Opinion
No. 59358-7-I.
March 31, 2008.
Appeal from a judgment of the Superior Court for King County, No. 01-1-10952-5, J. Wesley Saint Clair, J., entered December 21, 2006.
Affirmed by unpublished per curiam opinion.
While the State generally bears the burden of proving the existence and comparability of a defendant's out-of-state convictions, affirmative acknowledgement by a defendant that a prior conviction was properly included in his offender score satisfies the requirements of the Sentencing Reform Act of 1981 and due process. On remand from this court, Christopher Loy affirmatively agreed with the sentencing court that his offender score was a six and that number included his 2001 Nevada burglary conviction, effectively waiving any objection to its inclusion in his offender score. The trial court is affirmed.
FACTS
In 2003, Christopher Loy was convicted by a jury of one count of murder in the first degree and one count of felony murder in the second degree (for the death of the same individual). Loy's offender score was calculated as a seven and included several prior out-of-state convictions. At that time, Loy, acting pro se, neither objected nor affirmatively agreed with his offender score as calculated by the State and adopted by the sentencing court. Loy was sentenced to 450 month's imprisonment, the maximum sentence in the standard range for first degree murder with his offender score. Loy appealed, contending, inter alia, that his offender score improperly included prior out-of-state convictions that were not comparable to Washington offenses.
In an unpublished opinion, this court affirmed Loy's conviction for first degree murder but found the second degree felony murder count merged with that of first degree murder. Further, citing State v. Ford, this court remanded for an evidentiary hearing because there had been no comparability analysis of Loy's prior out-of-state convictions to determine whether they were properly included in his offender score.
State v. Loy, noted at 124 Wn. App. 1048, review denied, 155 Wn.2d 1003 (2005).
137 Wn.2d 472, 973 P.2d 452 (1999) (holding a defendant may object to the inclusion of an out-of-state conviction for the first time on appeal).
Loy, noted at 124 Wn. App. 1048, slip op. at 21-22.
On remand, Loy again proceeded pro se. At the evidentiary hearing, the State conceded that one of Loy's previously included foreign convictions, a Nevada conviction for attempted grand larceny, was not comparable to a Washington felony. Loy then agreed during colloquy that his offender score was a six. That score included his 2001 Nevada conviction for burglary. The State did not present any evidence that Loy's 2001 Nevada burglary conviction was comparable to the Washington offense.
Unlike during his trial and initial sentencing, Loy acquiesced to having standby counsel on remand.
Loy again appeals to this court, arguing the sentencing court improperly included his 2001 Nevada burglary conviction in calculating his offender score because the State did not meet its burden of proving comparability. Loy also appeals the trial court's denial of his motion for a new trial.
ANALYSIS
Under the Sentencing Reform Act of 1981 (SRA), a defendant's offender score establishes the range a sentencing court may use in determining a sentence. Regarding prior out-of-state convictions, RCW 9.94A.525(3) provides:
RCW 9.94A.712(3); RCW 9.94A.530.
Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.
The goal is to ensure that defendants with prior convictions are treated similarly, regardless of where the prior convictions occurred.
State v. Morley, 134 Wn.2d 588, 602, 952 P.2d 167 (1998).
The State bears the burden of proving both the existence and the comparability of an out-of-state conviction. A defendant may raise an objection to the inclusion of such a conviction for the first time on appeal. The Supreme Court has adopted a two-part test for determining whether an out-of-state conviction is comparable to a Washington crime which, with one exception, must rise to the level of a felony to be included in a defendant's offender score under the SRA. First, a sentencing court compares the legal elements of the out-of-state crime with the comparable Washington crime and, if comparable, the court counts the defendant's out-of-state conviction as an equivalent Washington conviction. If the elements of the out-of-state crime are different, then the court must examine the undisputed facts from the record in order to determine whether that conviction was for conduct that would satisfy the elements of the comparable Washington felony.
Ford, 137 Wn.2d at 480.
Ford, 137 Wn.2d at 477; see also State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999).
Where the current conviction is for a felony traffic offense, under the SRA, a sentencing court may include serious misdemeanor traffic offenses in the offender score. RCW 9.94A.525(11).
Morley, 134 Wn.2d 588; Ford, 137 Wn.2d 472.
Morley, 134 Wn.2d at 606.
The crime of burglary in Nevada is not legally comparable to burglary in Washington. The then applicable version of Nevada Revised Statute 205.060(1) (2001) provides:
A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, is guilty of burglary.
Since amended by Nevada Laws of 2005, ch. 126, § 1.
Whereas the Revised Code of Washington provides:
A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.
RCW 9A.52.030(1) (emphasis added).
Entering or remaining unlawfully is an essential element of burglary in Washington but not in Nevada and thus they are not legally comparable. Here, Loy pled guilty to the 2001 Nevada burglary, only admitting to the facts necessary to prove the statutory elements of the crime with which he was charged. It is unclear whether the conduct Loy admitted to in entering his plea for the 2001 Nevada burglary would have violated the comparable Washington statute.
State v. Thomas, 135 Wn. App. 474, 144 P.3d 1178 (2006).
In State v. Ross, the Supreme Court held that a defendant waives the right to object to the inclusion of a prior out-of-state conviction when the defendant affirmatively acknowledges that the conviction was properly included in their offender score. Further, a defendant's affirmative acknowledgment of the existence and comparability of out-of-state convictions renders further proof unnecessary. The State is thereby relieved of its burden of proving the existence and comparability of a defendant's out-of-state convictions. Such acknowledgement satisfies the requirements of the SRA and due process. For instance, in State v. Thomas, citing Ross, this court found a defendant waived any objection to inclusion of one of his out-of-state convictions in his offender score when he had previously acknowledged that particular prior conviction as properly included.
State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004).
Ross, 152 Wn.2d at 233.
Ross, 152 Wn.2d at 230.
Thomas, 135 Wn. App. at 488; accord In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
A waiver may be effective in circumstances where a defendant does not expressly acknowledge that a prior out-of-state conviction was properly included in his offender score. Mere failure by the defendant to object to the sentencing court's calculation of their offender score is not an effective waiver. In State v. Lucero, this court recently rejected Division Two's decision in State v. Jackson, finding that under the reasoning of Ross and in consideration of principles of judicial economy, a defendant who agreed with an offender score that necessarily included out-of-state convictions is barred from, or waives, challenging the comparability of those convictions. In Jackson, Division Two held that a defendant's agreement with the State's calculation of the appropriate sentencing range did not constitute affirmative acknowledgement, effectively waiving the right to challenge the comparability of any out-of-state convictions whose inclusion would have resulted in that sentencing range. Loy's 2001 Nevada burglary conviction is not legally comparable and the State failed to demonstrate that it was factually comparable based on the record of facts admitted to by Loy as part of his plea. But, because Loy expressly acknowledged his offender score was six and that number necessarily included the 2001 Nevada burglary conviction, he has waived any objection to its inclusion. Under Ross, no more is required.
Ford, 137 Wn.2d at 483.
140 Wn. App. 782, 167 P.3d 1188 (2007).
129 Wn. App. 95, 117 P.3d 1182 (2005), review denied, 156 Wn.2d 1029 (2006).
Lucero, 140 Wn. App. at 789-90.
Jackson, 129 Wn. App. at 95.
Ross, 152 Wn.2d at 230; accord Thomas, 135 Wn. App. at 487-88.
Loy also appeals, without argument, the trial court's order denying his motion for a new trial. It is clear, however, that Loy's motion raised no new issues not already raised during his first appeal.
For the above reasons, we affirm.