IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 77197-3-1
                      Respondent,
                                                                                                  C.
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                                                   DIVISION ONE                           -
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               V.                                                                   o         -
                                                                                    o
                                                   PUBLISHED OPINION                rn
                                                                                              I


 HAROLD ROBERT MARQUETTE,
                                                                                          -
                      Appellant.                   FILED: December 17, 2018
                                                                                    9?
                                                                                    r.)
       APPELWICK, C.J. — A jury found Marquette guilty of possession of a stolen—,

vehicle. He appeals the trial court's calculation of his offender score. He argues

that a prior out-of-state conviction, which is not factually or legally comparable to

a Washington criminal offense, and his subsequent confinement, do not interrupt

the washout period under RCW 9.94A.525(2)(c). We reverse and remand to the

trial court for resentencing.

                                      FACTS

       A jury found Harold Marquette guilty of possession of a stolen vehicle. At

sentencing, the State introduced documents showing 10 convictions prior to 2007

for class C felonies or equivalent crimes: 3 convictions for forgery(1988 and 1990),

2 Washington convictions for taking a motor vehicle without permission (1990), 1

conviction for second degree theft (1993), 1 conviction for attempting to elude a

pursuing police vehicle (1994), 1 conviction for third degree assault of a child
No. 77197-3-1/2


(1996), and 2 California convictions for taking a motor vehicle without permission

(2001 and 2004).

       The State also introduced evidence that, following these 10 convictions, on

May 4, 2007, Marquette pleaded guilty in Shasta County, California to 2 counts of

lewd or lascivious acts with a child under 14 years old. The California court

sentenced Marquette to 9 years of confinement. It granted him credit for 286 actual

days in custody, plus 42 days for "custody conduct credit."

       At sentencing in this case, the trial court determined that Marquette's 2007

California offenses of lewd and lascivious conduct could not be included in his

Washington offender score.      But, the court agreed with the State that the

noncomparable California offense had "resulted in conviction and . . . significant

incarceration," and therefore prevented washout of any of his previous offenses

under RCW 9.94A.525(2)(c). The court therefore counted all 10 of the other felony

convictions towards the offender score. Since the 4 convictions for taking a motor

vehicle counted triple, his offender score was 18. RCW 9.94A.525(20). The court

sentenced Marquette to a standard range sentence of 56 months of confinement.

Marquette appeals

                                  DISCUSSION

       The key issue in this case is whether an out-of-state conviction can prevent

washout of a defendant's prior felony convictions under RCW 9.94A.525(2)(c).

The issue is a question of statutory interpretation, which is a question of law this

court reviews de novo. State v. Ervin 169 Wn.2d 815, 820, 239 P.3d 354 (2010).

When interpreting a statute, the court's objective is to determine the legislature's


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intent. State v Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). We give effect

to the statute's plain meaning when it can be determined from the statute's text.

Id. If the statute is still susceptible to more than one interpretation after we conduct

a plain meaning review, then the statute is ambiguous and we rely on statutory

construction, legislative history, and relevant case law to determine legislative

intent. Id.

       RCW 9.94A.525(2)(c) governs when class C felony convictions may be

included in a person's offender score. That statute provides, in relevant part,

      [glass C prior felony convictions . . . shall not be included in the
      offender score if, since the last date of release from confinement.
      pursuant to a felony conviction, if any, or entry of judgment and
      sentence, the offender had spent five consecutive years in the
      community without committing any crime that subsequently results
      in a conviction.

RCW 9.94A.525(2)(c). In construing this section, our courts have broken it down

into two clauses: a "'trigger" clause, which identifies the beginning of the five year

period, and a "continuity/interruption" clause, which sets forth the substantive

requirements an offender must satisfy during the five year period.1 Ervin, 169

Wn.2d at 821 (quoting In re Pers. Restraint of Nichols, 120 Wn. App. 425, 432, 85

P.3d 955 (2004)).

       Marquette argues that he must be resentenced, because the trial court

improperly calculated his offender score by failing to recognize that his prior felony



       1 A conviction for any crime which interrupts the five year period, does not
simply pause the running of that period during incarceration, it starts a new five
year period running upon return to the community. See Ervin 169 Wn.2d at 821
("Because Ervin was then convicted, this crime implicated the
continuity/interruption clause, effectively resetting the five-year clock.").

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convictions "washed out" pursuant to RCW 9.94A.525(2)(c). He argues that only

an offense that is comparable to a Washington crime can interrupt the washout

period for felonies under RCW 9.94A.525(2)(c). And, he asserts that, because his

2007 California conviction is not factually comparable to a Washington crime, the

washout period for his earlier convictions ran from his 2007 release from felony

confinement, and therefore he must be resentenced based on an offender score

of zero.

       The State disagrees with Marquette's framing of the case. It does not

address the "continuity/interruption" clause argument. Instead it argues the issue

involves application of the "trigger" clause of the statute. The State asserts that

the trigger date is Marquette's 2015 release from custody in California for the lewd

or lascivious offense. It argues that, because Marquette was confined in California

for over a year, this satisfies the definition of a felony in RCW 9A.04.040(2).

       It is the sole province of our state legislature to define criminal conduct in

our state. See Mclnturf v. Horton, 85 Wn.2d 704, 706, 538 P.2d 499(1975)("The

power to decide what acts shall be criminal, to define crimes, and to provide what

the penalty shall be is legislative."). It defined crimes and classes of crimes:

              (1)     An offense defined by this title or by any other statute
       of this state, for which a sentence of imprisonment is authorized,
       constitutes a crime. Crimes are classified as felonies, gross
       misdemeanors, or misdemeanors.
              (2)     A crime is a felony if it is so designated in this title or by
       any other statute of this state or if persons convicted thereof may be
       sentenced to imprisonment for a term in excess of one year.




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RCW 9A.04.040. The plain language of this statute does not encompass crimes

defined by the law of other states or federal law that are not crimes under

Washington law.

       By contrast, when the legislature was addressing scoring offenses not

committed in Washington for purposes of sentencing, it specifically addressed how

to treat out-of-state convictions and federal convictions:

       Out-of-state convictions for offenses shall be classified according to
       the comparable offense definitions and sentences provided by
       Washington law. Federal convictions for offenses shall be classified
       according to the comparable offense definitions and sentences
       provided by Washington law. If there is no clearly comparable
       offense under Washington law or the offense is one that is usually
       considered subject to exclusive federal jurisdiction, the offense shall
       be scored as a class C felony equivalent if it was a felony under the
       relevant federal statute.

RCW 9.94A.525(3). The test for whether out-of-state crimes are also crimes in

Washington—comparable crimes—is addressed in State v. Morley, 134 Wn.2d

588, 952 P.2d 167(1998)and In re Pers. Restraint of Lavery, 154 Wn.2d 249, 111

P.3d 837 (2005). The court uses a two-part test. Lavery 154 Wn.2d at 255.

       First, the court analyzes legal comparability by comparing the elements of

the out-of-state offense to the most comparable Washington offense. Morley 134

Wn.2d at 605-06. Here, the parties agreed that Marquette's 2007 offense did not

satisfy the legal prong of the test.

       Second, if the offenses are not legally comparable, the court analyzes

factual comparability. See Lavery 154 Wn.2d at 255-57. Offenses are factually

comparable when the defendant's conduct would have violated a Washington

statute. Morley 134 Wn.2d at 606. The court may rely on only facts that were


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admitted, stipulated, or proved to the fact finder beyond a reasonable doubt.

Lavery 154 Wn 2d at 258. The State concedes that Marquette's guilty plea did

not include facts that would make the offense comparable to child molestation in

Washington. And, at sentencing, the trial court agreed with Marquette that, under

Lavery it could not look beyond the facts acknowledged in the guilty plea. Thus,

the second prong of the test was not satisfied either.

       The trial court applied that test and properly concluded that Marquette's

2007 lewd and lascivious conviction is not comparable to any Washington crime.

But, the court then agreed with the State that the noncomparable California offense

had "resulted in conviction and . . . significant incarceration," and therefore

prevented washout of any of his previous offenses under RCW 9.94A.525(2)(c).

This was error.

       While the length of imprisonment referenced in RCW 9A.04.040(2) may

make a crime a felony as opposed to a misdemeanor, the threshold question is

whether the conduct is in fact a crime—a crime recognized under Washington

law—not merely conduct that is criminal in nature. RCW 9A.04.040(1); RCW

9.94A.525(3). That determination is properly made under the comparability

analysis. Under the comparability analysis, Marquette's crime in California was

not a crime—let alone a felony crime—in Washington. Therefore, the State's

argument that because Marquette's 2007 California conviction resulted in a

sentence for more than a year, the underlying crime is a felony for purposes of the

"trigger" clause, fails.




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      For the same reason, Marquette's argument, that the California offense is

not comparable to a Washington crime and does not interrupt the washout period,

is correct. The issue is addressed in State v. Crocker, 196 Wn. App. 730, 385 P.3d

197(2016). In Crocker, the defendant had an Oregon drug conviction from March

2000, and an Oregon offensive littering conviction from September 2009. Id. at

733. The issue was whether the defendant's 2009 Oregon offensive littering

conviction prevented his 2000 drug conviction from washing out under RCW

9.94A.525(2)(c). Id at 734. On appeal, this court stated,

      When our legislature enacted the offender score statute, RCW
      9.94A.525, it intended to "[treat] defendants with equivalent prior
      convictions in the same way, regardless of whether their prior
      convictions were incurred in Washington or elsewhere." Therefore,
      the legislature's intent that offenders be treated the same way
      applies equally to the washout provision. When an out-of-state
      conviction is alleged to interrupt the washout period under RCW
      9.94A.525(2)(c), the trial court must determine whether the out-of-
      state crime or conviction is legally or factually comparable to a
      Washington offense.

Id at 736 (alteration in original)(footnote omitted)(citation omitted)(quoting State

v. Weiand, 66 Wn. App. 29, 34, 831 P.2d 749 (1992)). The parties agreed that

Crocker's Oregon offensive littering conviction was not legally or factually

comparable to a Washington felony or misdemeanor, and the only comparable

Washington offense was a civil infraction. Id at 736-37. Therefore, this court held

that the out-of-state conviction was not "any crime" that interrupted the washout

period. Id. at 737.

       Here, the trial court correctly concluded that the 2007 California conviction

was not comparable to a Washington crime, and therefore could not be included



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in his offender score. Under the same reasoning, that crime is not a comparable

Washington crime for purposes of the washout statute—for either the trigger

clause or the continuity/interruption clause.   It would be incongruous if only

"comparable" out-of-state crimes are adequate to commence a washout period by

virtue of the commission of a continuity/interruption "crime" (consistent with

Crocker and Ervin), but a "noncomparable" out-of-state felony may trigger a

washout period by virtue of a release from confinement pursuant to a "felony

conviction."   As a result, the trial court erred in finding that the substantial

incarceration of the noncomparable California conviction precluded washout under

RCW 9.94A.525.

       Further, in supplemental briefing, Marquette argues that, because of his

indigence, the trial court erred under State v. Ramirez      Wn.2d      , 426 P.3d

714(2018)in imposing discretionary legal financial fees. On remand, the trial court

should reconsider the criminal filing fee and criminal lab fee imposed on Marquette

in light of Ramirez.

       We reverse and remand to the trial court for resentencing.




WE CONCUR:



Ala,T.

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