Opinion
No. 56932-5-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-09340-4, Sharon S. Armstrong, J., entered August 30, 2005.
Counsel for Appellant(s), Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Counsel for Respondent(s), Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA, 98104-2390.
Affirmed by unpublished per curiam opinion.
Leonard White challenges the sufficiency of the evidence to establish that a prior conviction for third degree theft belongs in his criminal history at sentencing. The State argues his challenge is preempted by his failure to deny under oath that he is not the person named. While Leonard could not remember whether the conviction belonged to him, his counsel expressly denied that the judgment and sentence belonged to Leonard based on identifying information in that record belonging to Leonard's brother. Under the rule set forth in State v. Ammons, the denial by counsel is not sufficient to overcome the sufficiency of identity of names in proving that the prior conviction belonged to Leonard. State v. Ammons, 105 Wn.2d 175, 190, 713 P.2d 719 (1986). We therefore affirm the trial court's sentence.
FACTS
The defendant, Leonard Charles White was charged with second degree robbery on October 22, 2003, for attempting to steal two remote control cars from an Albertson's store on October 21, 2003. These charges were amended to third degree assault and third degree theft on June 3, 2004. In June 2004, Leonard entered a guilty plea to the amended charges. As part of his plea agreement, Leonard affirmed orally and in writing that his standard sentencing range was 51 to 60 months. This was based on a criminal history compiled by the State and recorded on Appendix B to the plea agreement. Leonard agreed that because he did not attach a different statement of criminal history, the prosecutor's understanding of his criminal history was correct.
On August 30, 2004, defense counsel filed a sentencing report detailing the confusion between Leonard's criminal record and his brother's criminal record. The appendix to this report contains the prosecutor's understanding of the defendant's criminal history, as well as a number of judgment and sentence forms and docket print outs. Handwritten notes by defendant's counsel indicated which convictions were "not my client" and which convictions actually belonged to Leonard. Defense counsel noted specifically that a theft conviction on August 20, 1998 did not belong to Leonard. Defendant's counsel argued that the post-1993 convictions listed on Leonard's criminal history actually belonged to his brother, L.C.
On the same date, defense counsel also filed a sentencing report explaining the late challenge to the sentencing history. He alleged that until City of Redmond v. Moore, 151 Wn.2d 664, 666, 91 P.3d 875 (2004) (invalidating parts of the Driving While License Suspended statute, RCW 46.20.289) it was immaterial that many of the felony convictions that were allegedly Leonard's were really his brothers. Now, it was material, because if under Moore, Leonard's Driving While License Suspended in the Third Degree (DWLS 3) conviction was constitutionally invalid, and the third degree theft conviction was determined to belong to L.C., his previous felonies would wash and his sentencing score would be reduced. Defense alleged that once they "discovered" the decision in Moore, "the difference in what the State attached as their understanding of Mr. White's criminal history and his actual criminal history has become significant." Under this change in history Leonard had a sentencing score of 1. Combined with a seriousness level of III, the defense recommended a 3 to 8 month sentence.
In response, the State filed a motion (of which both the court and defense had copies, but which is not in the record) to vacate the plea agreement, arguing that the defense was misrepresenting Leonard's criminal history in their argument to reduce his sentencing score. In response, defense counsel filed a supplemental presentence report on October 21, 2004, alleging that the DWLS 3 conviction was constitutionally invalid.
In order to "wash" Leonard's class C felony convictions that occurred between 1980 and 1993, thereby reducing his sentencing score, the defendant must have remained crime free for five consecutive years starting from 1993. Former RCW 9.94A.360 (2000), recodified as RCW 9.94A.525. As such, the two key charges in question in determining whether Leonard's previous felonies would "wash" were two Seattle Municipal Court cases:
1. Third Degree Theft (date of crime 8/20/98, date of sentence 12/24/98)
2. DWLS Third Degree (date of crime 8/10/98, date of sentence 12/7/98).
After extensive review of Leonard's criminal history, the parties agreed that some of Leonard's convictions were actually properly attributed to his brother, L.C. and that the defendant had seven felony convictions and four misdemeanor convictions. The status of the two charges key to the wash out issue remained disputed.
At Leonard's sentencing hearing in August 26, 2006, Leonard took the stand and when asked by the prosecutor whether the third degree theft charge belonged to him he answered "I can honestly say I don't know." Based on this answer, the trial court determined that the third degree theft conviction with a Seattle Municipal Court date of sentencing December 24, 1998 was a crime committed by Leonard. Since this conviction occurred before the wash-out period had expired, Leonard's sentencing score would be seven. The trial court sentenced Leonard to the mid-point of the standard range: 38 months in the Department of Corrections, with credit for 18 days served and on community custody for nine to 18 months. The court ordered that he be taken into custody immediately. After being fingerprinted and protesting immediate custody, Leonard ran from the courtroom. Realizing that he had escaped from the building, the trial court ordered a warrant.
The court reconvened on August 29, 2005 to finish signing documents. Here, defense counsel again attempted to point out the discrepancies in the birth date and the defendant identification number in the third degree theft conviction. The trial court ordered defense counsel to make a written motion for reconsideration regarding these issues. There is no indication in the record that this was done. The trial court did not address whether Leonard could attempt to collaterally attack his Seattle Municipal Court DWLS charges in King County Superior Court as facially invalid in light of Moore. Leonard appeals.
DECISION
On appeal, Leonard contends that the trial court erred when it found that the 1998 third degree theft conviction belonged to him. Leonard argues that due to the conflicting identifying information, the State failed to prove that by a preponderance of the evidence, the conviction belonged to him. He argues that a Washington Supreme Court decision, Ammons, does not apply, because, unlike the defendants in Ammons, Leonard argued that he was not the person named in the prior conviction. Ammons, 105 Wn.2d at 190. The State relies on Ammons to claim that absent Leonard's sworn testimony to the contrary, the identity of names between the prior conviction and Leonard is sufficient to meet the State's burden in establishing that the prior conviction is his. Ammons, 105 Wn.2d at 190.
Ammons, involved three defendants challenging the constitutionality of the Sentencing Reform Act (SRA), RCW 9.94(A). Ammons, 105 Wn.2d at 177. Among these challenges, the last was that the State must prove that the person being sentenced and the person named in the prior conviction were the same person. Id. at 190. There, each defendant named in the certified copies of judgments and sentences had the same name as the defendant currently being sentenced. The prosecutor offered no other independent corroborating evidence. Not one of the defendants alleged that he was not the same person as the one named in the prior conviction. Two of the defendants made no objection at their sentencing hearings. They only argued that the State has the burden of proving identity, without alleging they were not the same person, in their hearing memoranda. The third defendant, in both his memorandum and at the sentencing hearing, argued that the State had the burden of showing, and had not shown, that he was the same person as the one named in the records alleged to be his prior convictions. When asked by the sentencing court whether the defendant was the same person counsel had represented in the case for which the prior conviction was at issue, defense counsel answered truthfully that he was. The defendant was also given the opportunity, but refused, to testify under oath that he was not the same person named in the prior convictions. Id.
The Washington Supreme Court recognized that "there must be some showing that the defendant before the court for sentencing and the person named in the prior conviction are the same person." Ammons, 105 Wn.2d at 190. The court held that identity of names between that on the prior conviction and the name of the defendant before the court is sufficient proof of the defendant's past conviction. This may be rebutted by the defendant's declaration under oath that he is not the same person named in the prior conviction. The court noted that such requirements "achieve the proper balance." Ammons, 105 Wn.2d at 190. "Due process is satisfied when the defendant is informed of the prior convictions being utilized and given the opportunity to deny that he is the same person." Ammons, 105 Wn.2d at 190.
Leonard was informed of the prior convictions being used against him. We acknowledge that Leonard denied by argument of counsel that the third degree theft conviction belonged to him. Sworn testimony is evidence sufficient to rebut the identity of names demonstrated by a judgment and sentence; mere argument is not evidence. Accordingly, we hold that Ammons controls here, and was not satisfied.
After the trial court concluded that the third degree theft conviction did belong to Leonard (based on Leonard's inability to deny it under oath), his defense counsel again attempted to argue that the discrepancies in the identifying information in the third degree theft conviction indicated that it did not belong to Leonard and rendered the evidence insufficient. The trial court asked counsel to submit his arguments in a motion, but the record does not show that he ever did. Without satisfying the threshold denial under oath requirement of Ammons, such argument about the internal contradictions of the judgment and sentence is precluded.
The trial court was correct in using his prior third degree theft conviction to determine Leonard's offender score.
As required under the Sentencing Reform Act, when Leonard entered his plea of guilty pursuant to his plea agreement, he disclosed his prior convictions for the presentence report. RCW 9.94A.441. If a sentence is based on a miscalculated upward offender score it is in excess of statutory authority, and may be challenged at any time. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 874, 123 P.3d 456 (2005) (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867, 50 P.3d 618 (2002) (noting that one of the defendant's prior convictions that had been used to calculate his offender score had been washed out)). Accordingly, although Leonard did not object to the presentence report at the time it was generated, he has the right to challenge it now under Cadwallader.
Because the court below did not address the constitutionality of Leonard's DWLS 3 conviction, we do not reach that issue. Nor do we reach the issue of whether Leonard can challenge the constitutionality of his Seattle Municipal Court DWLS 3 conviction in King County Superior Court.
We affirm.
BAKER and COLEMAN, JJ.