Opinion
No. 51822-8-II
12-08-2020
STATE of Washington, Respondent, v. Arkangel D. HOWARD, Appellant.
Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant. Kasey Truong Vu, Rachael Rogers, Clark County Prosecutors Attorney's Ofc., 1013 Franklin St., Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Kasey Truong Vu, Rachael Rogers, Clark County Prosecutors Attorney's Ofc., 1013 Franklin St., Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
PARTIALLY PUBLISHED OPINION
Glasgow, J. ¶1 Arkangel D. Howard shot and killed two men outside his girlfriend's apartment and drove off. There was no evidence of a motive. A jury found Howard guilty of premeditated first degree murder for both killings. At sentencing, the trial court determined that one of Howard's prior out-of-state convictions was comparable to a Washington felony and included it in his offender score, but the trial court declined to include a second out-of-state conviction. Therefore, Howard did not qualify as a persistent offender.
Howard was also convicted of unlawful possession of a firearm, but he does not challenge that conviction or his sentence for that crime.
¶2 Howard appeals his convictions for premeditated first degree murder and his sentence. He argues that the State presented insufficient evidence of premeditation to support his convictions for first degree murder. He also argues that the trial court erred by ruling that his prior conviction for attempted first degree robbery in Oregon was comparable to a Washington felony, and he asks to be resentenced. He contends that the trial court erred by imposing a criminal filing fee. In addition, Howard files a statement of additional grounds (SAG).
¶3 The State cross appeals, arguing that the trial court erred by ruling that the second of Howard's prior out-of-state convictions, for third degree robbery in Oregon, was not comparable to the Washington crime of second degree robbery.
¶4 In the published portion of this opinion, we hold that the trial court erred at sentencing. Howard's prior out-of-state attempted first degree robbery conviction was not comparable to a Washington felony and should have been excluded from the court's calculation of Howard's offender score. However, Howard's prior out-of-state third degree robbery conviction was factually comparable to second degree robbery under Washington law and should have been included in the offender score calculation. Howard still does not qualify as a persistent offender.
¶5 In the unpublished portion of this opinion, we hold that there was sufficient evidence of premeditation to support Howard's convictions for premeditated first degree murder, that the criminal filing fee was improperly imposed, and that nothing in Howard's SAG requires reversal.
¶6 We affirm Howard's convictions, reverse his sentence, and remand for resentencing consistent with this opinion. The trial court must not impose the criminal filing fee upon resentencing. FACTS
¶7 Howard shot and killed Allen Collins Jr. and Jason Benton. A jury found Howard guilty of two counts of premeditated first degree murder. ¶8 In calculating Howard's offender score and determining whether he was a persistent offender, the trial court considered whether two of Howard's prior convictions in Oregon were comparable to Washington felonies. The trial court determined that Howard's prior conviction for attempted first degree robbery, although not legally comparable, was factually comparable to the Washington crime of attempted first degree robbery. The trial court included this conviction in calculating Howard's offender score. The trial court determined that Howard's prior conviction for third degree robbery was neither legally nor factually comparable to a Washington felony, and the court did not include this conviction in calculating the offender score. Because Howard did not have three strikes, the trial court did not sentence him as a persistent offender. The trial court sentenced Howard to 760 months in prison.
¶9 Howard appeals his convictions and sentence. With regard to his sentence, he argues that the trial court improperly included his Oregon attempted first degree robbery conviction in the offender score. The State cross appeals the exclusion of Howard's Oregon third degree robbery conviction from the offender score and, ultimately, the trial court's decision not to sentence Howard as a persistent offender.
ANALYSIS
HOWARD'S OUT-OF-STATE CONVICTIONS
¶10 Both Howard and the State challenge the trial court's decisions regarding whether Howard's prior Oregon convictions should be included in his offender score and considered in the trial court's persistent offender analysis. We conclude that the trial court should not have included in Howard's offender score his prior Oregon conviction for attempted first degree robbery, but the trial court should have included his prior Oregon conviction for third degree robbery. The trial court correctly concluded that Howard was not a persistent offender.
A. Comparability of Out-of-State Convictions and Standard of Review
¶11 Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the trial court uses the defendant's prior convictions to determine an offender score which, along with the seriousness level of the current offense, establishes a presumptive standard sentencing range. State v. Olsen , 180 Wash.2d 468, 472, 325 P.3d 187 (2014). A defendant's sentence is determined based on the law in effect when the defendant committed the offense. RCW 9.94A.345.
¶12 We review a sentencing court's calculation of an offender score de novo. Olsen , 180 Wash.2d at 472, 325 P.3d 187. We review underlying factual determinations for abuse of discretion. In re Pers. Restraint of Toledo-Sotelo , 176 Wash.2d 759, 764, 297 P.3d 51 (2013).
¶13 The State must prove the existence of prior felony convictions by a preponderance of the evidence. RCW 9.94A.500(1). If the convictions are from another jurisdiction, the State must also prove that they are comparable to a Washington felony. RCW 9.94A.525(3) ; Olsen , 180 Wash.2d at 472, 325 P.3d 187. "Comparability is both a legal and a factual question." State v. Collins , 144 Wash. App. 547, 553, 182 P.3d 1016 (2008).
¶14 As to the legal prong, "If the Washington statute defines the offense with elements that are identical to, or broader than, the foreign statute, then the conviction under the foreign statute is necessarily comparable to a Washington offense." Id. "If, however, the foreign statute is broader than the Washington statute, the court moves on to the factual prong—determining whether the defendant's conduct would have violated the comparable Washington statute." Olsen , 180 Wash.2d at 473, 325 P.3d 187. In this factual analysis, courts "consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt." Id. at 473-74, 325 P.3d 187.
¶15 If an out-of-state conviction involves an offense that is neither legally nor factually comparable to a Washington offense, the sentencing court may not include that conviction in the defendant's offender score. State v. Thiefault , 160 Wash.2d 409, 415, 158 P.3d 580 (2007) (citing In re Pers. Restraint of Lavery , 154 Wash.2d 249, 258, 111 P.3d 837 (2005) ). If a defendant has been erroneously sentenced, we will remand for resentencing. State v. Wilson , 170 Wash.2d 682, 690, 244 P.3d 950 (2010).
B. Howard's Appeal—Attempted First Degree Robbery
¶16 Howard argues the trial court erred in determining that his 2005 Oregon conviction for attempted first degree robbery was comparable to the Washington crime of attempted first degree robbery. We agree.
1. Legal comparability
¶17 At the time Howard committed the offense of attempted first degree robbery in 2005, Oregon's attempt statute provided that "[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime." Former OR. REV. STAT. § 161.405(1) (1971). In 2005, Oregon's robbery statute provided that a person commits first degree robbery if they commit a robbery and they are armed with a deadly weapon, use or attempt to use a dangerous weapon, or cause or attempt to cause serious physical injury. Former OR. REV. STAT. § 164.415(1) (1971).
¶18 Washington's attempt statute provides that "[a] person is guilty of an attempt to commit a crime if, with intent to commit a specific crime , he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1) (emphasis added). Washington's first degree robbery statute provides in relevant part that a person commits first degree robbery if "[i]n the commission of a robbery or of immediate flight therefrom, [they are] ... armed with a deadly weapon; or ... [d]isplay[ ] what appears to be a firearm or other deadly weapon; or ... [i]nflict[ ] bodily injury." RCW 9A.56.200(1)(a).
RCW 9A.28.020 was last amended in 2001, so the current version of the statute was the version in effect when Howard committed attempted first degree robbery in 2005.
RCW 9A.56.200 was last amended in 2002, so the current version of the statute was the version in effect when Howard committed attempted first degree robbery in 2005.
¶19 The elements of a conviction for attempted first degree robbery were broader in Oregon than in Washington at the time Howard's offense was committed. First, Washington required an intent to commit robbery in addition to taking a substantial step toward its commission, whereas Oregon required the intentional taking of a substantial step, but with no specific intent requirement. Second, in Washington the crime of first degree robbery included a means that required the defendant to inflict bodily injury, whereas in Oregon a defendant could be convicted if they only attempted to cause injury. Thus, Howard's prior Oregon conviction for attempted first degree robbery is not legally comparable to the equivalent Washington felony.
2. Factual comparability
¶20 Next, we determine whether the facts underlying Howard's conviction for attempted first degree robbery in Oregon would have constituted attempted first degree robbery in Washington. See Olsen , 180 Wash.2d at 473, 325 P.3d 187. Citing Lavery , Howard argues this inquiry is unnecessary and improper where the foreign statute has been determined to be broader. In Lavery , our Supreme Court stated: "Where the foreign statute is broader than Washington's, [the factual comparability] examination may not be possible because there may have been no incentive for the accused to have attempted to prove that he did not commit the narrower offense." 154 Wash.2d at 257, 111 P.3d 837 (emphasis added). But the court reached this conclusion in Lavery because the underlying facts had not been admitted, stipulated to, or proved beyond a reasonable doubt. Id. at 258, 111 P.3d 837. Olsen reaffirmed that the factual comparability analysis is appropriate where it is limited to the consideration of "only those facts that were clearly charged and then clearly proved beyond a reasonable doubt to a jury or admitted by the defendant." 180 Wash.2d at 476, 325 P.3d 187.
¶21 Howard also relies on Division One's decision in State v. Davis , 3 Wash. App. 2d 763, 418 P.3d 199 (2018). There, Division One considered whether five prior California burglary convictions were factually comparable to the Washington crime of burglary. Id. at 777, 418 P.3d 199. The State alleged that the defendant unlawfully entered a building in each of those prior incidents, and the defendant pleaded guilty to each charge. Id. at 779-80, 418 P.3d 199. However, the Davis court focused only on the language in the charging document, not a plea statement where the defendant admitted to underlying facts. Id. The Davis court explained that based on Lavery , the factual comparability inquiry had to focus on facts that were central to proving the elements of the foreign crime. Id. at 782, 418 P.3d 199. Because the relevant California statute, unlike the Washington statute, did not include "unlawful entry" as an element of burglary, the defendant had no incentive to dispute that element. Id.
¶22 Although both Lavery and Davis require appellate courts to consider only facts that were admitted or proved at trial, and those facts must have been tethered to the elements of the foreign crime, neither case prevents us from considering factual comparability in this case, as Howard seems to suggest. Unlike in Davis , here we have a specific plea statement where Howard admitted to the underlying facts proving the elements of the foreign crime. Thus, as in Olsen , we must determine whether the facts admitted in Howard's plea statement were factually comparable to attempted first degree robbery in Washington.
¶23 Howard pleaded guilty to attempted first degree robbery, admitting in his plea statement that he "helped another person take a substantial step towards using a firearm to steal money." Clerk's Papers (CP) at 121. In Oregon, "[a] guilty plea implicitly admits all facts necessary to support the material elements of a charge," but it does not constitute an admission of any facts that go beyond those essential elements. State v. Kappelman , 162 Or. App. 170, 175, 986 P.2d 603 (1999).
¶24 The State argues Howard's admission would have constituted attempted first degree robbery in Washington because he admitted to taking a substantial step toward committing robbery and to being armed with a firearm. But as noted above, Washington also requires that the defendant intend to commit the specific crime of robbery when taking a substantial step. See RCW 9A.28.020(1). There is no admission anywhere in Howard's plea statement indicating his specific intent during the commission of the crime. Because Howard did not admit to intending to commit robbery when he helped someone take a substantial step toward stealing money using a firearm, his guilty plea does not establish all of the essential elements of the Washington crime of attempted first degree robbery.
¶25 Therefore, the State has not met its burden to show that Howard's Oregon conviction for attempted first degree robbery is factually comparable to a Washington felony, and the trial court erred in so ruling. Howard's prior Oregon conviction for attempted first degree robbery should not have been included in his offender score, nor should it be considered in a persistent offender analysis.
C. The State's Cross Appeal—Third Degree Robbery
¶26 In its cross appeal, the State argues the trial court erred in determining that Howard's 2004 Oregon conviction for third degree robbery was not legally or factually comparable to the Washington crime of second degree robbery. Howard argues the trial court correctly concluded these two crimes were not comparable. We conclude that the crimes were not legally comparable but, contrary to the trial court's ruling, they were factually comparable.
1. Legal comparability
¶27 Oregon law provides that a person commits third degree robbery if, in the course of committing or attempting to commit theft, they use or threaten the "immediate use of physical force upon another person with the intent of: (a) [p]reventing or overcoming resistance to the taking of the property ... or (b) [c]ompelling the owner ... or another person to deliver the property or engage in other conduct which might aid in the commission of the theft." OR. REV. STAT. § 164.395(1).
Or. Rev. Stat. § 164.395 was last amended in 2003, so the current version of the statute was the version in effect when Howard committed third degree robbery in 2004.
¶28 In 2004, Washington law provided that a person commits robbery when they unlawfully take personal property against another person's will
by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.
Former RCW 9A.56.190 (1975); see also former RCW 9A.56.210(1) (1975) ("A person is guilty of robbery in the second degree if he commits robbery."). In 2004, any person who aided and abetted in the commission of any crime was guilty of that crime. RCW 46.64.048. ¶29 The State argues that these two crimes are legally comparable, citing State v. McIntyre , 112 Wash. App. 478, 49 P.3d 151 (2002). There, Division One held that the Oregon crime of third degree robbery is legally comparable to the Washington crime of second degree robbery. Id. at 483, 49 P.3d 151. The court noted that "[b]oth statutes require (a) a theft; (b) the use or threatened use of immediate force or fear of injury; and ( [c] ) the force or fear be used to obtain or retain the property." Id. at 481, 49 P.3d 151. The court rejected the defendant's argument that the Washington statute included an additional requirement that the property be taken either from the victim's person or in their presence and against their will, and it held that the elements of the two crimes were the same. Id. at 481-83, 49 P.3d 151.
RCW 46.64.048 was last amended in 1990, so the current version of the statute was the version in force in 2004.
¶30 However, as Howard points out, no party in McIntyre presented the issue raised in this case—that the Washington second degree robbery statute required an actual taking of property, whereas the Oregon statute provides that third degree robbery encompasses both actual theft and attempted theft of property. The McIntyre court did not have an opportunity to address this specific issue. Addressing it now, we conclude that the Oregon statute prohibits a broader array of conduct than the Washington statute. In Oregon, someone could be convicted of third degree robbery for using force when merely attempting to commit theft, while in Washington in 2004, second degree robbery was committed only when someone used force in successfully committing theft.
¶31 We hold that Howard's 2004 Oregon conviction for third degree robbery was not legally comparable to the Washington crime of second degree robbery as it was defined at that time. The Oregon robbery statute was broader than its 2004 Washington equivalent because it encompassed attempted thefts as well as committed thefts, whereas the Washington statute applied only when theft had been committed. 2. Factual comparability
¶32 The State argues that these two crimes are factually comparable. The State points to Howard's admission when pleading guilty to third degree burglary that he " ‘aided and abetted Latisha M. Storey in taking property from Marshalls by assaulting Richard Wyche who [was] chasing [Howard's] sister and attempting to take her in custody for shoplifting.’ " CP at 91 (first alteration in original). Howard again contends that it is improper to reach the factual comparability prong, but as discussed above, it is appropriate to consider Howard's admission made in his plea statement to determine factual comparability with Washington's crime of second degree robbery.
¶33 In his plea statement, Howard admitted to using physical force (assault) with the intent of overcoming Wyche's resistance to the taking of property by his sister and to aid his sister in retaining the property. Howard's admission therefore establishes each of the elements of Washington's second degree robbery statute as it existed in 2004. See former RCW 9A.56.190 ; see also RCW 46.64.048 (establishing that any person who aids and abets in the commission of any crime is guilty of that crime). The factual comparability prong is met. Thus, the trial court erred when it concluded that Howard's admission was insufficient to meet the State's burden to show factual comparability. This conviction should have been included in Howard's offender score.
¶34 Because Howard's prior Oregon conviction for attempted first degree robbery should not be included in his offender score, Howard does not have three strikes and should not be sentenced as a persistent offender on remand. See 13 Verbatim Report of Proceedings (VRP) at 1395 (trial court finding no other qualifying prior crimes and concluding that, with only one prior qualifying conviction, Howard was not subject to a persistent offender sentence). CONCLUSION
¶35 We affirm Howard's convictions, reverse his sentence, and remand for resentencing consistent with this opinion. The trial court must not impose the criminal filing fee upon resentencing.
¶36 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Lee, C.J.
Maxa, J.