Opinion
No. 57564-3-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10052-1, Julie Spector, J., entered December 12, 2005.
Affirmed by unpublished per curiam opinion.
Brian Larkins challenges his sentence on two grounds. He asserts that the two out-of-state convictions included in his offender score were not comparable to Washington offenses. He also contends the trial court conducted an impermissible factual inquiry when conducting its comparability analysis.
The trial court properly included Larkins' Ohio burglary and federal conspiracy to possess with intent to distribute cocaine convictions because they are equivalent to Washington felonies. Larkins committed residential burglary, a class B felony under RCW 9A.52.025(1), when he unlawfully entered the victim's Ohio home. Under Washington law, we may infer an intent to commit a crime against a person or property in the home from Larkins' act of entering the home. It was not necessary for the State to prove the specific crime he intended to commit while inside. According to the facts outlined in the federal indictment, Larkins possessed cocaine, communicated with other co-conspirators and distributed it to an undercover officer, thus taking a substantial step in a conspiracy to distribute cocaine. These facts satisfy the elements of RCW 9A.28.040, the Washington criminal conspiracy statute, and RCW 69.50.401(1), which makes it unlawful to deliver or possess a controlled substance. While trial courts may make only a limited inquiry into the facts underlying out-of-state convictions, the federal indictment against Larkins outlined more than 56 overt acts related to the conspiracy to distribute cocaine. The trial court did not abuse its discretion when it included these felonies in Larkins' offender score. We affirm.
FACTS
On November 1, 2005, Brian Larkins pled guilty to one count of felony violation of a no-contact order. At the time of the plea, the State calculated Larkins' offender score as four, based on four out-of-state felony convictions.
At the sentencing hearing, the State conceded that two of the four out-of-state convictions should not be scored, but argued that the court should count two remaining convictions as comparable to Washington crimes: a 1992 Ohio conviction for burglary and a 1996 federal conviction for Conspiracy: Possession with Intent to Distribute Cocaine. As evidence of these two convictions, the State provided the court with indictments and judgments to establish that Larkins pled guilty in both cases.
Larkins argued the Ohio and federal statutes under which he was charged were not comparable to any Washington felonies. He also challenged the State's evidence, particularly the indictments, because they contained facts underlying the prior convictions that were neither admitted in his plea nor found by a jury beyond a reasonable doubt. The trial court found the convictions were comparable and calculated Larkins' offender score as two, resulting in a sentence range of 13 to 17 months.
DISCUSSION
Relying on the U.S. Supreme Court's decisions in Apprendi and Blakely, and the Washington State Supreme Court decision in In re Personal Restraint of Lavery, Larkins argues the trial court violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process of law at sentencing. He asserts the trial court could not do a factual comparability analysis on his Ohio burglary and federal conspiracy to distribute cocaine convictions because the facts it relied on were neither stipulated to nor proven beyond a reasonable doubt. The State asserts that a sentencing court may conduct a factual comparability analysis based on the allegations outlined in the indictments for out-of-state crimes even if the comparable Washington statute is narrower when, as here, a defendant has pled guilty to the charges.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Under Apprendi, "[o] ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt." 530 U.S. at 490. In Blakely, the Court clarified Apprendi and held that the statutory maximum means the maximum sentence a judge can impose "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis omitted).
154 Wn.2d 249, 111 P.3d 837 (2005). Applying Apprendi and Blakley, the Washington Supreme Court held, in In re Personal Restraint of Lavery, that the existence of a prior conviction need not be proven to a jury beyond a reasonable doubt. It need only find that a prior conviction exists by a preponderance of the evidence because a certified copy of a prior judgment and sentence is highly reliable evidence. Id. at 256.
To determine whether an out-of-state conviction is comparable to a Washington offense, trial courts conduct a legal and limited factual comparability analysis. To find legal comparability, the court examines the elements of the foreign conviction to a comparable Washington crime. If the elements are comparable, the sentencing court counts the defendant's out-of-state conviction as an equivalent Washington conviction, ending the inquiry. A trial court may also conduct a limited comparison of the facts underlying the foreign conviction and the applicable Washington statute.
State v. Thomas, 135 Wn. App. 474, 480, 144 P.3d 1178 (2006) (citing State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998)).
Id. at 479.
Lavery, 154 Wn.2d at 255.
Thomas, 135 Wn. App. at 481.
A sentencing court does not violate a defendant's constitutional rights under Apprendi and Blakely when it engages in a comparability analysis so long as the underlying facts were proven to the trier of fact beyond a reasonable doubt or admitted or stipulated to. But if the elements of the out-of-state statute are facially different or broader than a Washington statute, the crimes are different and not legally comparable. When a foreign statute is not legally comparable, sentencing courts may only engage in limited fact-finding to determine comparability under these circumstances because "[w] here a foreign statute is broader than Washington's, that 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."
Id. at 482; see also Lavery, 154 Wn.2d at 258 ("Any attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proven to the finder of fact beyond a reasonable doubt in the foreign conviction, proves problematic.").
Lavery, 154 Wn.2d at 257.
Id. (citing State v. Ortega, 120 Wn. App. 165, 84 P.3d 935 (2004)).
Comparability of Ohio Burglary Conviction
Larkins argues the trial court could not count his Ohio burglary conviction because the elements of the Ohio statute are different from and broader than the Washington burglary statute. He asserts the Ohio statute is not legally comparable because it does not require specific intent to commit a crime against a person or property, arguing that it merely requires the purpose to commit any misdemeanor that is not a theft offense. While he concedes that he pled guilty to both burglary and an assault in relation to his Ohio conviction, he contends the State did not prove the assault occurred in conjunction with the underlying trespass or was the criminal purpose for his burglary. Further, he argues that the trial court abused its discretion because the Ohio indictment itself does not contain facts from which the court can link the assault to the burglary. If the necessary facts do not appear in the charging documents, Larkins asserts the court may not conduct a factual analysis unless the facts on which it relies are admitted to or appear in written plea agreements or transcripts of the plea colloquy. Accordingly, he argues this conviction is comparable only to criminal trespass in the first degree, a gross misdemeanor, and should not have been included in his offender score.
The State asserts the Ohio burglary is legally comparable because both the Ohio and Washington burglary statutes require a trespass with the purpose of committing a crime within a residence or dwelling. It points out that Larkins' argument is premised on the wrong version of the Ohio statute; he relies on the 1995 revised statute rather than the 1990 version of the statute in effect at the time of his crime. It also argues that under State v. Bergeron, the State is not required to prove the specific crime Larkins intended to commit during his burglary.
105 Wn.2d 2d 1, 4, 711 P.2d 1000 (1985).
While Larkins is correct about the applicable standard, it was not necessary for the trial court to go beyond the indictment to find the crimes comparable. Under Washington law, "[a] person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." RCW 9A.52.040 defines the intent requirement under the burglary statute as follows:
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
The State is correct about which Ohio burglary statute is relevant to the comparability analysis here, and the sentencing court must examine the statute that was in effect at the time of the out-of-state conviction. The Ohio statute in effect when Larkins committed his crime required that the trespass occur "with [the] purpose to commit in the habitation any misdemeanor that is not a theft offense." In Washington, burglary requires the intruder have the intent to commit a crime against a "person or property therein." Because intent may be inferred from the act of entering or remaining unlawfully, the State need not prove the specific crime the defendant intended to commit. Under Washington law, because Larkins unlawfully entered the Ohio home, the trial court may imply his intent to commit a crime against a person or property within that home where there was no evidence to the contrary. Whether Larkins assaulted anyone in connection with the burglary is irrelevant. When Larkins engaged in the act of unlawfully entering a home in Ohio, he violated the equivalent of RCW 9A.52.025 and committed residential burglary, a class B felony. The trial court correctly included this conviction in his offender score.
See State v. Weiand, 66 Wn. App. 29, 33, 831 P.2d 749 (1992.)
Former Ohio Rev. Code Ann. § 2911.12(A)(2) (1990).
RCW 9A.52.025(1); RCW 9A.52.030.
State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).
Comparability of the Federal Conspiracy to Distribute Cocaine Conviction On October 21, 1996, Larkins pled guilty to Conspiracy Possession with Intent to Distribute Cocaine under 18 U.S.C. § 846(a)(1) and (b)(1)(A). Count I of the federal grand jury's indictment outlined the following overt acts:
BRIAN LARKINS . . . and others . . . did unlawfully, willingly, knowingly, and intentionally combine, conspire, confederate, and agree together . . . to possess with intent to distribute and to distribute cocaine base and cocaine. . . .
. . . .
. . . It was further part of the conspiracy that BRIAN LARKINS . . . used the premises located at 1109 3rd Street, N.E., Canton, Ohio, to store and distribute crack cocaine and cocaine.
. . . .
2. On August 3, 1995, BRIAN LARKINS distributed crack cocaine to an officer of the Canton Police Department (working in an undercover capacity) at 1109 3rd Street, N.E., Canton, Ohio.
3. On February 1, 1996, BYRON AMAR, aka B.J., asked FRED MISNER, aka CISCO, if he had some "brown shit?" (cocaine). MISNER replied that "it was a little lighter" and further discussed the price of cocaine and other aspects relating to the availability of cocaine.
4. On February 1, 1996, JAMES CARTER, aka JAY, stated to BYRON AMAR, aka B.J., that the police had gone to the house across the street. CARTER further stated that BRIAN (LARKINS) said to "shut down the house" and that no one would come around because of the police.
20. On February 16, 1996, BRIAN LARKINS stated to BYRON AMAR, aka B.J., that Tyree (LNU) wanted "a dub for sixty." AMAR replied that JAY (JAMES CARTER) and them will be over in a minute.
. . . .
56. From February 1, 1996, to March 5, 1996, BYRON AMAR, aka B.J., HOWARD WILLIAMS, DONTAE LACKEY, aka ICKY, FRED MISNER, aka CISCO, WALTER CHAPPELL, aka SPEEDY, LAMONT CHAPPELL, aka O.G., CLIFTON HUGHES, aka HEATHCLIFF, BRIAN LARKINS, SHAMIKO McDEW, JAMES CARTER, aka JAY, EMMANUEL BROWN, aka MAN, SHAWN McDEW, MELODY SIMON, KATRECIA SANDERS, aka PUMPKIN, NATASHA SMITH, aka TASHA, FRANCES MACK, TERRYLAE TUCK, KIP HAWKINS, and others known and unknown to the Grand Jury, used telephone number (216) 588-9641, located at 1019 Dartmouth Avenue, S.W., Canton, Ohio, to discuss aspects relating to the possession and distribution of cocaine and crack cocaine in Canton Ohio.
The State asserts that the federal indictment details numerous acts taken in furtherance of the conspiracy that go well beyond the necessary substantial step required under Washington law. The State argues in the alternative that if his federal conviction is not comparable to a Washington felony, the trial court properly counted it because, under RCW 9.94A.525(3), federal convictions are class C felonies even if they are not comparable to a crime under Washington law.
Larkins argues the State failed to establish comparability because the federal conspiracy statute does not require proof that one of the members of the conspiracy took a "substantial step" in furtherance of the conspiracy. Under RCW 69.50.401(1) and State v. Dent, a substantial step is a necessary element of conspiracy. Accordingly, Larkins asserts that the trial court improperly analyzed the facts underlying his conviction because the federal drug conspiracy statute is substantially broader than the Washington statute. He also asserts that we should restrict RCW 9.94A.525(3)'s application because it allows a trial court to score a federal offense as a class C felony without requiring a comparability analysis, thus allowing the court to count non-comparable offenses in violation of Equal Protection.
123 Wn.2d 467, 475, 869 P.2d 392 (1994).
Under 21 U.S.C. § 841(a)(1), it is unlawful for any person to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Under the federal drug conspiracy statute, 21 U.S.C. § 846, "[a] ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The comparable Washington statutes are RCW 69.50.401(1), which makes it unlawful for any person to "manufacturer, deliver, or possess with intent to manufacturer or deliver, a controlled substance," and RCW 9A.28.040, the criminal conspiracy statute which requires proof of a "substantial step" in order to show the conspiracy at work. Larkins' possession and sale of cocaine to an undercover officer also violates former RCW 69.50.401(d) (now RCW 69.50.4013(1)), which makes it "`unlawful . . . to possess a controlled substance.'"
RCW 9A.28.040(1) provides: "A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement."
State v. Dent, 123 Wn.2d 467, 475, 869 P.2d 392 (1994).
Cocaine and crack are identified as controlled substances under RCW 69.50.206.
Under the United States Supreme Court's holding in United States v. Shabani, 21 U.S.C. § 846 requires an allegation and proof of an "`agreement to commit an unlawful act'" but does not require proof of overt acts in furtherance of the conspiracy.
513 U.S. 10, 16, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994) (quoting Iannelli v. United States, 420 U.S. 770, 777, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975)).
Accordingly, the federal conspiracy statute is broader than its Washington equivalent. Thus, the trial court's factual analysis is limited because of the concern that a defendant may not have an incentive to challenge facts when the foreign statute is broader. But here, several of the grand jury findings establish that Larkins committed overt acts in furtherance of the conspiracy. Because Larkins planned to distribute cocaine with his friends and did so to an undercover officer, the facts in the indictment to which he pled guilty are sufficient to show his federal conspiracy conviction is comparable to a conspiracy to distribute drugs under Washington law.
Because we resolve this issue using comparability analysis, we need not rule on the constitutionality of RCW 9.94A.525(3) which permits scoring federal offenses that are not clearly comparable to Washington offenses.
RCW 9.94A.525(3) provides:
Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.
CONCLUSION
We affirm.