State v. Franklin
| Decision Date | 04 December 1986 |
| Docket Number | No. 7049-2-III,7049-2-III |
| Citation | 46 Wn.App. 84,729 P.2d 70 |
| Parties | STATE of Washington, Respondent, v. John Clarence FRANKLIN, Appellant. |
| Court | Washington Court of Appeals |
Richard Cease, Public Defender, Francis Conklin, Sp. Public Defender, Spokane, for appellant.
Donald C. Brockett, Pros. Atty., Clark D. Colwell, Deputy, Spokane, for respondent.
John Franklin appeals his convictions for first degree attempted murder and first degree robbery. We affirm, but remand for resentencing.
This appeal is based on contentions that various sections of the Sentencing Reform Act of 1981 (SRA) are unconstitutional, the court erred in computing the offender score, and the right to a fair trial was denied by the judge's ex parte communication with a juror.
On November 20, 1984, at approximately 4 p.m., a man entered a Dorner's Pizza Parlor in Spokane, robbed the clerk and stabbed her twice in the back. Despite her injuries, the clerk ran from the pizza parlor and flagged down passing motorists. The motorists chased the assailant into the basement of a nearby apartment and when he later emerged, he was apprehended by police and identified as this defendant, John Franklin. Mr. Franklin was convicted of first degree attempted murder and first degree robbery.
First, Mr. Franklin raises several federal and state constitutional issues concerning the application of the SRA, RCW 9.94A.370, and the use of his prior convictions. He contends under both the federal and state constitutions his rights against self-incrimination were violated; the State failed to meet its burden of proving the existence of prior convictions beyond a reasonable doubt; the State failed to prove he was the same individual named in certified copies of prior convictions; and it failed to prove the constitutional validity of prior convictions before they were counted in the offender score. Each of these issues was decided adversely to Mr. Franklin in State v. Ammons, 105 Wash.2d 175, 713 P.2d 719, 718 P.2d 796 (1986).
In substance, Mr. Franklin complains that RCW 9.94A.370 violates his right against self-incrimination since he is either forced to give up his right to remain silent and object to portions of the presentence report or, conversely, remain silent and allow the court to draw adverse inferences from that silence. Ammons held this statute does not compel a defendant to provide any information. The defendant has the right to know of and object to adverse facts in the presentence report and, if he contests any facts, an evidentiary hearing must be held before they can be used.
Likewise in Ammons, the court determined that requiring proof of prior convictions by only a preponderance of the evidence as provided in RCW 9.94A.110 was permissible. As to the identification of Mr. Franklin as the person named in prior convictions, the identity of names is sufficient proof in the absence of rebuttal by the defendant declaring under oath that he is not the same person named in the prior conviction. Ammons, at 189-90, 713 P.2d 719. Mr. Franklin did not rebut the State's proof that he was the person named in the prior convictions, nor was any evidence presented that he was not the individual named in the FBI identification report. Finally, contrary to Mr. Franklin's contentions, the State does not have the affirmative burden of proving the constitutional validity of a prior conviction before it can be used in a sentencing proceeding. Ammons, at 187, 713 P.2d 719.
Mr. Franklin next contends the court erred when computing his offender score by including an out-of-state conviction for aggravated battery and assigning a score of 3 to that conviction. In 1964, Mr. Franklin was convicted of aggravated battery in Illinois as the result of an incident wherein he stabbed a victim 13 times and left him lying in an alley in 15-degree weather. Mr. Franklin was paroled on that conviction August 9, 1968, and discharged from parole June 23, 1969. In sentencing Mr. Franklin, the trial court found the Illinois aggravated battery equal to a class A felony in this state and as a result assigned it a score of 3.
Former RCW 9.94A.360 provides:
The designation of out-of-state convictions shall be covered by the offense definitions and sentences provided by Washington law.
According to the Washington Sentencing Guidelines Comm'n, Implementation Manual I-8 (1984): "For a prior out-of-state or foreign conviction, compare the elements of the offense in that jurisdiction to Washington State laws to determine how to score the offense ..."
Under Illinois law: "A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery." Ill.Ann.Stat. ch. 38, § 12-4 (Smith-Hurd 1979).
This crime matches the Washington offense of assault in the second degree which is defined by RCW 9A.36.020 as:
(1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he:
* * *
(b) shall knowingly inflict grievous bodily harm upon another with or without a weapon; ...
In Illinois, the sentence for aggravated battery, a class 3 felony, is not less than 2 years nor more than 5 years. Ill.Ann.Stat ch. 38, p 1005-8-1(a)(6) (Smith-Hurd 1982). This sentence is comparable to a class C felony in Washington. RCW 9A.20.020(1)(c). However, under Washington law, the crime Mr. Franklin was convicted of more closely compares to an assault in the second degree, which is a class B felony. RCW 9A.36.020(2). Thus, although the definitions of aggravated battery in Illinois and assault in the second degree in Washington are comparable, the sentences differ.
Under RCW 9.94A.360(12), if aggravated battery is regarded as a class B felony, it would be included in Mr. Franklin's offender score because he was convicted of an additional felony within 10 years of being released. (Mr. Franklin was paroled on August 9, 1968 and convicted of second degree burglary on August 24, 1973.) However, if the aggravated battery is regarded as a class C felony, it would not be included in Mr. Franklin's offender score because his next felony conviction was more than 5 years after his release.
Mr. Franklin contends the Illinois aggravated battery conviction should be designated a class C felony. As such, it had "aged" and could not be used in computing the offender score. The State concedes aggravated battery is not a class A felony, but argues the Illinois conviction compares to a class B felony and thus does not wash out, for purposes of offender score computation. We agree.
In construing statutes, we must carry out the Legislature's intent. Miller's Cas. Ins. Co. v. Briggs, 100 Wash.2d 1, 665 P.2d 891 (1983). The spirit and purpose of an enactment should prevail over express but inept wording. State v. Burke, 92 Wash.2d 474, 598 P.2d 395 (1979).
The Legislature, in drafting the SRA, created a plan by which each person sentenced is given an "offender score" according to his prior criminal record. RCW 9.94A.360. It would be inconsistent with the stated purpose of the SRA to construe the statute so that a defendant who committed a violent felony out of state avoids the imposition of a greater sentence merely because the other state imposes a shorter prison term than would Washington. The actual crime the defendant is convicted of committing and the mental state involved must be the determining factors and not the length of punishment. To hold otherwise would frustrate the legislative intent to ensure that punishment is proportionate to the offense, the criminal history, and to others committing similar crimes. Nor is the sentencing judge limited to looking solely at a foreign statute when determining the offender score. He may look to the evidence and the information contained in the presentence report when determining the grade of the offense. State v. Southerland, 43 Wash.App. 246, 716 P.2d 933 (1986). We conclude the court should have computed Mr. Franklin's offender score by considering the Illinois aggravated battery conviction a class B second degree assault rather than a class A first degree assault. Therefore, we remand for resentencing.
Next, Mr. Franklin contests the judge's determination the convictions did not arise from the same criminal conduct. As a result, the sentencing judge counted each...
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