           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RYAN MATTHEW PALMER,                         )       No. 78328-9-I

                      Appellant,             )       DIVISION ONE

               v.                            )       UNPUBLISHED OPINION
                                             )
STATE OF WASHINGTON,                         )
                      Respondent.
_________________________________            )       FILED: January 13, 2020

           HAZELRIGG-HERNANDEZ, J.   —   Ryan Matthew Palmer entered a guilty plea

 pursuant to a written plea agreement and the court imposed the jointly

 recommended sentence. The signed plea agreement included a statement that

 the defendant agreed to an offender score of five, which was based entirely on out-

 of-state convictions. No further proof of the out-of-state convictions was provided

 by the State and the court did not make any findings as to comparability to

 Washington felonies.      Palmer assigns error to the court’s inclusion of those

 convictions in his offender score without conducting a comparability analysis.

 Where, as here, an agreement exists between the parties as to the offender score,

 the court may accept that agreement without further proof of comparability. We

 affirm.
No. 78328-9-1/2

                                          FACTS

        In July 2017, the State charged Ryan Palmer with burglary in the second

degree and assault in the fourth degree based on his entry into the Four Seasons

Hotel’s loading dock area to take cardboard to sleep on, a bottle of muscle milk,

and a container of yogurt. These actions resulted in a physical altercation with an

employee over the food items.            In October 2017, the State amended the

information to enhance the burglary charge to first degree, a most serious or

“strike” offense, in anticipation of trial.    In February 2018, pursuant to a plea

agreement, the State reduced the charges back down to burglary in the second

degree and assault in the fourth degree.

       The jointly recommended sentence for Palmer’s cases was for a residential

Drug Offender Sentencing Alternative (DOSA) in lieu of the 17 to 22 month

standard range prison sentence. Paperwork filed with the court included a typed

plea agreement signed by defense counsel, a deputy prosecutor, and Palmer. The

plea agreement outlined the full terms of the agreed resolution for Palmer’s

pending criminal matters in King County and Seattle Municipal Courts. Palmer

entered his plea to the charges on February 18, 2018 and the court imposed a

residential DOSA at his sentencing hearing approximately one month later. The

court sentenced Palmer on an offender score of five based entirely upon three prior

New York felony convictions.1         The State did not offer any argument as to

comparability of the New York offenses to Washington felonies, nor did the trial




       1 Two of the New York offenses were double scored on the Washington State Adult

Sentencing Guidelines Manual worksheet filed with the plea agreement.


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No. 78328-9-113

court engage in such analysis or make any findings as to comparability. Palmer

timely appeals.2


                                           ANALYSIS

        We review a challenge to classification of out-of-state convictions de novo.

State v. Beals, 100 Wn. App. 189, 195, 997 P.2d 941 (2000). The Sentencing

Reform Act (SRA)3 establishes a grid of standard sentencing ranges by utilizing

the defendant’s offender score and the seriousness score of the current crime.

State v. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994); See also RCW

9.94A.525. The offender score is reached by examining a defendant’s criminal

history and calculating their prior convictions for felonies, certain juvenile offenses,

and selected misdemeanor convictions. RCW 9.94A.525.

        The state bears the burden of establishing a defendant’s criminal history by

a preponderance of the evidence. State v. Ford, 137 Wn.2d 472, 480, 973 P.2d

452 (1999) (superseded by State v. Cobos, 182 Wn.2d 12, 338, P.3d 283 (2014)).

When a defendant’s criminal history includes out-of-state convictions, the state

bears the burden of proving the classification of those out-of-state convictions.

State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999) (superseded by

State v. Jones, 182, Wn.2d 1, 338, P.3d 278 (2014)).                     However, ‘[w]hen the

defendant affirmatively agrees with the State’s classification of out-of-state

convictions, the sentencing court may include the convictions in the defendant’s

offender score without further proof of classification.” State v. Hunter, 116 Wn. App.


        2  Palmer was later sentenced to prison on this matter after stipulating to the revocation of
the residential DOSA, but that judgment and sentence order was not challenged in this appeal.
         ~ chapter 9.94A ROW.


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No. 78328-9-1/4

300, 301, 65 P.3d 371 (2003); See also, Ford, 137 Wn.2d at 483. “[T]he remedy

for a miscalculated offender score is resentencing using a correct offender score.”

Statev. Ross, 152 Wn.2d 220,228,95 P.3d 1125 (2004).

       In Hunter, this court upheld the inclusion of four out-of-state convictions in

a defendant’s offender score. 116 Wn. App. at 301. At the entry of his guilty plea,

Hunter disputed the State’s assertion that his offender score was five, based on

out-of-state convictions. Id. at 302. At sentencing, the prosecutor admitted that the

State was unable to prove that one of the out-of-state convictions was comparable

to a Washington felony, therefore Hunter’s offender score should be a four.

Defense counsel then expressly conceded that the only other conviction Hunter

challenged was properly included in the offender score and thereby the standard

range was accurate. j~çj~ This court held that due to the defense’s affirmative

acknowledgement as to the accuracy of the state’s classification of the remaining

out-of-state convictions, the sentencing court properly included them within the

offender score and no further proof was necessary for the court to consider.

       In the present case, Palmer entered two pleas in which he separately

admitted guilt to burglary in the second degree and assault in the fourth degree.

In addition to the State’s reduction of the felony from a Class A strike offense back

to a Class B non-strike, the plea agreement provided that the prosecution would

not file charges on two other pending criminal referrals and that the City of Seattle

would dismiss three misdemeanor cases pending in Seattle Municipal Court. The

jointly recommended sentence was for a residential DOSA that provided for

completion of residential chemical dependency treatment and compliance with



                                        -4-
No. 78328-9-1/5

community custody supervision in lieu of prison time. The second page of the plea

agreement filed with the court states:

       The defendant agrees to this Plea Agreement and that the attached
       sentencing guidelines scoring form(s) (Appendix A), offender score,
       and the attached Prosecutor’s Understanding of Defendant’s
       Criminal History (Appendix B) are accurate and complete and that
       the defendant was represented by counsel or waived counsel at the
       time of prior conviction(s). The State makes the sentencing
       recommendation set forth in the State’s sentence recommendation.
       An essential term of this agreement is the parties’ understanding of
       the standard sentencing range(s); if the parties are mistaken as to
       the offender score on any count, neither party is bound by any term
       of this agreement. The defendant agrees that his score for this
       offense is a 5.

(Emphasis in original). The document provides an area for Palmer to note an

objection regarding prior convictions and set out the basis for the objection. The

form does not contain a mark in the objection box that would indicate Palmer

disputed any of the criminal history referenced therein.       Palmer and defense

counsel signed the plea agreement document on the same page as the paragraph

discussing criminal history and the express agreement to an offender score of five.

As explained in that paragraph, more detailed information regarding the

convictions used to calculate the agreed offender score was included in Appendix

B to the plea agreement including title of charges, New York cause numbers, and

dates of conviction.

       The signed plea agreement filed with the court expressly includes an

affirmative acceptance by the defendant, and his counsel, of an offender score of

five without disputing the validity or comparability of the New York convictions. The

court did not err by imposing a sentence based upon the agreed offender score




                                         -5-
No. 78328-9-1/6

and was not required to engage in comparability analysis under these

circumstances.

      Affirmed.




                                          r
WE CONCUR:




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