137 Wn.2d 490, STATE v. McCORKLE

[No. 66275-4. En Banc.]

Argued October 20, 1998. Decided March 11, 1999.

THE STATE OF WASHINGTON, Petitioner, v. EDWARD A. MCCORKLE, Respondent.

[1] Criminal Law - Review - Issues Not Raised in Trial Court - Sentence - Erroneous Offender Score. A criminal defendant's

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claim that the trial court misapplied the law in calculating the defendant's offender score for sentencing purposes may be raised for the first time on appeal.

[2] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Review - Issue Not Raised in Trial Court. A trial court's finding that a criminal defendant's prior out-of-state conviction would be classified as a felony under the laws of this state may be challenged by the defendant for the first time on appeal.

[3] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Proof - Burden of Proof. Absent a stipulation, a criminal defendant's prior out-of-state conviction may not be included in the calculation of the defendant's offender score for sentencing purposes unless the State proves, by a preponderance of the evidence, that the conviction would be classified as a felony under the laws of this state.

[4] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Proof - Degree of Proof. An out-of-state conviction is properly classified as a felony under the laws of this state if the State proves by a preponderance of the evidence that (1) the statutory elements of the out-of-state offense are identical to the statutory elements of a domestic offense or (2) the defendant's conduct, as evidenced by the record of the out-of-state conviction, would have violated a comparable domestic criminal statute.

[5] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Proof - Sufficiency. The State does not meet its burden of proving that a defendant's out-of-state conviction would be classified as a felony under comparable domestic law by mere allegations unsupported by evidence in the record. The defendant has no duty to refute bare allegations or, if the State fails to meet its primary burden of proof, to disprove the State's position; nor is the State's burden relieved if the defendant fails to object to the State's bare allegations or to the sufficiency of the evidence presented by the State.

[6] Criminal Law - Punishment - Sentence - Within Standard Range - No Right of Appeal - Scope - Incorrect Offender Score. RCW 9.94A.210(1), which generally precludes appellate review of a standard range sentence, does not prevent an appellate court from reviewing a standard range sentence that is alleged to be legally erroneous because it is based on an incorrect offender score. The statute precludes review only of the length of a standard range sentence.

[7] Criminal Law - Punishment - Sentence - Within Standard Range - Review - Incorrect Standard Range - In General. A trial court's incorrect calculation of a defendant's offender

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score prior to imposing a standard range sentence is legal error subject to appellate review.

[8] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Review - Preservation for Review. A criminal defendant's argument at the sentencing hearing that a prior out-of-state conviction should not be included in the offender score calculation because the conviction "washes out" under RCW 9.94A.360(2) is sufficient to preserve for appellate review the question of whether the out-of-state conviction was properly classified as being comparable to a felony under the laws of this state.

[9] Criminal Law - Punishment - Sentence - Review - Insufficient Evidence - Specific Objection - Reopening Record. When a sentence is reversed by an appellate court on the basis that the record does not support a legal finding on which the State had the burden of proof at the sentencing hearing, and where the defendant has specifically objected on that basis at the sentencing hearing, the State will not be provided another opportunity to meet its burden of proof at resentencing.

TALMADGE, J., concurs by separate opinion; IRELAND, J., did not participate in the disposition of this case.

Nature of Action: Prosecution for first degree robbery.

Superior Court: The Superior Court for Pierce County, No. 94-1-04506-9, Thomas R. Sauriol, J.. on February 28, 1996, entered a judgment on a plea of guilty and a sentence within the standard range.

Court of Appeals: The court, at 88 Wn. App. 485 (1997), reversed the sentence and remanded the case for a rehearing on the sentence and for resentencing, holding that, for purposes of calculating the defendant's offender score, the State had failed to prove that several prior foreign convictions of the defendant, to which the defendant had not stipulated, were comparable to felony offenses in this jurisdiction.

Supreme Court: Holding that the defendant was not precluded from challenging the trial court's classification of several out-of-state convictions for the first time on appeal, the court affirms the decision of the Court of Appeals.

John W. Ladenburg, Prosecuting Attorney, and Kathleen Proctor, Deputy, for petitioner.

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Patricia A. Pethick, for respondent.

JOHNSON, J. - This is the companion case to State v. Ford, 137 Wn.2d 472 (1999). Like Ford, this case raises the question whether failure to specifically object at sentencing to the classification of prior out-of-state convictions waives the issue on direct appeal.

The Court of Appeals held that failure to specifically object did not waive the issue on appeal. Finding the evidence insufficient to determine whether any of the disputed convictions were properly included in the defendant's offender score, the Court of Appeals remanded for an evidentiary hearing, and for resentencing based thereon.

We affirm.

FACTS

Respondent, Edward A. McCorkle, pleaded guilty in Pierce County Superior Court to one count of robbery in the first degree. At sentencing, McCorkle stipulated to six prior convictions. He disputed seven other out-of-state convictions offered by the State. Specifically, McCorkle objected to the use of any conviction for which there was no certified judgment, and to the use of any pre-1986 convictions, arguing these convictions had "washed out" under the provisions of the Sentencing Reform Act of 1981 (SRA). Based on the six stipulated convictions, McCorkle calculated his offender score as 6. The State argued for the inclusion of the 7 unstipulated out-of-state convictions, resulting in a total of 13 prior convictions and an offender

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score of 10. The trial court agreed with the State, calculated McCorkle's offender score at 10, and sentenced McCorkle to a term within the standard range of 171 months. (With an offender score of 6, the standard range would have been 77 to 102 months. See State v. McCorkle, 88 Wn. App. 485, 491 n.2, 945 P.2d 736 (1997)).

The Court of Appeals reversed. McCorkle, 88 Wn. App. 485. The court specifically found McCorkle had made only a general objection to the inclusion of the unstipulated convictions in his offender score. McCorkle, 88 Wn. App. at 490-91. Nevertheless, holding that challenges to an offender score calculation may be raised for the first time on appeal, the court reached the merits of McCorkle's argument. McCorkle, 88 Wn. App. at 500 (citing State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994)).

Accordingly, the Court of Appeals attempted to classify McCorkle's unstipulated prior out-of-state convictions by comparing the elements to comparable Washington crimes. McCorkle, 88 Wn. App. at 493-98. Of the seven disputed convictions, the court found the record insufficient to determine whether six of the convictions were comparable to Washington felonies, and that possibly all seven disputed convictions were not properly includable in McCorkle's offender score. McCorkle, 88 Wn. App. at 498.

It appeared to the Court of Appeals that at least two of the disputed convictions were not properly included in the offender score because they amounted to misdemeanors under Washington law. McCorkle, 88 Wn. App. at 495-96, 498. The evidence was insufficient to determine the classification of four of the other disputed convictions. McCorkle, 88 Wn. App. at 496-97. Of the one disputed conviction which the court found would be classified as a felony under Washington law (a Georgia burglary), it was impossible to tell whether it would be a class A, B, or C felony. McCorkle, 88 Wn. App. at 496. This determination, combined with the classification of a subsequent unauthorized use of a vehicle conviction in Ohio, of which the evidence was insufficient to determine a classification under Washington law, was critical

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to determining whether the Georgia conviction "washed out" under the SEA. McCorkle, 88 Wn. App. at 498.

Because of the lack of specific objection, the Court of Appeals remanded for an evidentiary hearing that the State might meet its burden of proving the classification of the disputed out-of-state convictions, and for resentencing based thereon. McCorkle, 88 Wn. App. at 502-03.

The State appealed. We granted review limited to whether McCorkle waived any challenge to the classification of the disputed convictions by failing to specifically object at sentencing. We now affirm the Court of Appeals.

ANALYSIS

[1-5] In State v. Ford, 137 Wn.2d 472 (1999), we held that a challenge to the classification of out-of-state convictions may be raised for the first time on appeal. Ford, 137 Wn.2d at 484-85. Our holding in Ford was directly controlled by the clear burden of proof placed on the State by the SRA. We reaffirmed in Ford, and we do so again here, that under the SRA the State is required to prove the existence and classification of prior-out-of-state convictions by a preponderance of the evidence. See Ford, 137 Wn.2d at 482-83. Objection to unsupported argument regarding classification is not required in order to put the State to its proof. Ford, 137 Wn.2d at 483. Under the SRA, the State's burden is mandatory.

Our holding in Ford controls the outcome in this case. However, we address two additional arguments not raised in Ford.

[6, 7] First, we reject the State's argument that allowing an appeal in this case contravenes the prohibition against appeal of standard range sentences contained in RCW 9.94A.210(1), and our decision in State v. Mail, 121 Wn.2d 707, 854 P.2d 1042 (1993). RCW 9.94A.210(1) only precludes appellate review of challenges to the length of time imposed within the standard range. State v. Ammons, 105 Wn.2d

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175, 182-83, 713 P.2d 719, 718 P.2d 796 (1986). Here, McCorkle does not challenge the length of his sentence within the standard range. Rather, he argues the standard range itself was incorrectly calculated by using prior out-of-state convictions which should not have been included in his offender score. Because the sentencing court must first calculate the correct standard range before imposing sentence within that range, failure to do so is legal error subject to review. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).

[8] Finally, McCorkle argues he did specifically object to the classification of the disputed out-of-state convictions. We agree. At sentencing, McCorkle argued the convictions should not be included in his offender score because they "washed out" under RCW 9.94A.360(2). Whether a prior out-of-state conviction "washes out" cannot be determined without first classifying the conviction as a class A, B, or C felony under Washington law. See RCW 9.94A.360(2). Thus, McCorkle's "wash out" objection necessarily encompassed classification of the disputed convictions.

[9] In Ford we adopted the reasoning of the Court of Appeals in McCorkle and stated where the State fails to carry its burden of proof after a specific objection, it would not be provided a further opportunity to do so. Ford, 137 Wn.2d at 485. Here, however, McCorkle does not cross-appeal the Court of Appeals decision. Thus, despite the specific objection in this case, we remand for an evidentiary hearing and resentencing based thereon, in accordance with the Court of Appeals analysis.

Affirmed.

GUY, C.J., DURHAM, SMITH, MADSEN, ALEXANDER, and SANDERS, JJ., and DOLLIVER, J. Pro Tem., concur.

TALMADGE, J. (concurring) - Consistent with my dissent in the companion case of State v. Ford, I concur here for the reasons articulated at page 496 of the majority opinion.

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I agree with the majority view that McCorkle raised a sufficient objection at sentencing to preserve for review the alleged error as to classification of his out-of-state convictions.

It is undisputed McCorkle challenged the calculation of his criminal history at sentencing, insisting his offender score should be 6. He specifically argued certain out-of-state convictions should not be included in his offender score because they "washed out" under RCW 9.94A.360(2). The State acknowledged McCorkle's wash out argument at sentencing and admitted it had been unable to secure certified documentation from the Ohio Department of Corrections, which it claims would resolve the issue. The State also responded to McCorkle's "wash out" argument by noting a 1989 dark County conviction, endorsed by his attorney at that time, which listed his offender score as 9, based on the convictions he now alleges have washed out.

The State argued McCorkle's offender score should be 13, relying on various conflicting documents regarding his criminal history including a presentence investigation report and FBI rap sheet. The sentencing court rejected both views, setting McCorkle's offender score at 10, obtaining this score by adding a 1991 conviction for attempted burglary to the offender score of 9 derived from the 1989 dark County conviction. The trial court explained it was using the 1989 dark County offender score determination as a base because it had been endorsed by McCorkle's attorney at that time. The trial court ignored the fact, noted by McCorkle's attorney, that Pierce County convictions in 1986 and 1991, also contemporaneously endorsed by McCorkle's attorneys, determined his offender score to be 0 and 3 respectively.

Remand for an evidentiary hearing and resentencing is appropriate here because, unlike the appellant in Ford, McCorkle sufficiently raised the issue of classification below. Because McCorkle specifically argued at sentencing that his prior convictions "washed out" under the SRA, he sufficiently put into contention the issue of classification of

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those prior convictions, as such classification is a requisite first step in determining whether earlier convictions "wash out." See RCW 9.94A.360(2) and (3).«1» Thus, McCorkle sufficiently raised the issue in the trial court below to the necessary degree to (1) allow opportunity for the trial court to correct the asserted error, and (2) put all parties on notice of the contended issue. See State v. Boast, 87 Wn.2d 447, 451. 553 P.2d 1322 (1976) ("Objections must be accompanied by a reasonably definite statement of the grounds therefor so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect." (quoting Presnell v. Safety Stores, Inc., 60 Wn.2d 671, 675, 374 P.2d 939 (1962)).

Given the State's acknowledgment of, and argument against, McCorkle's "wash out" contention, it cannot be said any party or the sentencing court lacked sufficient notice of the issues presently before us, including the classification of convictions. Unlike Ford, the asserted error here is properly preserved for appeal. Remand for an evidentiary hearing and resentencing is available to McCorkle, and appropriate given the confused and conflicting documentation upon which the State and sentencing court relied in determining his offender score.


«1» Because such classification is a necessary first step in determining whether "wash out" has occurred, McCorkle's case is distinguishable from Ford. Ford never asserted a wash out claim under RCW 9.94A.360(2) before the sentencing court; he simply attempts to assert for the first time on appeal that his California offenses are not comparable to Washington offenses.


[Publisher's Note: There was no page numbered 499 in the Advance Sheets.]

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