STATE v. JOHNSON, 147 Wn. App. 1049 (2008)

No. 60049-4-I.The Court of Appeals of Washington, Division One.
December 22, 2008.

Appeal from a judgment of the Superior Court for King County, No. 01-1-02525-9, Richard A. Jones, J., entered May 18, 2007.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

The State bears the burden of proving both the existence and the comparability of an offender’s prior out-of-state conviction. When the legal elements of the out-of-state crime are comparable with a Washington crime, then the defendant’s out-of-state conviction for that crime is equivalent under Washington law. Here, on remand from this court, the trial court carefully examined the elements of a Texas crime of possession of cocaine with the elements of the same crime in Washington and found those of Texas more stringent and thus legally comparable. Further, a defendant who has been granted multiple continuances and opportunities to challenge the comparability of a prior out-of-state conviction cannot claim he was deprived of the opportunity to do so. The trial court is affirmed.

FACTS
On July 11, 2002, Christopher Johnson was convicted in a bench trial of first degree assault, fourth degree assault, and harassment for offenses committed against his then pregnant wife, Jeanette McQueen. The trial court imposed a standard-range sentence of 136 months based on an offender score that included one prior felony conviction. Johnson appealed his judgment and sentence on multiple grounds. In an unpublished opinion issued on May 16, 2005, this court upheld Johnson’s conviction.[1]
Although the 1998 Texas conviction appeared to be legally comparable to a Washington crime, this court could not determine that from the record then before it. Accordingly, we remanded to the trial court to determine whether the Texas conviction was legally comparable to a Washington crime.

On November 8, 2006, Johnson appeared before the trial court to determine whether the Texas conviction was comparable to a Washington offense. The trial court granted Johnson’s right to represent himself, appointed an attorney as standby counsel, and granted Johnson’s request for a continuance. The court set a schedule for briefing and set sentencing for December 19, 2006. Johnson desired to stay in the King County Jail rather than return to the Monroe Correctional Complex (Monroe) because access to his legal materials was greater in King County. Apparently, the King County Jail permits a prisoner to have access to multiple boxes in his cell, while Monroe only permits one box at a time. The trial court permitted Johnson to remain in the King County Jail and ordered that his legal materials be transferred from Monroe.

On December 6, 2006, the parties appeared before the court where Johnson’s motion to continue his sentencing was again granted. The briefing schedule was adjusted and the matter reset for January 26, 2007. Johnson alleged he was waiting for further documentation from the Texas court. The trial court issued a subpoena duces tecum to the clerk of the district court of Denton County, Texas requesting the verbatim reports and plea hearing minutes from the Texas conviction. On January 24, 2007, Johnson was again granted a continuance and his hearing date was pushed back to March 2, 2007.

At the March hearing, Johnson requested yet another continuance claiming he only needed one more document from Texas to proceed. There was also considerable discussion regarding supplies Johnson needed to complete his legal argument. The court ordered the supplies be issued to Johnson. Johnson desired the transcripts to show that he was not present in Texas at the time his guilty plea was entered on the Texas conviction. The state objected, but the trial court gave Johnson the benefit of the doubt stating that this was the final continuance and no further delays would be tolerated. A schedule of briefing was again set and the hearing rescheduled for May 18, 2007.

On May 18, 2007, approximately seven months after its initially scheduled date, the comparability hearing was held. Johnson failed to file any briefing on comparability or any other issue regarding his prior conviction from Texas. This time, Johnson requested a continuance as he had broken his jaw and speaking caused him discomfort. Johnson failed to present the court with any medical evidence showing him unable to write due to his injuries. The court denied his request after noting that it had previously ordered a set deadline after already having granted Johnson numerous continuances.

Johnson asked the judge to recuse himself and moved to remove his standby counsel. The court denied the motion to recuse. Johnson then withdrew his motion to remove his standby counsel.

The court reviewed the 1998 Texas conviction for possession of cocaine. In Texas, the offense required that the defendant intentionally and knowingly possess the controlled substance.[2] The court then compared the equivalent 1997 Washington State offense found in RCW 69.50.401, subsection D, and found that the Texas offense elements were more stringent than the Washington offense. Thus, Johnson’s Texas conviction was legally comparable to the Washington felony for possession of cocaine.

Johnson then made several objections, essentially claiming that he was not present in Texas for the guilty plea and that neither the fingerprints nor the signature were his. Johnson further argued that the plea documents would actually show that they were from another defendant.

At this point the trial court interrupted Johnson’s diatribe and reminded him that the hearing was “very limited [in] scope.” Johnson continued to allege that the State caused the Texas transcripts to be tampered with and that the Texas conviction was invalid.

The trial court found the Texas conviction to be comparable and, therefore, properly included in Johnson’s offender score. Johnson appeals.

ANALYSIS
The State bears the burden of proving both the existence and the comparability of a prior out-of-state conviction.[3] The Supreme Court has adopted a two-part test for determining whether an out-of-state conviction is comparable to a Washington crime which, with one exception, must rise to the level of a felony to be included in a defendant’s offender score under the Sentencing Reform Act of 1981 (SRA).[4] A sentencing court compares the legal elements of the out-of-state crime with the comparable Washington crime, and if comparable, the court counts the defendant’s out-of-state conviction as an equivalent Washington conviction.[5] If the elements of the out-of state crime are different, then the court must examine the undisputed facts from the record of the foreign conviction to determine whether that conviction was for conduct that would satisfy the elements of the comparable Washington crime.[6]

Here, there is legal comparability and no need to examine the factual basis underlying Johnson’s 1998 Texas conviction. The trial court carefully analyzed the elements required in Texas to commit the crime of possession of cocaine and compared those required to commit the same crime in Washington at that time. The trial court correctly concluded that the legal elements of the Texas crime were comparable to a Washington crime.

Johnson failed to make any objections below despite the numerous continuances he was granted to do so. It was only after the trial court made this ruling of comparability that Johnson enumerated a litany of objections both to the comparability and for other alleged illegal occurrences regarding the matter.

In addition to argument presented by his attorney, Johnson’s statement of additional grounds raises a multitude of reasons for holding that the crime was not comparable, none of which have merit. He also argues that the trial court lacked subject matter jurisdiction, failed to hear his motion to remove his standby counsel because of an unnamed conflict of interest, failed to permit him to speak, and denied him due process. Finally, he argues that the judge had a conflict of interest and should have recused himself. His arguments both at trial and before this court are unsupported by adequate argument and are without citation to authority or are simply too conclusory to merit discussion.[7]

The trial court is affirmed.

For the Court: