Opinion
No. 59362-5-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06671-1, Douglas D. McBroom, J., entered December 14, 2006.
Affirmed in part and remanded by unpublished opinion per Schindler, A.C.J., concurred in by Dwyer and Lau, JJ.
For the first time on appeal, Joseph William Vigus (Vigus) challenges his offender score and the sentence the court imposed on his conviction for possession of stolen property and attempting to elude a police officer. Vigus contends the court erred by including out-of-state convictions in his offender score that are not comparable to Washington felony offenses. Vigus also claims that he was prejudiced by his attorney's failure to object to the out-of-state convictions. Because Vigus affirmatively agreed to his criminal history and the sentencing range, he waived his right to challenge his offender score and sentence. And because he cannot show prejudice, we affirm.
FACTS
In September 2006, Joseph William Vigus (Vigus) was charged with the crime of failure to register as a sex offender between May 18 and June 6, 2006, King County Superior Court Cause No. 06-1-06876-5 SEA. On August 2, 2006, Vigus was charged with possession of stolen property in the first degree and attempting to elude a pursuing police vehicle, King County Superior Court Cause No. 06-1-06671-1 SEA. The same attorney represented Vigus in both cases.
Before trial on the possession of stolen property and attempting to elude charges, Vigus pleaded guilty on October 31, 2006 to the failure to register as a sex offender as charged in Cause No. 06-1-06876-5 SEA. In his handwritten statement on plea of guilty, Vigus states that he was "convicted of sexual intercourse without consent in Montana which is similar to Washington State's Rape 3, a felony sex offense which requires me to register as a sex offender under RCW 9A.44.130."
In the statement on plea of guilty, Vigus also agreed that "the attached sentencing guidelines scoring form(s) (Appendix A) and the attached Prosecutor's Understanding of Defendant's Criminal History (Appendix B) are accurate and complete" and that he did not dispute the Prosecutor's statement of his criminal history. In addition, Vigus stated that "[t]he prosecuting attorney's statement of my criminal history is attached to this agreement. . . . I agree that the prosecuting attorney's statement is correct and complete." Appendix B, the Prosecutors Understanding of Defendant's Criminal History," (Sentencing Reform Act), lists nine adult felonies — four Washington felonies and five Montana felonies with the dates of conviction.
1. Sexual intercourse without consent, 1997, Montana
2. Failure to register as a sex offender, 1998, Montana
3. Theft, 1997, Montana
4. Criminal possession of dangerous drugs, 1991 Montana
5. Failure to appear contempt, 1992, Montana
6. Failure to register as a sex offender, 2005, King County
7. Failure to register as a sex offender, 2005, King County
8. Failure to register as a sex offender, 2004, King County
9. Theft in the second degree, 2004, King County
On November 15, 2006, a jury convicted Vigus of possession of stolen property in the first degree and attempting to elude a police officer. The sentencing hearing was scheduled for December.
On November 17, Vigus was sentenced to eight months on his conviction for failure to register as a sex offender in Cause No. 06-1-06876-5 SEA. Appendix B to the Judgment and Sentence sets forth the criminal history used in calculating Vigus's offender score. Appendix B lists the exact same nine prior felony convictions that Vigus agreed to in his plea agreement.
Approximately three weeks later, the sentencing hearing was held on the possession of stolen property and attempting to elude convictions. The State's presentence report included the scoring forms for each of the two crimes, the Prosecutor's Understanding of Defendant's Criminal History, Appendix B, and the State's sentencing recommendation. The scoring form for the possession of stolen property conviction, calculates the offender score as an 11. The scoring form states that the number of prior felony convictions is nine, another point is added for the other current offense (attempting to elude), and one point is added because Vigus was on community custody at the time of the offense. With a seriousness level of two, and an offender score of "nine or more" the standard sentence range was 43 to 57 months. The scoring form for the attempting to elude conviction also calculates the offender score as an 11. With a seriousness level of one, and an offender score of "nine or more," the standard sentence range was 22 to 29 months. Appendix B, the Prosecutor's Understanding of Defendant's Criminal History, lists the same prior Montana and Washington felonies that Vigus previously agreed to as part of his plea agreement on the failure to register as a sex offender charges. But there is a handwritten notation stating that the Montana conviction for "failure to register as a violent sex offender," is a probationary matter and "failure to appear contempt" is a misdemeanor. In the State's sentencing recommendation, the State asks the court to impose 57 months, the high end of the sentence range for a defendant with an offender score of "nine or more," on the possession of stolen property, to be served concurrently with a 29-month sentence on the attempting to elude conviction. Vigus did not submit a presentence report.
The number of prior felony convictions is nine, one point is added for the other current offense, possession of stolen property, and one point is added because Vigus was on community custody at the time of the offense.
At the sentencing hearing, the prosecutor stated that with an offender score of 11 and a seriousness level of two, Vigus's standard sentencing range on the possession of stolen property conviction was "43 to 57 months" and the standard sentencing range on the attempting to elude was "22 to 29 months." The prosecutor asked the court to follow the State's sentencing recommendation and sentence Vigus to 57 months on possession of stolen property and 29 months on attempting to elude, to be served concurrently. Vigus's attorney asked the court to sentence Vigus to the bottom of the sentence range and allow the sentence to be served concurrently with his sentence for failure to register as a sex offender conviction in Cause No. 06-1-06876-5. "We're asking the Court to sentence Mr. Vigus to the bottom of the range, 43 months, concurrent with his other cause number, which is 06-1-06876-5 . . . [t]hat is a failure to register."
With an offender score of 11, the court sentenced Vigus to 55 months on the possession of stolen property, to be served concurrently with the attempting to elude conviction and his sentence in Cause No. 06-1-06876-5 for failure to register as a sex offender.
Appendix B of the Judgment and Sentence sets forth Vigus's criminal history that was used in calculating the offender score as follows:
1. Sexual intercourse without consent, 1997 Montana
2. Failure to register as a sex offender, 1998, Montana
3. Theft, 1997, Montana
4. Criminal possession of dangerous drugs, Montana
5. Failure to appear contempt, 1992, Montana
6. Failure to register as a sex offender, 2005, King County
7. Failure to register as a sex offender, 2004, King County
8. Theft in the second degree, 2004, King County
ANALYSIS
Offender Score
Vigus challenges the court's calculation of his offender score and sentence on the possession of stolen property and attempting to elude convictions. Vigus asserts that the court improperly calculated his offender score by including out-of-state convictions that are not comparable to felony offenses in Washington. The State contends that Vigus waived his right to challenge his offender score on appeal by affirmatively agreeing to the prosecutor's understanding of his criminal history, which included the out-of-state convictions, and affirmatively acknowledging the standard range, which could only be calculated by including the out-of-state convictions in his criminal history. We agree with the State.
We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn. 2d 87, 169 P.3d 816, 818 (2007). A defendant's offender score is calculated by totaling the defendant's prior convictions for all felonies and other current offenses. RCW 9.94A.589(1)(a); State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999); State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733 (2000). "Where a defendant's criminal history includes out-of-state convictions, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, requires these convictions to be classified `according to the comparable offense definitions and sentences provided by Washington law.'" Ford, 137 Wn.2d at 479 (quoting RCW 9.94A.360(3)). Under the SRA, the standard sentencing range is determined by taking into account the defendant's "offender score" and the "seriousness level" of the current offense. RCW 9.94A.510; Ford, 137 Wn.2d at 479.
Although the State bears the burden of proving the existence and comparability of a defendant's prior out-of-state conviction, a defendant's affirmative acknowledgment of the existence and the comparability of prior out-of-state convictions satisfy the requirements of the SRA and relieves the State of its burden of proof. State v. Ross, 152 Wn.2d 220. In Ross, the court reiterted its decision in Ford that absent an affirmative agreement, a defendant does not affirmatively agree to an offender score based in part on out-of-state convictions under the SRA by failing to object. However, the Court in Ford also stated that "out-of-state convictions included in the defense's proffered offender score calculation are properly included without further proof of classification." Ford, 137 Wn.2d at 483 n. 5.
In the recent case of State v. Lucero, 140 Wn. App. 782, 167 P.3d 1188 (2007), we rejected the decision of Division Two in State v. Jackson, 129 Wn. App. 95, 117 P.3d 1182 (2005), rev. denied, 156 Wn.2d 1029, 133 P.3d 474 (2006), and followed the rationale in Ross, in concluding that a defendant who agreed with an offender score calculation that necessarily included out-of-state convictions cannot challenge the comparability of those convictions. Lucero, 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, at 789. For the first time on appeal, Lucero claimed the court erred by including two out-of-state convictions. Lucero, 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 waived the right to challenge his offender score on appeal. Lucero, 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 comparability. We rejected the decision in Jackson as contrary to Ross and the principles of judicial economy:
[T]he position Lucero argues and the Jackson 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, there is no dispute that in the plea agreement for failure to register as a sex offender and at the sentencing hearing in November, Vigus affirmatively agreed that the prosecutor's understanding of his criminal history was accurate and complete. There is also no dispute that the criminal history Vigus agreed to included five Montana convictions. Three weeks later, the State submitted the same criminal history as part of the presentence report for sentencing on the convictions for possession of stolen property and attempting to elude. Based on the same criminal history, the State calculated an offender score of 11 and recommended the high end of the standard sentence range. At the December 11 sentencing hearing, Vigus's attorney agreed to the State's calculation of the offender score and standard range by asking the court "to sentence Mr. Vigus to the bottom of the range, 43 months. . . ." If Vigus's attorney had not included the out-of-state convictions, the sentencing range would have been different because the offender score would have been less than nine. Because Vigus affirmatively agreed to his criminal history and a standard sentence range that necessarily included the out-of-state convictions, he waived the right to challenge the offender score calculation on appeal.
Citing Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004), and Specht v. Patterson, 386 U.S. 605, 609-11, 87 S. Ct. 1209, 18 L. Ed.2d 326 (1967), Vigus also asserts that under the Sixth and Fourteenth Amendment of the U.S. Constitution, he had a right to a jury trial on whether the Montana out-of-state convictions were comparable to Washington felonies.
Under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." 530 U.S. at 490. In Blakely, the Court clarified Apprendi and held that the statutory maximum means the maximum sentence a judge can impose "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. But where, as here, the defendant affirmatively admits to the criminal history that includes the out-of-state convictions, there is no right to a jury trial. Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005) Ineffective Assistance of Counsel
In the alternative, Vigus claims he is entitled to a new sentencing hearing because his attorney provided ineffective assistance of counsel by failing to object to the use of Vigus's out-of-state convictions in calculating the offender score. Specifically, Vigus asserts that his attorney failed to object to the inclusion of his Montana convictions for sexual intercourse without consent, failure to register as a sex offender, theft, criminal possession of dangerous drugs, and "failure to appear contempt" in calculating his offender score.
The State concedes that the Montana failure to register conviction was a probationary matter and not a felony, that the Montana "failure to appear contempt" conviction was a misdemeanor, and that it is unclear whether Vigus's Montana theft conviction would be comparable to a felony in Washington. But the State contends that even if these out-of state convictions are not included in calculating Vigus's offender score, there is no prejudice because Vigus's offender score remains nine or more.
We accept the State's concessions.
To establish ineffective assistance of counsel, Vigus must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); In re Detention of T.A.H.L., 123 Wn. App. 172, 181, 97 P.3d 767 (2004). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on a consideration of all the circumstances. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). To prove prejudice, a defendant must show that but for counsel's deficient performance, there is a reasonable probability the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
There is no dispute that when Vigus was sentenced on the possession of stolen property and attempting to elude convictions, he had five prior Washington convictions — failure to register as a sex offender (2004), theft in the second degree (2004), failure to register as a sex offender (2005), failure to register as a sex offender (2005), and his 2006 conviction for failure to register as a sex offender. In calculating his offender score for the possession of stolen property and attempting to elude convictions, each prior Washington conviction counts as one point, the fact that he was on community custody adds one point, and the other current conviction counts as a point. RCW 9.94A.589(1)(9). Consequently, based on the five undisputed Washington convictions, the fact he was on community custody at the time of the offense, and his convictions for possession of stolen property and attempting to elude, Vigus's offender score is seven. As long as at least two of the five prior Montana Page 11 convictions were properly included in his offender score, Vigus has an offender score of "nine or more" and his standard sentencing range remains the same. RCW 9.94A.510. Because the Montana convictions for sexual intercourse without consent and for criminal possession of dangerous drugs were properly included in the offender score calculation, Vigus cannot show he was prejudiced by his attorney's failure to object.
To classify an out-of-state conviction according to the comparable offense provided by Washington law, the court must compare the elements of the out-of-state offense with the elements of the comparable Washington crimes. Ford, 137 Wn.2d at 479. If the elements are not identical or if the Washington statute defines the offense more narrowly than does the foreign statute, the court may look at the record to determine whether the defendant's conduct would have violated the comparable Washington statute. State v. Farnsworth, 133 Wn. App. 1, 18, 130 P.3d 389 (2006), rev. denied, ___ Wn.2d ___, 151 P.3d 976 (2007). Courts must keep the elements of the charged crime in mind when looking at the record because facts and allegations that are not directly related to the elements of the charged crime may not have been sufficiently proven at trial. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005).
Vigus asserts that his prior conviction for sexual intercourse without consent is not comparable to Washington's rape in the third degree because the elements of the Montana statute are broader than the Washington statute. But the Montana statute that Vigus relies on to argue that "without consent" includes a person who is "surprised" or "deceived "was not the statute in effect at the time of his offense. See Mont. Code Ann. § 45-5-501. This definition comes from a later version of the Montana statute, not the statute in effect at the time Vigus was convicted of sexual intercourse without consent. Compare Mont. Code Ann. § 45-5-501(1) with former Mont. Code Ann. § 45-5-501(1) (1996).
In addition, Montana cases before the amendment state that surprise is insufficient to prove the "force" requirement of the statute. See State v. Haser, 304 Mont. 63, 75, 20 P.3d 100 (2001).
For the first time at oral argument, Vigus's attorney argued there were additional reasons the Montana statute was broader than the Washington statute. We will not consider issues raised for the first time during oral argument. State v. Kirwin, 137 Wn. App. 387, 394, 153 P.3d 883 (2007), rev. granted, 2008 Wash. LEXIS 64 (Feb. 5, 2008).
Vigus was convicted of committing sexual intercourse without consent in 1996. The statute in effect in 1996 provided in pertinent part that: "[a] person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent." Former Mont. Code Ann. § 45-5-503(1) (1996). As used in this statute, "without consent" means:
(a) the victim is compelled to submit by force against himself or another; or
(b) the victim is incapable of consent because he is:
(i) mentally defective or incapacitated;
(ii) physically helpless; or
(iii) less than 16 years old.
Former Mont. Code Ann. § 45-5-501(1) (1996).
In Washington, a person is guilty of rape in the third degree when he engages in sexual intercourse with another person where the victim did not consent. RCW 9A.44.060. Under RCW 9A.44.010(7), "consent" means "at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact." The Montana statute is narrower than the Washington statute because it requires the offender to act Page 13 "knowingly" and the Washington statute does not include a mens rea element. See State v. DeRyke, 149 Wn.2d 906, 913, 73 P.3d 1000 (2003) (rape crimes in Washington do not have a mens rea element).
In addition, in his statement on plea of guilty for failure to register as a sex offender, Vigus admits that he was "convicted of sexual intercourse without consent in Montana which is similar to Washington State's Rape 3, a felony sex offense which requires me to register as a sex offender under RCW 9A.44.130. . . ." On this record, we conclude that the elements of sexual intercourse without consent at the time Vigus committed the offense are comparable to the elements of Washington's statute for rape in the third degree.
Vigus also contends that the Montana offense of criminal possession of dangerous drugs is not necessarily a felony in Washington because it criminalizes possession of less than 60 grams of marijuana. The State asserts that the sentence imposed on Vigus demonstrates that he was convicted of the felony portion of the Montana statute that is comparable to a Washington felony.
In Montana, the offense of criminal possession of dangerous drugs includes possession of marijuana that weighs less than 60 grams. Mont. Code Ann. § 45-9-102. While possession of 40 grams or less of marijuana is a misdemeanor in Washington, possession of more than 40 grams is a felony under RCW 69.50.401. In Montana, the maximum sentence for a conviction of criminal possession of marijuana that weighs less than 60 grams is one year, or three years for a subsequent offense. Mont. Code Ann. § 45-9-102(2). Based on the undisputed length of Vigus's sentence for five years, we conclude his conviction was for possession of more than 60 grams of marijuana, which would have violated the comparable Washington felony, RCW 69.50.401.
Because the Montana convictions for sexual intercourse without consent and criminal possession of dangerous drugs are comparable to Washington felonies Vigus's offender score would have been "nine or more" regardless of whether his attorney objected to the out-of-state convictions. Consequently, the standard range would remain the same and Vigus cannot establish prejudice. McFarland, 127 Wn.2d at 335.
As a general rule, remand for sentencing is unnecessary if the standard range remains the same. State v. Kilgore, 141 Wn. App. 817, 172 P.3d 373, 377 (2007). But here, because the State concedes that some of the prior Montana convictions should not have been included in Vigus's offender score and Appendix B to the Judgment and Sentence does not list one of Vigus's 2005 Washington convictions for failure to register as a sex offender, we remand to correct the judgment and sentence.
We Concur: