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FILED

MAR 21, 2013

In the Office of the Clerk of Court
WA State Court of Appeals, Division III


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, Respondent, v. COREY J. WILLIAMS, Appellant. In the Matter of the Personal Restraint of: COREY JAVON WILLIAMS, Petitioner.
KORSMO, C.J. -

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No. 29966 O III (consolidated with Nos. 29976-7-111, 30316 I-III)
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UNPUBLISHED OPINION

Corey Williams challenges the inclusion of an Alaska

conviction in his offender score and the trial court's refusal to grant him a drug offender sentencing alternative, RCW 9.94A.660, (DOSA) sentence. We affirm the convictions and dismiss his personal restraint petition (PRP).

No. 29966-0-III, 29976-7-III, 30316-1-III State v. Williams; PRP of Williams

FACTS A jury found Mr. Williams guilty of two counts of delivery of a controlled substance and one count of forgery. At sentencing, Mr. Williams requested a nOSA sentence, which the court denied. With an offender score of 3, the trial court sentenced Mr. Williams to 64 months of confinement. Following sentencing, Mr. Williams pro se challenged the inclusion in his offender score of a 2002 Alaska conviction for vehicle theft in the first degree, arguing that the State failed to prove that the Alaska conviction actually occurred and its comparability to a Washington crime. The State answered the motion by supplying a certified copy of the Alaska conviction and arguing that the Alaska statute was comparable to Washington's theft ofa motor vehicle statute under RCW 9A.S6.06S. The trial court denied the motion and kept the offender score at 3.

Mr. Williams then timely appealed.}
ANALYSIS

In the direct appeal, Mr. Williams argues that the trial court erred in finding the
Alaska offense comparable to a Washington crime? In his PRP, he argues that the

} Mr. Williams pro se also filed a motion for discretionary review of the trial court's ruling, as well as a second pro se challenge that was treated as a PRP. Both matters were consolidated with the appeal. The motion for discretionary review is moot and will not be further addressed here.
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No. 29966-0-111, 29976-7-111, 30316-1-111 State v. Williams; PRP of Williams

sentencing court erred by refusing his request for a DOSA sentence. We will address those issues in that order. "A court's calculation of an offender score is reviewed de novo." State v. Larkins, 147 Wn. App. 858, 862, 199 P.3d 441 (2008). RCW 9.94A.525(3) permits the consideration of out-of-state convictions in calculating an offender score when "classified according to the comparable offense definitions and sentences provided by Washington law." "The State bears the burden of proving both the existence and the comparability of an offender's prior out-of-state conviction." Id. To determine the comparability of an out-of-state criminal statute, courts apply a two-part test: First, a sentencing court compares the legal elements of the out-of-state crime with those of the Washington crime. If the crimes are so comparable, the court counts the defendant's out-of-state conviction as an equivalent Washington conviction. 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.

2 In his pro se Statement of Additional Grounds, Mr. Williams argues that the trial court should not have considered the State's filing of the Alaska conviction documents in its motion response. "When a defendant raises a specific objection at sentencing and the State fails to respond with evidence of the defendant's prior convictions, then the State is held to the record as it existed at the sentencing hearing." State v. Mendoza, 165 Wn.2d 913,930,205 P.3d 113 (2009). However, when "there is no objection at sentencing and the State consequently has not had an opportunity to put on its evidence, it is appropriate to allow additional evidence at sentencing." Id. There was no timely objection at sentencing in this case.

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No. 29966-0-III, 29976-7-III, 30316-1-II1 State v. Williams; PRP of Williams

Id. at 863 (footnote omitted) (citing State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d
167 (1998)). No facts regarding the Alaska conviction were included in the record; therefore, this court can only engage in the first part of the Morley test-reviewing the statutes. Further, "the elements of the out-of-state crime must be compared to the elements of Washington criminal statutes in effect when the foreign crime was committed."

Morley, 134 Wn.2d at 606. Thus, this court analyzes comparability based on the Alaskan
and Washington statutes in effect when Mr. Williams committed the

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