Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       65804-2-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
STEVIE GOLDEN,                              )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: January 17, 2012
                                            )

       Lau, J.  --  In State v. Golden, noted at 154 Wn. App. 1039, 2010 WL 532424, we 

reversed Stevie Golden's sentence that the trial court imposed following his first degree 

attempted robbery conviction. We accepted the State's concession that the record did 

not support the trial court's finding that one of Golden's prior convictions was 

comparable to a Washington felony for purposes of calculating his offender score and 

remanded for resentencing.  Golden now appeals from the judgment and sentence on

his resentencing, claiming (1) the State failed to prove his 2001 Missouri conviction for 

stealing was factually comparable to a Washington felony for purposes of calculating 

the offender score and (2) the trial court exceeded its statutory authority in imposing 24 

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to 36 months' community custody upon finding that the current offense was a "serious 

violent offense" under RCW 9.94A.030.  Finding no error regarding the trial court's 

comparability determination and offender score calculation, we affirm Golden's 

sentence. Accepting the State's concession of error regarding the community custody 

determination, we remand with instructions to impose 18 months' community custody 

under RCW 9.94A.701(2).          

                                            FACTS

       In September 2008, a jury convicted Stevie Golden of attempted first degree 

robbery.  At sentencing, the trial court calculated Golden's offender score as 3 based 

on the court's finding that he had three prior Missouri convictions for stealing that 

counted in his offender score.  The court sentenced Golden to 40 months' confinement

and 18 to 36 months' community custody.  

       Golden appealed his sentence, arguing the State failed to prove that his 2001 

Missouri stealing conviction was comparable to a Washington felony.  The State 

conceded that the record did not support the trial court's finding that the Missouri 

conviction was comparable to a Washington felony.  We accepted the State's 

concession of error and remanded for resentencing.  

       At resentencing, to prove the Missouri conviction was comparable to a

Washington felony, the State presented copies of the 2001 Missouri first amended 

complaint and information charging Golden with stealing.  The information alleged

       that on or about the 1st day of August, 2001, in the County of Boone, State of 
       Missouri, the defendant appropriated United States currency, by physically 
       taking from the person of Kyle Volrath, which property was in the possession of 

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       Kyle Volrath, and defendant appropriated such property without the consent of 
       Kyle Volrath and with the purpose to deprive him thereof.

Golden pleaded guilty in open court to the 2001 Missouri stealing crime as charged.  

The Missouri court made and set forth findings in open court and immediately imposed 

its sentence.  The document entitled "Judgment" reflects that the Missouri court

"informed the defendant of verdict/finding, asks the defendant whether (s)he has 

anything to say why judgment should not be pronounced, and finds that no sufficient 

cause to the contrary has been shown or appears to the court."  

        After considering the State's submissions regarding Golden's 2001 Missouri 

conviction, the trial court found the conviction was comparable to first degree theft in

Washington and included it in Golden's offender score.  The court sentenced Golden to 

40 months' confinement and also imposed 24 to 36 months' community custody, finding 

the current offense was a "serious violent offense" under RCW 9.94A.030.  

       Golden appeals the judgment and sentence on his resentencing.  He claims the 

State failed to prove that his 2001 Missouri conviction for stealing was factually 

comparable to a Washington felony for purposes of calculating the offender score.  He 

also claims the trial court exceeded its statutory authority in imposing 24 to 36 months'

community custody.

                                          ANALYSIS

       Comparability Analysis and Offender Score Calculation

       Golden contends the trial court erred when it found his 2001 Missouri stealing 

conviction was factually comparable to the Washington felony of first degree theft.  The 

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State counters that it presented sufficient comparability information and the court 

properly included Golden's Missouri conviction in his offender score.

        "A defendant's offender score establishes the range a sentencing court may use 

in determining the sentence."  State v. Thomas, 135 Wn. App. 474, 479, 144 P.3d 1178 

(2006).  In calculating the offender score, "[t]he sentencing court must include all 

current and prior convictions . . . ."  Thomas, 135 Wn. App. at 479. If a defendant's 

prior convictions are from another state, the Sentencing Reform Act requires the trial 

court to classify the convictions "according to the comparable offense definitions and 

sentences provided by Washington law" before including them in the offender score.  

RCW 9.94A.525(3).  The State must prove by a preponderance of the evidence that an 

out-of-state conviction is comparable to a Washington crime.  State v. Ford, 137 Wn.2d 

472, 479-80, 973 P.2d 452 (1999).  

       To determine comparability, Washington courts apply a two-part test involving 

legal comparability and factual comparability.  First, the sentencing court compares the 

elements of the out-of-state crime to the similar Washington criminal statute in effect 

when the out-of-state crime was committed.  In re Pers. Restraint of Lavery, 154 Wn.2d 

249, 255, 111 P.3d 837 (2005).  If the elements are "substantially similar," or if the out-

of-state crime is defined more narrowly than in Washington, the out-of-state conviction 

is included in the offender score.  Lavery, 154 Wn.2d at 255.  If the foreign crime is 

defined more broadly than the Washington crime, the court proceeds to the second part 

of the test to determine factual comparability.  State v. Morley, 134 Wn.2d 588, 606, 

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952 P.2d 167 (1998).  This requires the sentencing court to determine whether the 

defendant's conduct would have violated the comparable statute, as evidenced by the 

indictment, information, or records of the foreign conviction.  Lavery, 154 Wn.2d at 255.

       "While it may be necessary to look into the record of a foreign conviction to 

determine its comparability to a Washington offense, the elements of the charged crime 

must remain the cornerstone of the comparison."  Morley, 134 Wn.2d at 606. The court 

may examine only those documents that conclusively demonstrate that the relevant 

facts were proved to a jury beyond a reasonable doubt or admitted by the defendant in 

a guilty plea.  Shepard v. United States, 544 U.S. 13, 21-26, 125 S. Ct. 1254, 161 L. 

Ed. 2d 205 (2005); Lavery, 154 Wn.2d at 258; State v. Bunting, 115 Wn. App. 135, 142-

43, 61 P.3d 375 (2003).  The sentencing court "is generally limited to examining the 

statutory definition, charging document, written plea agreement, transcript of plea 

colloquy, and any explicit factual finding by the trial judge to which the defendant 

assented."  Shepard, 544 U.S. at 16.

       Golden argues that the State's documents are insufficient to prove his Missouri 

stealing conviction is comparable to first degree theft in Washington.  The State 

concedes that the Missouri and Washington crimes at issue are not legally comparable.  

See Resp't's Br. at 7 ("[I]t would appear that the Missouri statute is more broad or 

contains alternatives not listed under the Washington theft statute.  Therefore, further 

analysis is required."). Thus, we consider factual comparability and evaluate whether 

Golden's 2001 Missouri conduct would have constituted first degree theft under the 

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relevant Washington criminal statute.1

       In 2001,2 Washington's first degree theft statute provided:

       (1) A person is guilty of theft in the first degree if he or she commits theft of:
              (a) Property or services which exceed(s) one thousand five hundred 
       dollars in value other than a firearm as defined in RCW 9.41.010; or
              (b) Property of any value other than a firearm as defined in RCW 
       9.41.010 taken from the person of another.
              (2) Theft in the first degree is a class B felony.

Former RCW 9A.56.030 (2000). In Washington, theft requires intent to deprive the 

victim of property or services.  Former RCW 9A.56.020 (2000).  As discussed above, in 
2001, Missouri charged Golden with stealing3 and specifically alleged that he 

       1 Golden argues that the State's submitted documents do not show what 
subsection of the Missouri statute he was convicted under and that he may have been 
convicted under a subsection that covers a broader range of property than 
Washington's first degree theft statute.  But because the State concedes the Missouri 
statute is broader than Washington's, we need not address this argument.

       2 The State cites to the current versions of the Washington and Missouri criminal 
statutes.  But for comparability analysis, a defendant's prior crime must be compared to 
the relevant Washington statute in effect at the time the prior crime was committed 
(here, 2001).  See Lavery, 154 Wn.2d at 255.

       3 In 2001, Missouri's stealing statute provided in relevant part:
"1.  A person commits the crime of stealing if he or she appropriates property or 
services of another with the purpose to deprive him or her thereof, either without his or 
her consent or by means of deceit or coercion.
       "2.  Evidence of the following is admissible in any criminal prosecution under this 
section on the issue of the requisite knowledge or belief of the alleged stealer:
       "(1)  That he or she failed or refused to pay for property or services of a hotel, 
restaurant, inn or boardinghouse;
       "(2)  That he or she gave in payment for property or services of a hotel, 
restaurant, inn or boardinghouse a check or negotiable paper on which payment was 
refused;
       "(3)  That he or she left the hotel, restaurant, inn or boardinghouse with the 
intent to not pay for property or services;
       "(4)  That he or she surreptitiously removed or attempted to remove his or her 
baggage from a hotel, inn or boardinghouse.
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"appropriated United States Currency, by physically taking from the person of Kyle 

Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive him 

thereof."  

       Golden contends the State did not prove he admitted the necessary facts when 

he pleaded guilty to the 2001 Missouri stealing charge.  He relies on State v. Bunting, 

115 Wn. App. 135, 61 P.3d 375 (2003).  In Bunting, we applied a factual comparability 

analysis to determine whether the defendant's 1972 Illinois armed robbery conviction 

compared to the crime of armed robbery in Washington.  Bunting, 115 Wn. App. at 140-

43.  The record contained three documents providing facts about the 1972 armed 

robbery:  an "Official Statement of Facts" that the assistant state's attorney provided to 

       "3.  Stealing is a class C felony if:
       "(1)  The value of the property or services appropriated is seven hundred fifty 
dollars or more; or
       "(2)  The actor physically takes the property appropriated from the person of the 
victim; or
       "(3)  The property appropriated consists of:
       "(a)  Any motor vehicle, watercraft or aircraft, or
       "(b)  Any will or unrecorded deed affecting real property; or
       "(c)  Any credit card or letter of credit; or
       "(d)  Any firearms; or
       "(e)  A United States national flag designed, intended and used for display on 
buildings or stationary flagstaffs in the open; or
       "(f)  Any original copy of an act, bill or resolution, introduced or acted upon by 
the legislature of the state of Missouri; or
       "(g)  Any pleading, notice, judgment or any other record or entry of any court of 
this state, any other state or of the United States; or
       "(h)  Any book of registration or list of voters required by chapter 115, RSMo; or
       "(i)  Any animal of the species of horse, mule, ass, cattle, swine, sheep, or goat; 
or
       "(j)  Live fish raised for commercial sale with a value of seventy-five dollars; or
       "(k)  Any controlled substance as defined by section 195.010, RSMo."
Former Mo. Rev. Stat. 570.030 (2001).
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the Department of Corrections in 1973 after the defendant pleaded guilty and was 

sentenced, a complaint, and the indictment.  Bunting, 115 Wn. App. at 141-42.  We 

rejected the State's argument that the "Official Statement of Facts" and the complaint 

should be considered in the comparability analysis.  Bunting, 115 Wn. App. at 142.  We 

concluded (1) those documents contained allegations never proved at trial because 

Bunting pleaded guilty to the crime charged and (2) Bunting did not necessarily 

concede the allegations in the documents when he pleaded guilty.  Bunting, 115 Wn. 

App. at 143 ("The State provides no evidence that Bunting adopted the facts set forth in 

the complaint or those the assistant state's attorney alleged in a postsentencing 

statement to the Department of Corrections.").  We held that only the indictment was 

relevant because when Bunting pleaded guilty, the only acts he conceded to were the 

elements of the crime stated in the indictment.  Bunting, 115 Wn. App. at 142.  Because 

the indictment did not allege intent as an element (as required by the Washington 

statute) and nothing in the record showed intent was proved or conceded in Bunting's 

guilty plea, it was insufficient to prove that the Illinois and Washington offenses were 

comparable.

       Golden's reliance on Bunting is misplaced.  In Bunting, we held that the out-of-

state indictment was relevant to the comparability analysis, but the State failed to prove 

comparability because the indictment did not contain the intent element required under 

Washington law.  In contrast, Golden's Missouri information contains each element of 
first degree theft as defined by former RCW 9A.56.030(1)(b) and 9A.56.0204 -- it alleges 

       4 As discussed above, former RCW 9A.56.030(1)(b) provided, "A person is guilty 
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that Golden "appropriated United States Currency, by physically taking from the person 

of Kyle Volrath . . . without the consent of Kyle Volrath and with the purpose to deprive 

him thereof." This allegation satisfies the "theft of . . . [p]roperty of any value other than 

a firearm," "taken from the person of another," and intent (purpose) elements of first 

degree theft as defined in Washington in 2001.  See Former RCW 9A.56.030(1)(b), 

9A.56.020.  It is undisputed that Golden pleaded guilty to Missouri stealing

charge -- with findings made and set forth in open court -- and that the Missouri court 

found no sufficient cause why judgment should not be pronounced.  Thus, the State 

met its burden of proving by a preponderance of the evidence that Golden was 

convicted of a crime comparable to first degree theft in Washington.

       Our holding in State v. Booker, 143 Wn. App. 138, 176 P.3d 620 (2008) supports 

our conclusion that the State met its burden here.  In Booker, we applied a factual 

comparability analysis to determine whether the defendant's 1994 Illinois conviction for 

illegal possession of a firearm by a felon compared to a violation of RCW 9.41.040(2), 

the Washington statute making it a felony for a felon to possess a firearm.  Booker, 143 

Wn. App. at 142.  At sentencing, the State presented "certified copies of the order of 

sentence and commitment to Illinois Department of Corrections, the statement of 

conviction/disposition, and the information filed in Booker's prior firearm case" to prove 

comparability.  Booker, 143 Wn. App. at 142. We held that because the Illinois 

of theft in the first degree if he or she commits theft of . . . [p]roperty of any value other than a 
firearm as defined in RCW 9.41.010 taken from the person of another." Under former RCW 
9A.56.020, theft included an intent element (intent to deprive the victim of property or 
services).

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information explicitly charged Booker with possession of a firearm, "the State met its burden of 

proving by a preponderance of the evidence that Booker was convicted of a crime comparable to 

possession of a firearm by a felon in Washington."  Booker, 143 Wn. App. at 143.  Thus, 

the State's reliance on the out-of-state information was proper when the information 

contained the same elements required to prove a Washington felony.  

       Here the State similarly relied on an out-of-state information containing the 

elements necessary to prove first degree theft in Washington.  Golden pleaded guilty to 

the Missouri stealing charge and thus conceded to the facts and elements contained in 

the information.  The State met its burden of proving by a preponderance of the 

evidence that Golden's prior conviction was comparable to a Washington felony, and 

the trial court properly included the prior conviction in Golden's offender score.           

       Community Custody

       Golden argues, and the State concedes, that the trial court erroneously 

classified his offense as a "serious violent offense" under RCW 9.94A.030 in its 
judgment and sentence.5 Based on this erroneous conclusion, it imposed 24 to 36 

months' community custody.  The parties agree that the correct community custody 

term under RCW 9.94A.701(2) is 18 months.

                                        CONCLUSION

       Because the trial court properly included Golden's 2001 Missouri stealing 

       5 At the resentencing hearing, the trial court correctly identified attempted 
robbery in the first degree as a violent offense.  But the court was mistaken that Golden 
was subject to a 36 month community custody term.  The error was amplified when the 
community custody term was marked on the judgment and sentence as a range 
consistent with a serious violent offense (24 to 36 months).  
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conviction in his offender score, we affirm his sentence but remand with instructions to 

impose 18 months' community custody under RCW 9.94A.701(2).

                                      WE CONCUR:

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