State v. Priest

• Decision Date: 04 December 2008
• Docket Number: No. 26463-7-III.,26463-7-III.
• Citation: 196 P.3d 763,147 Wn. App. 662
• Parties: STATE of Washington, Respondent, v. David Randall PRIEST, Appellant.
• Court: Washington Court of Appeals

196 P.3d 763

147 Wn. App. 662

STATE of Washington, Respondent, v. David Randall PRIEST, Appellant.

No. 26463-7-III.

Court of Appeals of Washington, Division 3.

December 4, 2008.

Tanesha La Trelle Canzater, Attorney at Law, Bellingham, WA, for Appellant.

Felecia Shay Chandler, Jennifer R. Richardson, Okanogan County Prosecutor's Office, Okanogan, WA, for Respondent.

BROWN, J.

¶ 1 David Randall Priest, convicted of one count of theft in the first degree and one count of theft in the second degree, appeals his offender score calculation. Because three challenged prior convictions were properly included in his offender score, and any error in including a fourth challenged prior conviction was harmless, we affirm.

FACTS

¶ 2 Following a remand by this court, Mr. Priest was sentenced based upon an offender score of 10.5, calculated from 12 prior juvenile and adult convictions. At the evidentiary hearing, the State offered documentary evidence of Mr. Priest's 12 prior juvenile and adult convictions; four are relevant here.

¶ 3 First, the State offered a certified copy of a judgment and sentence from Lincoln County Superior Court, listing the offense of bail jumping, in violation of RCW 9A.76.170, with a date of offense of January 30, 1989. The document is entitled, "JUDGMENT AND SENTENCE (FELONY)." State's Ex. 3 at 1. The document lists Mr. Priest's criminal history for purposes of calculating his offender score; lists the offense as an "unranked crime" with a range of "0-12"; and imposes a sentence of 29 days confinement followed by 12 months of community supervision. State's Ex. 3 at 1-3.

¶ 4 Second, the State offered a copy of a judgment and sentence and indictment for David Priest from the United States District Court, Eastern District of Washington, listing the offense of "Burglary on Indian Reservation," in violation of 18 U.S.C. § 1153 and RCW 9A.52.030, with date of offense of October 28, 1989. State's Ex. 5 at 2-5; 1 Report of Proceeding (RP) (Sept. 12, 2007) at 25-26. Both documents contained a seal from the National Archives of the United States, and a certification from the National Archives and Records Administration, certifying "the attached reproduction(s) is a true and correct copy of documents in [the Archivist of the United States] custody." State's Ex. 5 at 1. Other than the name David Priest, the documents contained no other identifying information.

¶ 5 Third, the State offered a copy of a judgment "[f]or revocation of Probation or Supervised Release" for David R. Priest, in case number 2: 96CR00052-001. State's Ex. 8 at 1-3. The State also offered a copy of an indictment for David R. Priest, in cause number CR-052-RHW, for, among other charges, one count of theft on an Indian reservation against victim Cheryl Priest Hahn, on or about February 2, 1996, in violation of 18 U.S.C. §§ 661 and 1153, labeled as count two. Both of these documents were from the United States District Court, Eastern District of Washington, and both contained a certification from the National Archives and Records Administration. Next, the State offered a copy of a judgment and sentence, and an amended version of the same, for David Randall Priest, in case number 2: 96CR00052-001, showing a guilty plea to count two of the indictment, date of offense February 2, 1996, in violation of 18 U.S.C. §§ 661 and 1153. Both of these documents ordered David Randall Priest to pay restitution to Cheryl Hahn. Additionally, neither document contained a certification.

¶ 6 Fourth, the State offered a copy of an amended judgment "[f]or Revocation of Probation or Supervised Release" for David Randall Priest, in case number 2: 94CR00189-001. State's Ex. 9 at 1-3 (emphasis in original). The State also offered a copy of an indictment for David R. Priest, in cause number CR-94-189-WFN, for one count of "Burglary on Indian Reservation," on or about July 19, 1994. State's Ex. 9 at 4-5. Both of these documents were from the United States District Court, Eastern District of Washington, and both contained a certification from the National Archives and Records Administration. Next, the State offered a copy of a judgment and sentence for David R. Priest, in case number CR-94-189-WFN, showing a guilty plea to one count of theft on an Indian reservation, date of offense August 4, 1994, in violation of 18 U.S.C. §§ 661 and 1153. This document did not contain a certification.

¶ 7 The defense challenged the existence and comparability of the 1994 and 1996 federal theft convictions. The State then offered the relevant federal code provisions, but did not offer the comparable Washington offenses. The trial court did not compare the federal offenses to Washington offenses before ruling that the State had established the bail jumping, the federal burglary, and the 1994 and 1996 federal theft convictions by a preponderance of the evidence. The four convictions were counted in Mr. Priest's offender score. Mr. Priest appealed.

ISSUE

¶ 8 The issue is whether the trial court erred in including the four prior convictions when calculating Mr. Priest's offender score. Mr. Priest contends the State failed to establish the existence of each conviction by a preponderance of the evidence and failed to establish the Washington comparability of the three federal convictions.

REVIEW STANDARDS AND RELEVANT LAW

¶ 9 We review a sentencing court's offender score calculation de novo. State v. Tili, 148 Wash.2d 350, 358, 60 P.3d 1192 (2003). Sentencing in Washington is governed by the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. A criminal sentence is based upon the defendant's offender score and seriousness level of the crime. State v. Ford, 137 Wash.2d 472, 479, 973 P.2d 452 (1999). "The offender score measures a defendant's criminal history and is calculated by totaling the defendant's prior convictions for felonies and certain juvenile offenses." Id.

¶ 10 In order to establish a defendant's criminal history for sentencing purposes, the State must prove a defendant's prior convictions by a preponderance of the evidence. RCW 9.94A.500(1); State v. Ammons, 105 Wash.2d 175, 185-86, 713 P.2d 719, 718 P.2d 796 (1986). "The State must provide reliable evidence establishing the accuracy of the offender score calculation." State v. Wilson, 113 Wash.App. 122, 136, 52 P.3d 545 (2002) (citing Ford, 137 Wash.2d at 482, 973 P.2d 452). "The best evidence of a prior conviction is a certified copy of the judgment." Ford, 137 Wash.2d at 480, 973 P.2d 452. "However, the State may introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history." Id.

¶ 11 Additionally, when a defendant's criminal history includes out-of-state or federal convictions, the SRA requires classification "according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3). Further, with respect to prior federal convictions, "[i]f there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute." RCW 9.94A.525(3).

ANALYSIS

A. State Bail Jumping Conviction

¶ 12 To prove the bail jumping conviction, the State offered a certified copy of a felony judgment and sentence from Lincoln County Superior Court, with a date of offense of January 30, 1989. This document is sufficient to establish the existence of this prior conviction. See Ford, 137 Wash.2d at 480, 973 P.2d 452.

¶ 13 At the time of the offense, whether bail jumping was a felony or a misdemeanor depended upon the classification of the underlying crime. See former RCW 9A.76.170(2) (1983). If the defendant was held for, charged with, or convicted of a felony, the bail jumping offense was a felony; if the defendant was held for, charged with, or convicted of a misdemeanor or gross misdemeanor, the bail jumping offense was a misdemeanor. Former RCW 9A.76.170(2) (1983). Here, the judgment and sentence does not specify the classification of the bail jumping offense or the underlying crime.

¶ 14 However, the judgment and sentence does show the sentence for bail jumping was imposed pursuant to the SRA. The judgment and sentence shows the court treated the bail jumping as an "unranked crime" under the SRA. State's Ex. 3 at 2. The bail jumping judgment and sentence listed the sentencing range as "0-12," and imposed a sentence of 29 days confinement followed by 12 months of community supervision, complying with the SRA criteria for unranked offenses. See former RCW 9.94A.120(6) (1988), recodified as RCW 9.94A.505 by LAWS OF 2001, ch. 10, § 6; State's Ex. 3 at 1-3. "The SRA applies only to the sentencing of felony offenders." State v. Bowen, 51 Wash.App. 42, 46, 751 P.2d 1226 (1988) (citing RCW 9.94A.010). Therefore, because the bail jumping sentence was imposed pursuant to the SRA, the State proved, by a preponderance of the evidence, this conviction was a felony.

B. Federal Burglary Conviction

¶ 15 The judgment and sentence, certified by the National Archives and Records Administration, was sufficient to establish the existence of the federal burglary conviction by a preponderance of the evidence. See Ford, 137 Wash.2d at 480, 973 P.2d 452. Although the certification is not from the clerk of the court, it is from a United States agency having custody of such documents.

¶ 16 The preponderance burden requires "some showing that the defendant before the court for sentencing and the person named in the prior conviction are the same person." Ammons, 105 Wash.2d at 190. When the prior conviction at issue is under the same name as the defendant before the sentencing court, identity of names is sufficient proof of this requirement. Id. The defendant may rebut this showing by declaring, under oath, that he is not the person who is named in the prior conviction. Id. If...