Opinion
No. 58919-9-I.
September 10, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04679-6, Nicole MacInnes, J., entered September 18, 2006.
Affirmed by unpublished per curiam opinion.
Robert Penick challenges his judgment and sentence for robbery in the second degree, on grounds the State did not prove a prior out-of-state conviction that was included in his offender score. But the State's evidence was sufficient, and Penick made no objection to it. Penick makes other arguments in a pro se statement of additional grounds for review, but none of those entitle him to relief. We affirm his judgment and sentence.
BACKGROUND
On May 13, 2006, after noticing that the security guard at an Uwajimaya store was outside the store smoking a cigarette, Penick decided to steal a couple of rotisserie chickens from the store. An employee told Penick to stop, but Penick ignored him.
The security guard recognized Penick because Penick had stolen from the store in the past. When the guard tried to detain him, Penick hit the guard with the chickens. Police arrested Penick.
Penick was charged with one count of robbery in the second degree. A jury found him guilty as charged.
Penick asserted in his sentencing memorandum that his offender score was zero. The State contended that his offender score was two, based upon a Florida robbery conviction. At the sentencing hearing, defense counsel said Penick "denied that the Florida conviction for robbery was his. He has maintained that it's a misdemeanor." Report of Proceedings (RP) (Sept. 15, 2006) at 3.
To prove the existence of the Florida conviction, the State submitted an information, a criminal docket sheet, and an "Order Withholding Adjudication of Guilt and Placing Defendant on Probation," received from the clerk of the Leon County (Florida) circuit court. The documents show that Penick was charged with armed robbery in May 1984, pleaded nolo contendere in May 1985 to "strongarm robbery," a felony, and was placed on probation for two years. Clerk's Papers at 65.
A deferred prosecution is treated as a conviction for purposes of a defendant's offender score. State v. Partida, 51 Wn. App. 760, 762, 756 P.2d 743 (1988); State v. Harper, 50 Wn. App. 578, 580, 749 P.2d 722 (1988).
Defense counsel said he had seen a copy of the judgment and sentence from Florida and had advised Penick that the State would have to prove that the Florida felony had not "washed out." Counsel said he told Penick a continuance would be necessary, which Penick did not want:
I have suggested to Mr. Penick that the State would still have to prove up the misdemeanor convictions out of California for this case not to wash. I have suggested to him that if he wants that to happen, we would need to continue sentencing. He said that he wishes to proceed to sentencing today. So I don't know whether I'm in the position that these documents satisfy me. However, I don't know that the documents satisfy Mr. Penick.
RP (Sept. 15, 2006) at 4. Counsel acknowledged that if the court found the Florida conviction to be "valid, comparable, and that it applies," the standard range sentence would be 12 months and one day to 14 months. Id. at 5.
The court asked Penick if he wanted to say anything before the court imposed sentence. Penick said only that he did not believe he had ever been convicted of a felony. The court, however, found that the documents otherwise:
I will find based on the documents . . . that there is a previous felony conviction for robbery in the first degree . . . based on the paperwork, at least facially, and there has been no challenge offered by the defense, other than a representation by [defense counsel] that Mr. Penick doesn't agree that he has it, which isn't a threshold challenge.
Id. at 6-7. The court ordered Penick to serve a 13-month term.
Penick argues the State failed to prove both the existence and the comparability of the alleged prior conviction for robbery in Florida and that, if the prior conviction did exist and was comparable, the State failed to prove it did not wash out. In a separate pro se statement, Penick asserts three additional grounds for review: (1) ineffective assistance of counsel; (2) insufficiency of the evidence; and (3) prosecutorial misconduct.
The court apparently allowed Penick to remain free pending appeal.
Under the Sentencing Reform Act of 1981, chapter 9.94 RCW, sentence ranges are based upon the seriousness of the offense and the defendant's criminal history as reflected in the offender score. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). The offender score is calculated by adding the defendant's prior felony convictions and certain juvenile offenses, but usually does not include misdemeanors. Id. The State must prove the defendant's criminal history by a preponderance of the evidence. Id. The court must specify the convictions it has found to exist, RCW 9.94A.500(1), and may rely only on information "admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports." RCW 9.94A.530(2).
RCW 9.94A.537 relates to sentences above the standard range.
Class B prior felony convictions, other than sex offenses, are not included in the score if the offender has spent 10 consecutive years in the community without committing any crime that subsequently resulted in a conviction. Former RCW 9.94A.525(2) (2006) (effective until July 1, 2007). Out-of-state convictions must "be classified according to the comparable offense definitions and sentences provided by Washington law," which means that the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. Former RCW 9.94A.525(3); State v. Morley, 134 Wn.2d 588, 606, 952, P.2d 167 (1998). If the elements of the out-of-state crime and the Washington crime are not identical, or if the offense is defined more narrowly in Washington, the court may scrutinize the record of the out-of-state conviction, including the indictment or information, to determine whether the defendant's conduct would have violated a comparable Washington criminal statute. Id.
If a statute cited in this opinion was amended after Penick was convicted, we cite the version in effect when he was convicted unless noted otherwise.
We review a challenge to the classification of an out-of-state conviction de novo. State v. McCorkle, 88 Wn. App. 485, 493, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999). If the defendant did not object to the calculation of his offender score and the State failed to prove comparability, we remand to allow the State to prove the proper classification of the disputed convictions. Ford, 137 Wn.2d at 485. If, however, the defendant objected to the calculation and the State did not provide evidence to prove the comparability of the out-of-state conviction, the State is held to the existing record on remand and the defendant must be sentenced without including the out-of-state conviction. Id.
Applying these rules to the record here, Penick did not make a specific objection to the inclusion of the Florida conviction in his offender score. Defense counsel's statement that Penick did not believe he was convicted of a felony in Florida does not constitute an objection. Defense counsel told the court that Penick believed his Florida conviction was for a misdemeanor, without voicing an objection to the State's evidence showing that Penick was convicted of "strongarm robbery" and without arguing that the evidence was insufficient. This amounted to an acknowledgement that the Florida conviction was Penick's and was comparable to a Washington felony. See RCW 9.94A.530(2) ("Acknowledgement includes not objecting to information stated in the presentence reports.")
Furthermore, the record shows that Penick's Florida conviction was comparable to robbery in Washington. Penick pleaded guilty under former Florida Statute § 812.13(2)(c) (1975), which provided: "If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree." Under the version of the statute in effect when Penick was convicted, robbery was defined as "the taking of money or other property which may be the subject of larceny from the person or custody of another . . . [by] the use of force, violence, assault, or putting in fear." Former Fla. Stat. § 812.13(1).
Penick asserts that there is no evidence in the record of a prior conviction from Florida, but after he submitted his brief, the Florida documents were made a part of the record.
A person commits robbery in Washington
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. In Washington, unless a person uses or displays a weapon when committing a robbery, the crime constitutes robbery in the second degree, a class B felony.
Penick argues the Florida statute is broader than the Washington statute, because a defendant is guilty in Washington if he commits a robbery by taking property by the threatened use of immediate force, whereas in Florida, a person commits robbery if he uses or threatens to use force "subsequent to the taking."
Penick quotes the current version of the Florida statute. When Penick was convicted, however, the Florida statute defined robbery simply as a taking by the use of force, violence, assault, or putting in fear. Therefore, the Florida statute did not define robbery more broadly than it is defined in Washington.
Even under Florida's current statute, Penick's argument would fail because the distinction he makes is unsupported. Although the current Florida statute allows the force or threat to occur subsequent to the taking, the force or threat and the taking must be part of a continuous series of acts or events.
Additionally, it is apparent from the Florida charging document that Penick's conduct would have constituted a crime in Washington. The information alleged that Penick committed first degree robbery when he
did unlawfully take United States currency, food, beverages, and [a] bag from the person or custody of BRYAN EILER, by force, violence, assault, or putting in fear, and in the course of committing the robbery carried a weapon, a pellet gun, contrary to Section 812.13(2)(b), Florida Statutes.
Clerk's Papers at 67.
Penick pleaded guilty to second degree robbery, which is a robbery committed without a weapon. He was therefore convicted of taking property by the use of force, violence, or fear. Penick's Florida conviction was comparable to a robbery in Washington.
Penick argues that even if the State proved his Florida conviction was comparable to a Washington crime, it was error to include it in his offender score because the State failed to prove that he had not spent 10 consecutive years in the community without committing a crime that resulted in a conviction. Former RCW 9.94A.525(2).
The State alleged Penick committed misdemeanors that prevented the Florida conviction from washing out. Defense counsel told the court he had advised Penick that proving the intervening misdemeanors would mean that the sentencing hearing would have to be continued. But Penick wanted to proceed immediately to sentencing and did not argue that the Florida conviction had washed out.
Nothing in the record explains why proving the misdemeanors would have necessitated a continuance.
When imposing a sentence, the court may rely on information acknowledged at the sentencing hearing, and failure to object to information in the prosecutor's presentence report constitutes an acknowledgment. RCW 9.94A.530(2). By choosing to proceed without objection, Penick acknowledged the existence of the misdemeanors the State had alleged. The State therefore established that the Florida conviction had not washed out. The trial court did not err by including the out-of-state conviction in Penick's offender score.
State v. Weaver, No. 57691-7, slip op. at 7-9 (Wash.Ct.App. Aug. 27, 2007).
We now address the arguments set forth in Penick's statement of additional grounds for review. Penick first argues that his counsel was ineffective because he: (1) was not present at the omnibus or sentencing hearings, despite Penick's right to have the lawyer who initially was appointed to represent him continue throughout the proceedings; (2) did not ensure that Penick was in court at every stage of the proceedings; (3) did not require a hearing to determine whether a statement by the defendant was admissible; and (4) said in defendant's trial memorandum that Penick had entered a general denial, but that he likely would testify to say that the force used was to protect himself.
The record contains evidence that refutes some of Penick's assertions. But even if they were true, and showed counsel's representation was deficient, Penick has not shown a reasonable probability that the result of the proceeding would have been different. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Therefore, his claim of ineffective assistance fails.
Penick next argues the evidence was insufficient to find him guilty of second degree robbery. When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
The State was required to prove that Penick unlawfully, and with an intent to commit theft, took "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." RCW 9A.56.190, .210; State v. Kjorsvik, 117 Wn.2d 93, 110, 812 P.2d 86 (1991) (intent to steal is essential element of robbery). The defendant must use force or fear "to obtain or retain possession of the property, or to prevent or overcome resistance to the taking." RCW 9A.56.190. The amount of force used is immaterial. RCW 9A.56.190.
Penick admitted at trial that he intended to steal the chickens. The security guard testified that when he tried to prevent Penick from getting away without paying, Penick hit him in the head and the face with the chickens. This evidence was sufficient to prove beyond a reasonable doubt that Penick was guilty of second degree robbery.
Finally, Penick argues that the prosecuting attorney committed misconduct in closing argument by reminding the jurors that Penick threatened the people who tried to stop him, and used force in trying to get away. The statement was supported by testimony at trial and was not improper. Moreover, Penick has not shown that the statement was prejudicial. See State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986 (U.S. 2007).
Penick's judgment and sentence is affirmed.
FOR THE COURT: