State Of Washington, Respondent V Dedrick Demond Thomas, Appellant (Majority)

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t` Gi= APPEALS DIVISI0tq 11 23 P, JAN 22 AN 9. 19 ST Y IN THE COURT OF APPEALS OF THE STATE OF WASHING i DIVISION II No. 44042 -3 -II STATE OF WASHINGTON, Respondent, u UNPUBLISHED OPINION DEDRICK DEMOND THOMAS, JOHANSON, A.C. J. Dedrick Thomas appeals his sentence for witness tampering. He argues that the trial court incorrectly concluded that an out -of - tate failure to appear conviction s was factually resentencing comparable to consistent with a Washington bail this jumping conviction. We agree and remand for 1 opinion. FACTS In August 2007, a jury convicted Thomas on eight counts of witness tampering alleged to have occurred between January 6 and 9, 2007. After initially affirming his sentence, we reversed after our Supreme Court granted Thomas' s petition for review and remanded the case for reconsideration. State v. Thomas, 158 Wn. App. 797, 799 -800, 243 P. 3d 941 ( 2010) ( Thomas 1). We remanded for resentencing on the ground that multiple calls to a single witness should have been treated as one unit of prosecution. Thomas I, 158 Wn. App. at 802. 1 A commissioner of this court initially considered this appeal as a motion on the merits under RAP 18. 14 and then referred it to a panel of judges. No. 44042 -3 -II On remand resentenced in April 2011, the trial court dismissed seven of the eight counts and Thomas. The trial court calculated the new sentence using an offender score that included two Arkansas convictions, one for theft (2000) and another for failing to appear ( 2001). Thomas again appealed and in an unpublished opinion we reversed the sentence on the ground that the trial court erred in failing to perform an on- the -record comparability analysis of the outof - tate convictions s Wn. before including them in the offender score. State v. Thomas, noted at 169 1006 ( 2012) ( Thomas II). App. On October 5, 2012, the trial court again resentenced Thomas. At the sentencing hearing, it conducted a comparability analysis of the two convictions. The State did not submit additional documentation but stated that it was relying on documentation filed under separate cause number and " incorporated last time into the Oct. 5, 2012) at 4. record in this case. Verbatim Report of Proceedings ( VRP) These documents were the felony informations for both charges and the judgment and disposition orders. The trial court examined the Arkansas theft conviction and compared the Arkansas theft elements to the Washington theft statute: - - - concluded, " It Based -on the elements of the two crimes, I' m going to find that theft in Arkansas that Mr. Thomas was convicted of and theft in Washington are [ legally] comparable and that finding is by a preponderance of the evidence." VRP ( Oct. 5, 2012) at 9. The elements were " knowing," that the court then turned to the failure to appear conviction. It acknowledged that the slightly different," in that Washington had " the mental state requirement of which the Arkansas convictions were " statute factually lacked. VRP ( Oct. 5, 2012) comparable." 2 at 10. It, however, concluded VRP ( Oct. 5, 2012) at 10. Consequently, the No. 44042 -3 -II trial court used these in calculating Thomas' convictions s sentence. Thomas appeals the inclusion of the failure to appear conviction in his offender score. ANALYSIS We review the trial court' s classification of out - state crimes and the trial court' s of - calculation of a defendant' s offender score de novo. State v. Labarbera, 128 Wn. App. 343, 348, 115 P. 3d 1038 ( 2005); State out of state - convictions conviction would be are v. Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816 ( 2007). " When prior used to a [ comparable] increase felony an under offender score, Washington law." the State must prove the Labarbera, 128 Wn. App. at 348; RCW 9. 94A.525( 3). An out -of - tate conviction may not be used to increase the defendant' s offender score s unless the State proves it is equivalent to a felony in Washington. State v. Weiand, 66 Wn. App. 29, 31 - 32, 831 P.2d 749 ( 1992). If the State fails to establish a sufficient record, then the sentencing court lacks the necessary evidence to determine if the out -of state convictions should be included in the offender score. State v. Ford, 137 Wn.2d 472, 480 -81, 973 P. 2d 452 ( 1999). If the State provides sufficient evidence, the sentencing court ` must -conduct the- comparison on the record. Labarbera, 128 Wn. App. at 349. A foreign conviction is equivalent to a Washington offense if there is either legal or factual comparability. 2005). In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255 -58, 111 P. 3d 837 A foreign offense is legally comparable if "the elements of the foreign offense are substantially similar to the elements of 409, 415, 158 P. 3d 580 ( 2007). the Washington 2 offense. " State v. Thiefault, 160 Wn.2d If the elements of the two statutes are not identical or if the 2 The State does not dispute that the statutes are not legally comparable. It, however, argues that the trial court correctly concluded that that Arkansas conviction was factually comparable. 3 No. 44042 -3 -II foreign statute is broader than the Washington definition of the particular crime, the trial court must then determine the whether is offense factually comparable. State v. Morley, 134 Wn.2d 588, 606, 952 P. 2d 167 ( 1998). A conviction is factually comparable where the defendant' s conduct would have violated a comparable Washington statute. In re Lavery, 154 Wn. 2d at 255. The State bears the burden of providing sufficient evidence to prove the comparability of prior out -of - tate convictions by a s preponderance of the evidence. Ford, 137 Wn.2d at 479 -80. " In making its factual comparison, the sentencing court may rely on facts in the foreign record that are admitted, stipulated to, or proved beyond Wn.2d at remand, 2004), 258; State v. Thiefault, 160 Wn.2d doubt." a reasonable Farnsworth, 133 Wn. 2007 WL 1223669; modified on remand, and State 131 Wn. 1002 ( 2007)). " When the sentencing 415 ( citing In re Lavery, 154 22, 130 P. 3d 389 ( 2006), Ortega, 120 Wn. v. App. 165, modified on 171 -74, 84 P. 3d 935 591, 128 P. 3d 146 ( 2006), review denied, 160 Wn.2d App. court 1, App. at incorrectly calculates the standard range ..., remand is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence-anyway." State v. Parker, 1-32 Wn.2d- 182; 189 937 P. 2d - 75 ( 1997) 5 Thomas' s Arkansas information charging him with failure to appear defined his conduct as having FAILED TO APPEAR for trial on 1 count of ACA § 5 -39 -201; Residential Burglary ( B Felony), in after having been lawfully set at liberty on the condition he appear in the Circuit Court on January 8, 2001, he failed to appear being without reasonable excuse, in violation of ACA § 5 -54 -120, all against the peace and dignity of the State of Arkansas. violation of M No. 44042 -3 - II Ex. 2. At the time he committed the crime, the former Arkansas Code, section 5 -54 -120 ( 1975), provided: a) A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been: 2) Lawfully set at liberty upon condition that he or she appear at a specified time, place, and court. Washington, before July 1, 2001, defined bail jumping as follows: Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping. Former RCW 9A. 76. 170( 1) ( felony Former RCW 9A.76. 170( 3)( charges. former) bail jumping defendant] knew, v. Ball, 97 Wn. Bail jumping is a felony when the person is being held on 1983). statute required or was aware App. that he a) -( c). The " knowingly" element in Washington' s the State to " prove beyond a reasonable doubt that [ the was required to 534, 536, 987 P. 2d 632 ( 1999) ( appear at the [ scheduled] hearing." State quoting State v. Bryant, 89 Wn. App. 857, 870, 950 P. 2d 1004 ( 1998), review denied, 137 Wn.2d 1017 ( 1999)). Thomas' s information provides that he was released " on the condition he appear in the Circuit Court reasonable without on January 8, Ex. 2. excuse." being advised in 2001," that " he failed to Circuit Court which on sets open court or January out and that he further lacked a In Arkansas, a reasonable excuse may include being released by mail of State, 362 Ark. 400, 208 S. W.3d 768, 771 ( 2005). information, appear" both that he 8, 2001," was the future appearance condition. Stewart v. Because Thomas pled guilty to the amended released upon the " condition he appear in the and that he lacked a reasonable excuse for failing to appear, the facts as charged by the State support that Thomas was aware that he was required to appear 5 No. 44042 -3 - II in court on January 8, 2001, but failed to do See Ball, 97 Wn. so. App. at 536. Thus, the trial court did not err in concluding that this offense was factually comparable to the Washington bail jumping offense based on the facts alleged in the information. The remaining issue is whether the facts alleged in the information or other documents before the trial court amount to an admission Thomas, 135 Wn. App. by Thomas 474, 144 P. 3d 1178 ( 2006) ( of the facts charged. See State v. in order to establish factual comparability, the State must prove those facts that, when alleged, have not been admitted by the defendant or proved by the State), the information review when denied, 161 Wn.2d 1009 ( 2007). The trial court quoted portions of conducting its factual comparability analysis. At sentencing, Thomas focused on whether the charged facts were factually comparable to the Washington bail jumping crime and did not specifically argue that these facts were incorrect or that he never admitted them when entering his plea.3 A challenge to the calculation of the defendant' s offender score for sentencing purposes may be raised for the first time on appeal, however, including a challenge to classification of out of state - Ford, 137 Wn.2d convictions. at 477; State v. McCorkle! 137 - n2d 490, 973 - 2d 461 ( 1-999). - - - -- - - -- - - - - - - -- - -- - W P. The court records to the contendere" show failure to that Thomas appear entered Ex. 1 charge. a " at negotiated plea of guilty or nolo 2. The State did not provide any documentation to show which type of plea Thomas actually entered, so we examine both types. In State v. Releford, we held that where the charging state' s law provides that a guilty plea represents " 3 The an admission of the facts alleged by the government in the charging document," trial acknowledge remand court, however, that those were for resentencing, " noted his that in prior hearings, Thomas " didn' t affirmatively 6. It also noted that on VRP ( Oct. 5, 2012) convictions." at He needed to either affirmatively say, yes, I was convicted of those things, and /or the Court needed to do, on the record, the analysis. VRP ( Oct. 5, 2012 at 11). rel No. 44042 -3 -II these facts can be relied upon by a sentencing court conducting a comparability 478, 488, 200 P. 3d 729 ( 2009) ( noting that in Oklahoma, Wn. App. facts pleaded been extended a guilty in the Information "), review denied, 166 Wn.2d 1028 ( 2009). to nolo contendere or no contest pleas. analysis. plea " 148 admits the This reasoning has In State Y. Olsen, for example, we concluded that under California law, a " no contest" plea was considered " the same" as a guilty plea. 175 Wn. generally State a Florida App. v. 269, 309 P. 3d 518, Heath, 168 Wn. review granted App. in part, 178 Wn.2d 1018 ( 2013); 894, 900 -01, 279 P. 3d 458 ( 2012) ( considering whether no contest plea with withheld adjudication counts as a " conviction "), 177 Wn.2d 1008 ( 2013). see also review denied, Because California law treats a guilty plea as an admission to every element of the charged crime, we concluded that under the facts set out in the Olsen information, a no contest plea to a California terroristic threats charge was factually comparable to a Washington harassment conviction. Olsen, 309 P. 3d 525 -26.. Unlike in Releford or Olsen, however, the State here provides no Arkansas authority to establish that a defendant entering either a plea of guilty or a nolo contendere plea admits all charged facts. Arkansas CrR 24. 6 provide s The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea. With respect to Arkansas pleas under this rule: The requirement of a factual basis for a plea does not require that the appellant be proven guilty, but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty if he elected to proceed to trial. A factual basis may be established by addressing the accused, the defense counsel, the prosecutor, or all three. The purpose of the factual basis requirement is to prevent an accused from pleading guilty on the mistaken assumption that his conduct was unlawful when it was not. 7 No. 44042 -3 - II O' Connor because v. an State, 367 Ark. 173, 238 S. W. 3d 104, 107 ( 2006) ( internal Arkansas trial addressing the accused, taking court the defense a counsel, guilty the plea citations omitted). the ascertain may prosecutor, or all Thus, factual basis " by three," it does not appear that a defendant is required to admit the facts as charged by the State when entering a guilty plea. O' Connor, 238 S. W.2d at 107. Moreover, for nolo contendere pleas, a defendant is not required to admit that he committed the charged acts: The defendant] was not required to admit his guilt or that he committed the acts alleged by the prosecution in order to demonstrate knowledge that his conduct To satisfy the requirements of the rule, the trial court only had to was unlawful. determine that the prosecution could present sufficient evidence for a conviction in order to determine that there was substantial compliance with Rule 24. 6, not that the defendant was in accord or agreement with that evidence. It was simply not necessary, under those circumstances, for appellant, who entered a plea of nolo contendere, to admit that he committed the acts as described. O' Connor, 238 S. W.3d at 107 -08. It is not clear from. the evidence before the trial court that the sentencing judge complied with Arkansas CrR 24. 6 when Thomas. entered his plea. And, this rule requires only that the sentencing judge establish a factual basis for the plea rather than having a defendant admit to the facts charged by the State or having the State prove the facts.. Consequently, because the record lacks any basis for concluding that Thomas admitted to the charged facts in the failure to appear information when he entered his plea, we remand for resentencing. Thomas questions occurred why his at running his This raises additional a sentence " totally different is issues in his not time." ran [ sic] corresponds SAG). He first concurrent with another case that I have that At his most recent resentencing, the parties discussed present sentence consecutive cause number statement of additional grounds ( to " Cause No. to two 2007 06 -1- 04327 -0." convictions for assaults ( RP ( Oct. 5, 2012) at 11. first degree and second No. 44042 -3 -II degree) that occurred in August 2006 and were sentenced in March 2007. The prosecutor noted that at Thomas' s initial sentencing in November 2007 and first resentencing in April 2011, the court imposed Thomas requested the court impose concurrent sentences. consecutive sentences. The court imposed consecutive sentences. RCW 9. 94A.589( 3) provides: whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively. Here, Thomas committed the assaults that are the subject of the 2006 cause number in August 2006. He committed the witness tampering crimes that are the subject of the instant appeal in January 2007. In March 2007, he was sentenced for first and second degree assault. And he was sentenced originally on the witness tampering conviction in November 2007. Thus, RCW,. 9. 94A.589 provides for concurrent sentences unless the trial court " expressly orders" consecutive sentences. Here, the trial court had the statutory authority to and did order consecutive sentences. Thomas also states that he wants to challenge the comparability analysis and amount of criminal history points Arkansas failure to conclude 4 that it is In Thomas II, he appear legally we received for prior convictions. We briefly address his Arkansas theft conviction and conviction. comparable examined to We have already addressed Thomas' s a the theft Washington conviction 4 offense. and concluded, " Although it appears that Thomas' s Arkansas theft conviction was legally comparable to a Washington felony, the sentencing court failed to conduct the requisite 169 Wn. App. 1006, 2012 WL 2501089, at * 4. C comparability analysis on the record," noted at No. 44042- 3- 11 At the time of Thomas' s conviction, Arkansas defined theft as follows: A person commits theft of property if he: a) 1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof, or 2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof. b)]( 2) A) Theft of property is a Class C felony if. The value of the property is less than two thousand five hundred dollars ($ 2, 500) but B) C) more than five hundred dollars ($ 500); The property is obtained by threat; or The property is a firearm valued at less than two thousand five hundred dollars ($ 2, 500); or D) The property is a credit card ... b)]( 3) Theft of property is a Class and the value of the livestock is in Former ACA § 5 -36 -103 ( 1997). all of state. the or excess of C felony if the property is livestock, two hundred dollars ($ 200). In 2000, when Thomas committed the Arkansas theft offense, in former ACA § conduct proscribed or credit card account number. 5 -36 -103 constituted a felony in Washington At that time, Washington defined "[ t] heft" as: a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services; or b) By color -or aid _ deception - of to obtain control- overthe property or services of another or the value thereof, with intent to deprive him of such property or services; or To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him of such property or services. c) Former RCW 9A.56. 020( 1) ( 1975). " Theft in the first degree," a class B felony, was defined in 2000 as 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. 4 1. 010 taken from the person of another. 10 No. 44042 -3 - II Former RCW 9A. 56. 030( 1) ( 1995). " Theft in the second degree," a class C felony, was defined as theft of: Property or services which exceed( s) two hundred and fifty dollars a) in value other than a firearm as defined in RCW 9. 41. 010, but does not exceed one thousand five hundred dollars in value; or A public record, writing, or instrument kept, filed, or deposited according to law with or in the keeping of any public office or public servant; or b) c) An access device; or d) A motor vehicle, of a value less than one thousand five hundred dollars. Former RCW 9A. 56. 040( 1) ( 1995). Thomas' s Arkansas theft conviction was legally comparable to a Washington felony because " the elements of the foreign offense are substantially similar to the elements of the Washington offense." Thiefault, 160 Wn. 2d at 415. The trial court, therefore, correctly counted this offense when calculating Thomas' s offender score. The remaining two points in Thomas' s offender score come from the two previously mentioned during Washington the April 21, judgment point for assault convictions. The parties discussed these convictions 2011 sentencing, during which the prosecutor provided copies of the and sentence offender scores, felony for these providing, " If the each adult prior felony RCW 9. 94A.525( 7) governs the calculation of convictions. present conviction conviction." is for a nonviolent offense ... count one Thus, Thomas properly received 1 point for each prior felony conviction.5 5 The two prior assaults were sentenced on the same day. The record does not show whether the original sentencing court for these convictions or the present sentencing court conducted an analysis whether 9. 94A.525( 5)( a)( the convictions qualified as the same criminal conduct. RCW i). Nevertheless, the same criminal conduct issue, because it involves factual determinations and an exercise of discretion by the trial court, cannot be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 523, 997 P. 2d 1000, review denied, 141 Wn.2d 1030 ( 2000). 11 No. 44042 -3 - II We remand for resentencing. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. A f + Johanson, A.C. J. 12

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