No. 51797-0-I.The Court of Appeals of Washington, Division One.
June 5, 2006.
Petition for relief from personal restraint Granted by unpublished opinion per Grosse, J., concurred in by Schindler, A.C.J., and Dwyer, J.
Counsel for Petitioner(s), Lawrence J. Keller (Appearing Pro Se), Nv 77287/Wa 230364, High Desert State Prison, P.O. Box 650, Indian Springs, NV 89018.
Mark David Mestel, Attorney at Law, 3221 Oakes Ave, Everett, WA 98201-4407.
Counsel for Respondent(s), James Morrissey Whisman, King County Prosecutor’s Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
GROSSE, J.
In a Personal Restraint Petition (PRP) Lawrence Keller makes a number of challenges to the imposition of a life sentence under the Persistent Offender Accountability Act (POAA).[1]
His principal assertion is that the State failed to prove that a prior out-of-state conviction was comparable to a Washington State `[m]ost serious offense.’[2] Thus, he argues, it was not properly included as a strike.
Although this court and the State Supreme Court previously affirmed Keller’s conviction and sentence, recent developments in case law on sentencing issues, including proof of comparability,[3] indicate that one of Keller’s arguments on appeal has merit and warrants further review. Specifically, Keller’s plea to a generic aggravated assault under an Arizona plea agreement places the State in the same position it found itself in Lavery.[4] In order to determine the subsection of the Arizona statute under which Keller entered his Arizona plea, a sentencing court would necessarily have to engage in further fact-finding. This additional fact-finding is disallowed, and therefore the life sentence is vacated and the case remanded for resentencing.
FACTS
In 1994, Lawrence Keller drove a vehicle involved in a head-on collision that seriously injured the occupants of the other car. Keller was drunk, and left the scene of the accident. By amended information the State charged Keller with vehicular assault, felony hit and run and assault in the second degree. Keller’s first trial resulted in a mistrial. On retrial, Keller was convicted of vehicular assault and felony hit and run.
At sentencing, the State sought a POAA life sentence.[5]
Keller had prior convictions for second degree assault in Washington in 1979, and was also convicted of aggravated assault in Arizona in 1983. The sentence on the Arizona conviction was imposed to run concurrently with the Washington sentence.
At the sentencing hearing, the trial court rejected Keller’s challenges to the imposition of a life sentence and determined that he was a persistent offender. Keller was sentenced to life in prison without the possibility of parole.[6] The court counted Keller’s two prior convictions, imposed to be served concurrently, as two separate strikes and counted the vehicular assault conviction as the third strike under the POAA. The court also determined that the Arizona conviction was comparable to a Washington most serious offense, second degree assault.
Keller appealed to this court. The conviction and sentence were affirmed on direct appeal in a partially published opinion.[7] The published portion of the opinion determined that Keller’s two prior strike offenses, although imposed to be served concurrently, count as two strikes for POAA sentences.[8]
In the unpublished portion of the opinion, this court upheld the comparability of the prior out-of-state conviction as a most serious offense under the POAA. In doing so the court used facts from the Arizona presentence investigation report (PSI) as well as facts from the original Arizona indictment.
Discretionary review of this court’s opinion was granted by the State Supreme Court. That court indicated it was limiting review to the question of whether the two prior felony convictions count as one offense or two in the offender score. In a split opinion, the Supreme Court affirmed this court’s determination that the prior convictions may be counted as two convictions even though they were served concurrently.[9]
Additionally, the Supreme Court granted the State’s motion to strike Keller’s argument regarding the comparability of the Arizona offense to a Washington most serious offense. However, the Court went on to determine that the Arizona conviction was a strike under the POAA finding it comparable to assault in the second degree in Washington. The Supreme Court did so through use of the original indictment, the statement on the plea of guilty, the judgment and sentence and the presentence report. After the Supreme Court issued its decision, a number of cases were filed, including Apprendi, in which the United States Supreme Court held that except for a prior conviction, a `fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’[10] Here, life without the possibility of parole is a penalty beyond the statutory maximum for the crime of vehicular assault.
In applying Apprendi, our State Supreme Court held that the existence of a prior conviction from this State need not be presented to a jury and proved beyond a reasonable doubt.[11]
Therefore, `[a]ll a sentencing court needs to do is find that the prior conviction exists.’[12] No additional safeguards are necessary because a certified copy of a prior judgment and sentence is highly reliable evidence. `While this is also true of foreign crimes that are identical on their face, it is not true for foreign crimes that are not facially identical.’[13]
A brief recitation of the facts and the procedural history of the Arizona case is necessary. Keller was indicted for aggravated assault alleging that he violated specific subsections of the Arizona Revised Statutes (A.R.S.). The State of Arizona claimed he used a deadly weapon, a shotgun, to intentionally place an Arizona animal control officer in reasonable apprehension of imminent physical injury while Keller retrieved his dog from the officer. However, after he was indicted Keller entered into a plea agreement. That agreement makes only general statutory references and does not list the statutory subsections as alleged in the original indictment. The Arizona plea form, unlike Washington’s plea form, specifically sets forth that it amends and supersedes any earlier charges, and further states that it serves to amend the complaint and information, to charge only the offense to which Keller pleaded, without the filing of an additional pleading.
Keller argues that based on the limitations set forth in Apprendi and its progeny, the State failed to prove that his sentence was factually comparable using the specific documents available for use at sentencing as set forth under the Arizona plea agreement.
ANALYSIS
Keller claims the State failed to adequately prove the comparability of the Arizona aggravated assault conviction as a strike supporting the imposition of a POAA life sentence.
In its briefing, the State claims that this and other arguments were presented and rejected by the trial court, on direct appeal to this court, and on direct appeal to the Supreme Court. Therefore, the State asserts it should not be relitigated.[14] But as mentioned above, decisions handed down since those appeals were decided make further review appropriate.[15] At oral argument before this court, the State argued that the use of the original indictment, the plea agreement and the judgment and sentence support the determination of comparability. The State conceded that the PSI may not be used to determine comparability. But the State argues the original indictment may be used.[16] Resort to the specific wording of the Arizona plea agreement belies this argument. The agreement supersedes the original indictment. It specifically states that
`[t]his agreement serves to amend the complaint or information, to charge the offense to which the defendant pleads, without the filing of any additional pleading. However, if the plea is rejected by the court or withdrawn by either party, or if the conviction is reversed upon an appeal by the defendant, the original charges and any charges that are dismissed by reason of this plea agreement are automatically reinstated.’
The prior opinions of this court and the Supreme Court addressed the comparability question by looking to the original indictment and the presentence investigation report (PSI) together, as well as the plea agreement and the judgment and sentence. As noted above, the State concedes that the PSI should not have been considered at sentencing. Contrary to the State’s argument, however, the original indictment may not be used.
The earlier opinions of this court and the Supreme Court in this case did not have the benefit of the Apprendi and Blakely cases and their progeny as they had not yet been decided.[17]
Here, the argument was not fully briefed in the original argument of the parties. This court ordered additional briefing by both parties, resulting in supplemental briefs.
If the plea agreement and the judgment and sentence, read together without use of the original indictment and the PSI, support a determination that Keller was convicted of a crime involving the use of a deadly weapon, the sentence may be affirmed. But if not, then the State failed to prove comparability.[18] As set forth in Lavery,
`[a]ny attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction, proves problematic. Where the statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable.’[19]
At sentencing, Keller objected to the use of the Arizona conviction on numerous grounds, including the argument that the Arizona plea form and judgment and sentence did not specifically include a deadly weapon finding. Keller claims the Arizona documents show only that Keller was convicted of an offense requiring reckless conduct, while second degree assault in Washington requires knowing or intentional conduct. At oral argument counsel for Keller argued that the mere exhibition of a weapon could have accounted for the sentence received. Therefore, Keller claims the State failed to prove that Keller’s Arizona offense involved the use of a deadly weapon. In determining whether foreign convictions are comparable to Washington strike offenses, our State Supreme Court has devised a two-part test for comparability.[20] In Morley, the court determined that for purposes of determining the comparability of crimes, the court must first compare the elements of the crimes.[21] `In cases in which the elements of the Washington crime and the foreign crime are not substantially similar, [the court has] held that the sentencing court may look at the defendant’s conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute.’[22] `However, [w]hile it may be necessary to look into the record of the foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not have been sufficiently proven in the trial.’[23]
The State alleges that Keller’s conviction for aggravated assault equates to second degree assault in Washington, specifically through the use of a deadly weapon. But its argument is necessarily based upon the statutory subsections set forth in the original indictment. At oral argument the State conceded that its position is necessarily centered on the original indictment, as well as use of the plea agreement, which supersedes the indictment under its terms.
The State claims that Keller pleaded guilty to a charge of assault by intentionally placing that person in reasonable apprehension of imminent physical injury, citing A.R.S. 13-1203(A)(2)). But the plea agreement did not cite A.R.S. 13-1203(A)(2), it merely cited generally to A.R.S. 13-1203 and other statutes. Similarly the judgment clearly states:
IT IS THE JUDGMENT of the Court that the defendant is guilty of the crime of Count I — Aggravated Assault[,] a Class 3 felony, dangerous nonrepetitive offense in violation of A.R.S. 13-1204, 1203, 701, 702, 801, 604[,] committed on 3-1-82.
As set forth in the Lavery decision:
In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt. See State v. Smith, 150 Wn.2d 135, 141-43, 75 P.3d 934 (2003); accord Almendarez-Torrez v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). All a sentencing court needs to do is find that the prior conviction exists. State v. Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001). No additional safeguards are required because a certified copy of a prior judgment and sentence is highly reliable evidence. Smith, 150 Wn.2d at 143. While this is also true of foreign crimes that are identical on their face, it is not true for foreign crimes that are not facially identical. In essence, such crimes are different crimes.[24]
A resort to the plea agreement and the judgment and sentence alone does not support a determination that Keller was armed with a deadly weapon. The State runs headlong into problems similar to those in Lavery and Bunting.[25] These cases support Keller’s argument that the original indictment and the PSI may not be considered because they were never proved at trial.[26] Keller did not concede all of the allegations in the original indictment when he agreed to the plea agreement. Blakely and its progeny require that any fact, other than the fact of a prior conviction, that `increases the penalty for a crime beyond the prescribed statutory maximum,’ must be found by a jury beyond a reasonable doubt or admitted by the defendant.[27] That did not happen here. As such, the State failed to prove the comparability of the Arizona conviction based on the plea agreement and the judgment and sentence alone.
Given our determination on this issue, the remainder of Keller’s arguments need not be addressed.
The petition is granted, the life sentence is vacated and the case is remanded to the trial court for resentencing.[28]
DWYER and SCHINDLER, JJ., concur.
(2003); accord Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
(2004) that a convicted offender’s prior convictions of `most serious offenses’ do not have to be proved to a jury beyond a reasonable doubt before the offender may be sentenced as a persistent offender is still viable. We are cognizant of the case of State v. Ball, 127 Wn. App. 956, 113 P.3d 520 (2005) wherein Division Two of this court held that Blakely does not apply to sentencing under the POAA. There, the court reasoned that Blakely specifically was directed at exceptional sentences under RCW 9.94A.535, “Departures from the guidelines.” Blakely followed Apprendi v. New Jersey, where the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The persistent offender is not listed in RCW 9.94A.535, but in RCW 9.94A.030(32) and is also found in RCW 9.94A.570. We disagree that Blakely does not apply to sentencing under the POAA.
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