[Copyrighted Material Omitted]
Appeal from Cowlitz Superior Court. Docket No: 11-1-01087-0. Judge signing: Honorable Dennis Philip Maher. Judgment or order under review, Date filed: 07/24/2012.
John A. Hays, for appellant.
Susan I. Baur, Prosecuting Attorney, and James Smith, Deputy, for respondent.
Authored by Lisa Worswick. Concurring: Jill M Johanson, Rich Melnick.
[183 Wn.App. 394] Worswick,
¶ 1 Dontrail Latham appeals his life sentence, imposed pursuant to the Persistent Offender Accountability Act (POAA). Latham argues that he does not qualify as a " persistent offender" because his two Nevada offenses, a guilty plea to battery with " substantial bodily harm" and an Alford  plea to voluntary manslaughter, are not comparable to Washington State's " most serious offenses." Because neither of the two Nevada offenses is comparable to any of Washington State's most serious offenses raised by the State on appeal or relied on by the trial court, we reverse Latham's sentence and remand for resentencing.
A. Guilty Plea to Battery with Substantial Bodily Harm
¶ 2 In 2003 in Nevada, Latham pleaded guilty to battery with substantial bodily harm, " as more fully alleged in the [information] attached," for acts occurring on October 7, 2003. Ex. 14, at 1. The information stated in part:
Latham ... wilfully, unlawfully, and feloniously use[d] force or violence upon the [victim] by punching the [victim] about the body numerous times, resulting in substantial bodily harm to the [victim].
Ex. 14, at 7-8. At the plea colloquy, Latham gave the following explanation of his conduct:
The Court: What did you do on or about October 7th that caused you to plead guilty to the crime of battery with substantial battery [sic] harm?
[183 Wn.App. 395] [Latham]: I hit [the victim].
The Court: That resulted in substantial bodily harm to the victim?
[Latham]: Yes, your honor.
Ex. 13, at 9.
B. Alford Plea to Voluntary Manslaughter
¶ 3 Later, also in Nevada, Latham entered
an Alford plea to voluntary manslaughter, " as more fully alleged in the [information] attached" for acts occurring on October 7, 2008. Ex. 18, at 1. The information stated in part:
Latham ... without authority of law, wilfully, unlawfully, and feloniously, without malice and without deliberation kill[ed] [the victim], a human being, by [Latham] causing a blunt force trauma to the head of the [victim] by striking the [victim] with his fist and/or an unknown object and/or by causing [the victim's] head to strike the ground and/or unknown object and/or by an unknown manner, said act of [Latham] being the result of a sudden heat of irresistible passion caused by a provocation of the [victim].
Ex. 18, at 8. Due to inaudible portions, the plea colloquy record is incomplete:
Judge: (Inaudible). I want you to listen now to the facts that are going to be put on the record by the State, okay?
[Latham]: All right.
Prosecutor: Thank you, Judge. ... [Latham] and the named victim ... met for a drug transaction. They went into an alley and during the process of the drug transaction, Mr. Latham got into a fight with [the victim]. In the process of the fight, Mr. Latham did in fact kill [the victim] through force of violence willfully, feloniously, and without malice of forethought, deliberation, (inaudible). [The victim] died as a result of (inaudible).
Judge: Did you hear that factual basis put on the record by the State, sir?
[183 Wn.App. 396] [Latham]: Yes, I have.
Judge: You're not contesting those facts, are you?
3B Verbatim Report of Proceedings at 689-90.
C. Conviction and Sentence for Second Degree Assault
¶ 4 In Washington State, a jury found Latham guilty of second degree assault, for acts committed on October 27, 2011. The trial court ruled Latham to be a persistent offender, based on the Washington offense and the two prior Nevada convictions, and imposed the POAA's mandatory life sentence. The trial court considered the Nevada informations, the plea agreements, the judgments of conviction, and the plea colloquy records. The trial court ruled both Nevada offenses comparable to Washington's most serious offenses. Specifically, the trial court ruled Nevada's battery with substantial bodily harm both legally and factually comparable to Washington's second degree assault, and Nevada's voluntary manslaughter legally comparable to Washington's second degree murder. Latham challenged both offenses' comparability below. Latham now appeals.
¶ 5 The POAA states that a persistent offender shall be sentenced to life imprisonment without the possibility of release. RCW 9.94A.570. A defendant is a persistent offender if he or she has been convicted in Washington of a most serious offense and has on at least two other prior occasions been convicted of a most serious offense in this or any other state. RCW 9.94A.030(37)(a). Washington's most serious offenses include (1) any Class A felony, (2) second degree assault, (3) first degree manslaughter, and (4) second degree manslaughter. RCW 9.94A.030(32)(a), (b), (k), ( l ). We review de novo whether an offense may be classified [183 Wn.App. 397] as a most serious offense. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007); State v. Labarbera, 128 Wn.App. 343, 348, 115 P.3d 1038 (2005).
¶ 6 For a foreign offense to be classified as a most serious offense, the foreign offense must be legally or factually comparable to a Washington statute that proscribes a most serious offense. See In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). The statutes effective at the time the defendant committed the foreign offense control our analysis. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998);
see In re Pers. Restraint of Crawford, 150 Wn.App. 787, 794-95, 209 P.3d 507 (2009).
¶ 7 To determine whether a foreign offense is comparable to a Washington offense, we apply a two-part test. Lavery, 154 Wn.2d at 255. First, we compare the foreign offense's elements with the comparable Washington offense's elements to determine whether they are legally comparable. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). Offenses are legally comparable if their elements are substantially similar or if the foreign offense is not broader than the Washington offense. See Ford, 137 Wn.2d at 479; State v. Jordan, 180 Wn.2d 456, 461, 325 P.3d 181 (2014).
¶ 8 If the offenses are not legally comparable, we then examine whether the offenses are factually comparable. State v. Thomas, 135 Wn.App. 474, 480, 144 P.3d 1178 (2006). Offenses are factually comparable if the defendant's conduct constituting the foreign offense, as evidenced by the undisputed facts in the foreign record, would constitute [183 Wn.App. 398] the Washington offense. Thomas, 135 Wn.App. at 480. In this inquiry into factual comparability, the trial court can consider only facts proven to a trier of fact beyond a reasonable doubt or those to which the defendant admitted or stipulated. Thomas, 135 Wn.App. at 482. The State bears the burden of providing sufficient evidence to prove by a ...