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State v. Bibbs

The Court of Appeals of Washington, Division One
Oct 19, 2009
152 Wn. App. 1043 (Wash. Ct. App. 2009)

Opinion

No. 62809-7-I.

October 19, 2009.

Appeal from the Superior Court, King County, No. 08-1-05306-3, Bruce Heller, J., entered December 15, 2008.


Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.


Charles Bibbs appeals the sentence imposed following his conviction of third degree assault. He challenges the condition of community custody requiring alcohol, substance abuse, and mental health evaluations and treatment arguing they were not shown to be "crime related" under RCW 9.94A.700(5)(c).

The State concedes that those conditions should be stricken and the trial court should enter an order modifying the Judgment and Sentence. We accept the State's concession.

In his statement of additional grounds for review, Bibbs argues that the trial court improperly relied upon Alaska convictions to arrive at an offender score of 5. He argues that the elements of the crimes he was convicted of in Alaska are not comparable with Washington felonies, the facts underlying the Alaska convictions have never been proven and the procedure used in Alaska is not valid in Washington. His arguments are not persuasive.

At the sentencing hearing, the prosecutor pointed out that a 1985 Alaska conviction (a first degree burglary for entering and remaining in a dwelling with intent to commit an assault) plus four Washington convictions supported the offender score of 5 without any need to consider a 1991 Alaska conviction. Bibbs' attorney advised the court that although the attorney felt an obligation not to present a non-meritorious claim, he also felt a duty to respect his client's wishes to challenge the Alaska convictions. Bibbs indicated that he did not concede comparability. The prosecutor provided the court with documents from the Alaska proceedings and copies of the Alaska statute and asked the court to make a comparability determination. Bibbs' counsel asked the court not to make a comparability determination, referring to potential concerns with "some lingering effect that is unknown at this time." The trial court agreed "to withhold making that decision" on comparability. The court used the offender score of 5 to determine the standard range.

First, the comparability challenge fails. Only the 1985 Alaska conviction was relied upon by the trial court. Bibbs' counsel expressly asked the court not to make the comparability determination for the 1985 conviction requested by the prosecutor. On appeal, he cannot assign error to the trial court's decision to do exactly what Bibbs' attorney had requested, especially to the extent he contends there is a factual issue that was not resolved by the trial court. State v. Lucero, ___ Wn. App. ___, ___ P.3d ___, 2009 WL 2915729 (Sept. 14, 2009); State v. Collins, 144 Wn. App. 547, 555, 182 P.3d 1016 (2008), review denied, 165 Wn.2d 1032 (2009)(" the right to argue that an offender score has been miscalculated can be waived.") Additionally, the legal elements of first degree burglary in Alaska — that a person enters or remains in a dwelling with intent to commit a crime in the dwelling, (Alaska Statute) AS 11.46.300(a)(1); 11.46.310 — matches up with second degree burglary in Washington — a person enters or remains unlawfully in a building other than a vehicle, with intent to commit a crime against a person or property therein, RCW 9A.52.030. Bibbs offers no analysis or specific argument of the elements. The elements are comparable. See State v. Winings, 126 Wn. App. 75, 95, 107 P.3d 141 (2005) (elements of California first degree burglary — willfully and unlawfully entering an inhabited dwelling with intent to commit any felony — comparable to the elements of Washington residential burglary — with intent to commit a crime against a person or property therein, a person enters or remains unlawfully in a dwelling other than a vehicle.)

Second, where comparability does not turn on the factual basis for an out of state conviction, once the State proved the existence of the 1985 Alaska conviction, the State was not required to also prove the facts underlying that conviction. State v. Ammons, 105 Wn.2d 175, 185, 713 P.2d 719 (1986).

Finally, Bibbs does not establish that the differences between Alaska and Washington nolo contendere procedures somehow render the 1985 Alaska conviction invalid on its face. See State v. Booker, 143 Wn. App. 138, 143-47, 176 P.3d 620 (2008) (out of state conviction may be considered at sentencing unless the conviction affirmatively shows that the defendant's rights were violated and thus is constitutionally invalid on its face.)

CONCLUSION

The conditions of community custody requiring alcohol, substance abuse and mental health evaluations and treatment are vacated and this matter is remanded to the trial court for entry of an order modifying the judgment and sentence to delete such conditions. Bibbs does not establish any other error in the determination of his offender score and the remainder of the judgment and sentence are affirmed.


Summaries of

State v. Bibbs

The Court of Appeals of Washington, Division One
Oct 19, 2009
152 Wn. App. 1043 (Wash. Ct. App. 2009)
Case details for

State v. Bibbs

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. CHARLES BIBBS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Oct 19, 2009

Citations

152 Wn. App. 1043 (Wash. Ct. App. 2009)
152 Wash. App. 1043