[No. 34953-1-II. Division Two. August 21, 2007.]
[1] Criminal Law Right to Counsel Effective Assistance of Counsel Constitutional Right State and Federal Provisions. Both the Sixth Amendment and Const. art. I, § 22 guarantee to criminal defendants the right to the effective assistance of counsel. [2] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A criminal defendant's claim of ineffective assistance of counsel requires a showing that (1) counsel's performance was deficient and (2) the deficient performance was prejudicial. Deficient performance is shown by representation that falls below an objective standard of reasonableness. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have differed. A failure to establish either of the two elements of the test will defeat the claim. [3] Criminal Law Right to Counsel Effective Assistance of Counsel Determination Record. The effectiveness of a criminal defendant's representation by counsel is determined on the basis of the trial record as a whole. [4] Criminal Law Right to Counsel Effective Assistance of Counsel Review Deference. Upon a criminal defendant's claim of ineffective assistance of counsel, the court's scrutiny of counsel's performance is highly deferential. [5] Criminal Law Right to Counsel Effective Assistance of Counsel Presumption In General. A court's review of a criminal defendant's claim of ineffective assistance of counsel begins with the presumption that counsel's representation was effective. [6] Criminal Law Punishment Sentence Criminal History Offender Score Miscalculation Agreement by Defendant Validity. A convicted defendant generally may not agree to a sentence in excess of what is statutorily authorized, such as when the sentence is based on a miscalculated offender score. [7] Criminal Law Review Issues Not Raised in Trial Court Sentence Erroneous Offender Score In General. A convicted defendant's claim that the trial court misapplied the law in calculating the defendant's offender score for sentencing purposes generally may be raised for the first time on appeal. [8] Criminal Law Punishment Sentence Factual Basis Admission or Acknowledgment Effect. A convicted defendant's affirmative acknowledgment of sentencing facts may constitute a waiver of the right to challenge the trial court's reliance on the facts acknowledged. [9] Criminal Law Punishment Sentence Criminal History Foreign Offenses Classification Stipulation Acknowledgement Effect.The State is not required to prove the existence of a criminal defendant's prior foreign conviction and its comparability to a felony offense under Washington law for purposes of calculating the defendant's offender score if the defendant has stipulated that the conviction is comparable to a felony offense in Washington and has not washed out of the defendant's criminal history, the effect of which is to affirmatively acknowledge the existence of the conviction, its comparability to a Washington offense, and its continuing viability for offender score purposes; nor is the trial court required to undertake a comparability analysis before the prior conviction may be counted in the offender score calculation. The defendant may not obtain relief unless an error of law or fact is apparent from the face of the judgment and sentence. Nature of Action: Prosecution for two counts of unlawful delivery of controlled substance and two counts of bail jumping. Superior Court: The Superior Court for Pierce County, No. 04-1-04724-4, Frederick W. Fleming, J., on June 2, 2006, entered a judgment on a verdict finding the defendant guilty of two counts of unlawful delivery of a controlled substance and one count of bail jumping. Judgment also was entered on a plea of guilty to one count of first degree escape based on the defendant's act of absconding from the courtroom after the jury returned the verdicts of guilty to the unlawful delivery and bail jumping charges. In calculating the defendant's offender score for sentencing purposes, the trial court relied on a stipulation between the defendant and the State in which the defendant acknowledged that a prior foreign conviction was comparable to a felony offense in Washington and had not washed out of his criminal history. Court of Appeals: Holding that the defendant's stipulation absolved the State of the need to prove the comparability of his prior foreign conviction and that the trial court was allowed to rely on the defendant's stipulation in calculating his offender score, the court affirms the judgment. Reed Manley Benjamin Speir-, for appellant. Gerald A. Horne-, Prosecuting Attorney, and P. Grace Kingman-, Deputy, for respondent. Ά1 VAN DEREN, A.C.J. Jeffrey Michael Foster appeals his convictions for two counts of unlawful delivery of a controlled substance, methamphetamine, and one count of bail jumping, claiming that the evidence was insufficient to support his convictions. Foster also filed a statement of additional grounds (SAG), FACTS Ά2 On September 15, 2004, an undercover Puyallup Police Detective, Donald Gill, made contact with Louie Wilson and asked how he could buy drugs. Wilson, who did not know that Gill was a police officer, entered Gill's unmarked police car and directed him to an address in Puyallup, Washington. Gill waited in the car while Wilson bought the drugs. Ά3 Afterwards, Gill met with Michael Turner, a confidential informant, Detective Sergeant Fralick, and Officer Michael Clark to plan a controlled drug buy at the same Puyallup residence. The officers searched Turner for drugs, weapons, or money, and provided him with $40 for the controlled buy. Gill directed him to the residence which was under officer surveillance. Turner contacted Wilson and the two emerged from the residence and walked a few blocks to the Cavalier Apartments. Wilson took Turner inside one of the apartments, where Turner met Michael Smith and asked to buy drugs. After a few minutes, Foster entered the apartment and Turner watched him weigh 0.6 grams of methamphetamine on a digital scale. Smith gave Turner the methamphetamine in exchange for the $40 officers had provided. Turner left the apartment, met Clark in his car, stated he had made the purchase, and handed Clark a packet containing a substance that tested positive for methamphetamine. Clark took Turner to the police station, where the police again searched and interviewed him. Ά4 On September 29, Gill again met Turner, searched him, provided him with money, and told him to perform a controlled buy in a trailer park in Puyallup, where Wilson, Foster, and a man named Auddie Hardy Ά5 After hearing that Turner wanted to buy drugs, Foster told Crystal, a woman who also was in the trailer, to retrieve "the stuff" from a nearby parked car. RP at 100. When she returned, Foster gave Turner a baggie of white powder in exchange for $40. Turner returned to Gill's car with the drugs and Gill drove Turner back to the police station, where he was again searched and interviewed. The white powder Turner gave to Gill field-tested positive for methamphetamine and the Washington State Patrol Crime Laboratory confirmed that it was methamphetamine. At trial, Foster denied involvement in these two drug transactions. Ά6 On October 7, police served search warrants on Foster's trailer and Smith's apartment. When officers arrested Smith, they found drug paraphernalia and two baggies containing methamphetamine in his apartment. After arresting Foster, officers searched the trailer and recovered "assorted drug paraphernalia, including needles and pipes." Clerk's Papers (CP) at 3. Smith admitted to the police that he sold methamphetamine and that he previously had bought it from Foster and Wilson. But at trial, Smith denied making these statements. Ά7 On October 8, the State charged Foster with two counts of unlawful delivery of methamphetamine, a controlled substance. The trial court issued, and Foster signed, a scheduling order for an omnibus hearing on October 26, 2004, but he failed to appear for medical reasons. The trial court issued a bench warrant for Foster's arrest, which it later quashed. The trial court issued, and Foster signed, another scheduling order for an omnibus hearing at 8:30 AM and a continuance hearing at 1:30 PM, both to be held on January 5, 2005. Foster again failed to appear at the 8:30 AM omnibus hearing and the trial court phoned Foster twice but received no response. The trial court issued a bench warrant for Foster's arrest, which it also later quashed. Foster appeared at 1:30 PM, but his attorney was not present. The trial court informed him that he should have attended the omnibus hearing in the morning and attempted to contact his counsel. The court then directed him to go immediately to one of the programs required as a condition of his release. The State amended the charging information to include two counts of bail jumping, one count for September 24, 2004, and one count for January 5, 2005. Ά8 On September 27, 2005, a jury found Foster guilty of both counts of unlawful delivery of a controlled substance and of one count of bail jumping for his failure to appear on January 5, 2005. Foster absconded from the courtroom following the jury verdict and was an absconder for approximately seven months. On June 2, 2006, Foster pleaded guilty to first degree escape for absconding from the court room on September 27, 2005, and the court sentenced him on both that case Ά9 At sentencing, Foster's defense attorney for the first degree escape charge told the trial court that she had reviewed the paperwork with Foster, including his stipulation to his criminal history. Ά10 After sentencing Foster for first degree escape, the trial court, without more discussion, sentenced him to two 84-month sentences, one for each count of unlawful delivery of a controlled substance, and 43 months for bail jumping, to be served concurrently, but all to be served consecutively to the first degree escape sentence. Ά11 Foster appeals. ANALYSIS INEFFECTIVE ASSISTANCE OF COUNSELSTIPULATION TO COMPARABILITY AND NO WASH OUT Ά12 Foster claims in his SAG that his trial counsel was ineffective because his counsel encouraged him to stipulate to an out-of-state conviction that was either not comparable to a Washington crime or that washed out of his offender score without requiring the State to present evidence of his criminal history. We ordered additional briefing on Foster's SAG argument that his counsel was ineffective by allowing him to stipulate to his criminal history that the State did not prove. Both parties, the State and the defendant, responded to our request. A. Standard of Review B. Effect of a Stipulation on State's Burden To Prove Criminal Record and Effective Assistance of Counsel Ά15 Foster argues that his trial counsel's performance was ineffective because his counsel allowed him to sign a "stipulation on prior record and offender score" in which he stipulated that he had a prior Kansas conviction for attempted aggravated burglary, that the Kansas conviction was comparable to a class B felony, and that the Kansas conviction did not wash out of his offender score. SAG at 6-8. He does not argue that the Kansas conviction does not exist but, rather, that his counsel was ineffective for allowing him to stipulate to it. In his SAG, he concludes that his offender score should be reduced by one point because the State did not prove that this prior conviction was comparable or did not wash out. Ά16 In the additional briefing, the parties agree that the trial court record is insufficient to determine whether Foster's trial counsel's performance was deficient for allowing Foster to stipulate and whether the stipulation prejudiced Foster. Foster contends, though, in his supplemental brief, that he may raise the miscalculation of his offender score for the first time on appeal and because the basis of his ineffective assistance of counsel claim is that his counsel failed to challenge comparability and wash out, it is necessary to examine whether the evidence the State presented established comparability or wash out. In addition, Foster argues that because the record is insufficient, we should remand the case for resentencing and allow the State to present evidence to prove Foster's criminal history. The State responds that Foster's stipulation is sufficient and that it does not need to provide the trial court with additional evidence to prove his criminal history. We agree with the State. Ά18 In State v. Ross, Ross's counsel acknowledged that an out-of-state prior conviction was properly included in Ross's offender score. Ross, 152 Wn.2d 220, 225, 95 P.3d 1225 (2004). On appeal, Ross argued that the sentencing court improperly calculated his offender score because the State failed to prove that his out-of-state conviction was comparable to a Washington crime. Ross, 152 Wn.2d at 225. But because Ross had already been released from confinement and his appeal was moot, our Supreme Court considered two identical claims by two other defendants. Ά19 In addressing the remaining two claims, the court held that a defendant's affirmative acknowledgement Ά20 Foster's stipulation to the comparability of the Kansas conviction to a Washington class B felony and to the fact that it had not washed out is an admission of its existence (which Foster does not challenge), its comparability, and its continuing viability for inclusion in his offender score. The stipulation here relieved the State of its burden of proof on these facts. But here, the trial court did not conduct a comparability analysis because Foster admitted in his stipulation that the Kansas criminal statute was comparable to a Washington class B felony. Ά21 In a recent Supreme Court case, In re Personal Restraint of Shale, the court addressed a defendant's allegation that the trial court had miscalculated his offender score by not treating some of his crimes as the "same criminal conduct" for purposes of calculating the offender score. Shale, 160 Wn.2d 489, 494, 158 P.3d 588 (2007). Relying on Goodwin and State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000), the court concluded that Shale agreed to his offender score as part of a plea bargain and did not challenge the computation of the offender score. Shale, 160 Wn.2d at 494-95. The court noted: "While we have recognized and granted relief from plea agreements in limited circumstances, those cases involved pleas, convictions, or sentences that were invalid on the face of the judgment and sentence." Shale, 160 Wn.2d at 496. In Shale, there was no apparent invalidity and, thus, the court affirmed his sentence without remanding for further hearings on his offender score calculation. Shale, 160 Wn.2d at 496. Ά22 As a threshold matter, Foster must show "that an error of fact or law exists within the four corners of his judgment and sentence" to challenge the inclusion of the Kansas conviction in his offender score now. Ross, 152 Wn.2d at 231. Here, it is undisputed that at sentencing, the State did not provide copies of the judgment and sentence for the Kansas conviction, did not provide copies of the applicable Kansas statutes, nor did it address whether the Kansas conviction washed out in light of Foster's subsequent criminal history, relying on Foster's stipulation. The stipulation recited that Foster's prior Kansas conviction was comparable to a Washington class B felony and that it did not wash out. Ά23 On appeal, Foster fails to show how the trial court committed any arguable factual or legal error by including his prior Kansas conviction in his offender score. He provided no analysis of the comparability of the Kansas crime to a Washington felony, nor does he analyze how it might have washed out. As in Shale and Ross, Foster points to no apparent invalidity on the face of the judgment and sentence and falls short in his attempt to assert an incorrect offender score, which underlies his claim of ineffective assistance of counsel. Therefore, we do not remand for resentencing, nor do we hold that his counsel was ineffective in providing Foster's stipulation to the court for sentencing purposes. Ά24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. BRIDGEWATER and HUNT, JJ., concur.