State Of Washington, Respondent V. Shawn Bird, Appellant (Majority)

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COL F !L T OF D APPEALS DIVISION 11 2014 JAH 22 AM 9, 19 IN THE COURT OF APPEALS OF THE STATE OF WASHING hA 11 rN, DIVISION II ily No. 44678 -2 -II STATE OF WASHINGTON, Respondent. V. UNPUBLISHED OPINION SHAWN VINCENT BALETO BIRD, PENOYAR, J. Shawn Vincent Baleto Bird appeals his sentence for conspiracy to deliver methamphetamine with an enhancement for commission while in a jail facility and two counts of unlawful possession of a firearm. The State concedes that the trial court erred when it imposed a jail zone" sentencing enhancement for his conspiracy conviction. Accepting the State' s concession, we remand with instructions to strike the sentencing enhancement from Bird' s judgment and sentence. The State alleged the conspiracy to deliver methamphetamine was committed in a jail or correctional facility, which would require an 18 -month sentencing enhancement under RCW 9. 94A.533( 5)( a). This statute lists seven crimes to which the enhancement applies, but not the crime Bird was convicted of committing. RCW 9. 94A.533( 5) by its own terms only applies to anticipatory offenses under chapter Because Bird 9A.28 RCW. improperly provisions not applied that apply to emphasis a in the to "` conviction original). convicted under RCW 69. 50. 407, the enhancement was State v. Mendoza, 63 Wn. App. 373, 377 -78, 819 P. 2d 387 ( 1991) to him. applied was persons convicted of ... under The conspiracy under chapter 9,4. 28 RCW" did RCW 69. 50. 408) ( quoting former RCW 9. 94A.410 ( 2000)) enhancement should therefore be stricken. 44678 -2 -II We remand to the trial court to strike the sentencing enhancement from Bird' s judgment and sentence. 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 pursuant to RCW 2. 06. 040, it is so ordered. We concur: V Johanson, J. OF Maxa, J. 2

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