State of Washington v. Leopoldo Cuevas Cardenas
33888-6
| Wash. Ct. App. | Dec 12, 2017Background
- Defendant Leopoldo Cuevas Cardenas was charged with attempted second-degree burglary after an August 24, 2015 incident at an espresso stand; security footage and pry marks were central evidence.
- At a CrR 3.5 hearing, the trial court ruled orally that Cardenas was not in custody and his statement was voluntary; written findings were later entered after remand.
- A jury convicted Cardenas; the court imposed a 51-month sentence based on an offender score of 9+.
- The judgment and sentence contained scrivener errors (incorrect maximum sentence listed and several incorrect crime dates) and a restitution award ($1 placeholder) without a timely restitution hearing.
- Appellant argued (among other things) that his offender score was miscalculated because multiple pre-July 1, 1986 convictions served concurrently should count as one; the State conceded several errors but maintained the overall offender score and sentence stood.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cardenas) | Held |
|---|---|---|---|
| Validity of restitution award | Restitution was imposed but State concedes failure to hold hearing within 180 days; remedy is vacatur | Restitution amount objected to at sentencing; hearing never held | Vacate restitution award; remand to correct judgment and sentence |
| Scrivener errors in judgment and sentence | Errors present; State concedes and requests correction | Seeks correction of dates and statutory max term | Court directs correction of sentencing document (max term and crime dates) |
| Offender score calculation | Even correcting concurrent pre‑1986 convictions, other scoring rules (treatment of attempt as completed burglary and double points for prior burglaries) keep score at 9+ | Four pre‑July‑1‑1986 convictions served concurrently should count as one, reducing score | No reversible error: offsetting rules keep offender score at 9+; no resentencing required |
| Other trial issues (evidence, counsel, prosecutorial claims) | Evidence and inferences supported admission, probable cause, identity, and prosecutor’s remarks; defense counsel addressed washouts; preserved objections lacking | Argues screwdriver admission lacked probable cause, ineffective assistance, selective prosecution, prosecutorial misconduct, insufficient evidence, washouts | Claims mostly waived or without prejudice; probable cause, sufficiency, and counsel performance rejected; washout claim unsupported on record |
Key Cases Cited
- Tili v. State, 148 Wn.2d 350 (2003) (remand for resentencing required when standard range is miscalculated unless record shows same sentence would be imposed)
- Parker v. State, 132 Wn.2d 182 (1997) (principles on sentencing remand and prejudice)
- Grantham v. State, 174 Wn. App. 399 (2013) (failure to hold timely restitution hearing requires vacatur of restitution award)
- Moore v. State, 161 Wn.2d 880 (2007) (probable cause standard for arrests)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance of counsel test)
- McFarland v. State, 127 Wn.2d 322 (1995) (applying Strickland standard in Washington)
- Irish v. State, 173 Wn.2d 787 (2012) (challenge to prior conviction must be pursued in postconviction proceedings)
- Ammons v. State, 105 Wn.2d 175 (1986) (limits on attacking prior convictions at current sentencing)
- Johnson v. State, 188 Wn.2d 742 (2017) (standard for reviewing sufficiency of evidence)
- Brooks v. State, 107 Wn. App. 925 (2001) (use of tools to pry entry supports intent to commit burglary)