STATE OF WASHINGTON, Respondent, v. EDWARD MARK OLSEN, Petitioner.
No. 89134-6
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
May 15, 2014
En Banc
J.M. JOHNSON, J.*—In this case, we consider Washington‘s treatment of foreign convictions for sentencing purposes in light of the recent United States Supreme Court case Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). Petitioner Edward Olsen was convicted of a number of crimes, including attempted second degree murder, for an incident of domestic violence against the mother of his children. His offender score at
FACTS AND PROCEDURAL HISTORY
This case arose out of an incident of domestic violence perpetrated by petitioner Olsen against the mother of his children, Bonnie Devenny. Olsen broke into Devenny‘s house, poured gasoline on her while she was sleeping, and told her that she was going to die. Police later recovered a lighter near the bed. Olsen has a history of threatening and committing acts of domestic violence against Devenny, including a California conviction for terrorist threats for which he pleaded no contest. During the California incident, Olsen allegedly wrapped duct tape around Devenny‘s legs and told her that he was going to kill her, cut her up into little pieces, and put the pieces in a plastic storage container.
For the gasoline incident, Olsen was charged in Kitsap County Superior Court by second amended information of attempted first degree murder, attempted second degree murder, first degree burglary, felony harassment,
Olsen appealed to Division Two of the Court of Appeals, which affirmed his convictions and sentence. State v. Olsen, 175 Wn. App. 269, 309 P.3d 518 (2013). The Court of Appeals opinion was issued on June 27, 2013, one week after Descamps was issued by the United States Supreme Court. The Court of Appeals opinion did not address Descamps. Olsen filed a petition for review in this court. We granted review only on the issue of comparability of the California conviction, including the propriety of examining the facts of the foreign conviction in light of Descamps. State v. Olsen, 178 Wn.2d 1018, 312 P.3d 651 (2013). We affirm the Court of Appeals.
ANALYSIS
We review the trial court‘s calculation of a defendant‘s offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007) (citing State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003)). We also review de novo claims that the petitioner‘s sentence violates his right to a jury trial under the Sixth Amendment to the United States Constitution. State v. Mutch, 171 Wn.2d 646, 656, 254 P.3d 803 (2011) (citing State v. Alvarado, 164 Wn.2d 556, 560-61, 563, 192 P.3d 345 (2008)).
A. Washington‘s Comparability of Foreign Convictions under the Sentencing Reform Act (SRA)
The SRA creates a grid of standard sentencing ranges calculated according to the crime‘s seriousness level and the defendant‘s offender score.
We first stated Washington‘s two-part test for comparing foreign
In In re Personal Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837 (2005), we recognized that Morley‘s factual analysis could prove problematic after Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Apprendi, the United States Supreme Court held that except for a prior conviction, a “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. We have consistently held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt. Lavery, 154 Wn.2d at 256 (citing
We concluded that ”Apprendi does not apply where the State seeks to prove the existence of a prior conviction but does apply when a court must look to the facts underlying a foreign offense to determine its comparability.” State v. Thiefault, 160 Wn.2d 409, 419, 158 P.3d 580 (2007) (citing Lavery, 154 Wn.2d at 256-57). Avoiding conflict with Apprendi, we narrowed Morley‘s factual prong to consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt. Lavery, 154 Wn.2d at 258; Thiefault, 160 Wn.2d at 415. We held that Lavery‘s prior foreign robbery conviction was neither factually nor legally comparable to Washington‘s second degree robbery statute and thus could not count as a strike under the Persistent Offender Accountability Act of the SRA. Lavery, 154 Wn.2d at 258.
B. Descamps
We granted review in this case to consider the comparability of the
On June 20, 2013, the United States Supreme Court issued its opinion in Descamps. In that case, the defendant was convicted in federal district court of possession of a firearm by a convicted felon. He was sentenced under the Armed Career Criminal Act of 1984 (ACCA),1 which increases the sentences for some federal defendants who have three prior violent felony convictions. Descamps, 133 S. Ct. at 2281. To determine whether a past conviction qualifies, courts use the “categorical approach.” Id. This involves comparing the elements of the statute forming the basis of the defendant‘s conviction with the elements of the “generic crime,” which is the offense as commonly understood. Id. To qualify as an ACCA predicate, the prior conviction‘s statutory elements must be the same as or narrower than those of the generic offense. Id.
In analyzing ACCA predicates, federal courts use the “modified categorical approach” when a prior conviction involves a divisible statute. Such statutes set out one or more elements of the offense in the alternative.
The modified categorical approach is a necessary extension of the categorical approach. “Because the statute is ‘divisible‘—i.e., comprises multiple, alternative versions of the crime—a later sentencing court cannot tell, without reviewing something more, if the defendant‘s conviction was for the generic (building) or non-generic (automobile) form of [the crime].” Id. at 2284.
The Court in Descamps recognized that fact inquiries
would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns . . . counsel against allowing a sentencing court to “make a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime.
Descamps’ Sixth Amendment implications do not call into question Washington‘s comparability analysis under the SRA. A long line of cases supports the use of the categorical and modified categorical approaches for analyzing foreign convictions under the ACCA. See Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) (approving of the modified categorical approach for divisible statutes); Nijhawan v. Holder, 557 U.S. 29, 41, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009) (expressing approval of the modified categorical approach); Shepard, 544 U.S. at 13 (recognizing that the categorical approach applies to plea agreements); Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (establishing the categorical and modified categorical approaches to the ACCA). This federal framework is consistent with the Lavery framework, which limits our consideration of facts that might have supported a prior conviction to only those facts that were clearly charged and then clearly proved beyond a reasonable doubt to a jury or admitted by the defendant.
The United States Supreme Court‘s consideration of Sixth Amendment rights does apply to state cases. See Apprendi, 530 U.S. at 476 (recognizing that the Fourteenth Amendment extends the Due Process Clause of the Fifth Amendment and notice and jury trial guaranties of the Sixth Amendment to proceedings in state courts). Our clarifications of the factual prong in Lavery and Thiefault guarantee that judicial determinations will not usurp the role of the jury in violation of the Sixth Amendment.
C. The Trial Court‘s Determination of Olsen‘s Offender Score
Olsen claims that the California crime of terrorist threats is broader than the Washington crime of felony harassment and therefore was improperly used to calculate his offender score.
[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or
her own safety or for his or her immediate family‘s safety.
(Emphasis added.)
Pursuant to former
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person . . . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
(2) A person who harasses another is guilty of a gross misdemeanor . . . except that the person is guilty of a class C felony if . . . (b) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
Under the legal prong of our two-part test, we first compare the elements of the out-of-state conviction to the relevant Washington crime. If the foreign conviction is identical to, or narrower than, the Washington statute, the foreign conviction counts towards the offender score as if it were the Washington offense. Morley, 134 Wn.2d at 606. Here, the two statutes are not legally comparable because the California statute criminalizes threats to commit a crime that will result in death or great bodily injury. See
We, therefore, move on to the factual prong, under which we determine
For his California conviction of terrorist threats, Olsen pleaded no contest to all counts. Under California law, the “‘legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.‘” People v. Wallace, 33 Cal. 4th 738, 749, 93 P.3d 1037, 16 Cal. Rptr. 3d 96 (2004) (quoting
Count I of the information alleges, in part, that Olsen “did willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to [Devenny].” Ex. 37 (emphasis added). Olsen, therefore,
Olsen further alleges that
In performing the factual analysis as narrowed in Lavery and Thiefault, it is evident that Olsen‘s California conviction for terrorist threats under
Olsen claims that because the California conviction should not have been used in his offender score, a separate conviction for custodial interference washes out. He, therefore, contends that his offender score should be four instead of six. However, since the California conviction was properly included in his offender score, the custodial interference conviction does not wash out.
CONCLUSION
Because Olsen admitted facts surrounding his California conviction that would have satisfied Washington‘s felony harassment statute, the trial court properly included the foreign conviction in his offender score. Washington‘s comparability analysis of foreign convictions survives Descamps. We, therefore, affirm the Court of Appeals.
WE CONCUR:
J.M. Johnson J.P.T.
Madsen, C.J.
Stephens, J.
Wiggins, J.
Owens, J.
González, J.
Fairhurst, J.
Gordon McCloud, J.