Opinion
No. 31501-7-II
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 03-1-01846-2. Judgment or order under review. Date filed: 02/26/2004. Judge signing: Hon. Jill M. Johanson.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Alyssa Zach, Cowlitz County Prosecutors Office, 312 SW 1st Ave Rm 110, Kelso, WA 98626-1799.
Jason Santiago Ellis appeals convictions for taking a motor vehicle and driving with a suspended license. He argues that the State failed to preserve material exculpatory evidence and that the trial court improperly included certain convictions in his offender score. We affirm the convictions but remand for resentencing.
On December 31, 2003, Ellis was charged with taking a motor vehicle without the owner's permission and driving while license suspended in the third degree. On January 14, 2004, Ellis filed a written demand for the following discovery:
Preservation and scheduling inspection of the subject 1970 Chevrolet truck by defense investigator. In particular, in addition to general inspection of the vehicle's condition, the defense is looking for exculpatory evidence such as: (1) bill of sale; (2) `for sale' sign with contact telephone number; and (3) written release of interest.
Clerk's Papers (CP) at 3.
On January 27, 2004, Ellis repeated this demand in an omnibus application. On February 10, 2004, Ellis moved to dismiss on the ground that the State had failed to preserve materially exculpatory evidence.
On February 17, 2004, the court held a hearing at which Trooper Gary Lane testified. According to Lane, Ellis said he had bought the subject vehicle for $900 and obtained a bill of sale that he had left in it, along with a `for sale' sign. Still according to Lane, Ellis later admitted that he might have thrown away the `for sale' sign. Lane examined the truck twice without finding a bill of sale or a `for sale' sign. The trial court accepted Lane's testimony, concluded that the State had not found or destroyed materially exculpatory documents, and denied the motion to dismiss.
On February 26, 2004, the court held a bench trial on stipulated facts. It concluded that Ellis was guilty on both counts and entered written findings and conclusions consistent with Lane's testimony. When the court asked the prosecutor what Ellis' standard range was, the prosecutor orally listed 8 adult convictions and one juvenile conviction, did not mention that any was from another state, and asserted that the applicable standard range was 17-29 months. The parties did not have a written judgment ready for signature, so the case was put over until later the same day. Then, in a proceeding for which we have no transcript, the court signed a written judgment that lists one prior juvenile conviction in Washington, five prior adult convictions in Washington, and three prior adult convictions in Oregon. The judgment concludes that Ellis has a standard range of 22-29 months and imposes the low end of that range, 22 months. Neither the judgment nor anything else in the record shows how, if at all, Ellis' Oregon convictions compare to Washington crimes.
The first issue on appeal is whether the trial court erred by denying Ellis' motion to dismiss. To comply with due process, the State must preserve material exculpatory evidence. If the State does not do so, the `criminal charges . . . must be dismissed.' Evidence is materially exculpatory if `(1) its exculpatory value must have been apparent before the evidence was destroyed, and (2) the nature of the evidence leaves the defendant unable to obtain comparable evidence by other reasonably available means.'
State v. Burden, 104 Wn. App. 507, 511, 17 P.3d 1211 (2001).
Burden, 104 Wn. App. at 511.
Burden, 104 Wn. App. at 512.
In this case, the trial court found in effect that Lane had not discovered evidence in the truck because there was none there. We review findings of fact for substantial evidence, which exists here in the form of Lane's testimony. Accordingly, the trial court did not err by finding that no evidence was in the truck
Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999).
The other issue on appeal is whether the trial court erred by not determining how, if at all, Ellis' Oregon convictions compare to a Washington crime. An erroneous sentence can be challenged for the first time on appeal. "[C]lassification is a mandatory step in the sentencing process under the SRA." An out-of state conviction can be used in an offender score only where `the sentencing court compare[s] the elements of the out-of-state offense with the elements of potentially comparable Washington crimes.' Unless a defendant affirmatively acknowledges the comparability of out-of-state convictions, the State is obligated to prove their existence and classification by a preponderance of the evidence. In this case, the State did not demonstrate the comparability of Ellis' prior Oregon convictions. Nor can it be said that Ellis acknowledged such comparability, for the record does not show that such convictions were ever discussed on the record or in his presence; they are merely listed, without explanation of any kind, in the written judgment and sentence. Accordingly, we remand for a hearing on how Ellis' Oregon convictions should be classified under Washington law, and on their consequent inclusion in or exclusion from his offender score.
State v. Hunter, 102 Wn. App. 630, 633, 9 P.3d 872 (2000).
State v. Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000) (quoting State v. Ford, 137 Wn.2d 472, 483, 973 P.2d 452 (1999).
Ford, 137 Wn.2d at 479; see also former RCW 9.94A.360(3) (2000).
State v. Ross, 152 Wn.2d 220, 233, 45 P.3d 1225 (2004); see also State v. Hickman, 116 Wn. App. 902, 907, 68 P.3d 1156 (2003) (defendant waived right to appeal by stipulating that foreign conviction was comparable to Washington felony); State v. Hunter, 116 Wn. App. 300, 302, 65 P.3d 371 (2003) (defendant waived right to contest sentence where he `expressly conceded' that conviction was properly included).
Ford, 137 Wn.2d at 480 (`it is the State, not the defendant, which bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions').
Ross, 152 Wn.2d at 229; State v. Lopez, 147 Wn.2d 515, 520, 55 P.3d 609 (2002) (remand for evidentiary hearing appropriate `when the defendant has failed to specifically object to the State's evidence of the existence or classification of a prior conviction').
The convictions are affirmed. The sentences are vacated and the case is remanded for resentencing.
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.
HOUGHTON, J. and ARMSTRONG, J., Concur.