Opinion
No. 57836-7-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08639-1, Julie Spector, J., entered February 6, 2006.
Affirmed by unpublished per curiam opinion.
Following Harry Jefferson's conviction for delivery of cocaine, the court sentenced Jefferson to 30 months' confinement based on an offender score of three. Jefferson appeals his sentence, contending that his prior Louisiana conviction for "simple burglary" should not have been included in his offender score because the State failed to prove that the crime was comparable to second degree burglary in Washington, which requires entry of a "building" other than a vehicle or a dwelling. Jefferson pled guilty in Louisiana to burglarizing "SERIO's GROCERY". From this information, the sentencing court here could properly determine by a preponderance of the evidence that the Louisiana crime involved entry of a building and therefore the offenses were factually comparable. We also reject Jefferson's other claims of trial and sentencing error. Accordingly, we affirm.
FACTS
On the evening of July 26, 2005, members of the King County Sheriff's Department conducted a "buy-bust" operation in the City of Sea-Tac. In the undercover operation, the police employed a paid informant, Mr. Flye, to purchase cocaine in a controlled setting from a drug dealer he knew, later identified as Jefferson. Mr. Flye was given $ 100 in cash to purchase the drugs. The transaction was to take place inside a room at a motel. Police saw Jefferson arrive at the motel. Mr. Flye gave a "good buy" signal after Jefferson was seen leaving the motel room. A quantity of cocaine was found in the room. Mr. Flye was searched both before and after the controlled buy. No extra money or drugs were found during either search. Jefferson was arrested, and thereafter charged, and convicted on one count of delivery of cocaine.
At sentencing, the court determined that Jefferson's three out-of-state convictions, including a Louisiana conviction for "simple burglary," should all be included in his offender score. The court calculated Jefferson's total offender score as three, with a standard range of 20+ to 60 months. The court sentenced Jefferson to 30 months of total confinement. This appeal followed.
ANALYSIS
Jefferson contends that under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 22348, 147 L. Ed. 2d 435 (2000), he was entitled to have a jury determine if the three prior out-of-state convictions used to compute his offender score were comparable to Washington felonies. But a sentencing court does not violate a defendant's constitutional rights when it engages in a comparability analysis. State v. Farnsworth, 133 Wn. App. 1, 16, 130 P.3d 389 (2006); State v. Thomas, 135 Wn. App. 474, 482, 144 P.3d 178 (2006). Jefferson has not established a violation of his constitutional rights.
Jefferson next contends the trial court erroneously determined that the Louisiana conviction for simple burglary was comparable to second-degree burglary in Washington. Thus, Jefferson argues his sentence must be reversed and the matter remanded for resentencing. We disagree.
We review de novo a challenge to the classification of an out-of-state conviction. State v. Beal, 100 Wn. App. 189, 196, 997 P.2d 941 (2000). If the crimes are comparable, a sentencing court must treat a defendant's out-of-state conviction the same as a Washington conviction.
In re Pers. Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005). "Under the SRA, the State bears the burden to prove by a preponderance of the evidence the existence and comparability of a defendant's prior out-of-state conviction." State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004).
It is undisputed that the conduct proscribed under the Louisiana burglary statute is broader than the Washington second-degree burglary statute.
Burglary in Washington requires entry of a building. RCW 9A.52.030(1). In Louisiana, the crime of simple burglary does not require the unlawful entry into a building. It can be committed by unlawfully entering "any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein". La.Rev.Stat. 14:62(A). "[I]f the foreign statute is broader than the Washington definition of the particular crime, 'the sentencing court may look at the defendant's conduct, as evidenced by the indictment or information, to determine whether the conduct would have violated the comparable Washington statute.'" State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998) (quoting State v. Mutch, 87 Wn. App. 433, 437, 942 P.2d 1018 (1997)). Where facts alleged in the charging document are tied directly to the elements, a court may assume those facts have been proved or admitted. State v. Bunting, 115 Wn. App. 135, 143, 61 P.3d 375 (2003).
Here the charging document alleges, without further detail, that Jefferson "committed simple burglary of SERIO's GROCERY". The question before us is whether this evidence was sufficient to allow the sentencing court to infer that Serio's Grocery was a building.
Jefferson argues here, as he did below, that the State failed to prove the burglary took place in a building as opposed to a vehicle. Had Serio's grocery actually been housed in a vehicle, one would expect that the charging document would have described the vehicle in some detail. Perhaps more importantly, the term "grocery" is defined as a "store selling foodstuffs and household supplies." Webster's New Riverside University Dictionary at 549 (1984). Given the way in which the burglarized premises were described in the charging document, it is reasonable to infer the grocery store Jefferson unlawfully entered in Louisiana was more likely a building than a vehicle. Under the circumstances, the sentencing court properly included the Louisiana conviction for simple burglary in Jefferson's offender score.
Jefferson, pro se, has filed a Statement of Additional Grounds for Review. He appears to challenge the sufficiency of the evidence to support his delivery conviction. He argues that the testimony given by the prosecution witnesses should be looked into. Jefferson bases this argument on apparent inconsistencies in the testimony regarding who gave Mr. Flye the buy money and whether the informant ever handled the cocaine he received from Jefferson. We are not in a position to reweigh the evidence, however. "This court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, a rational trier of fact could find each element of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
Here Mr. Flye worked as an informant for the King County Sheriff's Department and got paid for controlled drug buys. Mr. Flye identified Jefferson in court as the person who gave him cocaine in exchange for $ 100 in cash during the controlled buy on July 26, 2005. And while Jefferson asserts on appeal that he never handled or sold any drugs, a "claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990). Given the strength of the State's case, including the in-court identification, there was sufficient evidence to convict Jefferson of delivery of cocaine.
Jefferson also appears to argue that he received ineffective assistance of counsel. "The purpose of the requirement for effective assistance of counsel is to ensure a fair and impartial trial." State v. Walton, 76 Wn. App. 364, 371, 884 P.2d 1348 (1994). To prevail on a claim of ineffective assistance, a defendant must show deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Jefferson claims his attorney did not advise him of his right to a CrR 3.6 suppression hearing. Even if that were true, however, Jefferson has not alleged a basis for suppressing any incriminating evidence seized by police. Nor did the State offer into evidence any custodial statements Jefferson made to police officers. Absent any showing of prejudice, Jefferson cannot establish a claim of ineffective assistance of counsel. McFarland, 127 Wn.2d at 337.
Affirmed.