Opinion
No. 59358-7-I.
September 8, 2009.
Appeal from the Superior Court, King County, No. 01-1-10952-5, J. Wesley Saint Clair, J., entered December 21, 2006.
Affirmed in part and remanded by unpublished opinion per Grosse, J., concurred in by Appel-wick and Leach, JJ.
A defendant's agreement with his offender score does not constitute affirmative acknowledgement that a prior conviction was properly included in his offender score. This is particularly true here where the defendant objected both below and on appeal to the inclusion of his 2001 Nevada burglary conviction. The fact that he agreed his offender score was a six, and that number necessarily included his 2001 Nevada burglary conviction, did not constitute a waiver to the inclusion of that out-of-state crime. It was error to include the Nevada conviction without first determining that it was comparable to a Washington crime.
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 to nor affirmatively agreed with his offender score as calculated by the State and adopted by the sentencing court. Loy was sentenced to 450 months' imprisonment, the maximum standard range sentence 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In an unpublished opinion, this court affirmed Loy's conviction for first degree murder but found the second degree felony murder count merged with that of first degree murder.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 other 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 appealed 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. This court affirmed the trial court's ruling. The Supreme Court granted Loy's petition for review and remanded his case to this court for reconsideration in light of State v. Mendoza.
165 Wn.2d 913, 205 P.3d 113 (2009).
ANALYSIS
Loy contends the trial court miscalculated his offender score. He argues the State failed to prove the comparability of his prior conviction for burglary in Nevada.
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.
State v. Thomas, 135 Wn. App. 474, 144 P.3d 1178 (2006).
Here, Loy pleaded 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. But the State concedes in its brief that if the comparability issue were reviewed by this court on appeal, Loy's Nevada burglary conviction would not count.
The remaining question before us then, is whether Loy's acknowledgement of his offender score waves his objection to the inclusion of the Nevada conviction. 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 his or her offender score. Further, a defendant's affirmative acknowledgment of the existence and comparability of out-of-state convictions renders further proof unnecessary.
152 Wn.2d 220, 95 P.3d 1225 (2004).
Ross, 152 Wn.2d at 233.
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. However, mere failure by the defendant to object to the sentencing court's calculation of his offender score is not an effective waiver. In State v. Mendoza, the Supreme Court "emphasized the need for an affirmative acknowledgment by the defendant of facts and information introduced for the purposes of sentencing."
165 Wn.2d at 928 (alternation in original) (citing Ford, 137 Wn.2d at 482-83, 973 P.2d 452); Ross, 152 Wn.2d at 233.
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. As noted in Mendoza, "[w]hen a defendant raises a specific objection at sentencing and the State fails to respond with evidence of the defendant's prior convictions, then the State is held to the record as it existed at the sentencing hearing."
Mendoza, 165 Wn.2d at 930.
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.
We affirm the conviction, but remand for resentencing without inclusion of the 2001 Nevada burglary conviction.
WE CONCUR: