Appeals. Chambers, Owens, and J.M. Johnson, JJ., concur. Order Dismissing Personal Restraint Pet., In re Pers. Restraint of Shale, No. 24046-1-III (Wash. Ct. App. Jan. 5, 2006). RCW 9.94A.589(l)(

a) provides in relevant part: “[S]ame criminal conduct,” as used in this subsection, means “two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.”