Opinion
No. 25645-6-III.
October 4, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-01837-1, Linda G. Tompkins, J., entered November 2, 2006.
Affirmed by unpublished opinion per Stephens, J., concurred in by Sweeney, C.J., and Kulik, J.
Daniel Stone was convicted of first degree burglary following a jury trial. Claiming defense counsel was ineffective for failing to object to the inclusion of a 1996 Montana conviction for first degree robbery in his offender score, he appeals. We affirm.
FACTS
The State charged Daniel Stone with first degree burglary. He was convicted by a jury as charged.
At sentencing the State calculated his offender score as three, which was agreed to by the defense. His score included a 1996 Montana conviction for first degree robbery. The State indicated that with an offender score of three, the standard range for Mr. Stone's current offense was 31-41 months. The State asked the court to impose 41 months' incarceration. The defense requested a low-end standard range sentence.
The court imposed 41 months. This appeal follows.
ANALYSIS
Mr. Stone challenges the inclusion of the 1996 Montana conviction for first degree robbery in his offender score. To calculate a defendant's offender score, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, requires the court determine the defendant's criminal history based upon his prior convictions and the level of seriousness of the current offense. State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004). In order to include a prior out-of-state conviction in an offender score, the conviction must be "classified `according to the comparable offense definitions and sentences provided by Washington law.'" Id. (quoting RCW 9.94A.525(3)).
In comparing offenses, the court must "`compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes.'" Id. at 230 (quoting State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999)). If the elements of the foreign conviction are comparable to the elements of a Washington offense on their face, the foreign conviction counts toward the offender score as if it were the comparable Washington offense. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). If the elements are not identical, or if Washington defines the offense more narrowly, it may be necessary to look into the record surrounding the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense. Ford, 137 Wn.2d at 479. "The key inquiry is under what Washington statue could the defendant have been convicted if he or she had committed the same acts in Washington." State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999).
Mr. Stone was convicted of first degree robbery in Montana. The statute defining that crime provides:
(1) A person commits the offense of robbery if in the course of committing a theft, the person:
(a) inflicts bodily injury upon another;
(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or
(c) commits or threatens immediately to commit any felony other than theft.
(2) A person convicted of the offense of robbery shall be imprisoned in the state prison for a term of not less than 2 years or more than 40 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.
(3) "In the course of committing a theft", as used in this section, includes acts that occur in an attempt to commit or in the commission of theft or in flight after the attempt or commission.
Mont. Code Ann. § 45-5-401 (2005). Washington defines robbery as follows:
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
Mr. Stone asserts that Montana's robbery statute is broader than Washington's because a person can commit robbery in Montana in more ways than is possible in Washington. The State does not disagree with this assessment; rather, it claims Mr. Stone cannot prevail on appeal because of the lack of a record regarding the facts underlying his Montana conviction. Generally, the State has the burden to prove the existence and comparability of an out-of-state conviction. Ross, 152 Wn.2d at 230. But a defendant's affirmative acknowledgment that his prior convictions are properly included in his offender score satisfies the SRA. Id.
Here, Mr. Stone agreed to his 1996 Montana robbery conviction being included in his offender score. Thus, the State had no obligation to prove comparability. Id. The inclusion of this conviction in his offender score was not error.
Mr. Stone recognizes this, and instead asserts he was denied effective assistance of counsel because defense counsel did not object to the use of the Montana conviction without requiring the State to prove comparability.
Mr. Stone had the right to effective assistance of counsel at trial. U.S. Const. amend. VI; Wash. Const. art. I, § 22. We start with the presumption that counsel's representation was effective. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). In order to find that trial counsel was ineffective, the defendant must show that counsel's performance was deficient in some respect, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Here the record does not indicate whether Mr. Stone's counsel analyzed the comparability of the statutes prior to agreeing to the inclusion of the 1996 Montana conviction. The facts might have demonstrated to counsel that the conviction satisfied the requirements for inclusion. If so, there was no reason to dispute the inclusion. Thus, we cannot say counsel acted without legitimate strategic or tactical reason, or that his performance was deficient.
Furthermore, Mr. Stone cannot show prejudice. Prejudice is shown when, but for counsel's errors, the result would have been different. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003). On the record before us, Mr. Stone cannot show prejudice. Because success of his claim will require analysis of documents outside the trial record, the proper avenue for Mr. Stone is to raise this claim through a personal restraint petition. State v. We, 138 Wn. App. 716, 729, 158 P.3d 1238 (2007) (citing McFarland, 127 Wn.2d at 335).
CONCLUSION
Mr. Stone acknowledged his 1996 Montana conviction was properly included in his offender score. The State had no responsibility to prove comparability. Whether defense counsel compared the statutes prior to agreeing to their inclusion in the offender score is not in the record before us. Mr. Stone can show no prejudice.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J., KULIK, J., concur.