No. 29700-1-II.The Court of Appeals of Washington, Division Two.
Filed: November 25, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-01300-7. Judgment or order under review. Date filed: 12/05/2002.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Alan Edward Harvey, Clark County Prosecutors Office, 1200 Franklin St, P.O. Box 5000, Vancouver, WA 98666-5000.
QUINN-BRINTNALL, A.C.J.
Laurentiu Mihalache was found guilty by a jury of one count of attempting to elude a pursuing police vehicle in violation of RCW 46.61.024. The court imposed a standard range sentence of 70 days imprisonment based on an offender score of one. Mihalache asserts the trial court miscalculated his offender score and, because the State did not admit the Oregon judgment and sentence, his offender score is zero. The State concedes that the court improperly included Mihalache’s Oregon conviction in calculating his offender score. We accept the State’s concession and remand for resentencing.
FACTS
On November 7, 2002, a jury convicted Mihalache of one count of attempting to elude a pursuing police vehicle. The court sentenced him to a total of 70 days imprisonment, within the standard range of zero to 90 days, based on an offender score of one. At sentencing, the State indicated it had a copy of Mihalache’s Oregon judgment and sentence but did not move to admit the document into the record. Mihalache’s counsel did not affirmatively acknowledge that the Oregon second degree attempted assault conviction was comparable to a Washington felony offense or stipulate that Mihalache’s offender score was properly calculated as one.
Based on the Oregon judgment and sentence, the State contended that Mihalache’s offender score was one. The State identified Mihalache’s criminal history as a second degree attempted assault, listed the date committed as September 13, 2001, listed the date sentenced as February 11, 2002, and indicated that the sentencing court was in Multnomah County, Oregon. The court apparently used the Oregon felony conviction and added one point to Mihalache’s offender score. But neither the State nor the court addressed whether the Oregon conviction was a felony comparable to a Washington felony as required by former 9.94A.525
(2001).
Mihalache appeals.
ANALYSIS
Under the Sentencing Reform Act, the sentencing court calculates the defendant’s offender score based on his criminal history in order to determine the standard sentencing range. Former RCW 9.94A.525; see State v. Wiley, 124 Wn.2d 679, 682-83, 880 P.2d 983 (1994). We review a challenge to the sentencing court’s offender score calculation de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
Mihalache assigns error to the calculation of his offender score claiming the State failed to establish that his prior conviction for second degree attempted assault in Oregon was equivalent to a Washington felony as required by former RCW 9.94A.525(3). The State concedes. We accept the State’s concession. Under former 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.’ Proper classification requires the sentencing court to `compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes.’ State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999) (citing State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998); Wiley, 124 Wn.2d at 684; State v. Weiand, 66 Wn. App. 29, 31-32, 831 P.2d 749
(1992)). The State bears the burden to prove that the conviction would be a felony under Washington law. State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994).
Mihalache asserts that the court should remand with an evidentiary hearing to allow the State to establish equivalency. A challenge of the calculation of the defendant’s offender score for sentencing purposes may be raised for the first time on appeal. Ford, 137 Wn.2d at 477; State v. McCorkle, 137 Wn.2d 490, 494, 973 P.2d 461 (1999). Our Supreme Court has held that where a defendant fails to put the court on notice as to any defects, `remand for an evidentiary hearing to allow the State to prove the classification of the disputed convictions is appropriate.’ Ford, 137 Wn.2d at 485 (citing State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997); see also RCW 9.94A.441.
On appeal, Mihalache contends that the Oregon conviction is not a comparable felony and therefore should count as zero points toward his offender score. But we will not decide this issue because it was not raised below.
Below, the prosecution did not establish that the Oregon conviction was in fact a comparable felony in Washington.
Accordingly, we remand for resentencing to properly calculate Mihalache’s offender score on attempting to elude a pursuing police vehicle. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BRIDGEWATER, J., concur.