Opinion
No. 53214-6-I
Filed: August 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 01-1-00167-6. Judgment or order under review. Date filed: 10/01/2003. Judge signing: Hon. Ronald X Castleberry.
Counsel for Appellant/Cross-Respondent, Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gaylo Thiefault — Doc #933111 (Appearing Pro Se), Clallam Bay Corrections Center, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Gaylon Thiefault contests the life sentence he received under the Persistent Offender Accountability Act (POAA). After his conviction for attempted second degree rape, the sentencing court determined that Thiefault's prior Montana attempted robbery conviction and prior federal aggravated sexual assault conviction were comparable to Washington `strike' crimes and that the convictions counted as `strikes' for the purposes of the POAA. Thiefault's counsel did not object to the comparability analysis. Thiefault claims that his prior convictions were facially invalid because they did not indicate representation by and presence of counsel. Thiefault also claims that his attorney provided ineffective assistance because he waived objection to the court's finding that the prior convictions were comparable. We remand for correction of two scrivener's errors and affirm on all other claims.
FACTS
Gaylon Thiefault was convicted of indecent liberties with forcible compulsion and attempted second degree rape. At sentencing, the State noted that Thiefault had a prior Montana attempted robbery conviction and a prior federal aggravated sexual assault conviction. The State asked the court to compare those prior convictions with Washington crimes and find that they were `strikes.' The State asked that the court classify Thiefault as a persistent offender under both the two-strikes law and the three-strikes law, and sentence him to life imprisonment. Thiefault's counsel waived objection to this classification, stating that she did not believe the court had any discretion as to the sentence.
The sentencing court found that Thiefault's prior Montana conviction was comparable to the Washington offense of attempted second degree robbery. The court also found that the federal conviction was comparable to the Washington offense of second degree rape. The court found that Thiefault was a persistent offender under both the two-strikes law and the three-strikes law, and sentenced him to life in prison without the possibility of parole.
Thiefault appealed to this court on several grounds. State v. Thiefault, noted at 116 Wn. App. 1059, 2003 WL 21001019 (2003). He claimed that his convictions for indecent liberties and attempted second degree rape violated double jeopardy. Thiefault, 2003 WL 21001019 at *1. He also claimed that his federal conviction could not be counted under the two-strikes law. Thiefault, 2003 WL 21001019 at *4. We agreed with Thiefault on both counts, dismissed the indecent liberties conviction, and remanded for re-sentencing. Thiefault, 2003 WL 21001019 at *3-*4.
Thiefault also raised several other challenges that we rejected. Thiefault, 2003 WL 21001019 at *4.
At re-sentencing, Thiefault was represented by a different attorney, who waived objection to the comparability of the prior offenses because he understood the issue had already been determined. Instead, Thiefault's attorney contested the facial validity of the prior convictions. The court rejected this argument. The court incorporated its comparability findings from the prior sentencing hearing and found Thiefault to be a persistent offender. Thiefault was sentenced to life in prison with no possibility of parole under the three-strikes law. Thiefault appeals.
ANALYSIS I. Facial Validity of Thiefault's Prior Convictions
Thiefault asserts that the documentation offered to prove his prior two convictions indicates neither the presence of his attorney nor Thiefault's waiver of counsel. Thus, Thiefault claims, his prior convictions are facially invalid, and his life sentence under the Persistent Offender Accountability Act (POAA) must be reversed.
We note that an issue that could have been raised on a first appeal may not be raised on a second appeal. State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983). Thiefault has produced no evidence to suggest that he could not have raised this facial invalidity issue on his first appeal. However, considering the seriousness of the punishment Thiefault faces, we exercise our discretion to consider his facial invalidity claim.
The State does not have the burden to prove the constitutional validity of a prior conviction before it can be used in sentencing. State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986). But a prior conviction that is constitutionally invalid on its face may not be considered. Ammons, 105 Wn.2d at 187-88. `Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.' Ammons, 105 Wn.2d at 188. The conviction must affirmatively show that the defendant's rights were violated. State v. Gimarelli, 105 Wn. App. 370, 375, 20 P.3d 430 (2001).
Thiefault's Montana attempted robbery conviction is not constitutionally invalid on its face. The judgment from that conviction contains the following relevant passages:
The Defendant was arraigned on the 14th day of March, 1984. . . .
The Defendant was thereafter represented by Charles H. Recht and on the 14th day of March, 1984, entered a plea of guilty to the above criminal charge.
The Defendant appeared on the 5th day of April, 1984, and was asked if he had any legal cause to show why sentence and judgment of the Court should not be imposed at that time, and the Defendant replied in the negative.
The court then imposed its judgment and sentence. Thiefault argues that because the document does not state that defense counsel appeared at sentencing, only that Thiefault did, the conviction is facially invalid. However, the judgment states that Thiefault was `thereafter' represented by counsel. The implication of this statement is that counsel represented Thiefault at all of the following crucial points in the proceedings. Further, the document does not show on its face that constitutional safeguards were not provided. See State v. Bembry, 46 Wn. App. 288, 291, 730 P.2d 115 (1986).
Thiefault also asserts that the judgment finding a probation violation and revoking his suspended sentence was constitutionally invalid on its face. However, this judgment was not considered by the court in determining Thiefault's POAA status-only the attempted robbery conviction and the federal rape conviction were considered. Thus, the panel need not consider the parole violation.
Thiefault's federal conviction is also not constitutionally invalid on its face. His plea agreement specifically states that he is represented by his attorney, Michael Nance. The judgment lists Michael Nance as Thiefault's attorney. Although Thiefault concedes that the plea agreement shows he was represented, he argues that the judgment fails to show his counsel was present. However, the judgment does not indicate on its face that Thiefault's counsel was not present. Indeed, the fact that Michael Nance represented Thiefault for the plea agreement and that Nance's name is listed on the judgment indicates Nance was present at the crucial stages in the proceedings. Thiefault has not shown that his prior convictions were facially invalid.
To support his argument, Thiefault cites the cases of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), and State v. Marsh, 47 Wn. App. 291, 734 P.2d 545 (1987). Thiefault claims that these two cases establish that convictions that fail to show representation and presence of counsel are facially invalid.
Burgett is distinguishable. The State had introduced two versions of the same prior conviction. One stated that the defendant had appeared `in proper person and without Counsel,' and one stated that the defendant had appeared `in proper person.' Burgett, 389 U.S. at 112. The trial court excluded the first version of the conviction, but allowed the second version. Burgett, 389 U.S. at 112-13. The Court held: `the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible.' Burgett, 389 U.S. at 114-15. In Burgett, evidence affirmatively indicated that counsel had not been present; here, both the Montana and federal conviction documents imply that counsel was present, and there is no affirmative evidence to contradict this implication. Thus, Burgett is factually distinguishable.
Marsh is similarly distinguishable. The judgments and sentences offered to establish the defendant's prior convictions `indicated neither the presence of an attorney representing Marsh nor his waiver of counsel.' Marsh, 47 Wn. App. at 292. The court cited Burgett and found that, because the convictions did not reflect representation or waiver, they were deficient on their face. Marsh, 47 Wn. App. at 294. But the convictions at issue here do indicate that Thiefault was represented by counsel, as Thiefault's attorney was named on both judgments. Thus, Thiefault has not shown that his prior convictions are facially invalid.
II. Due Process Challenge
Thiefault argues that both the United States and Washington Constitutions require that the prosecution prove to a jury beyond a reasonable doubt that he is a persistent offender. Because he was found to be a persistent offender only by a preponderance of the evidence and through a judicial hearing, Thiefault claims his rights were violated. Specifically, Thiefault argues that both federal and Washington cases require that any fact that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt.
`Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes redeciding the same legal issues in a subsequent appeal.' Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988). Reconsideration of the identical legal issue will be granted where the prior holding is clearly erroneous and the application of the doctrine would create manifest injustice. Folsom, 111 Wn.2d at 264.
In our earlier unpublished opinion, we upheld Thiefault's double jeopardy challenge and his challenge to the use of his federal conviction for two-strike purposes. Thiefault, 2003 WL 21001019. But we rejected Thiefault's other challenges in a footnote, which stated in pertinent part:
[Thiefault] also argues that by finding him a persistent offender without proof beyond a reasonable doubt or trial by jury, the trial court violated the Fifth and Sixth Amendments to the United States Constitution. The Washington Supreme Court recently rejected this argument in State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001).
Thiefault, 2003 WL 21001019, at *4, n. 7. This holding was not clearly erroneous because Wheeler still controls. Further, Thiefault has not demonstrated that any manifest injustice will occur if we do not re-address his claim. Thus, the law of the case doctrine controls.
III. Single Subject Requirement
In his statement of additional grounds for review, Thiefault notes that the POAA was the product of Initiative 593. He claims that Initiative 593 violates the single subject requirement of article II, section 19 of the Washington Constitution, because a portion of the initiative relates to individuals who are not persistent offenders. Accordingly, Thiefault asserts, the initiative is void and his sentence, as a product of the initiative, is also void.
As noted above, an issue that could have been raised on a first appeal may not be raised on a second appeal. Sauve, 100 Wn.2d at 87. Thiefault has produced no evidence to suggest that he could not have raised the issue of constitutionality under the single subject rule on his first appeal. However, due to the seriousness of the punishment that Thiefault faces, we exercise our discretion to consider this claim.
Thiefault's argument is foreclosed by State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996). Like Thiefault, Thorne claimed that Initiative 593 violates article II, section 19 of the Washington Constitution `because it contains two distinct subjects: (1) provisions for life imprisonment for three-time `persistent offenders' convicted of most serious offenses, and (2) provisions making certain other offenders ineligible during mandatory minimum terms for any form of early release.' Thorne, 129 Wn.2d at 757. In response, the Court noted the principle that if the part of the initiative at issue is contained in the scope of the title of the initiative, then that part must stand. Thorne, 129 Wn.2d at 758. The Court noted the ballot title of Initiative 593: `Shall criminals who are convicted of `most serious offenses' on three occasions be sentenced to life in prison without parole?' Thorne, 129 Wn.2d at 757. Accordingly, the Court held that `[t]he ballot title to Initiative 593 contains only one subject, persistent offenders; hence, any provisions in the law which relate to that subject are valid under article II, section 19.' Thorne, 129 Wn.2d at 758. Since Thiefault is challenging the provisions of the initiative that relate to persistent offenders, under Thorne his challenge fails.
Thiefault claims that Initiative 593 is voided in its entirety by State v. Cloud, 95 Wn. App. 606, 976 P.2d 649 (1999). The Cloud court held that the provision of Initiative 593 that made certain offenders ineligible for early release violated article II, section 19 of the Washington Constitution because it was unrelated to the ballot title of the initiative. Cloud, 95 Wn. App. at 655-56. Thiefault claims that Initiative 593 must accordingly be stricken in its entirety, as it is possible that neither subject of the initiative would have had sufficient support standing alone.
The cases that Thiefault cites for this proposition, City of Burien v. Kiga, 144 Wn.2d 819, 31 P.3d 659 (2001), and Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P.3d 762, 27 P.3d 608 (2000), are distinguishable. The Kiga Court noted: `When an initiative embodies two unrelated subjects, it is impossible for the court to assess whether each subject would have received majority support if voted on separately. Consequently, the entire initiative must be voided.' Kiga, 144 Wn.2d at 825. Amalgamated Transit held similarly. Amalgamated Transit, 142 Wn.2d at 216. The case that both Kiga and Amalgamated Transit cited for this proposition is Power, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951). But Huntley limited its holding to circumstances where both the title and the body of the initiative contained two subjects stating: `When an act contains two unrelated subjects in the title and in the act, the whole act is void, as the court cannot choose between the two.' Huntley, 39 Wn.2d at 204. Both Kiga and Amalgamated Transit concerned initiatives that had general titles and several subjects. Kiga, 144 Wn.2d at 825-27; Amalgamated Transit, 142 Wn.2d at 216-17. In contrast to Kiga, Amalgamated Transit, and Huntley, Initiative 593's ballot title contains a single subject. We conclude that Kiga, Amalgamated Transit, and Huntley are not controlling here. Instead, the analysis used in Thorne and Cloud controls. Thiefault's argument fails.
IV. Unlawful Restraint
In his additional grounds for review, Thiefault claims that he is unlawfully restrained pursuant to RAP 16.4. Specifically, Thiefault asserts he is unlawfully restrained under RAP 16.4(c)(2) because his sentence violates article II, section 19 of the Washington Constitution. Thiefault also contends he is unlawfully restrained under RAP 16.4(c)(4) and RCW 10.73.100(6), as Cloud represents a significant change in the law. RAP 16.4 provides grounds for a petitioner to challenge his or her restraint, and states, in relevant part:
(c) The restraint must be unlawful for one or more of the following reasons:
. . .
(2) The conviction was obtained or the sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or
. . .
(4) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government, and sufficient reasons exist to require retroactive application of the changed legal standard. RCW 10.73.100(6) mirrors the language in RAP 16.4(c)(4), stating that the one year time limit for collateral attacks is not applicable when there has been a significant change in the law and either the legislature or a court has provided the change be retroactive.
As we hold that the POAA is not unconstitutional under the single subject rule, we accordingly find that Thiefault is not unlawfully restrained under RAP 16.4(c)(2).
For several reasons, we also find that Thiefault is not unlawfully restrained under RAP 16.4(c)(4) and RCW 10.73.100(6). The first reason is that Thorne controls this case; thus, Cloud does not represent a significant change in the law pursuant to RAP 16.4(c)(4). Further, Thiefault was sentenced in 2003 for a crime that occurred in 2001. Cloud was decided in 1999; thus, if Cloud was a significant change in the law, it would have been in existence at the time of Thiefault's sentencing. The case law indicates that RAP 16.4(c)(4) and RCW 10.73.100(6) are intended to apply to changes in the law that occur after the petitioner's conviction and/or sentence. Thus, Thiefault's claim fails.
See, e.g., In re Smith, 117 Wn. App. 846, 73 P.3d 386 (2003) (case representing a significant change in the law was decided after petitioner's conviction became final); In re Crabtree, 141 Wn.2d 577, 579, 9 P.3d 814 (2000) (intervening change in the law occurred after petitioner's personal restraint petitions had been rejected by the Court of Appeals but before the Supreme Court had granted review).
V. Ineffective Assistance of Counsel
Thiefault claims that his trial counsel at the second sentencing hearing was ineffective for not challenging the issue of the comparability of Thiefault's foreign offenses. Thiefault asserts that the elements of the Montana and federal statutes under which he was convicted are not the same as the elements of the Washington crimes. And, Thiefault argues, the record does not contain information, proved beyond a reasonable doubt, indicating that Thiefault's acts underlying the foreign convictions would count as strikes under the POAA. Thus, Thiefault claims, his trial counsel was deficient and Thiefault was prejudiced as a result.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that his or her lawyer's performance was so deficient that the lawyer was not functioning as `counsel' for Sixth Amendment purposes, and (2) that there is a reasonable probability that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
A. Comparability of Prior Offenses
We first determine whether Thiefault's counsel's waiver of a challenge to the comparability of the offenses likely prejudiced the proceedings. In order to do this, we must determine whether Thiefault's prior convictions are comparable to Washington offenses that count as `strikes.'
Convictions from other jurisdictions count as `most serious offenses' for the purposes of the POAA if they are comparable to Washington's `most serious offenses.' RCW 9.94A.030(28)(u). To determine if the foreign conviction is comparable, the court must first compare the elements of the foreign crime to the elements of the Washington crime. State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). If the foreign criminal statute is broader than the Washington statute, the court may look at the conduct underlying the crime, as evidenced in the indictment or information, to determine whether the conduct would have violated the Washington statute. State v. Mutch, 87 Wn. App. 433, 437, 942 P.2d 1018 (1997). A sentencing court may not consider facts about the underlying conduct that were not found by a trier of fact beyond a reasonable doubt. State v. Ortega, 120 Wn. App. 165, 174, 84 P.3d 935 (2004). The State may consider facts conceded by the defendant in his guilty plea. See State v. Bunting, 115 Wn. App. 135, 142-43, 61 P.3d 375 (2003).
1. Federal Conviction
Thiefault asserts that his federal conviction for aggravated sexual abuse is not comparable to second degree rape in Washington. He notes that second degree rape requires forcible sexual intercourse, while aggravated sexual abuse requires merely a forcible sexual act or an attempt to commit a forcible sexual act. The State concedes that the federal crime is broader, but contends that Thiefault's conduct would have constituted second degree rape in Washington.
The documents submitted to show Thiefault's federal conviction establish that he admitted to facts establishing conduct that would constitute second degree rape in Washington. The plea agreement states that Thiefault agreed to plead guilty to the indictment, which charges that `he knowingly caus[ed another] individual to engage in sexual intercourse with him through the use of force'. This conduct would violate Washington's law prohibiting second degree rape. RCW 9A.44.050(1)(a). Thus, Thiefault's challenge to the comparability of the federal crime fails. Accordingly, he cannot show that his counsel was ineffective with respect to the waiver of any objection to the comparability of the federal crime.
2. Montana Conviction
Thiefault claims that the crimes of attempted robbery in Montana and Washington have different elements. Specifically, he claims that the Montana definition of `attempt' is broader than the Washington definition. He also claims that, while Washington law requires a specific intent to steal, theft can be committed under a wider variety of circumstances under Montana law.
RCW 9A.28.020(1) provides that `[a] person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.' Montana law provides that `[a] person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act toward the commission of such offense.' MCA 45-4-103(1). Thiefault argues that a `substantial step' is narrower than `any act towards.'
An analysis of Montana case law interpreting its attempt statute reveals that Thiefault is incorrect. The Montana Supreme Court has interpreted its attempt statute as requiring an overt act that reaches `far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.' In addition . . . `there must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.'
State v. Ribera, 183 Mont. 1, 11, 597 P.2d 1164 (1979) (quoting State v. Rains, 53 Mont. 424, 164 P. 540 (1917)). If anything, this interpretation of Montana's attempt statute is narrower than Washington's requirement of a `substantial step,' which is defined as an act that is strongly corroborative of the actor's criminal purpose. See State v. Workman, 90 Wn.2d 443, 451, 584 P.2d 382 (1978). Further, Montana courts have held permissible `to convict' jury instructions for attempt that require the jury to find that the defendant took a material step towards the commission of the offense. See, e.g., State v. Russell, 307 Mont. 322, 327, 37 P.3d 678 (2001); State v. Martin, 305 Mont. 123, 127-28, 23 P.3d 216 (2001); State v. Johnstone, 244 Mont. 450, 457-59, 798 P.2d 978 (1990).
But the attempt statutes make up only part of the crimes charged. The elements of the attempt statutes must be read together with the elements of the robbery statutes. Washington defines robbery as follows:
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.190. Montana defines robbery as follows:
(1) A person commits the offense of robbery if in the course of committing a theft, the person:
(a) inflicts bodily injury upon another;
(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or
(c) commits or threatens immediately to commit any felony other than theft.
. . .
(3) `In the course of committing a theft', as used in this section, includes acts that occur in an attempt to commit or in the commission of theft or in flight after the attempt or commission.
MCA 45-5-401. Montana's statute is broader because injury or threat of injury to person or property is not required — a person can commit robbery by committing theft while committing or threatening to commit any felony other than theft. Bribery of an official is a felony in Montana, so an individual could be convicted of robbery if he obtained property of another by threatening to bribe a public official. MCA 45-2-101(22) and MCA 45-1-201(1) (defining `felony'); MCA 45-7-101 (bribery statute). But Washington's statute requires injury or threatened injury to a person or property; thus, threat of bribery would not turn a taking into a robbery in Washington. Thus, Montana's robbery statute is broader than Washington's. Thiefault points out that MCA 45-5-401(3) indicates that one can commit robbery in the attempt to commit a theft. Washington's robbery statute requires that the offender actually take property of another. Thus, because it includes an attempt provision, Montana's robbery statute is broader than Washington's robbery statute. However, Thiefault was charged with attempted robbery, not robbery, and his offense was compared to the Washington crime of attempted second degree robbery. Since attempt is an element in both of the crimes, this distinction is not dispositive in this case.
Thiefault also claims that the Montana robbery statute is broader because it requires the offender to be in the course of committing a theft, and the Montana theft statute can be violated with a lesser mens rea than the Washington robbery statute. Thiefault is correct. At the time of his Montana conviction, an individual in Montana could be convicted of theft if he or she purposely or knowingly obtained or exerted unauthorized control over public assistance. MCA 45-6-301(4). While the other ways of committing theft in the statute specifically require the purpose of depriving the owner, this way does not require intent to deprive. MCA 45-6-301(4). Thus, the Montana crime of robbery is broader than the Washington crime of robbery.
Because the elements of the Montana crime are broader than Washington's, we must determine whether Thiefault's underlying conduct nonetheless satisfied Washington's statute. If the foreign statute is broader or different, courts may look `at the defendant's conduct, as evidenced by the indictment or information, to determine whether the conduct would have violated the comparable Washington statute.' Morley, 134 Wn.2d at 606, (quoting Mutch, 87 Wn. App. at 437). The materials from Thiefault's Montana conviction are a Motion for Leave to File Information, an affidavit from the prosecutor, and the Judgment. Thiefault's conduct is described in the Motion for Leave to File Information and the affidavit. The Judgment does not contain any facts about Thiefault's underlying conduct. The Judgment states that a criminal Information was filed on December 22, 1983, charging Thiefault with attempted felony and a misdemeanor, that Thiefault received the Information, and that he pleaded guilty to the above criminal charges. But the Information is not included in the record — only the Motion for Leave to File Information. Thiefault pleaded guilty to the Information, not the Motion for Leave to File Information. Without a showing that the conduct was identical to the Information, he cannot be presumed to have conceded the facts contained in the Motion for Leave to File Information. Thus, on the facts before us, we cannot conclude that the crimes are comparable.
3. Prejudice to Thiefault
We next determine whether there is a reasonable probability that Thiefault was prejudiced by his counsel's concession that the Montana crime was comparable. Thiefault can establish prejudice if he shows that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). In order to meet his burden, Thiefault must provide some evidence to suggest that, if the correct charging documents were obtained, there is a reasonable probability that the underlying facts he pleaded guilty to would not satisfy the equivalent Washington crime. Thiefault has not done this. The Motion for Leave to File Information accused Thiefault of trying to steal cash from a store while armed with a gun and threatening a store employee. This conduct would fit under a Washington charge of attempted robbery because Thiefault took a substantial step towards using threat of force to take personal property of another. Thiefault has not shown that, if his counsel had argued that the elements of the crimes were not comparable and that the sentencing court was not entitled to rely on the Motion for Leave to File Information and the Judgment, the court likely would not have given the State the opportunity to procure the Information or any other appropriate materials. Thus, Thiefault has not shown prejudice. As Thiefault has not prevailed on the prejudice prong, he cannot prevail on his claim of ineffective assistance. We need not address whether his attorney's performance was deficient.
VII. Review of the Sentencing Court's Comparability Analysis
Thiefault claims in the alternative that, if his counsel was not ineffective, then his counsel's waiver of a challenge to the comparability does not preclude this court from reviewing the sentencing court's comparability analysis. Thiefault claims that the sentencing court's comparability analysis was in error and he was improperly classified under the POAA.
Thiefault is incorrect. `[A] defendant who stipulates that his out-of-state conviction is equivalent to a Washington offense has waived a later challenge to the use of that conviction in calculating his offender score.' State v. Hickman, 116 Wn. App. 902, 907, 68 P.3d 1156 (2003). This argument also precludes a defendant from later challenging the use of the conviction to determine his POAA status. Thus, as Thiefault's counsel was not ineffective by waiving a challenge to the comparability of the prior convictions, Thiefault may not challenge on appeal the POAA determination and the sentence based on those convictions.
Thiefault acknowledges the case law applying the principle from Hickman. However, he claims those cases are distinguishable because the sentencing court accepted the defendant's stipulation and did not engage in a comparability analysis, whereas here, the court conducted a comparability analysis despite Thiefault's stipulation. Even if we were to accept this distinction as accurate, Thiefault has provided no reason why a comparability analysis prevents application of the Hickman rule.
At the 2003 hearing, the sentencing court incorporated its prior comparability analysis by reference; thus, it is likely inaccurate to say that the court conducted a de novo comparability analysis.
VIII. Scrivener's Errors
Thiefault has identified two scrivener's errors in the judgment and sentence: the Montana offense is referred to as armed robbery instead of attempted robbery, and the sentencing date of the federal offense is incorrect. Thiefault notes that, while there is no prejudice, the errors require remand for correction. The State concedes the errors and notes that the Judgment and Sentence may be returned to the superior court for correction. The State separately requests that we grant the superior court the authority to correct the errors under RAP 7.2(b) and (e) and RAP 9.10. We direct that the errors be corrected. See State v. Moten, 95 Wn. App. 927, 928-29, 976 P.2d 1286 (1999).
We remand for correction of the scrivener's error, and affirm on all other claims.
BECKER and COX, JJ., Concur.