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State v. Potts

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1036 (Wash. Ct. App. 2007)

Opinion

No. 57232-6-I.

March 12, 2007.

Appeal from a judgment of the Superior Court for King County, No. 01-1-10780-8, Douglass A. North, J., entered October 31, 2005.

Counsel for Appellant(s), Eric Broman, Nielsen Broman Koch PLLC 1908 E Madison St Seattle, WA, 98122-2842.

Counsel for Respondent(s), Brian Martin Mcdonald King County Prosecutor's Office 516 3rd Ave Ste W554 Seattle, WA, 98104-2362.


Affirmed by unpublished per curiam opinion.


Derond Potts appeals his sentence following remand from this court for recalculation of his offender score based on the State's concession that some of his juvenile convictions washed out and were incorrectly counted as adult convictions. Potts now contends that the sentencing court improperly counted out-of-state convictions that were not comparable to any Washington felony and violated his constitutional rights by counting out-of-state convictions when factual comparability had not been determined by a jury and by including juvenile adjudications in his offender score. Because the elements of Potts' North Carolina convictions are legally comparable to the elements of a Washington felony and because prior juvenile adjudications need not be found by a jury, we affirm

FACTS

Following his conviction in March 2002 of first degree assault, attempting to elude and two counts of first degree robbery, Derond Potts affirmatively acknowledged at sentencing that his criminal history included nine convictions from North Carolina for larceny of an automobile and possession of stolen property. Potts then appealed his sentence arguing that because the State failed to prove that the North Carolina convictions were comparable to Washington felonies, they should not have been included in his offender score.

We held that Potts relieved the State of its burden of proving his prior convictions when he affirmatively acknowledged the State's calculation of his offender score. Because the record did not demonstrate that his offender score was obviously miscalculated, he waived any challenge to the comparability of his offender score on direct appeal. However, we remanded the case to the trial court for a recalculation of his offender score based on the State's concession that some of his juvenile adjudications washed out and were incorrectly included as adult convictions.

Potts, 2003 Wash. App. LEXIS 2597, at *4-5.

Potts, 2003 Wash. App. LEXIS 2597, at *5.

At the sentencing hearing following remand, Potts challenged the comparability of the North Carolina convictions for larceny of an automobile.

Potts conceded that the North Carolina conviction for possession of stolen property was comparable and properly included in his offender score and he does not present any challenge or argument about the scoring of that conviction on appeal.

The State provided additional documentation of the North Carolina convictions, but argued that the law of the case doctrine prevented consideration of Potts' challenge. The sentencing court agreed that the law of the case applied, but also determined that the North Carolina convictions for larceny of an automobile were comparable to Washington's felony of taking a motor vehicle without permission based on the elements of the crimes. The sentencing court imposed a standard range sentence.

Potts appeals.

ANALYSIS

Potts first contends that the trial court improperly included in his offender score his convictions for larceny of a motor vehicle in North Carolina. The State argues that our prior holding that Potts had relieved the State of its burden to establish comparability at the first sentencing was the law of the case, preventing a comparability challenge on remand. Even assuming, without deciding, that the trial court was required to consider comparability at the second sentencing hearing, Potts fails to establish error.

To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. If the elements of the out-of-state conviction are comparable to those of a Washington crime on their face, the foreign conviction is properly included in the defendant's offender score.

State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998).

In re Personal Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005).

The State provided charging documents, plea forms and judgments indicating that Potts pleaded guilty and was sentenced to a total of eight felony counts of "larceny of [a] motor vehicle" in 1996 and 1998 in violation of North Carolina General Statute §§ 14-72, providing that "[l]arceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony." North Carolina courts have held that the essential elements of larceny of a motor vehicle are (1) taking a motor vehicle of another, (2) carrying it away, (3) without the owner's consent, and (4) with the intent to deprive the owner of his motor vehicle permanently. On the dates of his offenses in North Carolina, the elements of the Washington felony of taking a motor vehicle without permission were (1) intentionally, (2) taking or driving a motor vehicle, (3) without the owner's permission. Thus, any person convicted of a felony count of larceny of a motor vehicle in North Carolina would have been guilty of taking a motor vehicle without permission in Washington. Because all the elements of the Washington offense are included in the North Carolina offense, the offenses are legally comparable and Potts' eight North Carolina convictions were properly included in his offender score.

State v. Sakobie, 157 N.C. App. 275, 283, 579 S.E.2d 125, 131 (2003).

Former RCW 9A.56.070(1) (2002), amended by Laws of 2002, ch. 324 §§ 1; State v. Toms, 75 Wn. App. 55, 57-59, 876 P.2d 922 (1994).

Because the offenses are legally comparable, we need not address Potts' contention that Apprendi and Blakely require that the factual comparability of prior out-of-state convictions be determined by a jury.

Finally, Potts argues that including juvenile adjudications in his offender score to increase his punishment violates his jury trial rights under Apprendi v. New Jersey and Blakely v. Washington. But our Supreme Court has recently rejected this argument in State v. Weber, holding that prior juvenile adjudications fall under the prior conviction exception in Apprendi and are not facts that a jury must find under Blakely.

Affirmed.

COLEMAN and SCHINDLER, JJ., concur.


Summaries of

State v. Potts

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1036 (Wash. Ct. App. 2007)
Case details for

State v. Potts

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. DEROND LEE POTTS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 12, 2007

Citations

137 Wn. App. 1036 (Wash. Ct. App. 2007)
137 Wash. App. 1036