In the Matter of the Personal Restraint of STEVEN LOUIS CANHA, Petitioner.
determine whether four criminal convictions from other states
are sufficiently comparable to Washington crimes that they
should be included in a defendant's criminal history for
sentencing purposes. Steven Canha filed a timely personal
restraint petition in which he seeks to be resentenced. He
claims that the trial court incorrectly included four
out-of-state convictions in his offender score-one from
California and three from Oregon. The trial court failed to
perform a comparability analysis of these out-of-state
convictions to see if they were comparable to Washington
crimes as required by RCW 9.94A.525(3). We engage in a
comparability analysis, conclude that three of Canha's
four foreign convictions are comparable to Washington
offenses, and remand the case to the superior court to
resentence Canha accordingly.
found Canha guilty of two counts of assault in the second
degree and two counts of unlawful possession of a firearm in
the first degree. At the sentencing hearing, the superior
court calculated Canha's offender score by using four
out-of-state criminal convictions, one from California and
three from Oregon. However, the court failed to perform a
comparability analysis of these out-of-state convictions to
see whether they were sufficiently comparable to any
Washington offenses. The superior court sentenced Canha to
serve 154 months.
appealed his conviction to the Court of Appeals, which
rejected Canha's claims of failure to suppress evidence,
ineffective assistance of counsel, double jeopardy violation,
and speedy trial violation. State v. Canha, noted at
159 Wn.App. 1044 (2011); see U.S. Const, amends. V,
VI. This court denied review. State v. Canha, 171
Wn.2d 1023, 257 P.3d 663 (2011). The United States Supreme
Court also denied certiorari. Canha v. Washington,
565 U.S. 1067, 132 S.Ct. 776, 181 L.Ed.2d 498 (2011).
his direct appeal, Canha filed a timely personal restraint
petition, which the Court of Appeals denied as frivolous.
That same year, Canha filed a Superior Court Criminal Rule
(CrR) 7.8 motion to modify his judgment and sentence. Canha
argued for the first time that his offender score was
miscalculated by counting the four out-of-state convictions.
Benton County Superior Court transferred his motion to the
Court of Appeals to be considered as a personal restraint
petition. Judging the petition to be untimely, frivolous, and
successive, the Court of Appeals dismissed it.
filed a motion with this court to modify the Court of Appeals
ruling dismissing his petition. Under RCW 10.73.090, a
petitioner may file a collateral challenge within one year
after a judgment becomes final (except in circumstances not
present here). Canha filed his CrR 7.8 motion less than one
year after the United States Supreme Court denied certiorari
for his direct appeal, which is when Canha's judgment
became final. Thus, we concluded that Canha's petition
was timely. As a result, we granted Canha's motion
to modify and remanded the petition to the Court of Appeals
"to review on the merits."
another procedural barrier to consideration on the merits,
Canha's petition was successive, meaning that he had
filed a prior unsuccessful personal restraint petition. RCW
10.73.140 prohibits the Court of Appeals from hearing
successive petitions absent good cause. In effect, we
directed the Court of Appeals to review this case and
consider the merits despite the usual rule that the Court of
Appeals cannot consider a successive petition. The Court of
Appeals wrote a recommended disposition and transferred the
case back to this court so that a final judgment could be
issued. We accepted review of Canha's petition.
obtain relief, Canha "must show either that he... was
actually and substantially prejudiced by constitutional error
or that his . . . trial suffered from a fundamental defect of
a nonconstitutional nature that inherently resulted in a
complete miscarriage of justice." In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450
(2013). Canha does not argue constitutional error, but claims
that his offender score was miscalculated. "[A] sentence
that is based upon an incorrect offender score is a
fundamental defect that inherently results in a miscarriage
of justice." In re Pers. Restraint of Goodwin,
146 Wn.2d 861, 868, 50 P.3d 618 (2002). And when a trial
court has entered an erroneous sentence, "the defendant
is entitled to be resentenced." Id. at 869.
superior court failed to conduct a comparability analysis of
Canha's four out-of-state convictions before including
them in his offender score. However, the parties make two
important concessions in this regard. First, Canha concedes
that his Oregon conviction for criminal mischief is
comparable to Washington's malicious mischief in the
second degree. Wash. Supreme Court oral argument, No. 94175-1
(May 25, 2017), at 1 min., 36 sec. to 1 min., 48 sec,
audio recording by TVW, Washington State's
Public Affairs Network, http://www.tvw.org.
Therefore, it was properly included in his offender score.
Second, the State concedes that Canha's Oregon conviction
for hindering prosecution is not comparable to a Washington
offense. Id. at 19 min., 45 sec. to 20 min., 2 sec.
As a result, Canha's Oregon conviction for hindering
prosecution should not have been included in his offender
we perform a comparability analysis only for Canha's
remaining out-of-state convictions-voluntary manslaughter
under California law and felon in possession of a firearm
under Oregon law. We conclude that these convictions are
factually comparable to Washington offenses and were properly
included in Canha's offender score.
since Canha's Oregon conviction for hindering prosecution
is not comparable to a Washington offense and should not have
been included in Canha's offender score, we remand to the
superior court to resentence Canha accordingly. We need not
reach Canha's ineffective assistance of counsel claim for
the hindering prosecution conviction, and, since Canha fails
to show prejudice, we conclude that his remaining ineffective
assistance of counsel claims lack merit.
Calculating Offender Scores Using Out-of-State
Sentencing Reform Act of 1981 (SRA) "created a grid of
sentencing ranges which vary by the defendant's offender
score and the seriousness level of the crime." State
v. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994);
RCW9.94A.510. The statute calculates a defendant's
offender score based on criminal history. Wiley, 124
Wn.2d at 683; see also RCW 9.94A.525. If a defendant
has out-of-state convictions, the SRA directs that those
offenses be classified by determining comparable Washington
offenses. Wiley, 124 Wn.2d at 683; see also
compare offenses, we use a two-part test. In re Pers.
Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837
(2005). First, the court analyzes legal comparability by
comparing the elements of the out-of-state offense to the
most comparable Washington offense. State v. Morley,
134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). When the
crimes' elements are not the same, the offenses are not
legally comparable. Id. at 606. If the crimes are
legally comparable, our analysis ends here and the crime is
included in the offender score.
if the offenses are not legally comparable, the court
analyzes factual comparability. Lavery, 154 Wn.2d at
255-57. Offenses are factually comparable when the
defendant's conduct would have violated a Washington
statute. Morley, 134 Wn.2d at 606 ("The key
inquiry is under what Washington statute could the defendant
have been convicted if he or she had committed the same
acts in Washington.'" (quoting State v.
McCorkle, 88 Wn.App. 485, 495, 945 P.2d 736 (1997),
aff'd, 137 Wn.2d 490, 973 P.2d 461 (1991))). To
comply with Apprendi,  the court may rely only on facts
that were admitted, stipulated, or proved to the fact finder
beyond a reasonable doubt. Lavery, 154 Wn.2d at 255;
see also State v. Olsen, 180 Wn.2d 468, 473-74, 325
P.3d 187 (2014). Any other "[f]acts or allegations
contained in the record, if not directly related to the
elements of the charged crime, may not have been sufficiently
proven in the trial." Morley, 134 Wn.2d at 606.
the trial court calculated Canha's offender score using
four out-of-state convictions but it failed to perform a
comparability analysis. This court could either remand to the
superior court for a comparability analysis, see State v.
Thiefault, 160 Wn.2d 409, 420, 158 P.3d 580 (2007), or
perform the comparability analysis and remand to the superior
court for resentencing if necessary. See Lavery, 154
Wn.2d at 255-58. Here, we choose to perform the comparability
analysis and remand for resentencing.
California Voluntary Manslaughter
conviction for voluntary manslaughter in California is not
legally comparable to Washington's second degree murder
statute, but it is factually comparable. Consequently, it was
appropriately included in Canha's offender score.
1991, Canha pleaded guilty to voluntary manslaughter in
California. The California manslaughter statute provides that
a person is guilty of manslaughter in three instances:
Manslaughter is the unlawful killing of a human being without
malice. It is of three kinds:
(a) Voluntary-upon a sudden quarrel or heat of passion.
(b) Involuntary-in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or without
due caution and circumspection. This subdivision shall not
apply to acts committed in the driving of a vehicle.
(c) Vehicular.... Cal. Penal Code § 192(a)-(c) (West
1988). The killing must be without malice, which is defined
(4) The words "malice" and "maliciously"
import a wish to vex, annoy, or injure another person, or an
intent to do a wrongful act, established either by proof or