In re Canha

• Citation: 189 Wash.2d 359,402 P.3d 266
• Decision Date: 28 September 2017
• Docket Number: No. 94175-1.,94175-1.
• Parties: In the MATTER OF the Personal Restraint of Steven Louis CANHA, Petitioner.
• Court: Washington Supreme Court

189 Wash.2d 359

402 P.3d 266

In the MATTER OF the Personal Restraint of Steven Louis CANHA, Petitioner.

No. 94175-1.

Supreme Court of Washington.

Argued May 25, 2017

Filed Sept. 28, 2017

Kristina M. Nichols, Nichols and Reuter, PLLC, P.O. Box 19203, Eastern Washington Appellate Law, Spokane, WA, 99219-9203, Dennis W. Morgan, Attorney at Law, P.O. Box 1019, Republic, WA, 99166-1019, for Petitioner.

Andrew Kelvin Miller, Julie Elizabeth Long, Benton County Prosecutor's Office, 7122 W. Okanogan Pl., Bldg. A, Kennewick, WA, 99336-2359, for Respondent.

WIGGINS, J.

¶1 We must 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.

FACTS

¶2 A jury 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.

¶3 Canha 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 Wash.App. 1044, 2011 WL 240680 (2011) ; see U.S. CONST . amends. V, VI. This court denied review. State v. Canha, 171 Wash.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).

¶4 After 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.

¶5 Canha 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.¹ As a result, we granted Canha's motion to modify and remanded the petition to the Court of Appeals "to review on the merits."

¶6 In yet 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.

STANDARD OF REVIEW

¶7 To 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 Wash.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 Wash.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, 50 P.3d 618.

ANALYSIS

¶8 The 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 score.

¶9 Thus, 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.

¶10 However, 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.

I. Calculating Offender Scores Using Out-of-State Convictions

¶11 The 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 Wash.2d 679, 682, 880 P.2d 983 (1994) ; RCW 9.94A.510. The statute calculates a defendant's offender score based on criminal history. Wiley, 124 Wash.2d at 683, 880 P.2d 983 ; 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, 880 P.2d 983 ; see also RCW 9.94A.525(3).

¶12 To compare offenses, we use a two-part test. In re Pers. Restraint of Lavery, 154 Wash.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 Wash.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, 952 P.2d 167. If the crimes are legally comparable, our analysis ends here and the crime is included in the offender score.

¶13 Second, if the offenses are not legally comparable, the court analyzes factual comparability. Lavery, 154 Wash.2d at 255-57, 111 P.3d 837. Offenses are factually comparable when the defendant's conduct would have violated a Washington statute. Morley, 134 Wash.2d at 606, 952 P.2d 167 (" ‘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 Wash.App. 485, 495, 945 P.2d 736 (1997), aff'd, 137 Wash.2d 490, 973 P.2d 461 (1999) )). To comply with Apprendi ,² the court may rely only on facts that were admitted, stipulated, or proved to the fact finder beyond a reasonable doubt. Lavery, 154 Wash.2d at 255, 111 P.3d 837 ; see also State v. Olsen, 180 Wash.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 Wash.2d at 606, 952 P.2d 167.

¶14 Here, the trial court calculated Canha's offender score using four out-of-state convictions but it failed to perform a comparability analysis.³ This court could either remand to the superior court for a comparability analysis, see State v. Thiefault, 160 Wash.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 Wash.2d at 255-58, 111 P.3d 837. Here, we choose to perform the comparability analysis and remand for resentencing.

II. California Voluntary Manslaughter

¶15 Canha's 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.

A. Legal Comparability

¶16 In 1991, Canha pleaded guilty to voluntary manslaughter in California. The California...