Opinion
No. 65047-5-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-02282-2, George F.B. Appel, J., entered February 26, 2010.
Reversed and remanded by unpublished opinion per Schindler, J., concurred in by Grosse and Spearman, JJ.
Robert Love appeals his conviction of felony driving under the influence (DUI). He argues that the evidence of an out-of-state prior offense elevating the crime to a felony failed to establish comparability to a Washington crime. He also contends that the trial court failed to give a necessary jury instruction regarding prior offenses and that imposition of incarceration and community custody in the judgment and sentence exceeds the statutory maximum. We conclude that the State failed to establish the comparability of Love's out-of-state conviction. Accordingly, we must remand for entry of a conviction on the lesser included gross misdemeanor offense of DUI. We reverse Love's conviction and sentence for felony DUI and remand for resentencing in accordance with this opinion.
It is therefore unnecessary to address the other issues Love raises.
FACTS
A state trooper signaled Robert Love to pull over after receiving a commercial truck operator's report of a possible intoxicated driver. Noting several signs of alcohol consumption, the trooper took Love into custody. Love refused to provide a breath sample. The trooper nonetheless arrested Love for driving while impaired by alcohol based on his observation that Love was heavily intoxicated.
The prosecution determined that Love had three prior Washington convictions for gross misdemeanor DUI, and an Alaska conviction for Driving While Intoxicated (DWI). Based on those four predicate offenses, the State charged Love with felony DUI.
Near the end of the State's case, defense counsel objected to the evidence the State presented regarding the Alaska conviction. At the time, the State had offered only Exhibit 3, a judgment and sentence, and Exhibit 4, a handwritten set of log notes from the Wrangell District Court in Alaska. Each document was dated April 22, 2002. Defense counsel pointed out that the Alaska DWI statute was broader than the Washington DUI statute because it included operating watercraft and airplanes while intoxicated as well as motor vehicles. The trial judge agreed with the defense that the Alaska statute was broader than the Washington statute. The judge further agreed that there was nothing in either Exhibit 3 or Exhibit 4 that established that the offense the defendant had pleaded guilty to in the Wrangell court was factually comparable to a Washington DUI because there was no evidence that Love had specifically admitted or been found to have violated the statute by driving a motor vehicle. The court nonetheless granted the State a further opportunity to present additional evidence for the Alaska conviction.
The next day, the State offered Exhibit 3A, a criminal complaint from the Wrangell District Court dated July 16, 2001. The complaint alleged that Love had committed DWI by driving a Jeep Cherokee with a breath alcohol concentration of .161. The defense argued that in the absence of a transcript, recording of the hearing, or written plea statement or plea agreement, the complaint did not show what Love had admitted to at his plea hearing.
The trial court disagreed, found the evidence of the complaint sufficient to establish factual comparability with a Washington DUI, and admitted the exhibits. The court also denied defense counsel's related motion for dismissal of the felony allegation based on insufficient proof of comparability.
At the conclusion of the trial, the defense proposed a jury instruction stating that an out-of-state conviction qualified as a prior offense only if it was proved that the incident would violate Washington law if it had occurred in Washington. The trial court declined to give the proposed instruction, reasoning that it was superfluous in light of other instructions.
The jury convicted Love of felony DUI. At sentencing, the State argued that Love faced a standard range of 51 to 60 months of incarceration with 12 months of community custody. Defense counsel argued that, under recent statutory amendments, the trial court was required to reduce the community custody term to fit within the 60-month statutory maximum. The trial court disagreed, concluding that it could sentence Love to a 55-month sentence of incarceration and 12 months of community custody, as long as it included an addendum stating that his combined sentence would not ultimately exceed the statutory maximum. Love appeals.
ANALYSIS
Factual Comparability of Love's 2002 Alaska Conviction
Love argues that the court erroneously determined that his 2002 Alaska DWI conviction was comparable to a Washington DUI offense. He contends that because the State failed to meet its burden of proving comparability, his felony DUI conviction must be reversed and the case remanded for entry of a conviction and resentencing on the gross misdemeanor of DUI. We agree.
The crime of DUI in Washington is generally a gross misdemeanor, but if the defendant has four or more prior DUI offenses within ten years, the offense is elevated to a class C felony. RCW 46.61.502(6)(a). Therefore, the existence of the prior offenses is an element of the charge that must be proved beyond a reasonable doubt to the jury. State v. Roswell, 165 Wn.2d 186, 189, 196 P.3d 705 (2008). However, the question of whether a prior conviction qualifies as a predicate offense to elevate a DUI from a gross misdemeanor to a felony, is "a threshold question of law for the court to decide." State v. Chambers, 157 Wn. App. 465, 237 P.3d 352, 359, (2010). Only prior offenses that meet the statutory definition are admissible. Chambers, 237 P.3d at 359.
This court reviews de novo a challenge to the classification of an out-of-state conviction. State v. Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000). To determine whether an out-of-state conviction is comparable to a Washington offense, a court applies a two-part test. State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). The court first compares the elements of the out-of-state crime with the relevant Washington crime. If the elements are comparable, then the out-of-state conviction is counted as an equivalent Washington conviction. State v. Thomas, 135 Wn. App. 474, 480, 144 P.3d 1178 (2006).
Where, as here, the elements of the out-of-state crime are different or broader, the sentencing court examines the defendant's conduct as evidenced by the undisputed facts in the record to determine whether the conduct would violate a comparable Washington statute. Thomas, 135 Wn. App. at 480. In making its factual comparison, the sentencing court may only rely on facts in the foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837 (2005); State v. Farnsworth, 133 Wn.App. 1, 22, 130 P.3d 389 (2006). The sentencing court may look to charging documents, the written plea agreement, a transcript of the plea colloquy, and any explicit findings of fact made by the trial judge and to which the defendant assented. Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). But the sentencing court can only consider facts that were proved to a trier of fact beyond a reasonable doubt or were admitted or stipulated to by the defendant to determine factual comparability. Thomas, 135 Wn. App. at 482.
While it may be necessary to look into the record of a foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not have been sufficiently proven in the trial.
Morley, 134 Wn.2d at 606.
Moreover, where the elements of a foreign crime are broader, it may be improper to conclude that a defendant admitted to all of the allegations of the charging document if there is no incentive for a defendant to prove that he is guilty of more narrow conduct. Lavery, 154 Wn.2d at 258. As an example of this problem, the Lavery court cited State v. Ortega, 120 Wn. App. 165, 84 P.3d 935 (2004). In Ortega, the defendant had a prior Texas conviction for indecency with a child, and the State argued that this crime was comparable to a Washington "strike" offense. The Washington crime required the victim to be younger than 12, but the Texas statute required the victim to be younger than 17. As a result:
[E]ven if the child in the Texas case had claimed to be 11, Ortega would have had no incentive to challenge and prove that the child was actually 12 at the time of the contact. The critical fact in the Texas proceeding was that the child was under 17. Ortega would have been just as guilty of the Texas crime if the child had been 12, 13, or even 16, and therefore, had no reason to contest the child's actual age.
Lavery, 154 Wn.2d at 257.
Similarly, in Thomas, this court reversed a determination of factual comparability made by the trial court as being inconsistent with Shepard and Lavery. Thomas, 135 Wn.App. at 488. Specifically, we held that in analyzing whether a California burglary conviction was factually comparable to a Washington burglary, the trial court incorrectly found that the State had proved that the defendant's entry of a building had been "unlawful" based on the allegation in the charging document and a jury verdict convicting him of the crime charged. Thomas, 135 Wn. App. at 487. We reasoned that unlawful entry was not an element of the California offense, as it was under Washington law, and thus there was a "lack of incentive for Thomas to admit or mount a defense to an allegation that [did] not affect the determination of guilt." Thomas, 135 Wn. App. at 487, 144 P.3d 1178 (citing Lavery, 154 Wn.2d at 258).
The parties here agree that the Alaska DWI statute and the Washington DUI statute are not legally comparable because the Alaska DWI statute, AS 28.35.030, does not differentiate between operating a motor vehicle, a watercraft, or an airplane. In addition, given the absence of any written plea statement, plea agreement, transcript or recording of the plea hearing, there is no evidence in the record establishing that as a matter of fact, Love affirmatively adopted or admitted the specific allegations in the complaint, rather than merely admitting the elements of the statute.
Moreover, as in Thomas, it is also clear that because the Alaska DWI statute does not differentiate for purposes of guilt or punishment between the various ways of committing the offense, Love had no incentive to admit or mount a defense to the allegation that he was driving a motor vehicle rather than some other vehicle because it did not affect the determination of guilt. Thomas, 135 Wn. App. at 487 (citing Lavery, 154 Wn.2d at 258).
Nonetheless, the State contends the trial court here did not err, citing State v. Releford, 148 Wn. App. 478, 488, 200 P.3d 729 (2009). In Releford, this court held that in determining factual comparability for purposes of a Persistent Offender Act:
[T]he State may prove factual comparability by producing certified copies of foreign charging documents and evidence that the defendant pleaded guilty if the law of the state wherein the defendant entered the plea, at the time of the plea, provided that such a plea constituted an admission of the facts alleged in the charging documents.
Releford, 148 Wn. App. at 483. The Releford court addressed the issue of whether the State proved that an Oklahoma robbery conviction was factually comparable to a Washington offense when it relied on the criminal information. Releford, 148 Wn.App at 487. Critical to Releford's holding was that, as a matter of Oklahoma law at the time of Releford's offense, "'[a] plea of guilty admits the facts pleaded in the Information.'" Id. at 488 (quoting Collins v. State, 1974 OK CR 79, 521 P.2d 826, 828) (alteration in original). Thus, this court held:
There is no basis for us to conclude that, where a defendant enters a plea of guilty at a point in time and in a foreign jurisdiction where such a plea constitutes an admission of the facts alleged by the government in the charging document, such an admission cannot be later relied upon to prove factual comparability for purposes of a subsequent sentencing in Washington.
Releford, 148 Wn. App. at 488.
Here, the State's reliance on Releford fails. Unlike in Releford, the State cites no Alaska authority that is the equivalent of the Oklahoma authority establishing that a plea of guilty admits all alleged facts as a matter of law. Instead, the State cites Alaska Rules of Criminal Procedure 11(f) and Jones v. State, 215 P.3d 1091, 1095 (AK 2009) for the proposition that, as in Washington, Alaska law requires judges to determine whether there is a factual basis for the plea when the defendant enters a guilty plea. We accept the State's assertion that Jones establishes that Alaska treats its court rule requiring ascertaining a "reasonable" basis for a plea to mean determining a factual basis. But this rule falls far short of establishing that as a matter of law in Alaska, a plea of guilty necessarily admits all allegations of fact in the complaint.
Alaska Rule of Criminal Procedure 11(f) provides:
Determining the Accuracy of Plea. The court shall not enter a judgment upon a plea of guilty without first being satisfied that there is a reasonable basis for the plea.
First, it is not clear that the scant record in this case establishes compliance with Rule 11(f) when the Alaska court accepted Love's plea of guilty to DWI. But more important, even if we assume compliance with the court rule, the State has provided no Alaska authority establishing that an Alaska judge does not comply with Rule 11(f) by simply determining that there is a factual basis to establish the elements of the charged statute, rather than any specific factual allegations of the complaint.
The handwritten log entry in Exhibit 4 is not entirely clear, but it is apparent that it covers plea and sentencing hearings for more than one set of charges against Love. Under the case number for the DWI charge in issue here, No. "1 WR 01-59 CR," it recites only that "Love-Pleas Guilty" after the court addressed charges and penalties. With regard to other charges contained in No. "01-75 CR," the log actually contains the note that the court "Accepts Guilty Pleas, Factual Basis." It is possible, but not clear, that this latter statement was meant to apply to both pleas.
We conclude that the trial court erred in finding comparability established based on the limited evidence the State presented. Accordingly, because the State offered only three other qualifying prior convictions, we must remand for entry of a conviction and resentencing on the offense of gross misdemeanor DUI.
We note that the Alaska court rules specifically require that plea hearings be recorded. See Alaska Rule of Criminal Procedure 11(g) (Requiring that for plea hearings, "[a]n electronic recording shall be made of the entire proceeding or proceedings.") It appears that the log entries in State's Exhibit 4 refer to specific locations in an electronic recording or recordings.
Because of this result, it is unnecessary to address Love's jury instruction issue because it could have affected only the jury's consideration of qualifying offenses to establish felony DUI. It is likewise unnecessary to address Love's statutory maximum argument because, as Love will be sentenced only on a gross misdemeanor, community custody cannot be imposed.
For the foregoing reasons, we reverse Love's conviction of felony DUI and remand for entry of a conviction and sentence on the gross misdemeanor of DUI.
WE CONCUR: