Opinion
No. 57824-3-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-13123-0, William L. Downing, J., entered March 8, 2006.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Schindler, A.C.J., and Lau, J.
Glenn Legg was convicted of felony harassment following a bench trial. Prior to sentencing, Legg submitted a presentence report that agreed with the State's assertion as to the applicable standard sentencing range. The State's calculation of the standard range was necessarily based on an offender score that included Legg's prior out-of-state conviction. For the first time on appeal, Legg contends that his case must be remanded for resentencing because the State failed to prove that his foreign conviction was comparable to a Washington felony. In response, the State contends that, by affirmatively agreeing with the State's calculation of the applicable standard range, Legg also necessarily agreed with the State's calculation of his offender score, thereby acknowledging his criminal history. In such a circumstance, the State argues, it was not required to further prove Legg's criminal history at the sentencing hearing. We agree. Accordingly, we affirm.
In his briefing, Legg's primary contention was that the State's failure to prove the comparability of his foreign conviction to a jury beyond a reasonable doubt violated his right to a jury trial and to due process of law. At oral argument, Legg expressly abandoned this issue. Accordingly, we will not address it further.
Prior to sentencing, the State submitted a presentence report indicating that Legg's offender score was three. This score was based on the combination of Legg's two prior Washington felony convictions and one Colorado felony conviction for attempted sexual assault on a child. Based on a combination of the seriousness level of the crime of felony harassment, which is established by statute, and the offender score, the State calculated Legg's standard sentencing range to be nine to twelve months in jail. The State requested that the trial court sentence Legg to twelve months.
Legg's attorney also submitted a presentence report. This report acknowledged that the applicable standard sentencing range was nine to twelve months. Legg's attorney requested that a sentence of nine months be imposed. At the sentencing hearing, neither Legg nor his counsel objected to the State's assertions as to Legg's offender score or took issue with the inclusion of the Colorado conviction in the score. The trial court imposed a sentence of eleven months in jail.
We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). The Sentencing Reform Act of 1981 (SRA), chapter 9.94A.RCW, created a grid of sentencing ranges which vary according to a combination of a defendant's offender score and the statutorily-established seriousness level of the current crime. RCW 9.94A.530; RCW 9.94A.515; State v. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994). Generally, an offender score is calculated by adding together prior felony convictions. RCW 9.94A.525. The SRA also requires that prior out-of-state convictions, alternatively referenced as foreign convictions, be classified "`according to the comparable offense definitions and sentences provided by Washington law.'" State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004) (quoting RCW 9.94A.525(3)). The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence. Bergstrom, 162 Wn.2d at 93.
However, "a defendant's acknowledgement of the existence and comparability of his or her prior out-of-state convictions `allows the judge to rely on unchallenged facts and information introduced for the purposes of sentencing.'" Ross, 152 Wn.2d at 233 (quoting State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999)). "[A] defendant's affirmative acknowledgement of the existence and comparability of out-of-state convictions will render further proof unnecessary." Ross, 152 Wn.2d at 233 (citing Ford, 137 Wn.2d at 483 n. 5).
Thus, a sentencing court properly adopts the State's classification of foreign convictions when the defense proffers its own offender score calculation that necessarily includes consideration of foreign convictions or when the defense affirmatively acknowledges the correctness of the calculation of the State-proffered offender score. See Ross, 152 Wn.2d at 233; Ford, 137 Wn.2d at 483 n. 5; State v. Lucero, 140 Wn. App. 782, 789, 167 P.3d 1188 (2007); State v. Foster, 140 Wn. App. 266, 276, 166 P.3d 726 (2007). See also In re Personal Restraint of Shale, 160 Wn.2d 489, 158 P.3d 588 (2007) (plurality opinion). Similarly, in a case such as this, in which the seriousness level of the current offense is set by statute and the standard sentencing range can only result from a combination of that seriousness level and an offender score of by agreeing to the standard range, the defendant also agrees to the offender score.
Legg does not dispute that his counsel submitted a presentence report that agreed with the State's calculation of the applicable standard sentencing range based on an offender score of three. He does not contest that the offender score necessarily included his Colorado felony conviction. Instead, Legg asks us to disavow our recent decision in Lucero, where we held that a defendant who verbally agrees with the State's calculation of his offender score has acted with the same effect as a defendant who submitted that proposed offender score in his own presentence report. Lucero, 140 Wn. App. at 789.
Legg also contends that Ross was wrongly decided and that we should not follow it. As a decision of the Washington State Supreme Court, we are bound to follow the Ross decision, notwithstanding Legg's invitation to do otherwise. State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997); State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984).
We decline to do so.
In Lucero, we declined to follow the decision of Division Two in State v. Jackson, 129 Wn. App. 95, 117 P.3d 1182 (2005), rev. denied, 156 Wn.2d 1029 (2006), instead following the rationale of Ross by concluding that a defendant who agreed with an offender score calculation that necessarily included out-of-state convictions cannot later challenge the comparability of those convictions. Lucero, 140 Wn. App. at 789-90. In Lucero, the court disagreed with Lucero's claim that one of the out-of-state convictions washed out, but agreed that his offender score was at least a six without that conviction. Lucero, 140 Wn. App. at 789. For the first time on appeal, Lucero claimed the court erred by including two out-of-state convictions. Lucero, 140 Wn. App. at 789. We held that by affirmatively acknowledging that the crimes were properly included in his offender score, Lucero necessarily agreed that the offender score included his out-of-state convictions and, thus, waived the right to challenge his offender score on appeal. Lucero, 140 Wn. App. at 790.
In State v. Jackson, 129 Wn. App. 95, Division Two held that a defendant's agreement to the State's calculation of the standard range is not an affirmative acknowledgement for purposes of determining camparability. We rejected the decision in Jackson as contrary to Ross and the principles of judicial economy:
[T]he position Lucero argues and the Jacks court took. . . . encourages defendants and their counsel to remain quiet, doing and saying nothing at the trial court level where the facts should properly be determined. . . . We do not think the appellate courts should condone or encourage such dilatory tactics. If there is an argument to be made, it should be raised in the trial court in the first instance. Failure to do so, combined with an acknowledgment of the State's offender score calculation, is and should be a waiver of the right to appeal the issue.
Lucero, 140 Wn. App. at 790.
Here, Legg affirmatively acknowledged the existence and comparability of his Colorado felony conviction by agreeing to the correctness of a standard sentence range that necessarily was based on an offender score that included the Colorado conviction in its calculation.
We Concur:
Affirmed.