No. 49538-1-I.The Court of Appeals of Washington, Division One.
Filed: September 30, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011004596, Hon. Douglas McBroom, November 2, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Julie D. Cook, W 554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104-2312.
PER CURIAM.
John Sincere challenges the sentence imposed following his guilty plea for fourth degree assault and the effectiveness of his counsel at the sentencing hearing. Because there was no reversible exercise of discretion by the trial court and Sincere fails to establish the prejudice prong for ineffective assistance of counsel, we affirm. Sincere was charged with attempting to elude a police vehicle and assault in the third degree. The State later amended the charge of assault in the third degree to assault in the fourth degree and added one count of possession of stolen property in the first degree. Sincere entered an Alford[1]
plea to the charges. At sentencing, the State asserted Sincere’s offender score was nine. Sincere offered a calculation of seven. The difference centered around three Georgia convictions from 1985 and 1986 for two counts of theft by taking and one count of theft by receiving stolen property.
At the sentencing hearing, the State presented copies of the Georgia statutes under which Sincere was convicted. Likewise, the State presented copies of the charging document and the judgment and sentence for the Georgia matters. The trial court concluded the offenses were convictions and would be classified as felonies under Washington law. Calculating Sincere’s offender score as nine, the trial court sentenced Sincere to a term within the standard range of forty-three to fifty-seven months.
Georgia Convictions
Sincere argues the court erred in calculating his offender score by including his three convictions from Georgia. We disagree.
A challenge to the offender score calculation may be raised for the first time on appeal.[2] This court reviews the calculation of an offender score de novo.[3]
In establishing the defendant’s criminal history for sentencing purposes, the State must prove by a preponderance of the evidence that a prior conviction exists.[4] An out-of-state conviction may not be used to increase the defendant’s offender score unless the State proves it is a felony in Washington.[5] The State, not the defendant, `bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions.’[6] While the best evidence of a prior conviction is a certified copy of the judgment, the State may introduce documents of record or transcripts of prior proceedings to establish the defendant’s criminal history.[7]
Here, Sincere claims the trial court erred by improperly including his Georgia convictions in his offender score. Sincere argues for the first time on appeal that because the State did not provide the date of the volume from which the copies of the Georgia statutes were taken, the State did not prove these statutes were in effect in 1985 and 1986 when Sincere was convicted of two counts theft by taking and one count of receiving stolen property. The State presented copies of the Georgia statutes for theft by taking and theft by receiving stolen property, which both list 1968 as the enactment date. The trial court found this sufficient proof of the effectiveness, that the statutes were equivalent, and relevant at all times. From this court’s independent review of the Georgia statutes, the enactment dates of the statutes are 1968 with the statute for theft by taking last modified in 1978 and the statute for theft by receiving stolen property last modified in 1969.[8]
There is no indication that the statutes have been modified in any way since and the current language of the statutes is identical to that of the copies the State provided to the trial court.[9] This is sufficient evidence that the statutes were enacted in 1968 and remained in effect in 1985 and 1986 when Sincere was convicted. Therefore, the three Georgia convictions were properly included in Sincere’s offender score. Same Criminal Conduct Sincere argues his offender score was erroneously calculated because the court failed to make an independent determination regarding whether Sincere’s conviction for two counts of theft by taking in Fulton, Georgia in 1985 constitute the same criminal conduct. We disagree. Although Sincere did not object below on this issue, he is not precluded from appealing his sentence. Illegal or erroneous sentences may be challenged for the first time on appeal.[10]
The trial court’s determination on the issue is reviewed for abuse of discretion.[11] Application of the same criminal conduct criteria of the Sentencing Reform Act (SRA) involves both factual determinations and exercise of discretion.[12] Under the SRA, `Out-of-state convictions for offenses shall be classified according to comparable offense definitions and sentences provided by Washington law.’[13] A sentencing court must independently determine whether a defendant’s prior convictions constitute `same criminal conduct.’[14] Under this analysis, a defendant’s offenses must be counted separately in calculating the offender score unless the trial court enters a finding that they `encompass the same criminal conduct.’[15]
Offenses encompass the same criminal conduct when they are committed against the same victim, in the same time and place, and involve the same objective criminal intent.[16] Here, Sincere argues that instead of making an independent determination, the trial court relied on the prosecutor’s determination that the Georgia conviction in 1985 of two counts of theft by taking constituted the same criminal conduct. The State argues the trial court reviewed copies of the defendant’s 1985 convictions for theft by taking prior to sentencing him and that the charging documents reflect that these two instances of theft by taking occurred on two different days to two different victims.
According to the record on appeal, in `The Prosecutor’s Understanding of Defendant’s Criminal History,’ the two counts of theft by taking in Fulton, Georgia, occurred on the same date, were charged under the same cause number, committed in the same country, and a single sentence was given for both offenses. But, the prosecutor also provided copies of the Georgia charging document and judgment and sentence to the trial court at the sentencing hearing on November 2, 2001. These documents indicate these offenses were not the same criminal conduct because the Georgia offenses occurred on different dates and involved different victims. The charging document indicates:
Count 1, Theft by Taking, on the 2nd day of January, 1985 [Sincere] did unlawfully take one 1983 Porsche [sic] 944 automobile, a motor vehicle and the property of Lamar Roberts, as bailee, with the intent of depriving said owner of said motor vehicle; — contrary to the laws of said State
Count 2, Theft by Taking, on the 5th day of March 1985, [Sincere] did unlawfully take one 1985 Chevrolet Corvette automobile, a motor vehicle and the property of Talmadge Williamson, with the intent of depriving said owner of said motor vehicle.
The record reflects the trial judge considered this document and therefore Sincere was not denied the same criminal conduct analysis of his prior convictions.
Effective Assistance of Counsel
Sincere claims he received ineffective assistance of counsel and asks this court to remand for resentencing. We disagree.
A defendant has a Sixth Amendment right to effective assistance of counsel.
When a defendant claims he has been deprived of that right, we begin with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.[17] To succeed in this claim, Sincere must establish that (1) counsel’s conduct fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the proceeding would have been different.[18] But the absence of one prong makes unnecessary the consideration of the other.[19]
Sincere alleges his trial counsel was deficient for failing to argue `same criminal conduct’ at sentencing with respect to prior Washington offenses. This court has said that failure to raise `same criminal conduct’ at sentencing is waived if a defendant affirmatively adopts a sentencing score or range.[20]
Here, at sentencing, defense counsel stated she believed Sincere’s offender score was seven after the exclusion of Georgia offenses. She did not raise any objection indicating the court should conduct a same criminal conduct analysis with respect to Sincere’s Washington convictions in 1994 (attempting to elude and taking a motor vehicle) and 1999 (attempting to elude and taking motor vehicle). Sincere claims his offender score would have been two points lower had defense counsel raised this objection. Sincere was not prejudiced by this error. The same criminal conduct analysis would not have changed the ultimate offender score. Each set of offenses occurred on the same day, in the same county, were charged under the same cause number, and were punished in a single sentence. But, as evidenced by the taking a motor vehicle and attempting to elude statutes, each of these crimes involves different criminal intent and different victims.
A person is guilty of attempting to elude a pursuing police vehicle when he drives a motor vehicle and after a police officer signals for him to stop, he drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others.[21] And a person is guilty of taking a motor vehicle without the owner’s permission when he intentionally takes or drives away an automobile without the permission of the owner or person entitled to possession; or voluntarily rode in or upon the vehicle knowing that it was unlawfully taken.[22] A same criminal conduct analysis of these statutes indicates the offenses do not constitute the same criminal conduct and Sincere’s offender score remains unchanged.
Therefore, there is a reasonable probability that but for the defense counsel’s error, Sincere’s offender score would remain unchanged.
We affirm the judgment and sentence.
(1994)).
(1984)).