Opinion
No. 64163-8-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04938-8, Michael Hayden, J., entered August 17, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Appelwick, JJ.
Renwick Randun appeals his sentence for first degree theft and first degree possession of stolen property, arguing that the sentencing court erred by including his prior Florida conviction for "grand theft 3" absent sufficient proof of its factual comparability. He also argues that his counsel was ineffective for failing to object to the inclusion of the Florida offense. Because Randun affirmatively acknowledged the accuracy of his offender score and that inclusion of the Florida offense was proper, we hold that he has waived any challenge to his offender score. He has further failed to demonstrate either deficient performance or prejudice. We affirm.
FACTS
Randun entered an Alford plea to charges of first degree theft and first degree possession of stolen property. The State calculated Randun's offender score on both the theft and stolen property offenses as a "2" because it included a point for a Florida offense, "grand theft 3." Report of Proceedings (RP) (Aug. 7, 2009) at 7-8; RP (Aug. 14, 2009) at 9-10.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The State also charged Randun with forgery but agreed to dismiss that charge as part of the plea agreement.
During the plea colloquy, the State informed Randun of his offender score and the standard range associated with that score. Randun signed a felony plea agreement form, which stated,
The defendant agrees to this Plea Agreement and that the attached sentencing guidelines scoring form(s) (Appendix A), offender score, and the attached Prosecutor's Understanding of Defendant's Criminal History (Appendix B) are accurate and complete and that the defendant was represented by counsel or waived counsel at the time of the prior conviction(s).
That form includes a section for a defendant to dispute prior convictions used in calculating his or her offender score and included in the prosecutor's understanding of defendant's criminal history. Randun did not dispute the inclusion of the Florida conviction. The State also informed Randun that his offender score included a prior out-of-state conviction and that "unless you have attached a defendant statement, you are agreeing that the prosecuting attorney's statement is correct and complete." RP (Aug. 7, 2009) at 7-8.
Specifically, the form states, "The defendant disputes the Prosecutor's Statement of the Defendant's Criminal History, as follows:" The form contains sections for the defendant to indicate which conviction he is challenging and on what basis.
[THE STATE]: All right. Looking now to paragraph number 6. For both counts 1 and 2 the standard ranges for these offenses is 3 to 9 months and the maximum penalties associated for both counts are 10 years and $20,000; do you understand that?
MR. RANDUN: Yes, I do.
[THE STATE]: Turning now to page number 3. That standard range has been calculated, not only in the crime charged, but also your criminal history. The prosecuting attorney's statement of your criminal history has been included with this agreement and, unless you have attached a defendant statement, you are agreeing that the prosecuting attorney's statement is correct and complete; do you understand that?
The official record of proceedings incorrectly attributes this paragraph to defense counsel. It is clear from the context, however, that it is properly attributed to the State.
MR. RANDUN: You said that, if I understand correctly, that my criminal history in other states is all included to what I'm being charged. I've never been charged in Washington state with a crime.
[THE STATE]: Certainly some of that history does count. Do you need a minute to speak with your attorney?
MR. RANDUN: Okay. So you're saying it means everything all included? Yes, I understand. I think you're saying it's all included; do I understand you correctly?
[THE STATE]: It gets a little complicated because not everything would be included. But there is criminal history from another state that the State believes would count as a point in your offender.
MR. RANDUN: What state is that, ma'am?
[THE STATE]: How about I give you a minute to speak with your attorney.
MR. RANDUN: Okay.
I do understand.
The State asserts, and Randun does not dispute, that he spoke briefly with his attorney before stating, "Okay, I do understand." RP (Aug. 7, 2009) at 7-8; Br. of Respondent at 3.
[THE STATE]: Thank you, Mr. Randun.
RP (Aug. 7, 2009) at 7-8.
At sentencing, Randun's counsel agreed to the offender score and the standard range associated with that score.
[THE COURT]: You agree that the offender score is correct at 2 and that he has a range of 3 to 9?
[DEFENSE COUNSEL]: Yes.
RP (Aug. 14, 2009) at 5.
Randun's counsel also specifically noted that the Florida conviction counted. He informed the court that the criminal history appendix to the judgment and sentence mistakenly included a Texas misdemeanor conviction when it should have included the Florida "grand theft 3" conviction instead.
[DEFENSE COUNSEL]: Your Honor, there's one concern I have with judgment and sentence. I think we can fix it pretty quickly.
I was noticing that in the Appendix B, where it states criminal history the offense that is listed here is not the count — the prior that we had agreed counts. There is a conviction out of Florida that we had agreed counted, but we — State's counsel and I, when we were negotiating this matter, agreed that this particular case here did not count.
[THE COURT]: But there's a different one that does?
[DEFENSE COUNSEL]: Correct. Now normally I would say no problem. My only concern is sometimes people get lazy and don't do the math every time and I don't want this to be considered.
[THE STATE]: Which one is it?
[DEFENSE COUNSEL]: This one here —
[THE STATE]: Is a misdemeanor.
[DEFENSE COUNSEL]: — properly counts. This one does not. It's not a misdemeanor.
[THE COURT]: You may make that alteration in the J and S attachment.
[DEFENSE COUNSEL]: It doesn't affect the range or anything but.
RP (Aug. 14, 2009) at 9-10 (emphasis added).
The judgment and sentence appendix for criminal history contains a 1998 conviction for "aggravated assault-public servant" in Texas, which is crossed out and the Florida "grand theft 3" charge is written in.
The court sentenced Randun to nine months on each count to run concurrently — the high range of the standard range. RP (Aug. 14, 2009) at 5. This appeal followed.
ANALYSIS
Randun first argues that "the Superior Court erred in calculating [his] offender scored when it included a Florida Conviction for Grand Theft Third Degree." Br. of Appellant at 3.
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. RCW 9.94A.712(3); RCW 9.94A.530. Regarding prior out-of-state convictions, RCW 9.94A.525(3) provides,
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.State v. Ford, 137 Wn.2d 472, 480 973 P.2d 452 (1999). A defendant may raise an objection to the inclusion of such a conviction for the first time on appeal. Ford, 137 Wn.2d at 477; see also State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999). Our 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. Morley, 134 Wn.2d 588; Ford, 137 Wn.2d 472. 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. Morley, 134 Wn.2d at 606.
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).
In State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004), our 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. Ross, 152 Wn.2d at 233. 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. Ross, 152 Wn.2d at 230. But "[t]he mere failure to object to a prosecutor's assertions of criminal history does not constitute such an acknowledgment." State v. Mendoza, 165 Wn.2d 913, 928, 205 P.3d 113 (2009); see also State v. Lucero, 168 Wn.2d 785, 788, 230 P.3d 165 (2010).
For instance, in State v. Thomas, 135 Wn. App. 474, 144 P.3d 1178 (2006), citing Ross, we 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. Thomas, 135 Wn. App. 488.
Here, Randun expressly acknowledged both his offender score and the inclusion of the Florida conviction. First, Randun did not offer a defendant's statement of criminal history disputing the State's criminal history. Randun was informed that "unless you have attached a defendant statement, you are agreeing that the prosecuting attorney's statement is correct and complete." RP (Aug. 7, 2009) at 7-8. And in response to the prosecutor's question as to whether he understood that the standard range sentence was calculated using his out-of-state conviction and after conferring with his attorney, Randun stated, "I do understand." RP (Aug. 7, 2009) at 8. Randun's counsel expressly agreed that the offender score was 2 and the standard range was 3 to 9. Moreover, counsel informed the court that the judgment and sentence should be altered to include the Florida conviction instead of a misdemeanor Texas conviction. RP (Aug. 14, 2009) at 9-10. Based on this record, we hold Randun affirmatively acknowledged his offender score and the inclusion of the Florida conviction. Accordingly, he has waived any objection to its inclusion.
Ineffective Assistance of Counsel
Relying on State v. Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007), Randun contends that his trial counsel was "ineffective for allowing the Florida offense to be included in [his] offender score absent proof of comparability." Br. of Appellant at 9-10. To prevail on a claim of ineffective assistance, Randun must establish that his counsel's representation was deficient and that it resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." State v. Hendrickson, 129 Wn.2d 61, 778, 917 P.2d 563 (1996).
In Thiefault, defense counsel failed to object to the sentencing court's erroneous determination that the defendant's Montana conviction was legally comparable. Our Supreme Court determined that defense counsel's failure to object was deficient performance and that the deficient performance was prejudicial under the circumstances because the record contained insufficient documentation to establish whether the conviction was factually comparable. The court then remanded the case for a determination of factual comparability. Thiefault, 160 Wn.2d at 416-17. But unlike Thiefault, the sentencing court in this case did not undertake a comparability analysis because defense counsel expressly acknowledged the accuracy of the State's calculation. Moreover, the State asserts and Randun does not contest, that he received certified copies of records related to the Florida conviction and his defense counsel reviewed them prior to entry of Randun's guilty plea when he did not contest that the conviction should be counted in his offender score. Br. of Respondent at 6, 11. And at sentencing, defense counsel specifically and affirmatively informed the court that the Florida conviction should be included in calculating Randun's offender score.
Although the certified materials were not filed with the trial court, Randun does not contest that he received them or that his trial counsel reviewed them.
Even if, as Randun claims, the Florida conviction was not comparable, nothing in the record supports an inference that defense counsel's agreement with the accuracy of the State's calculation of the offender score was based on an erroneous or inadequate review of the Florida conviction. And unlikeThiefault, Randun fails to establish the crimes are not factually comparable, so he cannot demonstrate deficient performance or that his sentence would have been any different if his counsel had objected to including his Florida conviction. Consequently, unlike in Thiefault, Randun has failed to make any showing that would overcome the strong presumption that defense counsel's representation was effective and competent. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). We affirm.
WE CONCUR: