Opinion
65804-2-I
01-17-2012
UNPUBLISHED OPINION
Lau, J.
In State v. Golden, noted at 154 Wn.App. 1039, 2010 WL 532424, we reversed Stevie Golden's sentence that the trial court imposed following his first degree attempted robbery conviction. We accepted the State's concession that the record did not support the trial court's finding that one of Golden's prior convictions was comparable to a Washington felony for purposes of calculating his offender score and remanded for resentencing. Golden now appeals from the judgment and sentence on his resentencing, claiming (1) the State failed to prove his 2001 Missouri conviction for stealing was factually comparable to a Washington felony for purposes of calculating the offender score and (2) the trial court exceeded its statutory authority in imposing 24 to 36 months' community custody upon finding that the current offense was a "serious violent offense" under RCW 9.94A.030. Finding no error regarding the trial court's comparability determination and offender score calculation, we affirm Golden's sentence. Accepting the State's concession of error regarding the community custody determination, we remand with instructions to impose 18 months' community custody under RCW 9.94A.701(2).
FACTS
In September 2008, a jury convicted Stevie Golden of attempted first degree robbery. At sentencing, the trial court calculated Golden's offender score as 3 based on the court's finding that he had three prior Missouri convictions for stealing that counted in his offender score. The court sentenced Golden to 40 months' confinement and 18 to 36 months' community custody.
Golden appealed his sentence, arguing the State failed to prove that his 2001 Missouri stealing conviction was comparable to a Washington felony. The State conceded that the record did not support the trial court's finding that the Missouri conviction was comparable to a Washington felony. We accepted the State's concession of error and remanded for resentencing.
At resentencing, to prove the Missouri conviction was comparable to a Washington felony, the State presented copies of the 2001 Missouri first amended complaint and information charging Golden with stealing. The information alleged
that on or about the 1st day of August, 2001, in the County of Boone, State of Missouri, the defendant appropriated United States currency, by physically taking from the person of Kyle Volrath, which property was in the possession of Kyle Volrath, and defendant appropriated such property without the consent of Kyle Volrath and with the purpose to deprive him thereof.
Golden pleaded guilty in open court to the 2001 Missouri stealing crime as charged. The Missouri court made and set forth findings in open court and immediately imposed its sentence. The document entitled "Judgment" reflects that the Missouri court "informed the defendant of verdict/finding, asks the defendant whether (s)he has anything to say why judgment should not be pronounced, and finds that no sufficient cause to the contrary has been shown or appears to the court."
After considering the State's submissions regarding Golden's 2001 Missouri conviction, the trial court found the conviction was comparable to first degree theft in Washington and included it in Golden's offender score. The court sentenced Golden to 40 months' confinement and also imposed 24 to 36 months' community custody, finding the current offense was a "serious violent offense" under RCW 9.94A.030.
Golden appeals the judgment and sentence on his resentencing. He claims the State failed to prove that his 2001 Missouri conviction for stealing was factually comparable to a Washington felony for purposes of calculating the offender score. He also claims the trial court exceeded its statutory authority in imposing 24 to 36 months' community custody.
ANALYSIS
Comparability Analysis and Offender Score Calculation
Golden contends the trial court erred when it found his 2001 Missouri stealing conviction was factually comparable to the Washington felony of first degree theft. The State counters that it presented sufficient comparability information and the court properly included Golden's Missouri conviction in his offender score.
"A defendant's offender score establishes the range a sentencing court may use in determining the sentence." State v. Thomas, 135 Wn.App. 474, 479, 144 P.3d 1178 (2006). In calculating the offender score, "[t]he sentencing court must include all current and prior convictions . . . ." Thomas, 135 Wn.App. at 479. If a defendant's prior convictions are from another state, the Sentencing Reform Act requires the trial court to classify the convictions "according to the comparable offense definitions and sentences provided by Washington law" before including them in the offender score. RCW 9.94A.525(3). The State must prove by a preponderance of the evidence that an out-of-state conviction is comparable to a Washington crime. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999).
To determine comparability, Washington courts apply a two-part test involving legal comparability and factual comparability. First, the sentencing court compares the elements of the out-of-state crime to the similar Washington criminal statute in effect when the out-of-state crime was committed. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). If the elements are "substantially similar, " or if the out-of-state crime is defined more narrowly than in Washington, the out-of-state conviction is included in the offender score. Lavery, 154 Wn.2d at 255. If the foreign crime is defined more broadly than the Washington crime, the court proceeds to the second part of the test to determine factual comparability. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). This requires the sentencing court to determine whether the defendant's conduct would have violated the comparable statute, as evidenced by the indictment, information, or records of the foreign conviction. Lavery, 154 Wn.2d at 255.
"While it may be necessary to look into the record of a foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison." Morley, 134 Wn.2d at 606. The court may examine only those documents that conclusively demonstrate that the relevant facts were proved to a jury beyond a reasonable doubt or admitted by the defendant in a guilty plea. Shepard v. United States, 544 U.S. 13, 21-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Lavery, 154 Wn.2d at 258; State v. Bunting, 115 Wn.App. 135, 142-43, 61 P.3d 375 (2003). The sentencing court "is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard, 544 U.S. at 16.
Golden argues that the State's documents are insufficient to prove his Missouri stealing conviction is comparable to first degree theft in Washington. The State concedes that the Missouri and Washington crimes at issue are not legally comparable. See Resp't's Br. at 7 ("[I]t would appear that the Missouri statute is more broad or contains alternatives not listed under the Washington theft statute. Therefore, further analysis is required."). Thus, we consider factual comparability and evaluate whether Golden's 2001 Missouri conduct would have constituted first degree theft under the relevant Washington criminal statute.
Golden argues that the State's submitted documents do not show what subsection of the Missouri statute he was convicted under and that he may have been convicted under a subsection that covers a broader range of property than Washington's first degree theft statute. But because the State concedes the Missouri statute is broader than Washington's, we need not address this argument.
In 2001, Washington's first degree theft statute provided:
(1) A person is guilty of theft in the first degree if he or she commits theft of:
(a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; or
(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.
(2) Theft in the first degree is a class B felony.Former RCW 9A.56.030 (2000). In Washington, theft requires intent to deprive the victim of property or services. Former RCW 9A.56.020 (2000). As discussed above, in 2001, Missouri charged Golden with stealing and specifically alleged that he "appropriated United States Currency, by physically taking from the person of Kyle Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive him thereof."
The State cites to the current versions of the Washington and Missouri criminal statutes. But for comparability analysis, a defendant's prior crime must be compared to the relevant Washington statute in effect at the time the prior crime was committed (here, 2001). See Lavery, 154 Wn.2d at 255.
In 2001, Missouri's stealing statute provided in relevant part:
Golden contends the State did not prove he admitted the necessary facts when he pleaded guilty to the 2001 Missouri stealing charge. He relies on State v. Bunting, 115 Wn.App. 135, 61 P.3d 375 (2003). In Bunting, we applied a factual comparability analysis to determine whether the defendant's 1972 Illinois armed robbery conviction compared to the crime of armed robbery in Washington. Bunting, 115 Wn.App. at 140-43. The record contained three documents providing facts about the 1972 armed robbery: an "Official Statement of Facts" that the assistant state's attorney provided to the Department of Corrections in 1973 after the defendant pleaded guilty and was sentenced, a complaint, and the indictment. Bunting, 115 Wn.App. at 141-42. We rejected the State's argument that the "Official Statement of Facts" and the complaint should be considered in the comparability analysis. Bunting, 115 Wn.App. at 142. We concluded (1) those documents contained allegations never proved at trial because Bunting pleaded guilty to the crime charged and (2) Bunting did not necessarily concede the allegations in the documents when he pleaded guilty. Bunting, 115 Wn.App. at 143 ("The State provides no evidence that Bunting adopted the facts set forth in the complaint or those the assistant state's attorney alleged in a postsentencing statement to the Department of Corrections."). We held that only the indictment was relevant because when Bunting pleaded guilty, the only acts he conceded to were the elements of the crime stated in the indictment. Bunting, 115 Wn.App. at 142. Because the indictment did not allege intent as an element (as required by the Washington statute) and nothing in the record showed intent was proved or conceded in Bunting's guilty plea, it was insufficient to prove that the Illinois and Washington offenses were comparable.
Golden's reliance on Bunting is misplaced. In Bunting, we held that the out-of-state indictment was relevant to the comparability analysis, but the State failed to prove comparability because the indictment did not contain the intent element required under Washington law. In contrast, Golden's Missouri information contains each element of first degree theft as defined by former RCW 9A.56.030(1)(b) and 9A.56.020-it alleges that Golden "appropriated United States Currency, by physically taking from the person of Kyle Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive him thereof." This allegation satisfies the "theft of . . . [p]roperty of any value other than a firearm, " "taken from the person of another, " and intent (purpose) elements of first degree theft as defined in Washington in 2001. See Former RCW 9A.56.030(1)(b), 9A.56.020. It is undisputed that Golden pleaded guilty to Missouri stealing charge-with findings made and set forth in open court-and that the Missouri court found no sufficient cause why judgment should not be pronounced. Thus, the State met its burden of proving by a preponderance of the evidence that Golden was convicted of a crime comparable to first degree theft in Washington.
As discussed above, former RCW 9A.56.030(1)(b) provided, "A person is guilty of theft in the first degree if he or she commits theft of . . . [p]roperty of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another." Under former RCW 9A.56.020, theft included an intent element (intent to deprive the victim of property or services).
Our holding in State v. Booker, 143 Wn.App. 138, 176 P.3d 620 (2008) supports our conclusion that the State met its burden here. In Booker, we applied a factual comparability analysis to determine whether the defendant's 1994 Illinois conviction for illegal possession of a firearm by a felon compared to a violation of RCW 9.41.040(2), the Washington statute making it a felony for a felon to possess a firearm. Booker, 143 Wn.App. at 142. At sentencing, the State presented "certified copies of the order of sentence and commitment to Illinois Department of Corrections, the statement of conviction/disposition, and the information filed in Booker's prior firearm case" to prove comparability. Booker, 143 Wn.App. at 142. We held that because the Illinois information explicitly charged Booker with possession of a firearm, "the State met its burden of proving by a preponderance of the evidence that Booker was convicted of a crime comparable to possession of a firearm by a felon in Washington." Booker, 143 Wn.App. at 143. Thus, the State's reliance on the out-of-state information was proper when the information contained the same elements required to prove a Washington felony.
Here the State similarly relied on an out-of-state information containing the elements necessary to prove first degree theft in Washington. Golden pleaded guilty to the Missouri stealing charge and thus conceded to the facts and elements contained in the information. The State met its burden of proving by a preponderance of the evidence that Golden's prior conviction was comparable to a Washington felony, and the trial court properly included the prior conviction in Golden's offender score.
Community Custody
Golden argues, and the State concedes, that the trial court erroneously classified his offense as a "serious violent offense" under RCW 9.94A.030 in its judgment and sentence. Based on this erroneous conclusion, it imposed 24 to 36 months' community custody. The parties agree that the correct community custody term under RCW 9.94A.701(2) is 18 months.
At the resentencing hearing, the trial court correctly identified attempted robbery in the first degree as a violent offense. But the court was mistaken that Golden was subject to a 36 month community custody term. The error was amplified when the community custody term was marked on the judgment and sentence as a range consistent with a serious violent offense (24 to 36 months).
CONCLUSION
Because the trial court properly included Golden's 2001 Missouri stealing conviction in his offender score, we affirm his sentence but remand with instructions to impose 18 months' community custody under RCW 9.94A.701(2).
"1. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
"2. Evidence of the following is admissible in any criminal prosecution under this section on the issue of the requisite knowledge or belief of the alleged stealer:
"(1) That he or she failed or refused to pay for property or services of a hotel, restaurant, inn or boardinghouse;
"(2) That he or she gave in payment for property or services of a hotel, restaurant, inn or boardinghouse a check or negotiable paper on which payment was refused;
"(3) That he or she left the hotel, restaurant, inn or boardinghouse with the intent to not pay for property or services;
"(4) That he or she surreptitiously removed or attempted to remove his or her baggage from a hotel, inn or boardinghouse.
"3. Stealing is a class C felony if:
"(1) The value of the property or services appropriated is seven hundred fifty dollars or more; or
"(2) The actor physically takes the property appropriated from the person of the victim; or
"(3) The property appropriated consists of:
"(a) Any motor vehicle, watercraft or aircraft, or
"(b) Any will or unrecorded deed affecting real property; or
"(c) Any credit card or letter of credit; or
"(d) Any firearms; or
"(e) A United States national flag designed, intended and used for display on buildings or stationary flagstaffs in the open; or
"(f) Any original copy of an act, bill or resolution, introduced or acted upon by the legislature of the state of Missouri; or
"(g) Any pleading, notice, judgment or any other record or entry of any court of this state, any other state or of the United States; or
"(h) Any book of registration or list of voters required by chapter 115, RSMo; or
"(i) Any animal of the species of horse, mule, ass, cattle, swine, sheep, or goat; or
"(j) Live fish raised for commercial sale with a value of seventy-five dollars; or
"(k) Any controlled substance as defined by section 195.010, RSMo."Former Mo. Rev. Stat. 570.030 (2001).