Opinion
No. 58653-0-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-00854-0, Larry E. McKeeman, J., entered July 21, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, J., concurred in by Coleman and Ellington, JJ.
James Stephens pleaded guilty to a charge of theft in the second degree. At the same time, he announced his objection to the State's proposed calculation of his offender score. At the subsequent sentencing hearing, Stephens challenged the State's evidence on several of eleven listed prior felony convictions. The sentencing court ruled that Stephens' offender score was 9 and imposed a standard-range sentence of 22 months in prison. On appeal, Stephens challenges the sentencing court's inclusion of a 1973 federal bank robbery conviction in his offender score calculation, asserting that the State failed to prove that (1) the 1973 conviction was valid, (2) was comparable to a Washington felony, and (3) did not "wash out" pursuant to RCW 9.94A.525(2)(c). We conclude that (1) the 1973 conviction was appropriately determined to be a valid conviction, (2) the federal offense is properly scored as a class C felony equivalent pursuant to RCW 9.94A.525(3), and (3) the State failed to prove that the conviction did not "wash out." Accordingly, we remand the cause to the trial court for resentencing.
"A person is guilty of theft in the second degree if he or she commits theft of: (a) Property or services which exceed(s) two hundred and fifty dollars in value other than a firearm as defined in RCW 9.41.010, but does not exceed one thousand five hundred dollars in value." RCW 9A.56.040(1).
FACTS
Stephens left a department store with more than $800 of merchandise that he had not purchased. He was arrested and subsequently charged with theft in the second degree.
Eventually, Stephens entered a guilty plea to that charge. The terms of his plea agreement permitted him to dispute the accuracy of the criminal history used in calculating his offender score. At the time he entered his guilty plea, Stephens expressed his intention to challenge the prosecution's calculation of his offender score both orally to the court and in writing. In the margin of Stephens' Statement of Defendant on Plea of Guilty form was a handwritten notation: "Criminal history may be disputed. This may affect prosecutor's recommendation."
On May 2, 2006, upon accepting Stephens' guilty plea, the superior court scheduled the sentencing hearing for June 22, 2006. This was done to allow sufficient time for the prosecutor to gather the evidence necessary to prove Stephens' criminal history. The sentencing hearing was subsequently rescheduled from June 22 to July 20, 2006. In total, the State was afforded more than eleven weeks to prepare for the sentencing hearing.
At the sentencing hearing, Stephens challenged the State's evidence concerning several of eleven listed prior convictions. On appeal, Stephens challenges only the inclusion of a 1973 federal bank robbery conviction in his offender score.
The sentencing court was presented with conflicting evidence concerning the validity of the 1973 conviction. The prosecutor produced a certified copy of a January 31, 1973 United States district court judgment and sentence finding Stephens guilty of bank robbery, committed in violation of 18 U.S.C.A. § 2113 (a) and (d). The 1973 judgment and sentence indicated that Stephens was sentenced to a 25-year prison term. Stephens, however, argued that the conviction had been reversed on appeal and that his subsequent conviction for the same crime had also been reversed. Stephens provided no documentation in support of his assertions. In fact, the sentencing court directly asked Stephens' counsel, "There's no reported opinions out of the Ninth Circuit?" Stephens' counsel replied:
No. I looked for reported opinions and couldn't find those. The Circuit Court was unable to help me find anything. I could find nothing to corroborate Mr. Stephens' position that those were overturned on appeal. So I think we're somewhat — Other than his testimony. So we're bound by it.
The sentencing court was also presented with conflicting arguments concerning the comparability of Stephens' 1973 conviction to a Washington felony for purposes of calculating the offender score. Stephens argued that the federal crime of bank robbery was not a crime comparable to a Washington felony, citing In re Personal Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005), for the proposition that the federal crime of bank robbery is not comparable to the Washington felony of robbery in the second degree. The prosecutor asserted that the 1973 bank robbery conviction was comparable to robbery in the second degree under Washington law, but provided scant analysis in support of this contention. In fact, when the sentencing court asked the prosecutor to argue in support of the conclusion that the federal bank robbery conviction was for a crime comparable to a robbery under Washington law, in light of our Supreme Court's holding to the contrary in Lavery, the prosecutor simply stated, "I looked at it once, and it did not persuade me."
The sentencing court ruled that the State proved the validity of the 1973 federal bank robbery conviction by a preponderance of the evidence. In so ruling, the sentencing court stated that it accorded greater evidentiary weight to the State's evidence of the conviction — a certified copy of the judgment and sentence — than to Stephens' unsupported assertions that the conviction had been reversed. The court also ruled that, pursuant to RCW 9.94A.525(3), the federal bank robbery conviction should be counted as a class C felony equivalent, the correct procedure for scoring a valid federal felony conviction for an offense not clearly comparable to a Washington felony. Alternately, the court held that the crime of bank robbery under federal law was comparable to the Washington felony of assault in the second degree, a class B felony.
"Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute."
The sentencing court raised this analysis sua sponte. The prosecutor never mentioned the provisions of RCW 9.94A.525(3) to the court. Thus, when the court announced its ruling that the 1973 conviction could be scored as a class C felony equivalent, the five-year "wash out" period applicable to class C felony convictions was, for the first time, put at issue. Prior to that time, only the ten-year "wash out" period applicable to class B felony convictions had been at issue, as the prosecutor had contended solely that the 1973 conviction was comparable to robbery in the second degree, a class B felony.
The sentencing court also raised this analysis sua sponte.
At the sentencing hearing, the issue of whether the 1973 conviction "washed out" was mentioned only by Stephens himself, when he was provided the opportunity for allocution prior to the court imposing sentence. After being invited by the court to speak, Stephens stated:
Well, the only thing I had to say, sir, Your Honor, is, No. 1, I want you to understand that I stand before this court as guilty of my crime. . . . [T]hat Class C felony [the 1973 conviction] should have been washed. . . . But there's no reason for me to sit here and lie about that, when on the other hand I just told you I brought myself here, you know. But I don't want to be given time that I don't have coming.
Neither the prosecutor nor Stephens' counsel directly addressed the issue of the five-year "wash out" period applicable to class C felony convictions, and the sentencing court, which put the "wash out" period at issue by sua sponte raising the applicability of RCW 9.94A.525(3), did not rule on the issue before imposing sentence.
Stephens was sentenced to a standard-range sentence of 22 months in prison, based on an offender score of 9.
In this court, Stephens supplemented the record with the published opinion in United States v. Stephens, 486 F.2d 915 (9th Cir. 1973), which indicates that the 1973 federal bank robbery conviction was, indeed, reversed on appeal. No explanation was given for his trial counsel's inability to locate this published opinion.
The State then supplemented the record as well. These supplemental materials include a copy of the docket from the federal court in which Stephens was tried and certified copies of the original federal court file. While these materials confirm that Stephens' 1973 bank robbery conviction was reversed, they also indicate that the case was re-tried in 1974, again resulting in a guilty verdict. On May 10, 1974, Stephens was sentenced to 20 years in prison. He again appealed but the conviction was affirmed. The United States Supreme Court denied certiorari. Stephens v. United States, 423 U.S. 996, 96 S. Ct. 425, 46 L. Ed. 2d 371 (1975).
While this is all quite interesting, we rely on none of it in resolving the issues in this appeal. Instead, following the law, we review only the evidence before the trial court and review the sentencing court's rulings based on the evidence before it. Thus, because the sentencing court included the 1973 conviction in calculating Stephens' offender score, we refer to Stephens' federal bank robbery conviction as "the 1973 conviction," even though the actual year of his conviction appears to be 1974.
DISCUSSION
Stephens asserts that the sentencing court erroneously included his 1973 conviction in calculating his offender score, arguing that the prosecution failed to prove that the 1973 conviction: (1) was valid; (2) was comparable to a Washington class B felony; and (3) if treated as a class C felony equivalent, pursuant to RCW 9.94A.525(3), did not "wash out," pursuant to RCW 9.94A.525(2). We hold that the trial court did not err by ruling that the State proved the validity of the 1973 conviction. We also hold that the trial court did err by ruling that the 1973 conviction was for an offense comparable to a Washington class B felony. We further hold that the trial court properly ruled that the 1973 conviction is correctly scored as a class C felony equivalent, pursuant to RCW 9.94A.525(3). Finally, we hold that the State failed to prove that the 1973 conviction did not "wash out," pursuant to RCW 9.94A.525(2).
An appellate court engages in de novo review of a sentencing court's calculation of a defendant's offender score, a question of law. State v. Ortega, 120 Wn. App. 165, 171, 84 P.2d 935 (2004), reversed in part on other grounds, 131 Wn. App. 591, 128 P.3d 146 (2006).
The procedure for determining a criminal defendant's prior criminal history is set forth by statute. RCW 9.94A.441 provides:
The prosecuting attorney and the defendant shall each provide the court with their understanding of what the defendant's criminal history is prior to a plea of guilty pursuant to a plea agreement. All disputed issues as to criminal history shall be decided at the sentencing hearing.
When a defendant disputes the State's proffered understanding of the defendant's criminal history, the prosecution must prove the defendant's criminal history by a preponderance of the evidence. State v. Lopez, 147 Wn.2d 515, 521, 55 P.3d 609 (2002). The State must meet its burden by providing reliable evidence establishing the accuracy of the offender score calculation. State v. Ford, 137 Wn.2d 472, 482, 973 P.2d 452 (1999).
Where the defendant has objected to the State's proffered version of the defendant's criminal history and the issues have been argued to the sentencing court, the State is held to the evidentiary record adduced at the original sentencing hearing. Ford, 137 Wn.2d at 485; State v. Wilson, 113 Wn. App. 122, 139, 52 P.3d 545 (2002); State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997). Thus, where the State does not carry its burden of proof after a defendant's specific objection, it is not provided a further opportunity to do so on remand. Lopez, 147 Wn.2d at 520 ("[A] remand for an evidentiary hearing is appropriate only when the defendant has failed to specifically object to the State's evidence of the existence or classification of a prior conviction.").
Trial Court Properly Found That Federal Bank Robbery Conviction Was Valid
Stephens first asserts that the trial court erroneously found that his 1973 federal bank robbery conviction was valid. We disagree. The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876-77, 123 P.3d 456 (2005) ("A `defendant is simply not obligated to disprove the State's position, at least insofar as the State has failed to meet its primary burden of proof.'") (quoting Ford, 137 Wn.2d at 482).
At Stephens' sentencing hearing, the prosecution met its burden of proving the existence of the conviction by producing the certified copy of the United States district court's judgment and sentence memorializing Stephens' conviction for bank robbery, committed in violation of 18 U.S.C.A. § 2113(a) and (d). The certified copy of the judgment and sentence indicated that Stephens was convicted of the crime and sentenced to a 25-year prison term.
The sentencing court articulated the basis for its ruling on the validity of the 1973 conviction as follows:
The 1973 bank robbery conviction is a little more complex, I believe. There are two issues related to it. One is the defendant's contention that this copy of the judgment and sentence is for an offense that was later overturned on appeal. There appears to be no record of that.
Basically all I have is the defendant's word for that versus the word of the United States District Court probation office saying this is a copy of the judgment and sentence for which he was on parole from January 31st of 1973. So I would find that there was a conviction, based on the evidence before me, there was a conviction of bank robbery in the United States District Court from January of 1973.
The sentencing court was required to determine the existence or non-existence of the prior conviction by a preponderance of the evidence. RCW 9.94A.500(1); Ford, 137 Wn.2d 479-80. "The best evidence of a prior conviction is a certified copy of the judgment." Ford, 137 Wn.2d at 480. The State need only "introduce evidence of some kind to support the alleged criminal history." Id. Thus, the documentation provided by the State supported the court's determination.
There was no error.
The 1973 Conviction Was Not for an Offense Comparable to a Washington Class B Felony
Stephens next asserts that the trial court incorrectly concluded that the 1973 conviction was for an offense comparable to a Washington class B felony. We agree. We review de novo a challenge to the classification of an out-of-state or federal conviction. State v. Jackson, 129 Wn. App. 95, 106, 117 P.3d 1182 (2005), review denied, 156 Wn.2d 1029 (2006).
The determination of whether an out-of-state or federal conviction is for an offense comparable to a Washington felony offense and, therefore, counts as part of the offender score, requires application of a two-part test. Lavery, 154 Wn.2d at 255-56; State v. Morley, 134 Wn.2d 588, 605-606, 952 P.2d 167 (1998). First, the court compares the elements of the out-of-state or federal crime with the comparable Washington crime. If the elements of the foreign offense are comparable, the sentencing court counts the defendant's foreign conviction as an equivalent Washington conviction. Lavery, 154 Wn.2d at 255. Second, if the elements of the foreign crime are different or broader, the sentencing court examines the defendant's conduct as evidenced by the undisputed facts in the record, i.e., those facts proved to a jury, admitted, or stipulated to, to determine whether the conduct would violate a comparable Washington statute. Lavery, 154 Wn.2d at 256; Morley, 134 Wn.2d at 606; State v. Thomas, 135 Wn. App. 474, 480, 144 P.3d 1178 (2006).
The only undisputed facts in the evidentiary record before the sentencing court describing Stephens' 1973 federal conviction were the facts contained in the 1973 judgment and sentence. That document did not set forth any undisputed facts relevant to assess Stephens' criminal conduct other than the fact of his conviction for violating both 18 U.S.C.A. § 2113(a) and (d), which provided in 1973, then and now, as follows:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny —
Shall be fined under this title or imprisoned not more than twenty years, or both.
. . . .
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.
At Stephens' sentencing hearing, the prosecutor argued that the 1973 federal conviction was for a crime comparable to the Washington felony of robbery in the second degree. This was plainly an untenable argument, given the lack of factual evidence presented to the sentencing court other than proof of the fact of Stephens' conviction, and considering that the Supreme Court's decision in Lavery squarely rejected the position urged upon the court by the prosecutor. 154 Wn.2d at 256 ("Because the elements of federal bank robbery and robbery under Washington's criminal statutes are not substantially similar, we conclude that federal bank robbery and second degree robbery in Washington are not legally comparable."). Moreover, the same issue was addressed, and the same result reached, by this court in State v. Freeburg, 120 Wn. App. 192, 197-99, 84 P.3d 292 (2004). The sentencing court correctly rejected the prosecution's argument that Stephens' 1973 federal bank robbery conviction was for an offense comparable to the Washington felony of robbery in the second degree.
However, relying on the evidentiary record presented at the sentencing hearing, the sentencing court concluded that the 1973 federal conviction was for an offense comparable to the Washington felony of assault in the second degree, a class B felony. The sentencing court stated:
The prosecutor did not urge the sentencing court to consider the 1973 federal conviction as a class B felony based on comparability to assault in the second degree, and did not analyze the 1973 conviction for such comparability either in briefing or in argument to the sentencing court. The sentencing court conducted this analysis sua sponte.
[U]nder the facts that are here before me that it was a robbery with a dangerous weapon, at the very least it would seem to have amounted to an Assault 2 under Washington law, using deadly weapon to extract money from someone.
"A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: . . . (c) Assaults another with a deadly weapon; or . . . (e) With intent to commit a felony, assaults another. . . ." RCW 9A.36.021(1). No statute defines the term "assault." Accordingly, we employ common law definitions that define assault as including (1) battery, (2) attempted battery, and (3) creating an apprehension of bodily harm. State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994).
The conclusion the sentencing court reached was incorrect. The elements of the federal crime for which Stephens was convicted in 1973 are not comparable to the elements of the Washington felony of assault in the second degree.
Moreover, the undisputed facts in the record before the sentencing court did not allow for a determination that the acts Stephens committed in performing the crime of federal bank robbery also would have constituted assault in the second degree under Washington law.
First, the elements of the federal crime of bank robbery as set forth in 18 U.S.C.A. § 2113(a) and (d) are broader than and, thus, not legally comparable to the elements assault in the second degree set forth in of RCW 9A.36.021(1). See Lavery, 154 Wn.2d at 258 ("Where the statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable."). Accord State v. Freeburg, 120 Wn. App. 192.
A crime could be committed in violation of 18 U.S.C.A. § 2113 (a) by a person simply entering or attempting to enter one of the listed institutions with intent to commit "any felony" affecting such institution. A violation of 18 U.S.C.A. § 2113(a), thus, could be committed through actions that are in no way related to an assault as proscribed by RCW 9A.36.021(1). The elements of 18 U.S.C.A. § 2113(d) are also broader than the elements of assault in the second degree under Washington law. 18 U.S.C.A. § 2113(d) proscribes "assault[ing] any person, or put[ting] in jeopardy the life of any person by the use of a dangerous weapon or device" in the process of "committing, or in attempting to commit, any offense defined in [U.S.C.A. § 2113(a)]." The subsection is phrased in the disjunctive, i.e., the crime can be accomplished either by assaulting any person or by putting the life of any person in jeopardy. A crime committed in violation of 18 U.S.C.A. § 2113(d) by "put[ting] in jeopardy the life of any person" does not necessarily amount to an assault under Washington law, because an individual can have his or her life placed in jeopardy without experiencing an apprehension of bodily harm. There is, thus, a difference in meaning between "put[ting] in jeopardy the life of any person" as used in 18 U.S.C.A. § 2113(d), and creating an apprehension of bodily harm as proscribed by RCW 9A.36.021(1) and Wilson, 125 Wn.2d at 218. Hence, the elements of the federal statute, 18 U.S.C.A. § 2113(d), are broader than the elements of assault in the second degree under Washington law.
18 U.S.C.A. § 2113(a) proscribes taking or attempting to take, "by force and violence, or by intimidation," various items "from the person or presence of another" or by entering or attempting to enter certain financial institutions "with intent to commit . . . any felony affecting" that institution.
For example, a bank robber could conceal an explosive device in the bank with designs to create a distraction. Such a device could be crudely constructed and inherently dangerous. A bystander or police officer might be in close proximity to the device without knowing it. In such a situation, that bystander has had his or her life placed in jeopardy, yet has no apprehension of bodily harm. Such a scenario would constitute a violation of 18 U.S.C.A. § 2113(d), but not RCW 9A.36.021(1).
Where the elements of the foreign crime are different or broader than the Washington felony at issue, the sentencing court must examine the defendant's conduct, as evidenced by the undisputed facts in the record, i.e., those facts admitted, stipulated to, or proved to a jury, to determine whether the conduct would also violate a Washington statute. Lavery, 154 Wn.2d at 258. At the sentencing hearing, the State provided no evidence of undisputed facts concerning Stephens' 1973 crime, committed in violation of 18 U.S.C.A. § 2113(a) and (d), other than the fact of his conviction. Thus, the trial court's inquiry was limited to whether the elements of the 1973 crime are comparable to the elements of assault in the second degree. As set forth above, they are not.
Accordingly, the trial court erred by concluding that Stephens' felony conviction for bank robbery, committed in violation of 18 U.S.C.A. § 2113 (a) and (d), was for a crime comparable to the class B Washington felony of assault in the second degree.
The 1973 Federal Bank Robbery Conviction Is Properly Scored as a Class C Felony Equivalent
The trial court correctly concluded, however, that the 1973 conviction is properly scored as a class C felony equivalent, pursuant to RCW 9.94A.525(3), which provides, in pertinent part:
If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.
Because the elements of 18 U.S.C.A. § 2113 (a) and (d) are not legally comparable to the Washington crimes of assault in the second degree, robbery in the second degree, or any other class B felony under Washington law, the sentencing court's alternate ruling, deeming the 1973 conviction a class C felony equivalent, was correct. RCW 9.94A.525(3).
The State Was Not Required to Prove the Comparability of Stephens' Out-of-State Convictions Beyond a Reasonable Doubt to a Jury
Stephens next argues that the prosecution was required to prove the comparability of his prior out-of-state convictions to a jury and beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Neither the Washington Constitution nor the United States Constitution requires the fact of prior convictions be proved beyond a reasonable doubt to a jury. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998); State v. Weber, 159 Wn.2d 252, 262-65, 279, 149 P.3d 646 (2006); Lavery, 154 Wn.2d at 256; State v. Smith, 150 Wn.2d 135, 143, 75 P.3d 934 (2003). As we recognized in Thomas, 135 Wn. App. at 476,
a sentencing court does not violate a defendant's right to a jury trial by determining whether out-of-state convictions are comparable, and the court can engage in limited fact finding as long as the relevant facts were proved beyond a reasonable doubt or admitted or stipulated to by the defendant.
There was no error.
The State Did Not Prove that the 1973 Conviction Did Not "Wash Out"
Stephens next contends that the prosecution failed to prove that his 1973 conviction did not "wash out" for purposes of calculating his offender score, based on the provisions of RCW 9.94A.525(2). We agree.
Once the sentencing court determined that Stephens' 1973 conviction was properly scored as a class C felony equivalent, RCW 9.94A.525(2) set forth the applicable "wash out" period:
Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
On appeal, we review whether, at the time of the sentencing hearing, the prosecution met its burden of proving that Stephens failed to spend five consecutive years in the community without committing a crime following his release from confinement resulting from the 1973 conviction. The burden of so proving was on the State, not the defendant.
[W]here the State offers no evidence in support of its position, it is impermissible to place the burden of refutation on the defendant.
. . .
. . . A criminal defendant is simply not obligated to disprove the State's position, at least insofar as the State has failed to meet its primary burden of proof.
Ford, 137 Wn.2d at 481-82 (citations omitted).
At the sentencing hearing, the prosecutor presented to the sentencing court a certified copy of a July 2, 1993, Snohomish County judgment and sentence declaring Stephens guilty of first degree possession of stolen property, a felony, committed in violation of RCW 9A.56.150. Chronologically, the 1993 felony conviction was the first conviction following the 1973 federal bank robbery conviction that the prosecution proved at the sentencing hearing.
Stephens raised the "wash out" issue during his allocution, following the court's analysis of the 1973 conviction as equivalent to a class C felony but before to the court's imposition of sentence. The prosecutor had the opportunity to address the issue to the sentencing court and provide evidence to the court on the issue before the court pronounced Stephens' sentence. However, notwithstanding the sentencing court's ruling that the 1973 conviction should be treated as a class C felony equivalent based on a directly applicable statute, the prosecutor neither argued the five-year "wash out" issue nor provided evidence relevant to the issue to the court. Notably, however, the prosecutor did not claim to be surprised by the issue being presented.
The prosecutor did not seek a continuance or request any other relief from the court.
When a defendant disputes the State's proffered understanding of the defendant's criminal history, the prosecution must prove the defendant's criminal history by a preponderance of the evidence. Lopez, 147 Wn.2d at 520. To prove Stephens' criminal history, the prosecution was required to "introduce evidence of some kind to support the alleged criminal history." Ford, 137 Wn.2d at 480. The State does not meet its burden through bare assertions, unsupported by the evidence. Ford, 137 Wn.2d at 482-83, 483 n. 3 ("Not being a witness, a prosecutor's assertions are neither fact nor evidence, but merely argument.").
Here, the prosecution failed to prove by a preponderance of the evidence that the conviction did not "wash out." Specifically, the prosecution presented no evidence of when Stephens was released from custody following the 1973 conviction. Thus, it was not possible for the sentencing court to determine whether his 1993 conviction occurred within five years of his release. Such a determination was necessary for the court to decide whether the 1973 conviction "washed out," as Stephens claimed.
At the sentencing hearing, the only evidence that the prosecutor introduced on the question of Stephens' release date following the 1973 conviction was a document attached to the guilty plea form. The document lists a "disposition" related to the 1973 conviction, which states: "Prison — 25 years 9/14/03 1533 days." However, this document did not actually purport to establish Stephens' release date, and the prosecutor never asserted that the date referenced on the document represented Stephens' release date. Indeed, the prosecutor's argument, pleadings, and evidence do not explain what "9/14/03" signifies.
On appeal, the prosecution concedes that "9/14/03" was not the date Stephens was released from custody.
Moreover, on its face, the document itself actually established that the date listed thereon could not have been Stephens' release date because the document also includes an entry that Stephens was convicted of first degree possession of stolen property in Snohomish County in 1993. This entry concerning the 1993 conviction establishes that the 2003 date was not the date of Stephens' release from custody following the 1973 federal conviction, because Stephens obviously was not convicted of possessing stolen property in Snohomish County while he was still serving a federal prison sentence elsewhere. Accordingly, the document produced by the prosecutor did not establish Stephens' release date from the incarceration following the 1973 conviction.
There was no other evidence presented to the sentencing court from which the court could have determined Stephens' release date. Thus, there was no evidence from which the trial court could determine whether Stephens' 1973 conviction had "washed out." To prove Stephens' criminal history, the prosecution was required to "introduce evidence of some kind to support the alleged criminal history." Ford, 137 Wn.2d at 480. On this issue, it failed to do so.
Because the State did not prove that Stephens' 1973 conviction did not "wash out," and because Stephens raised the issue at the sentencing hearing, the State is not afforded a second opportunity to meet its burden. Where the State fails to carry its burden of proof after a specific objection, it is not provided a further opportunity to do so on remand. Lopez, 147 Wn.2d at 520-21; Wilson, 113 Wn. App. at 139.
Stephens indicated at the time he entered his guilty plea that he contested the State's calculation of his offender score. By doing so, he placed the State on notice that it would be required to prove his criminal history at sentencing. The prosecutor should have known, with respect to the 1973 federal bank robbery conviction, that (1) Lavery and Freeburg were controlling negative authority on the issue of the comparability of the federal crime of bank robbery and the Washington felony of robbery in the second degree; (2) RCW 9.94A.525(3) applied and, thus, the 1973 federal felony conviction would qualify as a class C felony equivalent; and (3) the 1973 federal bank robbery conviction, if classified as a class C felony equivalent, would be subject to the five-year wash out period set forth in RCW 9.94A.525(2).
The State should have been prepared to address the issue of whether the 1973 federal bank robbery conviction, if scored as a class C felony equivalent, "washed out" pursuant to RCW 9.94A.525(2). This is especially true given that the defendant was plainly and consistently holding the State to its burden of proof on every sentencing issue. The State was given 11 weeks to prepare for the sentencing hearing. Although it appears that this time was not put to good use, that is not Stephens' fault.
Furthermore, the prosecution did not claim to be surprised when Stephens raised the "wash out" issue at sentencing. The State did not request a further continuance to allow the prosecutor time to gather additional evidence. Instead, the prosecutor chose to submit the issues to the sentencing court on the factual record presented at the sentencing hearing. From the record of the sentencing hearing, it is clear that the prosecutor believed that "a robbery is a robbery," and prepared and presented the State's case to the court in that vein. Of course, based on existing case law, this simplistic view of the law was wrong. That the sentencing court, and the defendant himself, engaged in a more sophisticated analysis of the legal issues presented than did the prosecutor does not present a scenario wherein the State should be allowed the opportunity on remand to remedy the legal and evidentiary insufficiencies herein discussed.
Stephens is entitled to be resentenced on his theft in the second degree conviction based on an offender score of eight, without the inclusion of the 1973 conviction. Cadwallader, 155 Wn.2d at 876; Lopez, 147 Wn.2d 520-21.
CONCLUSION
Affirmed in part, reversed in part, and remanded for resentencing.
WE CONCUR: