Opinion
42639-1-II
02-21-2013
STATE OF WASHINGTON, Respondent, v. MICHAEL DAVID COLLINS II, Appellant.
UNPUBLISHED OPINION
QUINN-BRINTNALL, J.
A jury found Michael D. Collins III guilty of first degree robbery and attempted first degree felony murder. In Collins's first appeal, we held that Washington did not recognize the crime of attempted felony murder, vacated that conviction and remanded for resentencing on his first degree robbery conviction. In this appeal, Collins challenges the 171-month sentence imposed on his first degree robbery conviction at resentencing. Finding no error, we affirm.
A commissioner of this court initially considered this appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
FACTS
On February 24, 2010, a jury convicted Collins of one count of attempted felony murder and one court of first degree robbery related to an attack that occurred in February 2009. RCW 9A.56.200. The trial court calculated Collins's offender score at five: one point for being on community custody at the time of the offenses, two points for a prior conviction of second degree assault with sexual motivation, and two points for the other current offenses. Collins's criminal history listed additional prior convictions, but the State believed they had "washed out" and excluded these from its calculation of Collins's offender score. He received a sentence of 75 months in custody plus 12 to 18 months of community custody on the first degree robbery charge.
Collins appealed, arguing that attempted felony murder was not a crime under Washington law. While that appeal was pending, Collins was charged with failing to register as a sex offender in Clark County, Washington, between April 1 and May 1, 2006. He pleaded guilty and was sentenced to 24 months in custody consecutive to the sentences imposed on the attempted felony murder and first degree robbery convictions. Collins's offender score for the failure to register conviction included both the attempted felony murder and first degree robbery convictions.
In an unpublished opinion, we vacated Collins's conviction for attempted felony murder, affirmed his robbery conviction, and remanded the matter for further proceedings consistent with that opinion.
On September 15, 2011, Collins appeared for resentencing on the first degree robbery conviction in accord with our opinion. Using the offender score from the original sentencing hearing, Collins expected that his offender score at resentencing would be less than 5. At the resentencing hearing, however, the State calculated Collins's offender score at 10 points.
In calculating Collins's offender score at resentencing, the State included one point for a 2008 New Mexico felony conviction for forgery that the State did not know about at the time of the original sentencing and five points (consisting of three convictions for failure to register, one conviction for bail jumping, and one conviction for eluding, that would have "washed out" but for the 2008 New Mexico conviction) as well as one point for the failure to register conviction adjudicated during the earlier appeal. See RCW 9.94A.530(2) ("On remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented."); see also RCW 9.94A.525(22) ("Prior convictions that were not included in criminal history or in the offender score shall be included upon any resentencing to ensure imposition of an accurate sentence."). The State also noted that Collins received one-half point for a juvenile conviction for second degree child molestation, although the sentencing court was required to round Collins's offender score down to 10. RCW 9.94A.525 ("The offender score is the sum of points accrued under this section rounded down to the nearest whole number.").
In support of its offender score calculation, the State presented telephonic testimony of Delinda Amell, a community corrections supervisor. She verified Collins's full name and date of birth and stated that on February 9, 2009, the date of the first degree robbery offense, Collins was on community custody in Washington State for four active felony cases. The active cases were second degree assault with sexual motivation, attempting to elude, and two failure to register offenses. When the prosecutor asked why Collins remained on supervision for these crimes, some of which had occurred years earlier, Amell responded, "Mr. Collins was tolling for quite some time on several of those causes. He was in custody in New Mexico for a couple of years." Report of Proceedings (RP) at 5.
The State submitted judgments and sentences for Collins's prior offenses, including documents from New Mexico. The New Mexico documents establish that "Michael David
Collins," with a date of birth of April 6, 1975, was convicted of one count of forgery on April 10, 2008. The New Mexico judgments reflect that Collins had "plead[ed] no contest to being the same person who was convicted of the felony in case number 99-1-01194-S, Superior Court of Washington, County of Clark." Ex. 2.
Collins was originally charged and convicted of four crimes in New Mexico. On April 10, 2008, Collins was resentenced for one count of forgery and the other counts were dismissed based on double jeopardy.
The State notes that the actual judgment for this crime was under Clark County Cause No. 99-1-01194-5 and posits that the "S"/"5" confusion was due to a scrivener's error. We see no reason to dispute this conclusion.
Collins objected to the recalculated offender score. He characterized the higher score as "a gross overreaching and exercise of vindictive prosecution." RP at 9. He objected to the addition of one point for being on active community custody and took issue with adding a point for the failure to register conviction that occurred while his initial appeal was pending. He also challenged the comparability of the New Mexico forgery conviction.
Collins spoke at his resentencing and objected to any recalculation of his offender score post-appeal. He told the court that as part of his plea deals for his failure to register convictions, he was told that "those did not count as points against me." RP at 26. He added that the date on his final failure to register conviction was incorrect because he got "[t]hat 2006 thing" dismissed after he "came back from New Mexico." RP at 27.
The superior court calculated Collins's offender score as 10 and sentenced Collins to 171 months in custody followed by 18 to 36 months of community custody on his first degree robbery conviction. Collins appeals this sentence.
ANALYSIS
We review a sentencing court's calculation of an offender score de novo. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011). A defendant may challenge an illegal or erroneous sentence for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). At sentencing, the State bears the burden to prove the existence of prior convictions by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009).
"[F]undamental principles of due process prohibit a criminal defendant from being sentenced on the basis of information which is false, lacks a minimum indicia of reliability, or is unsupported in the record." Ford, 137 Wn.2d at 481. "The State does not meet its burden through bare assertions, unsupported by evidence." Ford, 137 Wn.2d at 482. At sentencing, the facts relied upon "'must have some basis in the record.'" Ford, 137 Wn.2d at 482 (emphasis omitted) (quoting State v. Bresolin, 13 Wn.App. 386, 396, 534 P.2d 1394 (1975), review denied, 86 Wn.2d 1011 (1976)). The sentencing court may rely on the defendant's stipulation or acknowledgement of prior convictions to calculate the offender score. State v. James, 138 Wn.App. 628, 643, 158 P.3d 102 (2007), review denied, 163 Wn.2d 1013 (2008). Sentencing determinations are "critical step[s]," which the sentencing court should not render "in a cursory fashion," even if informal determinations would reach the same result. Ford, 137 Wn.2d at 484.
In this appeal, Collins argues that (1) the State failed to prove the existence of the out-of-state offense, (2) the State failed to prove Collins was on community custody at the time of the robbery offense, and (3) the superior court's inclusion of a subsequent failure to register conviction in his offender score violated Collins's right to equal protection and chilled his constitutional right to appeal. New Mexico Conviction
Collins did not challenge the existence of the New Mexico conviction in the superior court. But a defendant may challenge the calculation of his offender score for the first time on appeal. Ford, 137 Wn.2d at 477; see also Mendoza, 165 Wn.2d at 919-20 ("Despite our general reluctance to address issues not preserved in the trial court, we allow belated challenges to criminal history relied upon by a sentencing court.").
The State contends that because "[t]he best evidence of a prior conviction is a certified copy of the judgment" that exhibit 2 containing the judgment of the New Mexico court was sufficient evidence to establish this conviction. Ford, 137 Wn.2d at 480. Collins cites State v. Hunter, 29 Wn.App. 218, 221, 627 P.2d 1339 (1981), for the proposition that a judgment and sentence in the defendant's name, standing alone, is not sufficient to prove a prior conviction.
Hunter, however, involved a situation in which a former conviction was an element of the crime charged. 29 Wn.App. at 221. Thus, in Hunter, the State had to prove the existence of a former conviction beyond a reasonable doubt. To calculate Collins's offender score for purposes of determining his standard range, the State must prove Collins's New Mexico conviction by a preponderance of the evidence. Mendoza, 165 Wn.2d at 920.
In addition, we note that the New Mexico judgment contains Collins's full name and birth date as well as a reference to a Clark County conviction that substantially tracks one of Collins's convictions from Clark County, Washington. Amell also testified that Collins's community supervision terms were tolled because "[h]e was in custody in New Mexico." RP at 5. Collins personally acknowledged that he was charged in New Mexico. The trial court properly included the New Mexico conviction in calculating Collins's offender score. Community Custody At Time of Offense
Collins argues that the State failed to show he was on community custody supervision at the time of the February 2009 offense. He contends that Amell's testimony was "legally insufficient" because, as with the New Mexico conviction, "the [S]tate failed to present any evidence that the defendant was the person identified in the supporting documents." Br. of Appellant at 14. Collins takes issue with the fact that Amell only said that on February 9, 2009, "Michael David Collins" was on her caseload and that that person had certain prior convictions. He believes that her failure to inform the court of the cause numbers of the convictions she referenced rendered her testimony insufficient.
Collins also received a point for this status in his original sentence calculation.
Collins also cites Amell for failing to identify him in court but then acknowledges that this would have been impossible because Amell testified telephonically.
Even assuming the State had to prove more than name identity, it did so here. Amell identified her community custody client by full name and birth date. In addition, the list of the prior convictions of supervision matched Collins's prior convictions. Collins does not challenge the existence of any of these prior convictions and the preponderance of the evidence supports a finding that Collins was on community custody supervision in February 2009, when he committed the first degree robbery for which he was being sentenced. Inclusion of New Conviction and Equal Protection
Collins challenges the inclusion of his conviction for failing to register that he received during his original appeal in his offender score, arguing that it does not meet the definition of a countable "prior conviction." RCW 9.94A.525(1) defines an includable "prior conviction" as one "which exists before the date of sentencing." Collins argues that "[t]he legislature did not define 'prior conviction' as a conviction 'which exists before the date of sentencing or resentencing." Br. of Appellant at 15. He relies on the statutory construction principle of "inclusio unius est exclusio alterius" to support his argument. Br. of Appellant at 16. We disagree.
Translated as "the inclusion of one is the exclusion of another." Br. of Appellant at 16.
The definition of "prior conviction" includes convictions that occur both before sentencing and any resentencing:
The offender score includes all prior convictions . . . existing at the time of that particular sentencing, without regard to when the underlying incidents occurred, the chronological relationship among the convictions, or the sentencing or resentencing chronology.State v. Shilling, 77 Wn.App. 166, 175, 889 P.2d 948, review denied, 127 Wn.2d 1006 (1995) (emphasis added). Shilling, in turn, relied upon State v. Collicott, 118 Wn.2d 649, 827 P.2d 263 (1992), in which, on remand, the trial court calculated an offender score to include a conviction that occurred after the original sentencing. Collicott, 118 Wn.2d at 665 ("In this case the questioned burglary conviction occurred on a plea of 'guilty' after the first sentencing in this case, but prior to the resentencing which is now before this court."). See also State v. Clark, 123 Wn.App. 515, 519-20, 94 P.3d 335 (2004) (convictions received prior to resentencing were properly included in recalculation of offender score after remand); see generally State v. Bryan, 145 Wn.App. 353, 360, 185 P.3d 1230 (2008) (including conviction obtained after initial sentence in offender score on resentencing after motion to modify sentence was granted).
Moreover, RCW 9.94A.530(2) requires Collins's offender score to be recalculated anew on resentencing. That statute provides,
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. . . . On remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented.RCW 9.94A.530(2) (emphasis added); see also RCW 9.94A.525(22) ("Prior convictions that were not included in criminal history or in the offender score shall be included upon any resentencing to ensure imposition of an accurate sentence."). RCW 9.94A.530(2) and .525(22) act together to allow consideration at resentencing of "both prior convictions not otherwise admissible at the original sentencing hearing and prior convictions that could have been admitted at the original sentencing hearing but were omitted." State v. Calhoun, 163 Wn.App. 153, 166, 257 P.3d 693 (2011), review denied, 173 Wn.2d 1018 (2012). Equal Protection
Collins next challenges the inclusion of his subsequent conviction in his offender score on equal protection grounds. Specifically, he argues that there is no rational basis for treating (1) a person who commits offense "A," is sentenced for that offense, and then commits offense "B" without ever having the sentence of offense "A" vacated and reimposed differently from (2) a person who commits offense "A" and then offense "B" and then has the sentence for offense "A" vacated and reimposed.
The equal protection clauses of the Washington Constitution, article 1, section 12, and the United States Constitution, Fourteenth Amendment, require that similarly situated persons receive similar treatment. State v. Smith, 117 Wn.2d 263, 276-77, 814 P.2d 652 (1991). Penal statutes must set out "reasonable grounds" for distinguishing between those who fall within a class and those who do not. Smith, 117 Wn.2d at 279.
Bryan addressed a similar equal protection challenge in the context of a resentencing that occurred after a successful motion to modify. The court rejected the resentenced defendant's challenge:
Requiring the sentencing court to consider all convictions that exist at the time of sentencing is a reasonable means to achieve the stated goals. No more is required. By counting convictions that came into existence after the time of the original sentence when a defendant is resentenced, the statute holds the defendant accountable for all criminal conduct. This is a reasonable means for promoting respect for the law and advancing the stated goals of the [Sentencing Reform Act of 1981, ch. 9.94A RCW]. This court has previously noted that the sentencing statute contemplates that some offenses will count in the manner here as "prior convictions."
Moreover, this scheme does not impose unjust results. The only reason Bryan is subject to this result is because of his own criminal acts. It does not offend justice that after the miscalculation mistake was cured on resentencing, the court calculated his new sentence by taking into account his conduct and then existing convictions.Bryan, 145 Wn.App. at 362-63 (emphasis added) (footnote omitted). We agree with Bryan that equal protection is not violated and that Collins is properly accountable for all of his prior criminal conduct in his new robbery sentence. See generally RCW 9.94A.530(2), .525(22).Finally, Collins argues that to permit a higher sentence post-appeal unconstitutionally chills the right to appeal "by creating a potential punishment built into the appeal process over which the defendant has no control." Br. of Appellant at 23-24. He argues that "[t]o allow the [S]tate to enhance the defendant's robbery conviction with a subsequent conviction that created a new, consecutive sentence, severely punishes [him] for one reason only . . . his successful appeal," thus chilling the exercise of his right to appeal. Br. of Appellant at 24.
The State counters that the "chilling" analysis is limited to First Amendment challenges. We note, however, that in State v. Sims, 171 Wn.2d 436, 444, 256 P.3d 285 (2011), our Supreme Court referenced a chilling effect on defendant's right to appeal in the context of a resentencing.
Collins is not being punished for filing his original appeal. Collins's offender score increases solely because he was convicted of an additional offense while that appeal was pending. As the Bryan court stated, "The only reason [the defendant] is subject to this result is because of his own criminal acts." 145 Wn.App. at 362. Accordingly, Collins's equal protection argument fails. Statement of Additional Grounds
Collins also filed a statement of additional grounds (SAG). In it, he argues that he incorrectly received a point for a January 5, 2000 failure to register conviction because this conviction was included in a plea deal and sentencing, also on January 5, 2000, for second degree assault. He adds that he similarly incorrectly received a point for a "bail jump" conviction, also from January 5, 2000, because it was part of a "bundling of charges" with the assault. SAG at 1. He also challenges his higher community custody range-18 to 36 months instead of 12 to 18 months-he received on resentencing. He additionally argues that recalculating his offender score is inconsistent with the appellate court's ruling in the initial appeal because the State did not challenge the original sentence on appeal. He adds that the State sought a higher sentence "out of spite." SAG at 3. As previously set out, however, on resentencing, the court was authorized to "consider all relevant evidence regarding criminal history, including criminal history not previously presented." RCW 9.94A.530(2); see also RCW 9.94A.525(22).
With respect to the convictions occurring on January 5, 2000, the offender score calculation supports that Collins was sentenced for three offenses (second degree assault with sexual motivation, bail jumping, and failure to register as a sex offender) on January 5, 2000. There is nothing in the present record, however, to support Collins's assertion that certain of these offenses were not meant to "count" in his offender score. To the extent that his argument depends on documents outside the record, Collins may file a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
As to Collins's challenge to the increased community custody term, his original sentence provided a community custody term of 12 to 18 months on count II (the first degree robbery count), a "Violent Offense[]." Clerk's Papers at 6. The first degree robbery sentence appealed here provides for a term of 18 to 36 months. At the resentencing hearing, the State clarified the discrepancy:
There -- also, the original sentence, I think I said 12 to 18 months community custody. I believe that at the time of this crime it actually would be 18 to 36 months, so that's on that scoring sheet as well.RP at 29; see also former WAC 437-20-010 (superseded Nov. 21, 2009) (violent offenses subject to an 18- to 36-month community custody range). Therefore, the State recommended the correct community custody range at resentencing.
Finally, Collins asserts that the State sought a higher sentence on remand "out of spite" or due to vindictiveness. Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L. Ed. 2d 104 (1986); United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L. Ed. 2d 74 (1982). Here, the offender score increased due to the failure of past convictions to "wash out" and due to a new failure to register conviction. See generally State v. Barberio, 66 Wn.App. 902, 908, 833 P.2d 459 (1992) (giving as two examples of vindictiveness or reversible error at resentencing, if a new sentence is "drawn out of thin air" or if sentencing court "refus[ed] to follow a mathematical formula"), aff'd, 121 Wn.2d 48, 846 P.2d 519 (1993). The State was not being vindictive when, pursuant to RCW 9.94A.530(2) and .525(22), it presented Collins's complete and accurate criminal history at resentencing. Calhoun, 163 Wn.App. at 166.
We affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: PENOYAR, J. JOHANSON, A.C.J.