Opinion
No. 52892-1-I
Filed: August 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-10297-9. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Michael J Heavey.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Sa Ryan — Informational only (Appearing Pro Se), Doc # 860930, Wsp, 1313 North 13th Ave, Walla Walla, WA 99326.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Lee Davis Yates, Pros Atty Offc/Appellate Unit, 700 5th Ave Ste 1850, Seattle, WA 98104.
Appellant Samuel Ryan was found guilty of one count of first degree robbery and three counts of first degree kidnapping in a stipulated bench trial. Because Ryan had two prior `most serious offense' convictions, the court sentenced him under the Persistent Offender Accountability Act (POAA) to life in prison without the possibility of parole. He appeals, arguing that (1) he was denied effective assistance of counsel because his attorney failed to challenge his Illinois conviction when Washington cases make clear that the Illinois armed robbery statute and the Washington statute are not comparable; (2) he was deprived of his constitutional right to a jury trial when a judge determined he had two prior `most serious' offenses; and (3) the POAA violates the single subject rule of the Washington Constitution and should be stricken in its entirety. We reverse and remand for resentencing, at which time the State will have an opportunity to prove the disputed Illinois conviction. We therefore do not reach Ryan's constitutional challenges to the statute.
FACTS
On December 5, 2002, Ryan entered an Auto Parts Store in Renton with a gun and directed three employees and a customer into the back room and tied them up. One of the victims was forced to empty the cash registers, lock boxes, and safe. Police arrived while the burglary was in progress and arrested Ryan as he left the store. Police found a 9 mm handgun, nylon, sunglasses, and gloves on him, and he confessed to the crime. After Ryan was found guilty of one count of first degree robbery and three counts of first degree kidnapping with firearm enhancements, the court found that he was a persistent offender and sentenced him to life in prison without the possibility of parole. He appeals.
ANALYSIS
The State and Federal Constitutions guarantee criminal defendants reasonably effective representation by counsel at all critical stages of the proceedings. Sentencing is a critical stage of a criminal case. To prevail on an ineffective assistance of counsel claim, a defendant must establish that (1) his counsel's performance was deficient and (2) the deficient performance was prejudicial. The State concedes that Ryan was denied effective assistance of counsel when his attorney failed to challenge the comparability of Ryan's 1991 Illinois armed robbery conviction under State v. Bunting.
Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174, review denied, 132 Wn.2d 1004 (1997).
Strickland, 466 U.S. at 687.
115 Wn. App. 135, 61 P.3d 375 (2003). In Bunting, we concluded that the Illinois armed robbery statute does not require specific intent to deprive an element the State must prove under the Washington armed robbery statute. Without evidence that the State proved or the defendant conceded the intent to deprive element when convicted in Illinois, we concluded the conviction could not be considered comparable for purposes of the POAA. In light of the Bunting decision, which was filed six months earlier, Ryan's attorney's failure to challenge comparability fell below the professional norm. And it changed the outcome of this case because if he had challenged comparability, Ryan would not have been sentenced under the POAA as the State offered no evidence at sentencing showing that the intent to deprive element was proven in Illinois.
Although the parties agree that Ryan's attorney erred, they disagree on the remedy. Where a persistent offender determination is based on a prior out-of-state conviction that is not comparable to a Washington strike offense, an appellate court remands for resentencing. Ryan asks this court to remand for resentencing on the existing record, while the State urges us to remand for an evidentiary hearing where the State will have the opportunity to present additional documents about the Illinois conviction so that the court may fully consider the comparability issues. We agree with the State.
Id.
Generally, where disputed issues have been fully argued to the sentencing court, an appellate court will reverse the unlawful portion of the sentence but hold the State to the existing record on remand However, if the defense fails to notify the trial court that the State's evidence of a prior conviction is deficient, the State has not yet had an opportunity to provide the necessary proof. It is therefore appropriate to remand for an evidentiary hearing to allow the State to prove the classification of the disputed convictions. The reason for this rule is discussed in State v. Ford, and the same rationale applies here. In that case, Ford pled guilty to six counts of first degree theft and one count of attempted first degree theft. At sentencing, Ford conceded that he had previously pled guilty to three California convictions, but the State failed to offer the California statutes into evidence to allow the court to compare the statutory elements of those crimes to the relevant Washington statutes. Nonetheless, the court classified the three prior California convictions as felonies when calculating Ford's offender score under the Sentencing Reform Act (SRA), resulting in an exceptional sentence. On appeal, Ford argued that the State failed to prove by a preponderance of the evidence that the convictions were comparable to Washington felonies and that he could raise the issue for the first time on appeal. The Supreme Court agreed and remanded the case for resentencing, allowing the State further opportunity to prove its case. It noted that generally it would hold the State to the existing record; however, because Ford did not put the court on notice of the deficiencies of the State's case with an objection at sentencing, remand for an evidentiary hearing was appropriate. It noted that this remedy preserves the purpose of the SRA to impose fair sentences based on provable facts, yet provides the proper disincentive to criminal defendants who might otherwise purposefully fail to raise potential defects at sentencing in the hopes the appellate court will reverse without providing the State further opportunity to make its case.
State v. Ford, 137 Wn.2d 472, 486, 973 P.2d 452 (1999) (citing State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999)); see also State v. Lopez, 147 Wn.2d 515, 521, 55 P.3d 609 (2002) (State was not entitled to a second opportunity to prove prior offenses under the POAA on remand for resentencing when the defendant's objection was sufficient to notify the sentencing court of its obligation to demand evidence of the prior convictions alleged by the State.).
Lopez, 147 Wn.2d at 520 (citing Ford, 137 Wn.2d at 485; McCorkle, 88 Wn. App. at 499).
137 Wn.2d 472, 486, 973 P.2d 452 (1999).
Id. (citing McCorkle, 88 Wn. App. at 500).
Ford, 137 Wn.2d at 486.
This case is no different. Because Ryan failed to challenge the sufficiency of the State's evidence at sentencing, he did not put the court or the State on notice of the deficiencies. We remand for an evidentiary hearing to allow the State to introduce evidence to support its argument that all the elements of the Washington statute were proven when Ryan was convicted in Illinois.
Because the State may not be able to prove Ryan's prior convictions on remand and Ryan may not be sentenced under the POAA, we do not need to reach his constitutional challenges to the statute.
APPELWICK and COX, JJ., concur.