State v. Thiefault

• Decision Date: 17 May 2007
• Docket Number: No. 77753-5.,77753-5.
• Citation: 158 P.3d 580,160 Wn.2d 409
• Parties: STATE of Washington, Respondent, v. Gaylon Lee THIEFAULT, Petitioner.
• Court: Washington Supreme Court

158 P.3d 580

160 Wn.2d 409

STATE of Washington, Respondent, v. Gaylon Lee THIEFAULT, Petitioner.

No. 77753-5.

Supreme Court of Washington, En Banc.

Argued September 21, 2006.

Decided May 17, 2007.

Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Petitioner.

Seth Aaron Fine, Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.

OWENS, J.

¶ 1 Petitioner Gaylon Lee Thiefault is an inmate sentenced to life with no possibility of parole or early release under Washington's Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981, chapter 9.94A RCW. Thiefault contends that his sentencing counsel was ineffective by failing to object to the superior court's comparability analysis regarding a prior Montana conviction. We hold that the trial court's comparability analysis was erroneous. We further hold that the failure of Thiefault's counsel to object to the erroneous comparability analysis constitutes ineffective assistance of counsel for purposes of the sixth amendment to the United States Constitution. Accordingly, we vacate Thiefault's sentence and remand for resentencing.

FACTS

¶ 2 Following a jury trial and conviction for indecent liberties by forcible compulsion and attempted second degree rape, the Snohomish County Superior Court sentenced Thiefault to life in prison with no possibility of parole under the POAA. The court found that Thiefault was a persistent offender with three prior convictions, including two foreign offenses — an attempted robbery conviction from Montana and a previous federal aggravated sexual assault conviction. The superior court conducted a comparability analysis of the out-of-state convictions to their Washington counterparts. The court found that the Montana and federal convictions were legally comparable to their Washington counterparts and thus sentenced Thiefault to life in prison with no possibility of parole. Verbatim Report of Proceedings (VRP) at 27 ("It is clear to this court that the Montana attempted robbery does fit within the second degree [attempted] robbery elements as defined in the statutes.").

¶ 3 Thiefault appealed, arguing in part that his conviction for indecent liberties and attempted second degree rape violated double jeopardy and that his federal sexual assault conviction could not be considered under the POAA's two-strike law. The Court of Appeals agreed and granted Thiefault's appeal on those issues. State v. Thiefault, noted at 116 Wash.App. 1059, 2003 WL 21001019 *4. The court reversed Thiefault's indecent liberties conviction and remanded for resentencing. Id.

¶ 4 A different attorney represented Thiefault during resentencing and did not object to the comparability of the prior offenses; "I'm not . . . raising that argument because my understanding is that's already been determined." VRP at 39. The superior court incorporated its comparability findings from the previous sentencing, found that Thiefault constituted a persistent offender under the POAA's three-strikes law, and sentenced him to life with no possibility of parole.

¶ 5 Thiefault again appealed. The Court of Appeals affirmed but remanded to correct scriveners errors. We granted Thiefault's petition for review. State v. Thiefault, 157 Wash.2d 1002, 136 P.3d 758 (2006).

ISSUE

¶ 6 Did Thiefault receive ineffective assistance of counsel when his attorney failed to object to the trial court's comparability analysis?¹

ANALYSIS

¶ 7 Standard of Review. Courts conduct de novo review of a sentencing court's decision to consider a prior conviction as a strike. State v. Ortega, 120 Wash.App. 166, 171, 84 P.3d 935 (2004), review granted in part and remanded, 154 Wash.2d 1031, 119 P.3d 852 (2005). Other questions of law are likewise reviewed de novo. Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001).

¶ 8 Ineffective Assistance of Counsel. Thiefault contends that he received ineffective assistance of counsel because his attorney did not object to the superior court's comparability finding regarding the Montana conviction. We agree. To prevail on his claim of ineffective assistance of counsel, Thiefault must overcome the presumption of effective representation and demonstrate (1) that his lawyers' performance in not objecting to the comparability of his offenses was so deficient that he was deprived "counsel" for Sixth Amendment purposes and (2) that there is a reasonable probability that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996); see also State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).

¶ 9 In order to ascertain whether Thiefault's counsel was deficient under Strickland's first prong, this court must conduct a comparability analysis of the Montana conviction. Washington law employs a two-part test to determine the comparability of a foreign offense. A court must first query whether the foreign offense is legally comparable — that is, whether the elements of the foreign offense are substantially similar to the elements of the Washington offense. If the elements of the foreign offense are broader than the Washington counterpart, the sentencing court must then determine whether the offense is factually comparable — that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute. State v. Morley, 134 Wash.2d 588, 606, 952 P.2d 167 (1998). In making its factual comparison, the sentencing court may rely on facts in the foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt. In re Pers. Restraint of Lavery, 154 Wash.2d 249, 258, 111 P.3d 837 (2005); State v. Farnsworth, 133 Wash.App. 1, 22, 130 P.3d 389 (2006); Ortega, 120 Wash.App. at 171-74, 84 P.3d 935. If a court concludes that a prior, foreign conviction is neither legally nor factually comparable, it may not count the conviction as a strike under the POAA. Lavery, 154 Wash.2d at 258, 111 P.3d 837 ("We conclude that Lavery's 1991 foreign robbery conviction is neither factually nor legally comparable to Washington's second degree robbery and therefore not a strike under the POAA.").

¶ 10 In the instant case, the Court of Appeals found that Thiefault satisfied the first prong of the Strickland test and demonstrated that his lawyer provided deficient representation for Sixth Amendment purposes. The court held that the Montana offense was broader than its Washington counterpart, in part because the Montana statute required a lesser mens rea. The court thus concluded that the Montana conviction was not legally comparable to Washington's version. It further held that it could not determine if the offenses were factually comparable because the superior court's record did not include facts Thiefault admitted.² Thus, it could not determine whether the Montana offense was factually comparable to Washington's.

¶ 11 Nonetheless, the court held that Thiefault could not satisfy Strickland's second prong and establish with reasonable probability that his counsel's failure to object to the comparability analysis prejudiced his case. The court reasoned that the superior court would likely have given the State the opportunity to obtain information properly establishing the facts underlying Thiefault's Montana conviction had his attorney argued that the convictions were not comparable. The court further reasoned that Thiefault did not demonstrate that there was a reasonable probability that the facts underlying the Montana conviction would not have satisfied the Washington crime. Consequently, the court held that Thiefault's counsel was not ineffective.

¶ 12 In his petition for review, Thiefault contends that the Court of Appeals erred by finding that he could not meet Strickland's second prong. According to Thiefault, the record demonstrates that the State previously sought to obtain all the possible documentation of his Montana conviction and did not have it at the time of sentencing. He thus challenges the Court of Appeals' conclusion that the State would have been able to obtain the proper documentation if the superior court granted it a continuance. The State, on the other hand, contends that the information would likely contain the same facts as the motion for leave to file information.³

¶ 13 We hold that Thiefault received ineffective assistance of counsel under Strickland. The Court of Appeals correctly concluded that the Montana attempted robbery statute is broader than its Washington counterpart. The Court of Appeals also correctly found that the motion for leave to file information, the prosecutor's affidavit, and the judgment were insufficient to establish factual comparability. Thus, Thiefault's attorney provided deficient representation under Strickland's first prong when he did not object to the superior court's comparability analysis. The Court of Appeals improperly found that such deficient representation did not prejudice Thiefault. Although the State may have been able to obtain a continuance and produce the information to which Thiefault pleaded guilty, it is equally as likely that such documentation may not have provided facts sufficient to find the Montana and Washington crimes comparable; in which case, the superior court could not have deemed the Montana conviction a "strike" for purposes of the POAA. We therefore vacate Thiefault's sentence and remand the case to superior court to conduct a factual comparability analysis of the Montana conviction.⁴

¶ 14 Thiefault contends that upon remand he has a right to a jury determination of his prior conviction. Thiefault argues that the United States Supreme Court holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and most recently in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), require...