[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from Clallam Superior Court. Docket No: 12-1-00031-9. Date filed: 07/17/2012. Judge signing: Honorable S Brooke Taylor.
Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellant.
William Payne, Prosecuting Attorney, and Lewis M. Schrawyer, Deputy, for respondent.
AUTHOR: Bradley A. Maxa, J. We concur: Jill M Johanson, A.C.J., Thomas R. Bjorgen, J.
[179 Wn.App. 376] ¶ 1 Raymond Arndt Jr. appeals his sentence following his conviction for vehicular assault. He asserts that the sentencing court sentenced him based on an inflated offender score because the court erroneously included [179 Wn.App. 377] points for five prior Oregon convictions. We hold that the State met its burden to prove that the Oregon conviction for unauthorized use of a vehicle was comparable to a Washington offense. However, we hold that the State failed to prove that Arndt's Oregon convictions for attempted second degree assault, driving while under the influence of intoxicants (DUII), and third degree rape were legally or factually comparable to Washington offenses. Therefore, the sentencing court should not have included the Oregon attempted second degree assault, DUII, and third degree rape convictions in Arndt's offender score. Accordingly, we remand for resentencing.
¶ 2 Arndt pleaded guilty to one count of vehicular assault, but he disputed the State's computation of his offender score at sentencing. Specifically, he argued that five prior Oregon convictions - attempted second degree assault, unauthorized use of a vehicle, DUII (two), and third degree rape - should not be included in his offender score because the State failed to prove comparability. The sentencing court performed a legal and factual comparison on the record and found that the Oregon convictions at issue were comparable to Washington offenses, which resulted in an offender score of 8. The sentencing court sentenced Arndt to a mid-range sentence of 62 months. Arndt appeals his sentence.
A. Use of Prior Convictions in Offender Score
¶ 3 Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the sentencing court uses the defendant's prior convictions to determine an offender score, which along with the " 'seriousness level'" of the current offense establishes his or her presumptive standard sentencing range. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d [179 Wn.App. 378] 452 (1999) (quoting State v. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994)). We
review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
¶ 4 The State must prove the existence of prior felony convictions  used to calculate an offender score by a preponderance of the evidence. Ford, 137 Wn.2d at 479-80; see also RCW 9.94A.500(1). If the convictions are from another jurisdiction, the State also must prove that the conviction would be a felony under Washington law. Ford, 137 Wn.2d at 480. " The existence of a prior conviction is a question of fact."  In re Pers. Restraint of Adolph, 170 Wn.2d 556, 566, 243 P.3d 540 (2010).
¶ 5 Where the defendant's offenses resulted in out-of-state convictions, RCW 9.94A.525(3) provides that such offenses " shall be classified according to the comparable offense definitions and sentences provided by Washington law." This statute requires the sentencing court to make a factual determination of whether the out-of-state conviction is comparable to a Washington conviction. State v. Morley, 134 Wn.2d 588, 601, 952 P.2d 167 (1998) (citing former 9.94A.360 (1996), recodified as RCW 9.94A.525 (Laws of 2001, ch. 10, § 6)). Only if the convictions are comparable can the out-of-state conviction be included in the offender score. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).
¶ 6 Our Supreme Court has adopted a two-part analysis for determining whether an out-of-state conviction is comparable to a Washington conviction. Thiefault, 160 [179 Wn.App. 379] Wn.2d at 414-15. First, the sentencing court determines whether the offenses are legally comparable - whether the elements of the out-of-state offense are substantially similar to the elements of the Washington offense. Thiefault, 160 Wn.2d at 415. If the elements of the out-of-state offense are broader than the elements of the Washington offense, they are not legally comparable.  In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837 (2005).
¶ 7 Second, even if the offenses are not legally comparable, the sentencing court can still include the out-of-state conviction in the offender score if the offense is factually comparable. Thiefault, 160 Wn.2d at 415; Lavery, 154 Wn.2d at 255. Determining factual comparability involves analyzing whether the defendant's conduct underlying the out-of-state conviction would have violated the comparable Washington statute. Thiefault, 160 Wn.2d at 415. The sentencing court may " look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute." Lavery, 154 Wn.2d at 255. In making this factual comparison, the sentencing court may rely on facts in the out-of-state record only if they are admitted, stipulated to, or proved beyond a reasonable doubt. Thiefault, 160 Wn.2d at 415. But the elements of the charged crime must remain the cornerstone of this inquiry because " ...