State v. Releford

• Decision Date: 02 February 2009
• Docket Number: No. 59701-9-I.,59701-9-I.
• Citation: 200 P.3d 729,148 Wn. App. 478
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Terrence Levine RELEFORD, Appellant.

200 P.3d 729

148 Wn. App. 478

STATE of Washington, Respondent, v. Terrence Levine RELEFORD, Appellant.

No. 59701-9-I.

Court of Appeals of Washington, Division 1.

February 2, 2009.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Catherine Marie McDowall, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, A.C.J.

¶ 1 In order to establish that a foreign conviction was for an offense comparable to a Washington felony, the State need not independently prove those facts related to the foreign conviction that were admitted by the defendant. Here, Terrence Releford was twice convicted in Oklahoma of burglary in the second degree based on guilty pleas. In Oklahoma at the time of Releford's guilty pleas, such a plea constituted an admission of "the facts pleaded in the Information." Collins v. State, 521 P.2d 826, 828 (Okla.Crim. App.1974). The information in each of the two cases in which Releford entered guilty pleas alleged that he entered a business and a residence, respectively, for purposes of committing a theft — facts that would support burglary convictions in Washington. Notwithstanding this, Releford asserts that the State failed to prove that his Oklahoma burglary convictions were for offenses factually comparable to Washington burglary offenses because the State did not independently prove that Releford entered buildings but, instead, relied on certified copies of the Oklahoma informations to do so. We disagree that this was improper and explicitly announce that the State may prove factual comparability by producing certified copies of foreign charging documents and evidence that the defendant pleaded guilty if the law of the state wherein the defendant entered the plea, at the time of the plea, provided that such a plea constituted an admission of the facts alleged in the charging documents.

¶ 2 Releford also contends that his conviction for unlawful possession of a firearm must be reversed because the antique replica gun he was found carrying was missing certain components, because the jury instructions in his trial were erroneous in various ways, and because his trial counsel's performance did not meet constitutional expectations. Finding these additional arguments also meritless, we affirm.

I

¶ 3 Jason Scamman was driving a car when he saw a man whom he later identified as Releford walking down the street carrying a backpack that closely resembled a backpack that Scamman owned. Assuming the similarity to be a coincidence, Scamman continued home.

¶ 4 When he arrived, Scamman discovered that his apartment had been burglarized while he was away. Several items were missing, including his backpack. He immediately returned to the area where he had just seen Releford, where he observed Releford waiting at a bus stop.

¶ 5 Scamman then called the police, with whom he continued to speak as he saw Releford board a bus, still carrying the backpack. As the bus pulled away, Scamman followed it in his car. Soon afterward, the police radioed the driver of the bus, who stopped the vehicle. As police officers approached the stopped bus, Releford disembarked and began walking through a nearby parking lot.

¶ 6 The officers followed Releford and stopped him. One officer asked Releford whether the backpack belonged to him, to which Releford responded that it did not. Releford informed the officer that he had found the backpack behind a gas station.

¶ 7 Another officer asked Releford what was in the backpack. Releford began, "Well, there is some ..." but then paused and stated: "Man I don't have any idea what is in that backpack. I didn't even open it to look."

¶ 18 While this was happening, Scamman returned to his apartment. A brief inventory showed that the backpack, two pistols, and a DVD were missing. Scamman then returned to the scene where Releford was detained, positively identified Releford and the backpack, and identified the two pistols and the DVD that police officers found inside as being his.

¶ 9 Both of the pistols were antique replicas. Scamman described one as a ".45 caliber flintlock pistol." He had ordered this pistol as a kit from a business on the internet and had assembled it himself. The other pistol was also an antique replica, but was only partially assembled.

¶ 10 Releford was charged with possession of a stolen firearm (count I), unlawful possession of a firearm in the first degree (count II), and unlawful possession of a firearm in the second degree (count III).¹ As alternative predicate offenses for the charge on count II, the State alleged that Releford had previously been convicted twice in Oklahoma of burglary in the second degree and once in California of sale or transportation of a controlled substance. As the predicate offense for the charge on count III, the State alleged that Releford had previously been convicted in Washington of possession of stolen property in the second degree.

¶ 11 At trial, the State presented evidence of these prior convictions, to which Releford objected, arguing that the out-of-state convictions were for offenses not comparable to Washington felony offenses for purposes of unlawful possession of a firearm. The parties agreed that whether the prior convictions were comparable was a legal issue, to be determined by the court as a predicate to its ruling on the admissibility of the certified records of the convictions for purposes of the State proving that the convictions had actually occurred. Based on the combination of the Oklahoma charging documents and Releford's guilty pleas to the crimes that they alleged, the court ruled that Releford's Oklahoma convictions were comparable to serious offenses in Washington for purposes of admitting the certified records. At trial, these records were introduced, along with fingerprint evidence linking Releford to the convictions.

¶ 12 The jury was instructed that, in order for it to convict Releford of unlawfully possessing a firearm in the first degree, the State was required to prove beyond a reasonable doubt that Releford had "previously been convicted of ... Burglary Second Degree (Oklahoma Case No. CF-00-262), which is a serious offense; OR ... Burglary Second Degree (Oklahoma Case No. CF-00-279), which is a serious offense." The jury instructions also stated that "Burglary Second Degree, as defined by Oklahoma law, is a `serious offense' in the State of Washington."

¶ 13 The jury acquitted Releford of count I, but found him guilty of having committed both count II and count III. In sentencing Releford, the trial court stated that it would not enter judgment on count III because "[t]he two offenses [count II and count III] ... only constitute one conviction." The court then entered judgment on count II only, sentencing Releford accordingly.

¶ 14 Releford appeals.

II

¶ 15 Releford first contends that the State put forth insufficient evidence to establish that his prior Oklahoma burglary convictions were for offenses comparable to "serious offense[s]" in Washington. Thus, according to Releford, those convictions could not be used as the predicate offenses required to prove that his possession of a firearm was unlawful. Releford contends that this is so because the State was not entitled to rely on Releford's guilty pleas to the offenses as alleged in the Oklahoma charging documents, and thus failed to demonstrate that the burglary convictions were factually comparable to Washington burglary convictions. However, under Oklahoma law at the time Releford entered his guilty pleas, such a plea admitted the facts alleged in the information. Because Releford is incorrect in asserting that his admission to the facts contained in the Oklahoma charging documents could not be used to prove factual comparability, his argument fails.

¶ 16 Unlawful possession of a firearm in the first degree, the offense upon which the trial court entered judgment as to count II, requires that the State prove that the defendant "has ... been convicted ... in this state or elsewhere of any serious offense as defined in this chapter." RCW 9.41.040(1)(a). For purposes of an out-of-state conviction, a "serious offense" is "[a]ny ... felony offense ... that is comparable to a serious offense" in Washington at the time the offense was committed. RCW 9.41.010(12)(o). If an out-of-state statute prohibits a broader range of conduct than the proposed Washington counterpart — i.e., the elements of the out-of-state offense are not legally comparable — the State must prove that the offenses are factually comparable. In re Pers. Restraint of Lavery, 154 Wash.2d 249, 255, 111 P.3d 837 (2005).

¶ 17 The State does not dispute that the Oklahoma and Washington robbery statutes at issue here are not legally comparable. This is so because Releford could have been convicted of burglary in the second degree in Oklahoma by breaking into and entering "any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection" with intent to steal something therein. Okla. Stat. tit. 21 § 1435 (2000). In contrast, in Washington, burglary in the second degree requires that the defendant have entered a "building, other than a vehicle or a dwelling." RCW 9A.52.030 (emphasis added).

¶ 18 Releford contends that the State failed to prove factual comparability because it relied for its proof on the criminal informations by which Releford was charged and to which he entered guilty pleas. According to Releford, this evidence was insufficient because the facts in these charging documents "were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction," by virtue of his guilty pleas, as required by Lavery, 154 Wash.2d at 258, 111 P.3d 837. Specifically, Releford points to our decision in State v. Thomas, 135 Wash.App. 474, 144 P.3d 1178 (2006), review denied, 161 Wash.2d 1009, 166 P.3d 1218 (2007), to support his contention...