Opinion
No. 56425-1-I.
July 24, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-00587-2, Gregory P. Canova, J., entered June 2, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Robert Pankey Lee — Info only (Appearing Pro Se), 6545 33rd Ave S, Seattle, WA 98118.
Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Following a trial on stipulated facts, Robert Pankey Lee was convicted of possession of cocaine. Lee contends the trial court's decision to include an out-of-state prior conviction for aggravated battery in his offender score was error and violated his Sixth Amendment right to a jury trial. But below, Lee agreed his offender score included the out-of-state prior conviction for aggravated battery. Because Lee agreed to his offender score, the State had no obligation to present proof of his prior conviction, and Lee waived his right to challenge his offender score. We affirm Lee's conviction and sentence.
FACTS
On April 19, 2004, a police officer placed Lee under arrest for probation violations. In a search incident to arrest, the officer found a rock of cocaine and a glass pipe containing cocaine residue. Lee was charged with one count of possession of cocaine. Lee agreed to a bench trial on stipulated facts. The court found him guilty as charged.
Before the sentencing hearing, the State and Lee each submitted a presentence report to the court. Based on Lee's criminal history, including six Washington felonies and one Kansas conviction for aggravated battery, the State calculated Lee's offender score as seven. With an offender score of seven, Lee's standard range sentence was 12 to 24 months. The State recommended 18 months of confinement. Based on Lee's criminal history, the defense presentence report agreed that Lee's offender score was seven and his standard range was 12 to 24 months. The defense asked the court to impose an exceptional sentence below the standard range of six months because of the small quantity of drugs. The court imposed a 12-month sentence; the low end of the standard range. Lee appeals.
ANALYSIS
Lee argues the trial court erred by including the prior Kansas conviction for aggravated battery in his offender score. Lee claims he has a constitutional right to have a jury decide whether the out-of-state prior conviction was comparable to a Washington crime and contends the State failed to prove comparability.
Under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum sentence to which a person is exposed must be submitted to a jury, and proved beyond a reasonable doubt.' In Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court held that the statutory maximum for purposes of Apprendi 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.'
(Emphasis in original.)
In this case, while Lee challenges his offender score and the inclusion of his prior Kansas conviction on appeal, below, he conceded that the conviction should be included in his offender score. In State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004), the Washington Supreme Court held that although the State generally bears the burden of proving the existence and comparability of a defendant's prior out-of-state convictions, a defendant's affirmative acknowledgment that prior out-of-state convictions are properly included satisfies the requirements of the Sentencing Reform Act and no further proof is required. Ross, 152 Wn.2d at 230. Because Lee included the Kansas prior conviction in his own calculation of his offender score, the sentencing court properly relied on its comparability. See Ross, 152 Wn.2d at 233. Although Lee asserts that Ross was erroneously decided, it is controlling precedent. As in Ross, we conclude Lee waived his right to challenge the comparability of his prior out-of state conviction.
Because Lee expressly acknowledged that his prior Kansas conviction was included in his offender and he has waived his right to challenge comparability, it is unnecessary to address his argument regarding judicial fact finding in the context of comparability determination.
We affirm Lee's conviction and sentence.
SCHINDLER, GROSSE and COX, JJ.