IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
FILED: January 17, 2012
Lau, J. â In State v. Golden, noted at 154 Wn. App. 1039, 2010 WL 532424, we
reversed Stevie Goldenâs sentence that the trial court imposed following his first degree
attempted robbery conviction. We accepted the Stateâs concession that the record did
not support the trial courtâs finding that one of Goldenâs prior convictions was
comparable to a Washington felony for purposes of calculating his offender score and
remanded for resentencing. Golden now appeals from the judgment and sentence on
his resentencing, claiming (1) the State failed to prove his 2001 Missouri conviction for
stealing was factually comparable to a Washington felony for purposes of calculating
the offender score and (2) the trial court exceeded its statutory authority in imposing 24
to 36 monthsâ community custody upon finding that the current offense was a âserious
violent offenseâ under RCW 9.94A.030. Finding no error regarding the trial courtâs
comparability determination and offender score calculation, we affirm Goldenâs
sentence. Accepting the Stateâs concession of error regarding the community custody
determination, we remand with instructions to impose 18 monthsâ community custody
under RCW 9.94A.701(2).
In September 2008, a jury convicted Stevie Golden of attempted first degree
robbery. At sentencing, the trial court calculated Goldenâs offender score as 3 based
on the courtâs finding that he had three prior Missouri convictions for stealing that
counted in his offender score. The court sentenced Golden to 40 monthsâ confinement
and 18 to 36 monthsâ community custody.
Golden appealed his sentence, arguing the State failed to prove that his 2001
Missouri stealing conviction was comparable to a Washington felony. The State
conceded that the record did not support the trial courtâs finding that the Missouri
conviction was comparable to a Washington felony. We accepted the Stateâs
concession of error and remanded for resentencing.
At resentencing, to prove the Missouri conviction was comparable to a
Washington felony, the State presented copies of the 2001 Missouri first amended
complaint and information charging Golden with stealing. The information alleged
that on or about the 1st day of August, 2001, in the County of Boone, State of
Missouri, the defendant appropriated United States currency, by physically
taking from the person of Kyle Volrath, which property was in the possession of
Kyle Volrath, and defendant appropriated such property without the consent of
Kyle Volrath and with the purpose to deprive him thereof.
Golden pleaded guilty in open court to the 2001 Missouri stealing crime as charged.
The Missouri court made and set forth findings in open court and immediately imposed
its sentence. The document entitled âJudgmentâ reflects that the Missouri court
âinformed the defendant of verdict/finding, asks the defendant whether (s)he has
anything to say why judgment should not be pronounced, and finds that no sufficient
cause to the contrary has been shown or appears to the court.â
After considering the Stateâs submissions regarding Goldenâs 2001 Missouri
conviction, the trial court found the conviction was comparable to first degree theft in
Washington and included it in Goldenâs offender score. The court sentenced Golden to
40 monthsâ confinement and also imposed 24 to 36 monthsâ community custody, finding
the current offense was a âserious violent offenseâ under RCW 9.94A.030.
Golden appeals the judgment and sentence on his resentencing. He claims the
State failed to prove that his 2001 Missouri conviction for stealing was factually
comparable to a Washington felony for purposes of calculating the offender score. He
also claims the trial court exceeded its statutory authority in imposing 24 to 36 monthsâ
Comparability Analysis and Offender Score Calculation
Golden contends the trial court erred when it found his 2001 Missouri stealing
conviction was factually comparable to the Washington felony of first degree theft. The
State counters that it presented sufficient comparability information and the court
properly included Goldenâs Missouri conviction in his offender score.
âA defendantâs offender score establishes the range a sentencing court may use
in determining the sentence.â State v. Thomas, 135 Wn. App. 474, 479, 144 P.3d 1178
(2006). In calculating the offender score, â[t]he sentencing court must include all
current and prior convictions . . . .â Thomas, 135 Wn. App. at 479. If a defendantâs
prior convictions are from another state, the Sentencing Reform Act requires the trial
court to classify the convictions âaccording to the comparable offense definitions and
sentences provided by Washington lawâ before including them in the offender score.
RCW 9.94A.525(3). The State must prove by a preponderance of the evidence that an
out-of-state conviction is comparable to a Washington crime. State v. Ford, 137 Wn.2d
472, 479-80, 973 P.2d 452 (1999).
To determine comparability, Washington courts apply a two-part test involving
legal comparability and factual comparability. First, the sentencing court compares the
elements of the out-of-state crime to the similar Washington criminal statute in effect
when the out-of-state crime was committed. In re Pers. Restraint of Lavery, 154 Wn.2d
249, 255, 111 P.3d 837 (2005). If the elements are âsubstantially similar,â or if the outof-state crime is defined more narrowly than in Washington, the out-of-state conviction
is included in the offender score. Lavery, 154 Wn.2d at 255. If the foreign crime is
defined more broadly than the Washington crime, the court proceeds to the second part
of the test to determine factual comparability. State v. Morley, 134 Wn.2d 588, 606,
952 P.2d 167 (1998). This requires the sentencing court to determine whether the
defendantâs conduct would have violated the comparable statute, as evidenced by the
indictment, information, or records of the foreign conviction. Lavery, 154 Wn.2d at 255.
âWhile 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.â Morley, 134 Wn.2d at 606. The court
may examine only those documents that conclusively demonstrate that the relevant
facts were proved to a jury beyond a reasonable doubt or admitted by the defendant in
a guilty plea. Shepard v. United States, 544 U.S. 13, 21-26, 125 S. Ct. 1254, 161 L.
Ed. 2d 205 (2005); Lavery, 154 Wn.2d at 258; State v. Bunting, 115 Wn. App. 135, 14243, 61 P.3d 375 (2003). The sentencing court âis generally limited to examining the
statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.â Shepard, 544 U.S. at 16.
Golden argues that the Stateâs documents are insufficient to prove his Missouri
stealing conviction is comparable to first degree theft in Washington. The State
concedes that the Missouri and Washington crimes at issue are not legally comparable.
See Respâtâs Br. at 7 (â[I]t would appear that the Missouri statute is more broad or
contains alternatives not listed under the Washington theft statute. Therefore, further
analysis is required.â). Thus, we consider factual comparability and evaluate whether
Goldenâs 2001 Missouri conduct would have constituted first degree theft under the
relevant Washington criminal statute.1
In 2001,2 Washingtonâs first degree theft statute provided:
(1) A person is guilty of theft in the first degree if he or she commits theft of:
(a) Property or services which exceed(s) one thousand five hundred
dollars in value other than a firearm as defined in RCW 9.41.010; or
(b) Property of any value other than a firearm as defined in RCW
9.41.010 taken from the person of another.
(2) Theft in the first degree is a class B felony.
Former RCW 9A.56.030 (2000). In Washington, theft requires intent to deprive the
victim of property or services. Former RCW 9A.56.020 (2000). As discussed above, in
2001, Missouri charged Golden with stealing3 and specifically alleged that he
Golden argues that the Stateâs submitted documents do not show what
subsection of the Missouri statute he was convicted under and that he may have been
convicted under a subsection that covers a broader range of property than
Washingtonâs first degree theft statute. But because the State concedes the Missouri
statute is broader than Washingtonâs, we need not address this argument.
The State cites to the current versions of the Washington and Missouri criminal
statutes. But for comparability analysis, a defendantâs prior crime must be compared to
the relevant Washington statute in effect at the time the prior crime was committed
(here, 2001). See Lavery, 154 Wn.2d at 255.
In 2001, Missouriâs stealing statute provided in relevant part:
â1. A person commits the crime of stealing if he or she appropriates property or
services of another with the purpose to deprive him or her thereof, either without his or
her consent or by means of deceit or coercion.
â2. Evidence of the following is admissible in any criminal prosecution under this
section on the issue of the requisite knowledge or belief of the alleged stealer:
â(1) That he or she failed or refused to pay for property or services of a hotel,
restaurant, inn or boardinghouse;
â(2) That he or she gave in payment for property or services of a hotel,
restaurant, inn or boardinghouse a check or negotiable paper on which payment was
â(3) That he or she left the hotel, restaurant, inn or boardinghouse with the
intent to not pay for property or services;
â(4) That he or she surreptitiously removed or attempted to remove his or her
baggage from a hotel, inn or boardinghouse.
âappropriated United States Currency, by physically taking from the person of Kyle
Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive him
Golden contends the State did not prove he admitted the necessary facts when
he pleaded guilty to the 2001 Missouri stealing charge. He relies on State v. Bunting,
115 Wn. App. 135, 61 P.3d 375 (2003). In Bunting, we applied a factual comparability
analysis to determine whether the defendantâs 1972 Illinois armed robbery conviction
compared to the crime of armed robbery in Washington. Bunting, 115 Wn. App. at 14043. The record contained three documents providing facts about the 1972 armed
robbery: an âOfficial Statement of Factsâ that the assistant stateâs attorney provided to
â3. Stealing is a class C felony if:
â(1) The value of the property or services appropriated is seven hundred fifty
dollars or more; or
â(2) The actor physically takes the property appropriated from the person of the
â(3) The property appropriated consists of:
â(a) Any motor vehicle, watercraft or aircraft, or
â(b) Any will or unrecorded deed affecting real property; or
â(c) Any credit card or letter of credit; or
â(d) Any firearms; or
â(e) A United States national flag designed, intended and used for display on
buildings or stationary flagstaffs in the open; or
â(f) Any original copy of an act, bill or resolution, introduced or acted upon by
the legislature of the state of Missouri; or
â(g) Any pleading, notice, judgment or any other record or entry of any court of
this state, any other state or of the United States; or
â(h) Any book of registration or list of voters required by chapter 115, RSMo; or
â(i) Any animal of the species of horse, mule, ass, cattle, swine, sheep, or goat;
â(j) Live fish raised for commercial sale with a value of seventy-five dollars; or
â(k) Any controlled substance as defined by section 195.010, RSMo.â
Former Mo. Rev. Stat. 570.030 (2001).
the Department of Corrections in 1973 after the defendant pleaded guilty and was
sentenced, a complaint, and the indictment. Bunting, 115 Wn. App. at 141-42. We
rejected the Stateâs argument that the âOfficial Statement of Factsâ and the complaint
should be considered in the comparability analysis. Bunting, 115 Wn. App. at 142. We
concluded (1) those documents contained allegations never proved at trial because
Bunting pleaded guilty to the crime charged and (2) Bunting did not necessarily
concede the allegations in the documents when he pleaded guilty. Bunting, 115 Wn.
App. at 143 (âThe State provides no evidence that Bunting adopted the facts set forth in
the complaint or those the assistant stateâs attorney alleged in a postsentencing
statement to the Department of Corrections.â). We held that only the indictment was
relevant because when Bunting pleaded guilty, the only acts he conceded to were the
elements of the crime stated in the indictment. Bunting, 115 Wn. App. at 142. Because
the indictment did not allege intent as an element (as required by the Washington
statute) and nothing in the record showed intent was proved or conceded in Buntingâs
guilty plea, it was insufficient to prove that the Illinois and Washington offenses were
Goldenâs reliance on Bunting is misplaced. In Bunting, we held that the out-ofstate indictment was relevant to the comparability analysis, but the State failed to prove
comparability because the indictment did not contain the intent element required under
Washington law. In contrast, Goldenâs Missouri information contains each element of
first degree theft as defined by former RCW 9A.56.030(1)(b) and 9A.56.0204âit alleges
As discussed above, former RCW 9A.56.030(1)(b) provided, âA person is guilty
that Golden âappropriated United States Currency, by physically taking from the person
of Kyle Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive
him thereof.â This allegation satisfies the âtheft of . . . [p]roperty of any value other than
a firearm,â âtaken from the person of another,â and intent (purpose) elements of first
degree theft as defined in Washington in 2001. See Former RCW 9A.56.030(1)(b),
9A.56.020. It is undisputed that Golden pleaded guilty to Missouri stealing
chargeâwith findings made and set forth in open courtâand that the Missouri court
found no sufficient cause why judgment should not be pronounced. Thus, the State
met its burden of proving by a preponderance of the evidence that Golden was
convicted of a crime comparable to first degree theft in Washington.
Our holding in State v. Booker, 143 Wn. App. 138, 176 P.3d 620 (2008) supports
our conclusion that the State met its burden here. In Booker, we applied a factual
comparability analysis to determine whether the defendantâs 1994 Illinois conviction for
illegal possession of a firearm by a felon compared to a violation of RCW 9.41.040(2),
the Washington statute making it a felony for a felon to possess a firearm. Booker, 143
Wn. App. at 142. At sentencing, the State presented âcertified copies of the order of
sentence and commitment to Illinois Department of Corrections, the statement of
conviction/disposition, and the information filed in Bookerâs prior firearm caseâ to prove
comparability. Booker, 143 Wn. App. at 142. We held that because the Illinois
of theft in the first degree if he or she commits theft of . . . [p]roperty of any value other than a
firearm as defined in RCW 9.41.010 taken from the person of another.â Under former RCW
9A.56.020, theft included an intent element (intent to deprive the victim of property or
information explicitly charged Booker with possession of a firearm, âthe State met its burden of
proving by a preponderance of the evidence that Booker was convicted of a crime comparable to
possession of a firearm by a felon in Washington.â Booker, 143 Wn. App. at 143. Thus,
the Stateâs reliance on the out-of-state information was proper when the information
contained the same elements required to prove a Washington felony.
Here the State similarly relied on an out-of-state information containing the
elements necessary to prove first degree theft in Washington. Golden pleaded guilty to
the Missouri stealing charge and thus conceded to the facts and elements contained in
the information. The State met its burden of proving by a preponderance of the
evidence that Goldenâs prior conviction was comparable to a Washington felony, and
the trial court properly included the prior conviction in Goldenâs offender score.
Golden argues, and the State concedes, that the trial court erroneously
classified his offense as a âserious violent offenseâ under RCW 9.94A.030 in its
judgment and sentence.5 Based on this erroneous conclusion, it imposed 24 to 36
monthsâ community custody. The parties agree that the correct community custody
term under RCW 9.94A.701(2) is 18 months.
Because the trial court properly included Goldenâs 2001 Missouri stealing
At the resentencing hearing, the trial court correctly identified attempted
robbery in the first degree as a violent offense. But the court was mistaken that Golden
was subject to a 36 month community custody term. The error was amplified when the
community custody term was marked on the judgment and sentence as a range
consistent with a serious violent offense (24 to 36 months).
conviction in his offender score, we affirm his sentence but remand with instructions to
impose 18 monthsâ community custody under RCW 9.94A.701(2).