Opinion
No. 43543-4-I.
Filed: April 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 98-1-01250-6, Hon. Thomas J. Wynne, October 14, 1998, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.
Christine Wyatt, Attorney At Law, P.O. Box 10083, Bainbridge Is, WA 98110.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor's Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
Charles F. Blackman, 3000 Rockefeller Ave, Everett, WA 98201.
Robert Brown received a standard range sentence of 33 months after a jury convicted him of one count of delivery of cocaine. In calculating Brown's offender score as 2, the trial court included two out-of-state convictions in Brown's criminal history. Brown appeals, contending for the first time that the State failed to prove that those prior offenses would be classified as felonies in Washington. Because the State has not shown that Brown's out-of-state convictions were equivalent to felonies in Washington, we agree and reverse.
FACTS
Brown was convicted of one count of delivery of cocaine. At sentencing, the State recommended a standard range sentence of 33 months.
The State based its decision on an offender score of two and a standard sentence range of 31 to 41 months. While acknowledging that the State's recommendation was reasonable, Brown's trial counsel asked the court 'to go to the low end, 31 months[.]' After listening to the argument, the court treated the two Arizona offenses in Brown's criminal history as one point and calculated Brown's total offender score as 2. Using that offender score, the court imposed a sentence at the lower end of the range (33 months). This appeal followed.
DECISION
Brown challenges the trial court's classification of Brown's Arizona convictions for robbery and burglary. He contends the State failed to prove by a preponderance of the evidence the out-of-state convictions were comparable to Washington felonies. Because of this deficiency, Brown argues the matter should be remanded to the trial court for resentencing.
Under RCW 9.94A.360(3), '[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.' The State bears the burden of proving the existence and classification of prior out-of-state convictions by a preponderance of the evidence. 'To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes.'
State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999).
State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).
Brown contends that the State failed to prove his Arizona convictions for robbery and burglary would be felonies under Washington law. He argues the evidence in the record is insufficient to make that classification determination. The State, on the other hand, contends Brown waived the right to challenge the court's classification of his Arizona convictions. For sentencing purposes, a stipulation or an acknowledgment may be properly relied upon by the court to support a determination of classification. Although a defendant does not 'acknowledge' the State's position regarding classification by merely failing to object, acknowledgment does occur where the defendant affirmatively agrees with the State's classification of the out-of-state convictions. Here, the State focuses on a single sentence uttered by defense counsel during the sentencing hearing to support its claim of waiver. By characterizing the State's recommendation as 'reasonable', the State argues, trial counsel 'agreed' to the State's computation. However, we are not willing to read defense counsel's remarks as broadly as the State.
Ford, 137 Wn.2d at 483.
State v. Ford, 137 Wn.2d at 483.
There is no express and affirmative waiver. Because the State clearly failed to prove classification of the disputed Arizona convictions, those convictions were improperly included in Brown's offender score calculation. Resentencing, therefore, is required. Reversed and remanded for resentencing.
Ford, 137 Wn.2d at 485.