Opinion
No. 56096-4-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09984-2, Nicole Maclnnes, J., entered April 5, 2005.
Counsel for Appellant(s), Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Andrew Lott challenges the sentence imposed following his guilty plea to a robbery charge, arguing that the sentencing court failed to make a determination of his offender score on the record and erroneously counted an Indiana conviction in his offender score. Because the record establishes that the information filed in the Indiana case provided a sufficient basis to determine comparability and that the sentencing court properly determined his offender score, we disagree and affirm.
FACTS
When Andrew Lott pleaded guilty to one count of second degree robbery and one count of misdemeanor fourth degree assault at a hearing on August 26, 2004, the trial court acknowledged on the record that there was a dispute about Lott's criminal history. At a December 17, 2004 hearing, the sentencing court noted that the State claimed Lott's offender score was five and defense counsel stated that Lott agreed to certain Washington convictions but disputed an out-of-state conviction. The court then granted the State's motion for a continuance to obtain further proof regarding an Indiana conviction included in its calculation.
On February 11, 2005, the judge stated on the record that she had reviewed the State's sentencing memorandum, Lott testified that he was not the person convicted in the Indiana charge identified by the State, and the sentencing court again granted a State request for a continuance to gather materials to prove otherwise. Based on evidence presented by the State at a hearing on March 25, 2005, the court found that the State `proved by a preponderance that the individual for whom there was a conviction in 1976 as reflected in the criminal history in Indiana, an out-of-state burglary conviction, I will find that that in fact is the defendant and should count in his criminal history.' The sentencing court then imposed a standard range sentence.
Verbatim Report of Proceedings, 3/25/05 at 8-9.
Lott appeals.
DISCUSSION
Lott first contends that his sentence must be reversed because the trial court failed to make its offender score calculation on the record as required by RCW 9.94A.500. But the sentencing court confirmed on the record at the December 17 hearing that the defense agreed to Washington convictions including a second degree assault for two points, a possession of stolen property conviction and a conviction of unlawful possession of a firearm. At the March 25 hearing, the court stated on the record that it would also include the Indiana conviction and then confirmed the appropriate sentencing range for an offender score of five. The four described crimes are also listed in a criminal history appendix to the judgment and sentence. On this record, Lott fails to demonstrate error under RCW 9.94A.500.
RCW 9.94A.500 provides in pertinent part, `If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record.'
Lott also argues that there is no evidence in the record to support the State's calculation of his offender score because the State's sentencing memorandum was not filed in superior court. However, after Lott filed his appeal brief, the State moved to supplement the superior court record under RAP 7.2(b), and the State's sentencing memorandum, as acknowledged by the sentencing court at the February 11 hearing, was filed in the superior court and appears in the record before this court.
Lott next contends that the State failed to present sufficient evidence to prove that the Indiana conviction was comparable to a Washington felony for purposes of calculating his offender score. To properly include out-of-state convictions in a defendant's offender score, RCW 9.94A.525(3) requires that out-of-state convictions be classified `according to the comparable offense definitions and sentences provided by Washington law.' The State must prove the existence and comparability of an out-of-state conviction by a preponderance of the evidence, and the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. If the elements are not identical, or if the Washington crime is more narrowly defined than that of the other state, the sentencing court may look at the indictment or information filed in the prior conviction to determine whether the underlying conduct satisfies the elements of a Washington offense. At the February 11 hearing, the court asked for Lott's response to the State's sentencing memorandum. Defense counsel stated that he had reviewed the memorandum but did not prepare a response. Defense counsel then stated, `I still think it's up to the Court to make a determination whether the State has met their burden of proof to prove the out-of-state conviction. . . . Whether it's the equivalent of a Washington felony. And whether, in fact, that conviction is for Mr. Lott.'
State v. Ross, 152 Wn.2d 220, 229-30, 95 P.3d 1225 (2004).
State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999); State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998).
Verbatim Report of Proceedings, 2/11/05 at 4.
The State produced certified copies of documents including an information, court docket, plea agreement, and booking and arrest records demonstrating that Lott was charged with first degree burglary in Indiana and then pleaded guilty to a lesser included charge. The State's sentencing memorandum includes the Indiana statute to which Lott pleaded as the former `Entering to commit a felony,' Ind. Code sec. 35-13-4-5 (Burns 1975), providing that `Whoever enters any dwelling house, or other place of human habitation, business house, outhouse, . . . or any other erection or inclosure, with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one [1] year nor more than ten [10] years. . . .' Acknowledging that the Indiana statute was broader than Washington burglary statutes, the State also quoted the information filed in the Indiana case stating that Lott did:
[f]eloniously and burglariously break and enter into the dwelling house of one Harry Hunter, a place of human habitation, there situate with intent then and there and thereby to unlawfully, feloniously and burglariously steal, take and carry away the goods of the said HARRY HUNTER.
Clerk's Papers at 77.
The State then argued that the Indiana conviction was comparable to second degree burglary as defined by RCW 9A.52.030. Both second degree burglary and residential burglary have two elements: (a) entering or remaining unlawfully in a building or dwelling other than a vehicle, and (b) intent to commit a crime against a person or property therein. The Indiana statute defining entering to commit a felony was broader in that it included entry into various places, such as an `inclosed ginseng garden' or a car, that would not be included in the Washington burglary statutes. But the information clarified that Lott was only charged with entering `the dwelling house of one Harry Hunter,' rather than some other place. Based on this record, we hold that the State presented sufficient evidence to allow the sentencing court to properly determine that Lott's Indiana conviction was comparable to a Washington felony.
On appeal, the State argues that residential burglary, RCW 9A.52.025, is also comparable.
State v. Brunson, 128 Wn.2d 98, 140-45, 905 P.2d 346 (1995); RCW 9A.52.025-.030.
Finally, Lott contends that the sentencing court violated his Sixth Amendment rights when it included the Indiana conviction in his offender score based on facts not pleaded to or found by a jury beyond a reasonable doubt. But the cases Lott cite to support his argument would not prevent the sentencing court from reviewing a foreign indictment or information to determine comparability. Because the conduct charged in the Indiana information would have violated a comparable Washington felony statute, the court did not violate Lott's constitutional rights by including the Indiana conviction in his offender score.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004).
State v. Ortega, 120 Wn. App. 165, 173, 84 P.3d 935 (2004) (`When a foreign criminal statute is broader than Washington's, the court may look at the defendant's conduct — evidenced by the indictment or information — to determine the comparable Washington statute'); Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (`a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented'); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005) (`sentencing court may look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute. However, `[w]hile it may be necessary to look into the record of a foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not have been sufficiently proven in the trial") (quoting State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167).
Affirmed.
BECKER, SCHINDLER and COLEMAN, JJ., concur.