State v. Ford, 66210-0

Decision Date11 March 1999
Docket NumberNo. 66210-0,66210-0
PartiesSTATE of Washington, Respondent, v. Earl Lee FORD a/k/a Robert Johnson, Petitioner.
CourtWashington Supreme Court
Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner

Norm Maleng, King County Prosecutor, Deborah A. Dwyer, Deputy King County Prosecutor, Seattle, WA, for Respondent.

JOHNSON, J.

This is the companion case to State v. McCorkle, 137 Wash.2d 490, 973 P.2d 461 (Wash.1999). Like McCorkle, the question in this appeal is whether failure to specifically object at sentencing to the classification of prior out-of-state convictions waives the issue on direct appeal. Holding that failure to specifically object waived the issue on appeal, the Court of Appeals affirmed the sentence. We reverse and, based on the facts of this case, remand.

FACTS

Petitioner, Earl Lee Ford, pleaded guilty in King County Superior Court to six counts of first degree theft and one count of attempted theft in the first degree. At sentencing, the State asserted Ford's offender score was 11. Ford offered a calculation of 8. The difference centered around three California convictions, two for "grand theft" and one for "forgery."

Ford conceded he had pleaded guilty to the three California convictions and did not dispute their existence. Instead, Ford argued they should not be counted as "convictions" because they resulted in civil commitment only. The State argued the offenses were convictions because Ford had pleaded guilty to them.

At the sentencing hearing, the State orally asserted the convictions would be classified as felonies under comparable Washington law. No documents of record, such as the California judgments and sentences, were presented by the State to substantiate its position. The California statutes Nevertheless, the trial court concluded the offenses were convictions and would be classified as felonies under Washington law. Accordingly, it calculated Ford's offender score as 11. Under an offender score of 9 or more, the standard range for the current offenses totaled 43-57 months. Using Ford's calculation of an offender score of 8, the standard range for the current offense would have totaled 33-43 months. Citing, among other things, an aggravating factor of an offender score of "9 or more," the court imposed concurrent exceptional sentences of 120 months on each count of theft and 60 months on the count of attempted theft (10 years).

under which Ford was convicted were not offered into evidence. No comparable Washington statutes were identified. From the record it appears the trial court did not engage in any comparison of statutory elements.

On appeal, Ford challenged the trial court's classification of the three California convictions, arguing the State failed to prove by a preponderance of the evidence the convictions were comparable to Washington felonies. The Court of Appeals affirmed the trial court. State v. Ford, 87 Wash.App. 794, 942 P.2d 1064 (1997). The Court of Appeals held Ford had waived the issue on appeal because he had not specifically objected at sentencing to the State's assertion that his California convictions would be classified as felonies under Washington law. Ford, 87 Wash.App. at 799, 942 P.2d 1064. The court reasoned because the State "specifically alleged" the California convictions were comparable to Washington felonies, Ford was on notice of the State's position and could have made a specific objection on that basis, but instead Ford argued only that civil commitment precluded counting the felonies into his offender score. Ford, 87 Wash.App. at 800, 942 P.2d 1064. The Court of Appeals characterized Ford's claimed error as "pure speculation" because "the record contains no information with which we can evaluate Ford's claim that a sentencing error was possibly made...." Ford, 87 Wash.App. at 800, 942 P.2d 1064. Accordingly, the Court of Appeals affirmed the sentence.

We granted review. 1

ANALYSIS

The general rule is that issues not raised in the trial court may not be raised for the first time on appeal. See RAP 2.5(a); State v. Moen, 129 Wash.2d 535, 543, 919 P.2d 69 (1996). By its own terms, however, the rule is discretionary rather than absolute. See RAP 2.5(a) (an "appellate court may refuse to review any claim of error which was not raised in the trial court") (emphasis added); Obert v. Environmental Research & Dev. Corp., 112 Wash.2d 323, 333, 771 P.2d 340 (1989) ("rule precluding consideration of issues not previously raised operates only at the discretion of this court"). Accord Bennett v. Hardy, 113 Wash.2d 912, 918, 784 P.2d 1258 (1990). Thus, the rule never operates as an absolute bar to review. Furthermore, challenges such as lack of jurisdiction, failure to establish facts upon which relief may be granted, and manifest error affecting a constitutional right may be raised for the first time on appeal as a matter of right. RAP 2.5(a).

In the context of sentencing, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal. See, e.g., Moen, 129 Wash.2d at 543-48, 919 P.2d 69 (imposition of a criminal penalty not in compliance with sentencing statutes may be addressed for the first time on appeal); In re Personal Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) ("sentencing error can be addressed for the first time on appeal under RAP 2.5 even if the error is not jurisdictional or constitutional"); State v. Loux, 69 Wash.2d 855, 858, 420 P.2d 693 (1966) (this court "has the power and duty to correct the error upon its discovery" even where the parties not only failed to object but agreed with the sentencing judge), overruled in part by Moen, 129 Wash.2d at 545, 919 P.2d 69; State v. Roche, 75 Wash.App. 500, 513, 878 P.2d 497 (1994) ( "challenge to the offender score calculation is a sentencing error that may be raised for the first time on appeal"); State v. Paine, 69 Wash.App. 873, 884, 850 P.2d 1369 (1993) (collecting cases and concluding that case law has "established a common law rule that when a sentencing court acts without statutory authority in imposing a sentence, that error can be addressed for the first time on appeal"). See also State v. Hardesty, 129 Wash.2d 303, 315, 915 P.2d 1080 (1996) (permitting the State to bring a motion to amend an erroneous sentence nearly two years after sentencing under CrR 7.8); State v. Parker, 132 Wash.2d 182, 189, 937 P.2d 575 (1997) (improperly calculated standard range is legal error subject to review).

A justification for the rule is that it tends to bring sentences in conformity and compliance with existing sentencing statutes and avoids permitting widely varying sentences to stand for no reason other than the failure of counsel to register a proper objection in the trial court.

Paine, 69 Wash.App. at 884, 850 P.2d 1369. See also Moen, 129 Wash.2d at 546-47, 919 P.2d 69 (expressly adopting and applying the reasoning and result of Paine in the context of an untimely restitution order).

In its brief to this court, the State admits it introduced no evidence to support the classification of the disputed California convictions as comparable to Washington felonies. The State blames this lapse on the defendant's failure to object at sentencing. According to the State, had Ford objected to the State's asserted classification at sentencing and requested an evidentiary hearing, a record would have been developed to decide the issue. The State argues that case law allowing sentencing errors to be challenged for the first time on appeal is limited to questions of law not requiring further development of the record. 2 It argues, under the Sentencing Reform Act of 1981 (SRA), any information not objected to at sentencing is considered acknowledged. If, indeed, the classification is erroneous, the State suggests Ford may proffer additional facts to support that claim in a personal restraint petition. This argument, however, fails to recognize the State's duties and obligations under the SRA.

The SRA creates a grid of standard sentencing ranges factored by the defendant's "offender score" and the "seriousness level" of the current offense. State v. Wiley, 124 Wash.2d 679, 682, 880 P.2d 983 (1994). The offender score measures a defendant's criminal history and is calculated by totaling the defendant's prior convictions for felonies and certain juvenile offenses. Wiley, 124 Wash.2d at 683, 880 P.2d 983. Except in the case of felony traffic offenses, prior misdemeanors are not included in the offender score. Wiley, 124 Wash.2d at 683, 880 P.2d 983.

Where a defendant's criminal history includes out-of-state convictions, the SRA requires these convictions be classified "according to the comparable offense definitions and sentences provided by Washington law." Wiley, 124 Wash.2d at 683, 880 P.2d 983 (quoting RCW 9.94A.360(3)). To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. State v. Morley, 134 Wash.2d 588, 606, 952 P.2d 167 (1998); Wiley, 124 Wash.2d at 684, 880 P.2d 983; State v. Weiand, 66 Wash.App. 29, 31-32, 831 P.2d 749 (1992). If the elements are not identical, or if the Washington statute defines the offense more narrowly than does the foreign statute, it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense. Morley, 134 Wash.2d at 606, 952 P.2d 167.

In State v. Ammons, 105 Wash.2d 175, 186, 713 P.2d 719, 718 P.2d 796 (1986), we held that the use of a prior conviction as a basis for sentencing under the SRA is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence. See RCW...

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