State v. Pinson

• Court: Washington Court of Appeals
• Decision Date: 09 November 2009
• Docket Number: 37691-1-II
• Citation: State v. Pinson, 37691-1-II (Wash. App. Nov 09, 2009)
• Parties: STATE OF WASHINGTON, Respondent, v. LARNARD LASHELL PINSON, Appellant.

STATE OF WASHINGTON, Respondent, v. LARNARD LASHELL PINSON, Appellant.

No. 37691-1-II

Court of Appeals of Washington, Division 2

November 9, 2009

UNPUBLISHED OPINION

Houghton, P.J.

Larnard Pinson appeals his conviction for first degree escape arguing trial court error in calculating his offender score calculation. He also claims he received ineffective assistance of counsel and raises additional arguments pro se. We affirm the conviction but remand for resentencing allowing both parties to submit evidence as to Pinson's prior convictions.

FACTS

On June 22, 2007, a jury found Pinson guilty of unlawful possession of a controlled substance (cocaine), RCW 69.50.401(1)(2)(a). The trial court sentenced him to five months in custody and seven months to a Pierce County supervised community program known as Breaking the Cycle (BTC).^[1] The criminal conviction at issue in the present case, first degree felony escape, stems from his failure to comply with the BTC program requirements.

On June 26, Pierce County Sheriff Deputy Gabriel Fajardo transported Pinson from jail to the BTC program office. Fajardo and Doug Turner, a case manager for the BTC program, provided the orientation. They explained the program requirements and that noncompliance could result in a return to jail or an escape charge.^[2] Pinson received and signed a detailed orientation document, outlining these requirements and consequences.

Pinson appeared as required for three days. After Friday, June 29 he did not attend again, including failing to appear on July 3 for a scheduled urinalysis test.

On July 6, Turner prepared a violation report and forwarded it to Fajardo. The report included a recommendation that the prosecutor's office issue an escape warrant because Pinson had failed to report as required and his whereabouts were unknown. Fajardo also unsuccessfully attempted to locate Pinson at the two addresses listed on his orientation form. Fajardo then prepared a report and forwarded it to the prosecutor's office. The State charged Pinson with felony escape, RCW 9A.76.110(1).

A Tacoma police officer noticed Pinson standing at an intersection early in the morning on July 14. The officer, aware of Pinson's outstanding arrest warrant, confirmed the warrant, contacted him, and arrested him. Pinson told the officer that he was not aware of such a warrant, but he admitted that he had failed to check in with the BTC program.

Pinson later moved to discharge his assigned counsel. At a motion hearing, Pinson asserted a conflict of interest and his attorney's failure to subpoena a particular witness as Pinson's reasons for seeking a new attorney. The trial court denied the motion but advised Pinson of his right to represent himself pro se, to find a pro bono attorney, or to hire his own.

A jury heard the matter and found Pinson guilty of first degree felony escape. At the sentencing hearing, the State presented several records relating to prior convictions, including three prior Pierce County, Washington convictions; two Lucas County, Ohio convictions; and a Chicksaw County, Mississippi conviction.

On March 26, 1990, Pinson had pleaded guilty as accessory before the fact to armed robbery in Chicksaw County, Mississippi. On January 27, 1998, he entered an Alford^[3] plea for aggravated robbery in Lucas County, Ohio.^[4] On July 27, 2004, he pleaded "no contest" to theft of an elderly person, a fifth degree felony, in Lucas County, Ohio. Clerk's Papers (CP) at 102-03. On September 15, 2006, he pleaded guilty to attempted unauthorized possession of a controlled substance (cocaine) and second degree theft in Pierce County. And on June 22, 2007, he pleaded guilty to conspiracy to commit unlawful delivery of a controlled substance in Pierce County.

Based on an offender score of 5 at sentencing, defense counsel asserted that Pinson's offender score should be 5 with a resulting standard sentencing range of 22 to 29 months. Defense counsel objected to consideration of the Ohio convictions in the offender score calculation because no corresponding felony charge existed in Washington for theft from an elderly person and because the State had provided insufficient proof of the felony robbery conviction. The trial court agreed. The State conceded that the offender score would be 5 in light of the court's determination.

The trial court heard both counsel's arguments as to the appropriate sentence and then asked Pinson if he had anything to say. Among other things, Pinson said that he believed his offender score to be 4, not 5. He explained that the trial court should not consider the Mississippi conviction because he had committed it more than 10 years earlier and therefore had washed out of his offender score. He also said that the theft and attempt to possess a controlled substance convictions "ran together," making them count as 1 point. The trial court then reviewed documents Pinson provided, but they were not made part of the record.^[5]

The trial court noted that it was "not sentencing Mr. Pinson based on criminal convictions that weren't proven to be part of his criminal history." Verbatim Report of Proceedings (Sentencing) (VRP) at 11. It then sentenced Pinson to 29 months' incarceration, the high end of the range. Pinson appeals.

ANALYSIS

Offender Score Calculation / Mississippi Conviction

Pinson first contends that the trial court improperly considered his prior Mississippi conviction in calculating his offender score for sentencing purposes. "We review a sentencing court's calculation of an offender score de novo." State v. Wilson, 113 Wn.App. 122, 136, 52 P.3d 545 (2002). The State must prove the existence of prior convictions by a preponderance of the evidence to have them included in an offender score calculation. RCW 9.94A.500(1); State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719 718 P.2d 796 (1986). The State must also prove that any prior out-of-state convictions used in this case are felonies under Washington law. RCW 9.94A.525(3).

The sentencing court may accept different forms of prior criminal conviction evidence. The sentencing court favors a certified copy of the judgment, but the State may also introduce record documents or prior proceeding transcripts to establish criminal history. State v. Ford, 137 Wn.2d 472, 480 973 P.3d 452 (1999). The State may introduce a Washington judgment and sentence that uses out-of-state convictions to calculate an offender score to establish its comparability with a Washington felony only if the defendant does not challenge the State's criminal history presentation. State v. Labarbera, 128 Wn.App. 343, 349, 115 P.3d 1038 (2005). Where the defendant objects to the use of a prior Washington judgment and sentence, the State must present additional evidence of the existence and classification of out-of-state convictions. Labarbera, 128 Wn.App. at 349. Here, the State presented various Washington judgment and sentences and a Mississippi plea of guilty and judgment of the court.

We must first determine whether Pinson objected below. His defense counsel did not object to the inclusion of the Mississippi conviction at any time during sentencing. But Pinson raised concerns pro se when the trial court asked if he had anything to say regarding sentencing. Pinson said in relevant part:

But then again, as far as my sentencing range, [defense counsel] explains that I have an offender score of five. Well, according to what it is in my paperwork here, I only have a four. If you don't – if the squash period of the robbery out of – the accessory before the fact of robbery out of the state of Mississippi, that occurred in 1989. Okay. There was a ten-year-and-seven-month period within that. That's why I don't see how I can be held accountable for that. Okay.

VRP at 10.

Our Supreme Court has addressed whether a defendant's pro se argument qualifies as an objection in a similar case. See State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007). In Bergstrom, defense counsel did not object to the State's offender score calculation at sentencing, but the defendant specifically and personally disputed the score calculation at a later hearing by arguing that some of his prior offenses constituted the same criminal conduct. 162 Wn.2d at 95-96. The Court considered the pro se objection as validly raising the issue and requiring the trial court to classify the out-of-state convictions for sentencing purposes. Bergstrom, 162 Wn.2d at 96-97.

Here, the trial court listened to Pinson's argument. It also reviewed documents he provided. These circumstances comprise a valid objection under Bergstrom.

We must next decide whether Pinson's objection should have led the trial court to engage in a conviction classification. Pinson essentially argued that his Mississippi conviction should "wash out" under the Sentencing Reform Act of 1981, chapter 9.94A RCW, because it was too old. Class A felonies do not wash out, but class B and class C felonies wash out after 10 and 5 years respectively. See RCW 9.94A.525(2),(4). The State counters that the Mississippi conviction does not wash out because it is equivalent to a class A felony under Washington law. We hold that the trial court should have classified the conviction because a defendant's objection to convictions in the offender score calculation believed to have "washed out" compels conviction classification. See State v. McCorkle, 137 Wn.2d 490, 496-97, 973 P.2d 461 (1999).

At sentencing, the trial court did not classify the Mississippi conviction and instead relied on a Mississippi plea of guilty and judgment of the court and several stipulated judgments from prior Washington convictions. Nothing in the record suggests that the trial court reviewed the applicable Washington and Mississippi statu...