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State v. Olsen

Supreme Court of Washington, En Banc

May 15, 2014

The State of Washington, Respondent ,
v.
Edward Mark Olsen, Petitioner

Argued January 16, 2014.

Petition for certiorari filed at, 08/08/2014

Appeal from Kitsap County Superior Court. No. 09-1-01567-6. Honorable Jeanette M. Dalton.

Lila J. Silverstein (of Washington Appellate Project ), for petitioner.

Russell D. Hauge, Prosecuting Attorney, and Randall A. Sutton and Jeremy A. Morris, Deputies, for respondent.

AUTHOR: James M. Johnson, Justice Pro Tem. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Justice Sherly Gordon McCloud.

OPINION

Page 188

[180 Wn.2d 470] J.M. Johnson, J.[*]

¶ 1 In this case, we consider Washington's treatment of foreign convictions for sentencing purposes in light of the recent United States Supreme Court case Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Petitioner Edward Olsen was convicted of a number of crimes, including attempted second degree murder, for an incident of domestic violence against the mother of his children. His offender score at sentencing was six, and he received an exceptional sentence of 360 months. Olsen claims that a foreign conviction for terrorist threats was not comparable to Washington's felony harassment and should not have been included in his offender score. The Court of Appeals, Division Two, affirmed Olsen's convictions and sentence. We affirm the Court of Appeals.

[180 Wn.2d 471] Facts and Procedural History

¶ 2 This case arose out of an incident of domestic violence perpetrated by petitioner Olsen against the mother of his children, Bonnie Devenny. Olsen broke into Devenny's house, poured gasoline on her while she was sleeping, and told her that she was going to die. Police later recovered a lighter near the bed. Olsen has a history of threatening and committing acts of domestic violence against Devenny, including a California conviction for terrorist threats for which he pleaded no contest. During the California incident, Olsen allegedly wrapped duct tape around Devenny's legs and told her that he was going to kill her, cut her up into little pieces, and put the pieces in a plastic storage container.

¶ 3 For the gasoline incident, Olsen was charged in Kitsap County Superior Court by second amended information of attempted first degree murder, attempted second degree murder, first degree burglary, felony harassment, and third degree malicious mischief. All felony counts included domestic violence aggravators for the purposes of RCW 9.94A.535 because the crime occurred in the presence of Devenny and Olsen's 12-year-old son. A jury convicted Olsen as charged on all counts except attempted first degree murder. Olsen was sentenced using an offender score of six, in part because his California conviction for terrorist threats was found to be comparable to Washington's felony

Page 189

harassment. The trial court imposed an exceptional sentence of 360 months.

¶ 4 Olsen appealed to Division Two of the Court of Appeals, which affirmed his convictions and sentence. State v. Olsen, 175 Wn.App. 269, 309 P.3d 518 (2013). The Court of Appeals opinion was issued on June 27, 2013, one week after Descamps was issued by the United States Supreme Court. The Court of Appeals opinion did not address Descamps . Olsen filed a petition for review in this court. We [180 Wn.2d 472] granted review only on the issue of comparability of the California conviction, including the propriety of examining the facts of the foreign conviction in light of Descamps . State v. Olsen, 178 Wn.2d 1018, 312 P.3d 651 (2013). We affirm the Court of Appeals.

Analysis

¶ 5 We review the trial court's calculation of a defendant's offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007) (citing State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003)). We also review de novo claims that the petitioner's sentence violates his right to a jury trial under the Sixth Amendment to the United States Constitution. State v. Mutch, 171 Wn.2d 646, 656, ...


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