Opinion
No. 62866-6-I.
December 21, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08243-0, Paris K. Kallas, J., entered December 16, 2008.
Affirmed by unpublished per curiam opinion.
George Verkler appeals the sentence imposed following his guilty plea to second degree assault. He contends he must be resentenced because the trial court included prior federal convictions in his offender score without making a finding they were factually comparable to a Washington offense. The State points out, and Verkler does not dispute, that this issue is moot because Verkler has completed his sentence. Verkler offers no basis for reviewing this issue under the criteria for review of moot issues.
In any event, Verkler's argument fails. First, contrary to Verkler's assertions, the court's oral opinion indicates that it considered the factual comparability requirement and implicitly concluded it was satisfied. Second, Verkler's missing finding analysis is misplaced. He contends the court's silence regarding factual comparability "was presumptively a finding the State failed to carry its burden" on that point. In support, he cites authority for the generic proposition that "in the absence of a finding on a factual issue [courts] must indulge the presumption that the party with the burden of proof failed to sustain their burden on this issue." (Emphasis added) State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997). But in this case the facts regarding comparability were undisputed. Because there was no factual dispute requiring entry of a finding of fact, the presumption is inapplicable.
The court stated:
I agree with the state's characterization that when the foreign statute is broader and the Washington statute is more narrow, the Court may look to the conduct and to the document filed. I think that the value issue makes the Washington statute more narrow and the federal statute more broad.
For that reason, I find that it is akin to Identity Theft in the 1st Degree
. . . and therefore the state has carried its burden of proving it would be included in the offender's score. . . .
(Emphasis added) (Verbatim Report of Proceedings) VRP (Dec. 12, 2008) at 16.
Appellant's Brief at 8.
Affirmed.