State Of Washington v. Bud Richard Flowers, 48897-3

Flowers’s original sentence for attempted first-degree murder (with a firearm enhancement) and first-degree unlawful possession of a firearm was vacated on appeal and the case remanded for resentencing.
At resentencing the State noted the previously vacated terms (471 months and 116 months concurrent); Flowers objected to mention of the vacated sentence.
The State also sought to include a Utah burglary conviction in Flowers’s offender score; Flowers argued it was not comparable to Washington burglary.
The State introduced Flowers’s Utah judgment, probable cause statement, and his guilty-plea statement describing that he aided others by acting as a lookout during a theft at Drs. Weems and Crane’s building.
The resentencing court counted the Utah burglary as a prior crime and resentenced Flowers to the same terms (471 and 116 months, concurrent).
Flowers appealed, arguing (1) the court improperly admitted/relied on the vacated sentence, and (2) the Utah burglary should not count toward his offender score.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Flowers)	Held
Whether mention of the vacated sentence at resentencing was improper	Mentioning the vacated sentence was permissible at resentencing and was reflected in the appellate remand	ER 403 and rules of evidence forbid admission of the vacated sentence; resentencing court relied on it	Affirmed — rules of evidence do not apply at sentencing; court did not rely on the vacated sentence for its sentence
Whether the Utah burglary conviction counts in Flowers’s offender score	Utah plea admissions show conduct that would have violated Washington burglary; thus it is factually comparable	Utah statute is broader and some factual ambiguity (e.g., whether structure was a building) prevents comparability	Affirmed — plea admissions established factual comparability; conviction counts toward offender score

State v. Deskins, 180 Wn.2d 68 (2014) (rules of evidence do not apply at sentencing)
State v. Olsen, 180 Wn.2d 468 (legal and factual comparability test for out-of-state convictions)
State v. Collins, 144 Wn. App. 547 (State bears burden by preponderance to prove prior out-of-state conviction comparability)
State v. Otis, 151 Wn. App. 572 (definition of preponderance standard in this context)
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801 (appellate briefing rules; court need not address undeveloped arguments)