Opinion
No. 52305-8-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00156-7. Judgment or order under review. Date filed: 04/23/2003. Judge signing: Hon. Thomas J Wynne.
Counsel for Appellant/Cross-Respondent, Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Lloyd T.J. Copp Doc# 855143 (Appearing Pro Se), Washington State Reformatory, P.O. Box 777, Monroe, WA 98272.
Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent/Cross-Appellant, Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Lloyd Copp was convicted at trial of first degree robbery. Copp appeals his standard-range sentence, arguing the State failed to prove the comparability of his out-of-state convictions, which resulted in a miscalculation of his offender score. We reject his argument and affirm. At sentencing, the prosecutor explained the State's position regarding the applicable standard range based on Copp's California criminal history: [Copp's] criminal history consists of two prior felonies. One is a Possession of a Controlled Substance in prison from 1998. That occurred in the State of California. He had a Taking of Motor Vehicle Without Owner's Consent in 2000. That was also in the State of California.
That means his offender score is 2, the seriousness level of this crime is a 9. The standard range is 41 to 54 months with a lifetime maximum.
Report of Proceedings (April 23, 2003) at 2.
Defense counsel responded that, "we are agreeing that the range is that. We are not raising that. We are asking the Court to impose the low end of that range."
Report of Proceedings (April 23, 2003) at 3.
A defendant may challenge an illegal sentence for the first time on appeal. We review such challenges de novo.
State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
The offender score measures a defendant's criminal history. The Sentencing Reform Act (SRA) directs courts to calculate an offender score by totaling a defendant's convictions for felonies and certain juvenile offenses. When a defendant's criminal history includes out-of-state convictions, the SRA requires the convictions to be classified "according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3). Copp now argues the court erred by using the convictions in its own calculation because the State failed to prove the offenses would be felonies under Washington law.
State v. Wiley, 124 Wn.2d 679, 683, 880 P.2d 983 (1994).
The State, however, is relieved of its burden to prove comparability when a defendant includes the out-of-state convictions in his own representation of the proper offender score. Here Copp necessarily agreed to the inclusion of his California convictions by agreeing with a standard range that could only have resulted from a score based on those convictions. Copp argues this result is barred by In re Personal Restraint of Goodwin, which held a defendant cannot waive his right to challenge a miscalculated offender score that is based upon a legal error. Copp relies on Goodwin to argue he could not waive the legal determination of comparability. We rejected a similar argument in State v. Hunter, In Hunter, as here, the defendant did not allege that his prior out-of-state convictions were not comparable to Washington felonies, but only that the State failed to prove comparability at sentencing. We held:
State v. Ford, 137 Wn.2d 472, 483 n. 5, (although classification is normally a mandatory step in the sentencing process, "out-of-state convictions included in the defense's proffered offender score calculation, are properly included [in the court's calculation] without further proof of classification.").
See State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000 (2000) (defendant waives same criminal conduct challenge by agreeing to a standard range, the calculation of which depended on an implicit assertion that the prior convictions were not the same criminal conduct and the State's version of his score was correct).
In re Personal Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
State v. Hunter, 116 Wn. App. 300, 65 P.3d 371, review granted, Wn.2d 79 P.3d 446 (2003).
Nothing in Goodwin, which involved a collateral challenge to a judgment and sentence that was invalid on its face, supports the proposition that the sentencing court must undertake a comparability determination despite the defendant's affirmative agreement with the State's classification.
Hunter, 116 Wn. App. at 302.
Copp's attempt to distinguish Hunter is unpersuasive because Copp's agreement with the standard range necessarily meant he agreed to the use and thus the comparability of the California convictions. Nor has Copp demonstrated that Hunter was wrongly decided. Although Copp criticizes the language in Ford on which Hunter relied, this court is required to follow Supreme Court precedent.
C.f. Nitsch, 100 Wn. App. at 522.
State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 277 (1984).
Copp waived the right to challenge the process by which the standard range for his sentence was calculated. We find no reversible error.
Affirmed.
APPELWICK and BECKER, JJ., concur.