State v. Britton
| Docket Number | 38591-4-III |
| Decision Date | 06 June 2023 |
| Parties | STATE OF WASHINGTON, Respondent, v. SCOTT ALLEN BRITTON, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Scott Britton was sentenced as a persistent offender in 1997 to life without parole, based in part on prior convictions for second degree robbery. After second degree robbery was removed as a strike offense and the legislature enacted a law permitting offenders like Mr. Britton to be resentenced, he appeared for resentencing in November 2021. He was given a sentence of 542 months' total confinement based on an offender score of 10.
Mr Britton argues that the resentencing court erred in rejecting his argument that two of his prior convictions, imposed in Oregon, were not comparable to Washington felony robberies. While we agree with Mr. Britton that the sentencing court should not have treated the issue as resolved by Mr Britton's 1997 conviction and appeal, the State's evidence at the 2021 resentencing demonstrated comparability. And contrary to Mr. Britton's argument in a statement of additional grounds, the sentencing court properly considered all of the State's evidence of his criminal history presented at the resentencing. We affirm.
In 1997, a jury found Scott Britton guilty of first degree murder and first degree arson for the 1996 killing of Aaron Laws and the burning of Laws's home. State v. Britton, No. 17004-7-III, 2000 WL 217738 at *1 (Wash.Ct.App. Feb. 24, 2000) (unpublished). Based on Britton's criminal history, which consisted of prior convictions for second degree robbery, the State sought his conviction as a persistent offender under Washington's "three strikes" law, mandating a sentence of life imprisonment without the possibility of parole. At sentencing, Mr. Britton challenged the "three strikes" law on several grounds, but his challenges were unsuccessful. He was found by the court to be a persistent offender and was sentenced to life without parole.
Three of Mr. Britton's prior second degree robbery convictions were Oregon convictions. The State's 1997 sentencing memoranda addressed whether these foreign convictions counted as prior most serious offenses for sentencing purposes. Mr Britton did not contest the comparability of his prior Oregon crimes to a Washington strike offense, however, and the trial court made no explicit finding that his Oregon crimes were comparable to Washington crimes.
In 2019, the Washington Legislature amended RCW 9.94A.030(33) to remove second degree robbery from the list of offenses that qualify as a strike offense. Laws of 2019, ch. 187, § 1. Two years later, it enacted a requirement to resentence offenders who had been sentenced as persistent offenders based in whole or in part on a current or past conviction for robbery in the second degree. Laws of 2021, ch. 141, § 1, codified at RCW 9.94A.647.
In response to the legislation, Mr. Britton was resentenced in 2021. At resentencing, Mr. Britton contended that in calculating his offender score, his three Oregon convictions for second degree robbery should not count. He argued that Oregon's crime of second degree robbery is not legally comparable to the Washington crime and that there was "no way" for the court to determine the facts on which his Oregon convictions were based. Clerk's Papers (CP) at 290.
Citing State v. Tili, 148 Wn.2d 350, 60 P.3d 1192 (2003), the State argued that comparability was decided in 1997, and collateral estoppel should apply. Alternatively, the State argued that the court could determine from the record of the Oregon convictions that all three were factually comparable to the Washington crimes of robbery in the first or second degree.
The resentencing court orally ruled that whether under the doctrine of collateral estoppel or law of the case, the comparability of the Oregon convictions had been resolved by the 1997 judgment and sentence. "[A]s an aside," it stated, "the State presented sufficient evidence here today to again have them count." Rep. of Proc. (RP) at 5.[1] It included all of Mr. Britton's Oregon convictions in calculating his offender score and imposed a sentence of total confinement of 542 months, near the high end of the standard range.
Mr. Britton appeals.
On appeal, Mr. Britton contends the resentencing court erred by counting two of his prior Oregon convictions toward his offender score: a 1989 conviction in Benton County, Oregon for a robbery charged as robbery in the first degree that he resolved by pleading guilty to the lesser crime of robbery in the second degree; and a 1991 conviction in Linn County, Oregon, for a robbery charged as robbery in the second degree, to which he pleaded no contest. The convictions contributed to his offender score of 10, which he contends should have been an 8. He seeks remand for another resentencing.
A defendant's offender score, together with the seriousness level of current offenses, dictates the standard sentence range used in determining his or her sentence. RCW 9.94A.530(1). To calculate the offender score, the court relies on its determination of the defendant's criminal history, which is "the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere." RCW 9.94A.030(11). A prior conviction from another state is included in a defendant's offender score only if the foreign crime is comparable to a Washington felony. See id.; RCW 9.94A.525(3). The State bears the burden of proving by a preponderance of the evidence the existence and comparability of the out-of-state offenses. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004).
The State argued in the trial court and argues on appeal that because Mr. Britton did not contest the comparability of the Oregon crimes in 1997, he was collaterally estopped to deny their comparability at his 2021 resentencing. Well-settled Washington case law holds that collateral estoppel applies in criminal cases to bar relitigation of issues actually determined by a prior judgment. E.g., State v. Peele, 75 Wn.2d 28, 30, 448 P.2d 923 (1968). The party asserting collateral estoppel must show (1) the issue decided in the prior adjudication is identical with the one presented in the second action, (2) the prior adjudication ended in a final judgment on the merits, (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication, and (4) application of the doctrine does not work an injustice. Tili, 148 Wn.2d at 361. To be conclusive in a subsequent action, the issue must be both actually litigated and necessarily determined. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d 312 (1998) (quoting Restatement (Second) of Judgments § 27 (Am. Law Inst. 1982).
The State argues that even though Mr. Britton's lawyer chose not to contest the comparability of the Oregon convictions at the 1997 sentencing, the State briefed the issue, and a decision that the Oregon convictions were comparable was "inherent" in the court's imposition of a persistent offender sentence. Br. of Resp't at 13. Imposition of the sentence would ordinarily mean that comparability was necessarily determined, although absent an express finding of comparability (and there was none in 1997), there is the possibility that the need to determine comparability was overlooked. Even if necessarily determined, however, the issue might not have been actually litigated. The concepts are different. For purposes of collateral estoppel, "An issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of a party's pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading." Restatement § 27, cmt. e. Similarly, comparability of the Oregon convictions was not actually litigated even though the State briefed it at the 1997 sentencing, because the defense made no response.
The failure to challenge comparability in 1997 could have preservation of error consequences for any appeal of that judgment, to be sure, but it did not collaterally estop Mr. Britton from challenging comparability for the first time at a resentencing. He was not "relitigating" comparability, he was choosing to litigate it for the first time. Cf. State v. Cabrera, 73 Wn.App. 165, 169-70, 868 P.2d 179 (1994) (). Mr. Britton's arguments on appeal are not foreclosed by collateral estoppel.
In addition to accepting the State's collateral estoppel argument, the resentencing court ruled that the State presented sufficient evidence in 2021 to include the challenged Oregon convictions in Mr. Britton's offender score. We conduct de novo review of a comparability ruling. State v. Sublett, 176 Wn.2d 58, 87, 292 P.3d 715 (2012).
When considering a conviction from another jurisdiction Washington courts will compare the foreign offense with Washington offenses in order to properly classify the crime. RCW 9.94A.525(3). The elements of the out-of-state crime must be compared to the elements of a Washington criminal statute in effect when the foreign crime was committed. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). To determine comparability, we ...
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