STATE v. PRUITT, 26202-9-II (Wash.App. 5-17-2002)

No. 26202-9-II.The Court of Appeals of Washington, Division Two.
Filed: May 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County, No. 001008564, Hon. Terry D. Sebring, July 14, 2000, Judgment or order under review.

Counsel for Appellant(s), Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.

Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Dep Pros Atty, Rm 946, 930 Tacoma Ave, Tacoma, WA 98402-2171.

KAREN G. SEINFELD, J.

Martin Lynn Pruitt appeals his convictions of first degree robbery and first degree unlawful possession of a firearm, arguing that the trial court improperly instructed the jury and improperly calculated his offender score. We affirm.

Facts
On December 23, 1999, a man entered the Mt. Constance Mountain Shoppe in Gig Harbor at about 6:00 p.m. Casey Nixon, the store manager, was working in the store at the time. After the other customers left, the man stood by the cash register, pointed a gun toward Nixon’s waist, and said, `Give me all the money in the register.’ Report of Proceedings (RP) at 192-93. Nixon gave the man approximately $500. The robber put the gun in his coat and left.

About a month later, Nixon was in a Tacoma bowling alley when he saw a man he recognized as the robber. Nixon later saw the man in the parking lot, sitting in a car. Nixon copied the license plate and gave the number and a description of the car to the Gig Harbor police. After viewing a photo montage a few weeks later, Nixon identified Pruitt as the robber and as the man he recognized in the bowling alley.

The police arrested Pruitt and charged him with first degree robbery and first degree unlawful possession of a firearm.[1]

At trial, the parties stipulated to Pruitt’s previous conviction of a serious offense to support the charge of unlawful possession of a firearm. Nixon testified to the facts set forth above and identified Pruitt in court as the man who robbed his store. Pruitt submitted an alibi defense and offered witnesses who testified that he was at a private home on the evening of December 23. The defense did not propose any jury instructions and did not except to the court’s instructions.

After the jury convicted Pruitt on both counts, he agreed to stipulate to his criminal history and offender score. The following exchange occurred as the parties presented the stipulation to the court at sentencing:

[DEFENSE COUNSEL]: Your Honor, we were provided with a stipulation of criminal history. Your Honor, I’m signing for the defendant. It indicates that the criminal history is accurate as just reflected on the record . . . and I will provide a copy of that to Mr. Pruitt. Mr. Pruitt, do you acknowledge receipt of the stipulation?

[PROSECUTOR]: I would also ask if the defendant has had an opportunity to review that entire stipulation and if he is adopting the contents of that stipulation. . . .
[PROSECUTOR]: I didn’t hear anything from the defendant.

RP at 598-99.

The written stipulation provided that Pruitt’s three prior Illinois convictions were equivalent to Washington felony convictions of the class indicated, that Pruitt’s two prior King County convictions counted separately, and that the criminal history and scoring were correct. It added that if sentenced within the standard range, Pruitt waived any right to appeal based on the criminal history and/or offender score calculation set forth in the stipulation.

The court sentenced Pruitt to the high end of the standard range. He now appeals.

Analysis I.
Pruitt argues initially that his conviction for unlawful possession of a firearm must be reversed because the `to convict’ instruction failed to include knowledge as an essential element of the offense.

Instruction 9, the `to convict’ instruction, set forth the elements of first degree unlawful possession of a firearm as follows:

. . . .

(1) That on or about the 23rd day of December, 1999, the defendant owned a firearm or had a firearm in his possession or control;
(2) That the defendant had previously been convicted of a serious offense; and
(3) That the ownership or possession or control of the firearm occurred in the State of Washington.

. . . .

Clerk’s Papers (CP) at 29.

Following Pruitt’s trial, the Washington Supreme Court held for the first time that `knowing possession’ is an implied element of unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247
(2000).

The State concedes that the `to convict’ instruction in this case did not include the element of knowing possession. The State also concedes that this error can be raised despite Pruitt’s failure to except to the instruction at trial. See State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d 184 (2001) (failure to instruct on an element of the offense is manifest error that can be raised for first time on appeal).

The State maintains, however, that the instructional error in this case was harmless, and cites recent Washington cases applying harmless error analysis where instructions misstated the law. See Stein, 144 Wn.2d at 247-48 (instructional error was not harmless where it could not be determined whether jury convicted the defendant on the basis of proper accomplice liability instructions or improper conspiracy instructions); State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752 (2000) (erroneous accomplice liability instruction was not harmless where it relieved the State of its burden of proving beyond a reasonable doubt that the defendant knew he facilitated the charged crime).

The State also cites a decision of the United States Supreme Court that applied harmless error where an instruction omitted an element of the offense. Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The test for determining whether a constitutional error is harmless is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder, 527 U.S. at 15 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); see also State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996) (court finds constitutional error harmless only if convinced beyond a reasonable doubt that any reasonable jury would reach the same result without the error). In Neder, the instruction’s failure to include `materiality’ as an element of tax fraud was harmless because the materiality of underreporting $5 million on tax returns was uncontested. 527 U.S. at 15.

Division One recently held, however, that the failure to include the knowledge element in an unlawful possession instruction could not be considered harmless error under the facts in State v. Jones, 106 Wn. App. 40, 44, 21 P.3d 1172 (2001). There, the defendant was one of three people found standing near a parked car that had a handgun underneath it. Jones, 106 Wn. App. at 42. The court concluded that it would be `an untoward act of speculation’ to declare what the defense might have done at trial had it known of the knowledge element. Jones, 106 Wn. App. at 44.

We do not find it unduly speculative to conclude that the same instructional error was harmless in this case. There was no question that the robber knew he threatened Nixon with a gun. The only question at trial was whether the robber was Pruitt. Given the facts of the case, there is nothing to suggest a different defense had the information specifically stated the knowledge element. Consequently, the failure to include the `knowing possession’ element did not contribute to the verdict and was harmless beyond a reasonable doubt.

II
Pruitt next contends that the trial court improperly calculated his offender score when the State failed to prove that his three prior Illinois convictions were comparable to Washington felonies and when it failed to consider whether Pruitt’s two prior King County convictions constituted the same criminal conduct. The State responds that the trial court was entitled to rely on the stipulated offender score.

Turning first to the comparability determination, we note that out-of-state convictions are to be classified according to the comparable offense definitions and sentences provided by Washington law. Former RCW 9.94A.360(3), recodified as RCW 9.94A.525(3) (2001). The State bears the burden of proving the existence and classification of prior out-of-state convictions by a preponderance of the evidence. State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999). To properly classify an out-of-state conviction, the sentencing court must compare the elements of that offense with the elements of potentially comparable Washington crimes. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).

As the court in Ford held further, however, the court may rely on a defendant’s acknowledgment to support a comparability determination. Ford, 137 Wn.2d at 483. Although a defendant does not `acknowledge’ the State’s position regarding comparability by merely failing to object, acknowledgment does occur where the defendant affirmatively agrees with the State’s classification of out-of-state convictions. Ford, 137 Wn.2d at 483; see also In re Connick, 144 Wn.2d 442, 464, 28 P.3d 729
(2001) (`Petitioner’s unchallenged acceptance during sentencing of information on his offender score and sentence range was properly relied upon by the court in calculating his offender score because a court may rely upon facts and information acknowledged by a defendant.’). Thus, where the prior out-of-state convictions are part of the defendant’s proffered offender score calculation, they are properly included without further proof of classification. Ford, 137 Wn.2d at 483 n. 5.

In this case, Pruitt signed a stipulation that included his Illinois offenses in his offender score. The stipulation provided that the Illinois convictions were equivalent to Washington felony convictions of the class indicated and also provided that Pruitt waived his right to appeal based on the criminal history that included those Illinois convictions. During sentencing, Pruitt acknowledged on the record that the contents of the stipulation were correct.

With regard to the court’s failure to consider whether Pruitt’s two prior King County offenses constituted the same criminal conduct, we note that when a defendant has multiple prior convictions, the sentencing court must count each conviction separately unless the prior convictions encompass the same criminal conduct. Former RCW 9.94A.360(5)(a)(i), recodified as RCW 9.94A.525(5)(a)(i) (2001). Here again, however, where the defendant stipulates to an offender score that counts prior convictions separately, the defendant waives the right to challenge the offender score calculation. See State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000) (defendant’s explicit statement of range was implicit assertion of score and of fact that crimes did not constitute same criminal conduct). This is particularly so where, as here, the record does not establish that the prior multiple convictions meet the statutory test for same criminal conduct.[2] See Connick, 144 Wn.2d at 464. Moreover, in addition to counting Pruitt’s King County convictions separately, the stipulation stated that Pruitt waived an appeal based on the offender score calculation.

As Pruitt does not challenge the validity of the stipulation and waiver, we hold that the trial court did not err in accepting the stipulated offender score without first conducting a comparability determination or determining whether some of Pruitt’s prior offenses constituted the same criminal conduct.

In anticipation of this result, Pruitt argues that he received ineffective assistance of counsel when his attorney did not object to the calculation of his offender score and agreed to the stipulation.

To prove a claim of ineffective assistance, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116
(1990). Prejudice is established if there is a reasonable probability that, except for counsel’s errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995).

Here, Pruitt does not succeed in showing prejudice because he does not show that the offender score would have been calculated differently absent the stipulation. The record does not show that the Illinois convictions were classified incorrectly or that the King County convictions should have been considered as the same criminal conduct. Therefore, there is no evidence that the result of the proceeding would have been different had defense counsel not agreed to the stipulation. Accordingly, Pruitt’s claim of ineffective assistance must fail.

Affirmed.

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.

WE CONCUR: BRIDGEWATER, J., ARMSTRONG, J.