Opinion
Nos. 30693-0-II (consolidated with), 30713-8-II
Filed: November 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-04651-9. Judgment or order under review. Date filed: 07/17/2003. Judge signing: Hon. R. Worswick Lisa.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
The trial court sentenced Steven Michael Vlahos for second degree identity theft, first degree possession of stolen property and unlawful possession of a controlled substance. The court used an offender score of 13, based on current offenses and prior out-of-state convictions. Vlahos now challenges the calculation of his offender score. Because the State failed to provide the relevant out-of-state statutes, and with one exception, did not identify comparable Washington statutes, we reverse and remand for resentencing.
FACTS
On July 17, 2003, the trial court sentenced Steven Michael Vlahos for second degree identity theft, first degree possession of stolen property and unlawful possession of a controlled substance (UPCS). In addition to the current offenses, Vlahos had 14 out-of-state convictions in California and Massachusetts for six counts of forgery, two counts of uttering a false document, two counts of armed robbery, two counts of assault with a deadly weapon, and two counts of unlawful possession of a controlled substance.
The trial court concluded that some of the out-of-state convictions constituted same criminal conduct for sentencing purposes. Consequently, it counted six of the out-of-state convictions as three points in Vlahos' offender score, which resulted in an offender score of 13.
The trial court considered whether the out-of-state crimes were comparable to Washington felonies. The State provided the trial court with an extensive record of Vlahos' prior out-of-state convictions. Documentation included criminal complaints, informations, and judgments. The relevant out-of-state statute was referenced in these documents for each crime, but the State did not provide the trial court with the specific out-of-state statutes or propose a comparable Washington crime for any of the offenses.
In concluding that the out-of-state convictions were felonies, the court only commented, 'I think they clearly are. You've made your record.' Report of Proceedings (July 17, 2003) at 19.
The court sentenced Vlahos to 29 months for UPCS, 50 months for second degree identity theft, and 50 months for first degree possession of stolen property. These sentences were to run concurrently.
ANALYSIS
Vlahos challenges the inclusion of all 14 out-of-state convictions in the trial court's calculation of his offender score. He argues that the State did not meet its burden to establish that the out-of-state offenses were comparable to Washington felony offenses.
This court reviews the trial court's offender score calculation de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). In order for a trial court to use an out-of-state conviction in calculating a defendant's offender score, the out-of-state conviction must be classified as a comparable felony under Washington law. Former RCW 9.94A.525(3) (2000); State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994).
Recodified as RCW 9.94A.545(3) (2001).
The court engages in a three step analysis to determine whether an out-of-state conviction is comparable to a Washington felony. State v. Russell, 104 Wn. App. 422, 440, 16 P.3d 664 (2001). First, it converts the out-of-state crime into its equivalent under Washington law. Russell, 104 Wn. App. at 440. It then determines the relevant sentencing consequences of the Washington crime. Russell, 104 Wn. App. at 440. 'The third step is to assign those same sentencing consequences to the out-of-state conviction, thus 'treat [ing] a person convicted outside the state as if he or she had been convicted in Washington.'' Russell, 104 Wn. App. at 440 (quoting State v. Berry, 141 Wn.2d 121, 131, 5 P.3d. 658 (2000)). Vlahos challenges only the first step here.
The first step requires the trial court to compare the elements of the out-of-state crime with the elements of the proposed Washington counterpart. This comparison must indicate that each of the elements of the Washington crime was an element of the out-of-state crime, and was found to exist by the out-of-state court. Russell, 104 Wn. App. at 441.
The ultimate burden of providing a record establishing the existence and classification of out-of-state convictions is on the State. State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). 'The best evidence of a prior conviction is a certified copy of the judgment,' but other comparable documents are also helpful. Ford, 137 Wn.2d at 480. 'Absent a sufficient record, the sentencing court is without the necessary evidence to reach a proper decision.' Ford, 137 Wn.2d at 480-81. And 'classification is a mandatory step in the sentencing process under the SRA.' Ford, 137 Wn.2d at 483 (citing former RCW 9.94A.360(3)).
The State provided the trial court with either the charging documents or judgments for most of the out-of-state crimes. It did not provide any of the relevant out-of-state statutes, although the documents of record referenced the relevant statutes.
With one exception, the State did not identify any comparable Washington statutes. The State simply said that the out-of-state offenses 'clearly demonstrate that they equate to felonies in the State of Washington.' Clerk's Papers (CP) at 74. And the court agreed without engaging in analysis on the record.
The State alleged that the Massachusetts crime of Assault by Dangerous Weapon 'clearly equates to the charge of Assault in the Second Degree.' CP at 75.
In Ford, the State did not provide the sentencing court with documents of record or statutes for the out-of-state offenses. 137 Wn.2d at 475. It also did not provide comparable Washington statutes. Ford, 137 Wn.2d at 476. Because of these omissions, the 'evidence [was] insufficient to support the conclusion that the disputed convictions would be classified as felonies under Washington law.' Ford, 137 Wn.2d at 485.
Although the State provided some documentation showing that Vlahos committed various crimes in California and Massachusetts, it did not create a record that adequately classified and compared these offenses under Washington law. See State v. Berry, 141 Wn.2d 121, 131, 5 P.3d 658 (2000) ('If comparable offenses are found, the court decides which is the most comparable offense and determines its classification under Washington law.'). Thus, as in Ford, the record here was insufficient for the trial court to classify each out-of-state offense as a felony under Washington law by a preponderance of the evidence.
In Ford, the court remanded for resentencing, allowing the State to remedy defects in its record to establish the proper classification of the out-of-state convictions. 137 Wn.2d at 485; cf. State v. Cameron, 80 Wn. App. 374, 378, 909 P.2d 309 (1996) (reviewing court compared the offenses). This result is also proper here.
On appeal, the State provided relevant law for each out-of-state offense and the statutes it now asserts are for the comparable Washington offenses. But it also needs to provide the definitional law so that the trial court can properly compare the out-of-state convictions with Washington crimes.
We refer the parties to Mass. Gen. Laws Ann. Ch. 277, sec. 39: Construction of Words Used in Indictment; Commonwealth v. Turner, 59 Mass. App. Ct. 825, 828, 798 N.E.2d 315 (2003); Commonwealth v. Farrell, 322 Mass. 606, 615, 78 N.E.2d 697 (1948).
We reverse and remand for resentencing in order to allow the trial court to properly compare the out-of-state convictions with the Washington offenses and determine the correct offender score.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J. and ARMSTRONG, J., Concur.