                                                              FILED 

                                                          February 2, 2016 

                                                    In the Office of the Clerk of Court 

                                                  W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )            No. 32967-4-III
                                              )
                     Respondent,              )
                                              )
              v.                              )            UNPUBLISHED OPINION
                                              )
ZACHERY JOHN SCHERBERT,                       )

                                              )

                     Appellant.               )


       LA WRENCE-BERREY, 1. -      Zachery Scherbert appeals his two convictions for

unlawful possession of a firearm in the first degree. He argues that he received

ineffective assistance of counsel, and that various scrivener's errors in the judgment and

sentence should be corrected. We disagree that Mr. Scherbert received ineffective

assistance of counsel, but agree that multiple scrivener's errors in the judgment and

sentence should be corrected. We therefore affirm his two convictions, but remand for

the trial court to strike various preprinted "X's" in the judgment and sentence.

                                          FACTS

       On October 3,2014, Zachary Scherbert was pulled over in Franklin County for

improper lane travel and suspected driving under the influence. During the traffic stop,
No. 32967-4-II1
State v. Scher bert


Mr. Scherbert told the state trooper that he had previously been convicted of second

degree murder in Nevada. Mr. Scherbert had a loaded .44 caliber black powder pistol in

the cab of his pickup truck and an unloaded .50 caliber black powder rifle in the canopy.

Based on his prior conviction of "Murder in the Second Degree, NV, Cause

#C139746X," the State charged Mr. Scherbert with two counts of unlawful possession of

a firearm in the first degree. Clerk's Papers (CP) at 91-92.

       The case proceeded to a jury trial. Prior to the start of the trial (and outside of the

presence of the jury), Mr. Scherbert's defense counsel told the court the parties stipulated

that Mr. Scherbert's prior Nevada conviction for second degree murder was a "serious

offense" for the two unlawful possession of a firearm charges. Defense counsel

explained that Mr. Scherbert's prior conviction resulted from a guilty plea "with a finding

of some mental illness," and he "was remanded and treated." Report of Proceedings (RP)

(Dec. 15,2014) at 5. Pursuant to Mr. Scherbert's wishes, defense counsel told the court

that the trial strategy was to avoid "any defenses of diminished capacity or that he's not

competent." RP (Dec. 15,2014) at 5-6. Further, defense counsel noted on the record that

he had discussed with Mr. Scherbert the elements the State needs to prove for its case and

the ramifications of stipulating to the predicate "serious offense" element, and that Mr.

Scherbert "appeared to understand." RP (Dec. 15,2014) at 6.



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No. 32967-4-II1
State v. Scherbert


       During the trial, the court instructed the jury that in order to find Mr. Scherbert

guilty, the State must prove the following elements beyond a reasonable doubt:

              (1) That on or about October 3, 2014, the defendant knowingly
       owned a firearm or knowingly had a firearm in his possession or control,
              (2) That the defendant had previously been convicted of a serious
       offense, and
              (3) That the ownership or possession or control of the firearm
       occurred in the State of Washington.

RP (Dec. 15,2014) at 62-63. Pursuant to the stipulation, the trial court instructed the jury

that it "shall consider it to be proved beyond a reasonable doubt that prior to the date of

October 3,2014, defendant previously had been convicted ofa serious felony offense."

RP (Dec. 15,2014) at 40.

       The defense's brief closing statement appeared to focus on the theory that Mr.

Scherbert did not knowingly possess a "firearm" under Washington law because he did

not believe it was illegal for him to have the black powder weapons. The jury found Mr.

Scherbert gUilty.

       The trial court sentenced Mr. Scherbert to 26 months' confinement. The trial court

determined that Mr. Scherbert had an offender score of two based on his prior conviction

of second degree murder in Nevada. The State did not attempt to carry its burden of

proving the prior conviction or that it was comparable to a Washington crime. Defense

counsel did not object to Mr. Scherbert's offender score.

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No. 32967-4-III
State v. Scher bert


       The trial court did not impose either community custody or legal financial

obligations (LFOs) on Mr. Scherbert. During the sentencing hearing, Mr. Scherbert

stated that he had been unable to work, and the trial judge responded, "I find that you are

indigent, unable to pay the court costs." RP (Dec. 16,2014) at 7. However, the judgment

and sentence erroneously contains an "X" next to the following provisions: (1) a finding

that the defendant has the ability or likely future ability to pay the LFOs, (2) an order that

the defendant pay costs for collecting unpaid LFOs, (3) a condition of community custody

that the defendant consents to Department of Correction (DOC) home visits to monitor

compliance with community custody, and (4) and another condition of community

custody that the defendant agrees to comply with any and all DOC conditions.

       Mr. Scherbert appeals. 


                                        ANALYSIS 


1.     Whether Mr. Scherbert was denied his right to effective assistance ofcounsel

       The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S.

668,684-85, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). "A claim of ineffective assistance

of counsel is an issue of constitutional magnitude that may be considered for the first time

on appeal." State v. Kyllo, 166 Wn.2d 856,862,215 P.3d 177 (2009). This court reviews


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No. 32967~4~III
State v. Scherbert


ineffective assistance of counsel claims de novo. State v. Birch, 151 Wn. App. 504, 518,

213 P Jd 63 (2009).

       A defendant carries the burden of demonstrating ineffective assistance of counsel,

and must show "(1) counsel's representation as deficient, that is, it fell below an objective

standard of reasonableness and (2) there was prejudice, measured as a reasonable

probability that the result of the proceeding would have been different." State v.

Humphries, 181 Wn.2d 708, 720, 336 P.3d 1121 (2014); accord State v. McFarland, 127

Wn.2d 322,   334~35,   899 P.2d 1251 (1995). "If either part ofthe test is not satisfied, the

inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

(1996).

       "There is a strong presumption that trial counsel's performance was adequate, and

exceptional deference must be given when evaluating counsel's strategic decisions."

State v. McNeal, 145 Wn.2d 352,362,37 PJd 280 (2002). "When counsel's conduct can

be characterized as legitimate trial strategy or tactics, performance is not deficient."

Kyllo, 166 Wn.2d at 863. "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland, 466 U.S. at 689. Further, the defendant is



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No. 32967-4-II1
State v. Scherbert


prejudiced only if"'the result of the proceeding would have been different but for

counsel's deficient representation.'" Birch, 151 Wn. App. at 518 (quoting McFarland,

127 Wn.2d at 337).

              A. Stipulation ofpredicate "serious offense" element

       The first issue is whether Mr. Scherbert's right to effective assistance of counsel

was violated based on the stipulation that Mr. Scherbert had previously been convicted of

a "serious offense." Under RCW 9.41. 040( 1)( a), a person commits unlawful possession

of a firearm in the first degree "if the person owns, has in his or her possession, or has in

his or her control any firearm after having previously been convicted ... in this state or

elsewhere of any serious offense as defined in this chapter." '" The existence of a

constitutionally valid prior conviction is an essential element of the offense, one the State

must prove beyond a reasonable doubt. '" State v. Lopez, 107 Wn. App. 270, 276, 27 P.3d

237 (2001) (quoting State v. Reed, 84 Wn. App. 379, 384, 928 P.2d 469 (1997».

       Typically, the trial court conducts a comparability analysis where "[0Jut-of-state

convictions are classified according to the comparable offense definitions and sentences

provided in Washington law." State v. Stevens, 137 Wn. App. 460, 465, 153 P.3d 903

(2007) (citing RCW 9.94A.525(3». The comparability analysis for the predicate "serious

offense" element for unlawful possession of a firearm is the same comparability analysis



                                              6

No. 32967-4-III
State v. Scherbert


used for classifying prior out-of-state convictions in determining a defendant's offender

score. RCW 9.94A.525(3); see Stevens, l37 Wn. App. at 465 (unlawful possession of a

firearm); see also State v. Arndt, 179 Wn. App. 373, 378-79, 320 P.3d 104 (2014)

(offender score).

       The key inquiry for determining comparability of an out-of-state conviction is

whether the defendant could have been convicted under a Washington statute for the

same conduct. State v. Thiefault, 160 Wn.2d 409,414-15, 158 P.3d 580 (2007)

(classifying out.of-state convictions for purposes of persistent offender sentencing). A

comparability analysis covers (1) "legal comparability," and (2) "factual comparability."

Arndt, 179 Wn. App. at 378-79. For "legal comparability," the court will compare the

elements of the out-of-state crime to the relevant Washington crime to determine if they

are "substantially similar." Thiefault, 160 Wn.2d at 415. "If the elements of the foreign

offense are broader than the Washington counterpart, the sentencing court must then

determine whether the offense is factually comparable-that is, whether the conduct

underlying the foreign offense would have violated the comparable Washington statute."

Id.

       Stipulation to the predicate "serious offense" element for unlawful possession of a

firearm in the first degree "may not be made over the defendant's known and express


                                            7

No. 32967-4-III
State v. Scher bert


objection." Humphries, 181    ~n.2d   at 714. "When the parties stipulate to the facts that

establish an element of the charged crime, the jury need not find the existence of that

element, and the stipulation therefore constitutes a waiver of the 'right to a jury trial on

that element,' ... as well as the right to require the State prove that element beyond a

reasonable doubt." Id. at 714-15 (quoting United States v. Mason, 85 F.3d 471, 472 (lOth

Cir. 1996)). Therefore, when the defendant expressly objects, "[t]he decision to stipulate

to an element implicates more than merely trial tactics." Id. at 714.

       However, in the event the defendant does not expressly object to the stipulation of

the predicate "serious offense" element, the decision to stipulate to certain facts is an

example of a tactical decision to prevent the jury from learning the nature of the

defendant's prior conviction. See State v. Mierz, 127 Wn.2d 460,476,901 P.2d 286

(1995) ("A stipulation as to facts may represent a tactical decision which mayor may not

bear fruit. "); see also Humphries, 181 Wn.2d at 720 ("Where an attorney does not request

a limiting instruction regarding a prior conviction, courts have applied a presumption that

the omission was a tactical decision to avoid reemphasizing prejudicial information."). If

defense counsel failed to stipulate to the predicate "serious offense" element and the State

attempted to prove the element, there would be a "significant risk that the jury would

declare gUilt ... based upon an emotional response to the [prior] conviction rather than


                                              8

No. 32967-4-III
State v. Scher bert


make a rational decision based upon the evidence." State v. Johnson, 90 Wn. App. 54,

63,950 P.2d 981 (1998) (the State must accept an "Old Chiefstipulation"); see Old Chief

v. United States, 519 U.S. 172, 185, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) ("there can

be no question that evidence of the name or nature of the prior offense [necessary to

establish a prior qualifying conviction] generally carries a risk of unfair prejudice to the

defendant"); see also ER 403.

       Here, defense counsel's use of the "Old Chief stipulation" was a legitimate trial

strategy. First, because Mr. Scherbert's prior Nevada conviction was for second degree

murder, it was reasonable to stipulate to the predicate "serious offense" element to avoid

the possibility of prejudicing Mr. Scherbert in the eyes of the jury. Defense counsel

indicated on the record that he told Mr. Scherbert the legal effects of the stipulation and

that Mr. Scherbert "appeared to understand." RP (Dec. 15,2014) at 6. Second, Mr.

Scherbert bears the burden of proving ineffective assistance of counsel, and nothing in the

record indicates that the State would have been unable to establish comparability.!



       ! A "serious offense" includes any "crime of violence." Former RCW
9.41.010(18)(a) (2013). Second degree murder in Nevada in 1986 included murder
committed with "implied malice," which'" signifies general malignant recklessness of
others' lives and safety or disregard of social duty.'" McCurdy v. State, 107 Nev. 275,
278,809 P.2d 1265 (1991) (quoting Thedford v. Sheriff, Clark County, 86 Nev. 741, 744,
476 P.2d 25 (1970)). This offense is comparable to first degree manslaughter in
Washington, which includes (as it did in 1986) recklessly causing the death of another

                                              9

No. 32967-4-III
State v. Scher bert


Finally, "any defenses of diminished capacity or that [Mr. Scherbert is] not competent"

were not presented at trial based on Mr. Scherbert's wishes. RP (Dec. 15,2014) at 5-6.

The jury's knowledge of Mr. Scherbert's prior conviction involving some findings of

mental illness would have undermined this defense.

       Mr. Scherbert has not overcome the strong presumption that defense counsel's

stipulation to the predicate "serious offense" element, with his consent, was a legitimate

trial tactic. Accordingly, since defense counsel did not perform deficiently, we do not

address whether Mr. Scherbert was prejudiced.

              B. 	    Inclusion ofprior out-of-state conviction in offender score without
                      comparability analysis

       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the

standard range sentence is established by the current offense seriousness score and the

defendant's offender score. RCW 9.94A.530(1); State v. Ford, 137 Wn.2d 472,479,973

P.2d 452 (1999). The defendant's offender score is based on the defendant's criminal

history, including prior convictions. RCW 9.94A.525; State v. Ross, 152 Wn.2d 220,

229,95 P.3d 1225 (2004). In determining criminal history based on out-of-state

convictions, the sentencing court must determine that the out-of-state crime is comparable


person. First degree manslaughter in Washington is a crime of violence and, thus, a
serious offense. RCW 9.41.010(3)(a).

                                             10
No. 32967-4-III
State v. Scherbert


to a Washington crime. RCW 9.94A.525(3). "Only if the convictions are comparable can

the out-of-state conviction be included in the offender score." Arndt, 179 Wn. App. at

378. As mentioned above, the offender score comparability analysis for prior out-of-state

convictions is the same as the comparability analysis for the predicate "serious offense"

element for unlawful possession of a firearm. Stevens, l37 Wn. App. at 465 (unlawful

possession of a firearm); Arndt, 179 Wn. App. at 378-79 (offender score).

       In the typical situation, '" the State bears the burden to prove by a preponderance

of the evidence the existence and comparability of a defendant's prior out-of-state

conviction.'" Birch, 151 Wn. App. at 516 (quoting Ross, 152 Wn.2d at 230). During the

sentencing hearing, "the trial court may rely on no more information than is admitted by

the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of

sentencing." RCW 9.94A.530(2) (emphasis added). Therefore, when the defendant

stipulates to the comparability of a prior out-of-state conviction as an element of a crime,

the trial court can rely on that stipulation for sentencing purposes.

       Mr. Scherbert relies on Thiefault for the argument that he received ineffective

assistance of counsel based on his attorney not objecting to the inclusion of his prior out­

of-state conviction in his offender score without a comparability analysis. However,

Thiefault held that the defendant received ineffective assistance of counsel when the


                                              11 

 No. 32967-4-111
.State v. Scherbert


defense attorney failed to object to a deficient comparability analysis conducted by the

trial court during the sentencing hearing. See Thiefault, 160 Wn.2d at 416-17. Mr.

Scherbert's situation is more analogous to Birch, where the defendant did not receive

ineffective assistance of counsel because "unlike Thiefault, the trial court did not

undertake a comparability analysis because [the defendant] affirmatively acknowledged

the California robbery conviction was properly included in his offender score." Birch,

151 Wn. App. at 519-20 (the defendant "fail[ed] to overcome the strong presumption that

defense counsel's representation was effective").

       Here, the defense stipulated that Mr. Scherbert "had been convicted in this State or

elsewhere of a serious felony offense" for purposes of the predicate "serious offense"

element for unlawful possession of a firearm. CP at 80. By stipulating to the

comparability of Mr. Scherbert's prior Nevada second degree murder conviction for

purposes of the predicate "serious offense" element, Mr. Scherbert also stipulated to the

comparability of the prior conviction for sentencing purposes. See RCW 9.94A.530(2)

(trial court during sentencing may rely on facts "admitted, acknowledged, or proved in a

trial"). As discussed above, this was a completely reasonable trial strategy by the defense.

Mr. Scherbert does not argue, nor does the record indicate, that defense counsel failed to

explain that stipulating to the element at trial would result in the stipulation being used for



                                              12 

No. 32967-4-111
State v. Scherbert


sentencing. Therefore, Mr. Scherbert has "fail [ed] to overcome the strong presumption

that defense counsel's representation was effective" during the sentencing hearing as

well. Birch, 151 Wn. App. at 520. We conclude that Mr. Scherbert did not receive

ineffective assistance of counsel.

2. 	   Whether the judgment and sentence should be remanded so the trial court can
       correct the scrivener's errors

       Although the trial court orally found that Mr. Scherbert did not have the ability or

future ability to pay LFOs, it failed to strike through the preprinted "X" next to the

language that indicated otherwise, and the preprinted "X" requiring Mr. Scherbert to pay

collection costs for unpaid LFOs. Moreover, although the trial court correctly did not put

an "X" next to the community custody box-as the present convictions do not entail

imposition of community custody-a preprinted "X" appears on two community custody

provisions. The State concedes that the judgment and sentence should be amended to

correct the aforementioned LFO provisions, but argues that the conditions of community

custody are irrelevant and do not need to be corrected. Because remand is necessary to

strike the aforementioned LFO provisions, we deem it prudent for the trial court also to

strike the two aforementioned community custody provisions.




                                             13 

No. 32967-4-II1
Staie v. Scherbert


       Affirmed, but remanded for striking scrivener's errors in judgment and sentence.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey, J.

WE CONCUR: 




                                           ~                :r

                                          Feari~t




                                            14 

