State v. Olsen

• Decision Date: 15 May 2014
• Docket Number: No. 89134–6.,89134–6.
• Citation: 180 Wash.2d 468,325 P.3d 187
• Parties: STATE of Washington, Respondent, v. Edward Mark OLSEN, Petitioner.
• Court: Washington Supreme Court

180 Wash.2d 468

325 P.3d 187

STATE of Washington, Respondent,

v.Edward Mark OLSEN, Petitioner.

No. 89134–6.

Supreme Court of Washington, En Banc.

May 15, 2014.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

Randall Avery Sutton, Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

J.M. JOHNSON, J.^*

¶ 1 In this case, we consider Washington's treatment of foreign convictions for sentencing purposes in light of the recent United States Supreme Court case Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Petitioner Edward Olsen was convicted of a number of crimes, including attempted second degree murder, for an incident of domestic violence against the mother of his children. His offender score at sentencing was six and he. received an exceptional sentence of 360 months. Olsen claims that a foreign conviction for terrorist threats was not comparable to Washington's felony harassment and should not have been included in his offender score. The Court of Appeals, Division Two, affirmed Olsen's convictions and sentence. We affirm the Court of Appeals.

Facts and Procedural History

¶ 2 This case arose out of an incident of domestic violence perpetrated by petitioner Olsen against the mother of his children, Bonnie Devenny. Olsen broke into Devenny's house, poured gasoline on her while she was sleeping, and told her that she was going to die. Police later recovered a lighter near the bed. Olsen has a history of threatening and committing acts of domestic violence against Devenny, including a California conviction for terrorist threats for which he pleaded no contest. During the California incident, Olsen allegedly wrapped duct tape around Devenny's legs and told her that he was going to kill her, cut her up into little pieces, and put the pieces in a plastic storage container.

¶ 3 For the gasoline incident, Olsen was charged in Kitsap County Superior Court by second amended information of attempted first degree murder, attempted second degree murder, first degree burglary, felony harassment, and third degree malicious mischief. All felony counts included domestic violence aggravators for the purposes of RCW 9.94A.535 because the crime occurred in the presence of Devenny and Olsen's 12–year–old son. A jury convicted Olsen as charged on all counts except attempted first degree murder. Olsen was sentenced using an offender score of six, in part because his California conviction for terrorist threats was found to be comparable to Washington's felonyharassment. The trial court imposed an exceptional sentence of 360 months.

¶ 4 Olsen appealed to Division Two of the Court of Appeals, which affirmed his convictions and sentence. State v. Olsen, 175 Wash.App. 269, 309 P.3d 518 (2013). The Court of Appeals opinion was issued on June 27, 2013, one week after Descamps was issued by the United States Supreme Court. The Court of Appeals opinion did not address Descamps. Olsen filed a petition for review in this court. We granted review only on the issue of comparability of the California conviction, including the propriety of examining the facts of the foreign conviction in light of Descamps.State v. Olsen, 178 Wash.2d 1018, 312 P.3d 651 (2013). We affirm the Court of Appeals.

Analysis

¶ 5 We review the trial court's calculation of a defendant's offender score de novo. State v. Bergstrom, 162 Wash.2d 87, 92, 169 P.3d 816 (2007) (citing State v. Tili, 148 Wash.2d 350, 358, 60 P.3d 1192 (2003)). We also review de novo claims that the petitioner's sentence violates his right to a jury trial under the Sixth Amendment to the United States Constitution. State v. Mutch, 171 Wash.2d 646, 656, 254 P.3d 803 (2011) (citing State v. Alvarado, 164 Wash.2d 556, 560–61, 563, 192 P.3d 345 (2008)).

A. Washington's Comparability of Foreign Convictions under the Sentencing Reform Act (SRA)

¶ 6 The SRA creates a grid of standard sentencing ranges calculated according to the crime's seriousness level and the defendant's offender score. RCW 9.94A.505, .510, .520, .525; State v. Ford, 137 Wash.2d 472, 479, 973 P.2d 452 (1999). The offender score is the sum of points accrued as a result of prior convictions. RCW 9.94A.525. Pursuant to RCW 9.94A.525(3), “[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.” The State bears the burden of proving the existence and comparability of all out-of-state convictions. Ford, 137 Wash.2d at 480, 973 P.2d 452.

¶ 7 We first stated Washington's two-part test for comparing foreign convictions in State v. Morley, 134 Wash.2d 588, 605–06, 952 P.2d 167 (1998). Under the legal prong, courts compare the elements of the out-of-state conviction to the relevant Washington crime. If the foreign conviction is identical to or narrower than the Washington statute and thus contains all the most serious elements of the Washington statute, then the foreign conviction counts towards the offender score as if it were the Washington offense. Id. at 606, 952 P.2d 167. If, however, the foreign statute is broader than the Washington statute, the court moves on to the factual prong—determining whether the defendant's conduct would have violated the comparable Washington statute. Id. (citing State v. Duke, 77 Wash.App. 532, 535, 892 P.2d 120 (1995)).

¶ 8 In In re Personal Restraint of Lavery, 154 Wash.2d 249, 256, 111 P.3d 837 (2005), we recognized that Morley's factual analysis could prove problematic after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the United States Supreme Court held that except for a prior conviction, a “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. We have consistently held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt. Lavery, 154 Wash.2d at 256, 111 P.3d 837 (citing State v. Smith, 150 Wash.2d 135, 141–43, 75 P.3d 934 (2003)). In Lavery, we recognized that, as in the case of prior convictions, a certified copy of a prior judgment is highly reliable evidence when analyzing foreign crimes that are legally comparable to Washington crimes. Id. at 256–57, 111 P.3d 837. However, this is not the case for foreign crimes that are not legally comparable. “In essence, such crimes are different crimes.” Id. at 257, 111 P.3d 837.

¶ 9 We concluded that “Apprendi does not apply where the State seeks to prove the existence of a prior conviction but does apply when a court must look to the facts underlyinga foreign offense to determine its comparability.” State v. Thiefault, 160 Wash.2d 409, 419, 158 P.3d 580 (2007) (citing Lavery, 154 Wash.2d at 256–57, 111 P.3d 837). Avoiding conflict with Apprendi, we narrowed Morley's factual prong to consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt. Lavery, 154 Wash.2d at 258, 111 P.3d 837;Thiefault, 160 Wash.2d at 415, 158 P.3d 580. We held that Lavery's prior foreign robbery conviction was neither factually nor legally comparable to Washington's second degree robbery statute and thus could not count as a strike under the Persistent Offender Accountability Act of the SRA. Lavery, 154 Wash.2d at 258, 111 P.3d 837.

B. Descamps

¶ 10 We granted review in this case to consider the comparability of the California conviction, including the propriety of examining the facts of the foreign conviction in light of Descamps. We consider, in part, whether our current comparability analysis survives Descamps. We hold that it does.

¶ 11 On June 20, 2013, the United States Supreme Court issued its opinion in Descamps. In that case, the defendant was convicted in federal district court of possession of a firearm by a convicted felon. He was sentenced under the Armed Career Criminal Act of 1984 (ACCA),¹ which increases the sentences for some federal defendants who have three prior violent felony convictions. Descamps, 133 S.Ct. at 2281. To determine whether a past conviction qualifies, courts use the “categorical approach.” Id. This involves comparing the elements of the statute forming the basis of the defendant's conviction with the elements of the “generic crime,” which is the offense as commonly understood. Id. To qualify as an ACCA predicate, the prior conviction's statutory elements must be the same as or narrower than those of the generic offense. Id.

¶ 12 In analyzing ACCA predicates, federal courts use the “modified categorical approach” when a prior conviction involves a divisible statute. Such statutes set out one or more elements of the offense in the alternative. Id. One example of a divisible statute is a burglary statute involving entry into a building or an automobile. Id. When one alternative matches an element of the generic offense but the other does not, sentencing courts may consult some documents,² including the indictment and jury instructions, to determine which alternative was the basis for the conviction. The court then applies the categorical approach by comparing the conviction crime elements with the generic crime elements. Id. If the elements of the defendant's prior conviction, as they are charged, are the same or narrower than the generic offense, the conviction can be used to impose an ACCA sentence.

¶ 13 The modified categorical approach is a necessary extension of the categorical approach. “Because the statute is ‘divisible’— i.e., comprises multiple, alternative versions of the crime—a later sentencing court cannot tell, without reviewing something more, if the defendant's conviction was for the generic (building) or non-generic (automobile) form of [the crime].” Id. at 2284.

¶ 14 In Descamps, the United States Supreme Court considered whether sentencing courts can consult outside...