                                                                               F.!E.
                                                                                l D
                                                                        COURT OF APPEALS
                                                                              DIVISIM 11
                                                                       2013 APR -2 AN 8: 50

                                                                        STAI E OF WASHINGTON

                                                                        BY.
                                                                               MfUTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION. II

STATE OF WASHINGTON,                                                  No. 43388 5 II
                                                                                - -


                              Respondent,

         V.




LAWRENCE BURCH,                                                 UNPUBLISHED OPINION




              BRINTNALL,
         QurNN—             J. —     Lawrence Burch appeals from the exceptional sentence

imposed following his Newton plea of guilty to first degree theft, arguing that the trial court
erred in including two out ofstate convictions in his offender score. We reverse and remand for
                           - -

resentencing.

         The State charged Burch with first degree theft and alleged two sentence aggravators:

that the offense was .a major economic offense and that the standard range sentence would be

clearly too lenient. Burch entered his plea allowing the trial court to review the declaration of

probable cause for a factual basis for the plea and the aggravators. The State and Burch agreed

that Burch had five prior convictions: two Washington convictions for first degree theft, one
s
    State v. Newton, 87 Wn. d 363, 373, 552 P. d 682 (1976).See also North Carolina v. Alford,
                          2                  2
400 U. .25, 37, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970).
     S
2
    A commissioner of this court initially considered Burch's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to
            1                                a   panel   of judges.
No. 43388 5 II
          - -



Washington conviction for conspiracy to deliver controlled substances,.one Ohio conviction for

aggravated burglary, and one California conviction for attempted theft of elder over $
                                                                                     400. The

State contended that all five convictions should be included in Burch's offender score, which

would make his offender score 5 and his standard sentence range 14 to 18 months of

confinement. Burch contended that the Ohio and California convictions should not be included

in his offender   score   because   they   were   not    comparable   to   Washington   crimes.   Thus, he

contended that his offender score should be 3, which would make his standard sentence range 4

to 12 months of   confinement. The trial court found that the Ohio and California convictions


were comparable to Washington crimes. It found Burch's offender score to be 5 and his standard

sentence range to be 14 to 18 months. It then found both sentence aggravators were present and

imposed an exceptional sentence of 80 months of confinement.

       Burch argues that the trial court erred in finding that the Ohio and California convictions

were comparable to Washington felonies, as required under RCW 9. ). argues
                                                              525( 4A. He also
                                                                 3
                                                                 9

that the trial court erred in not   conducting     its   comparability analysis   on   the record. State v.


Labarbera, 128 Wn. App. 343; 349, 115 P. d 1038 (2005): The State concedes that the court
                                       3

erred in finding the Ohio and California convictions were comparable to Washington felonies.

But it contends that because the court imposed an exceptional sentence, any error in calculating

Burch's offender score and standard sentence range is harmless.

       When a sentencing court incorrectly calculates the standard range before imposing an

exceptional sentence, remand is the remedy unless the record clearly indicates the sentencing

court would have imposed the same sentence anyway." In re Pers. Restraint of Rowland, 149

Wn. App. 496, 508, 204 P. d 953 (2009) citing State v. Parker, 132 Wn. d 182, 189, 937 P. d
                        3               (                            2                  2

575 (1997)).
           While the record is clear that the trial court would have imposed. an exceptional
                                                         2
No. 43388 5 II
          - -



sentence if Burch's standard sentence range was 4 to 12 months instead of 14 to 18 months, it is

not clear that the trial court would have imposed an 80 month exceptional sentence.
                                                        -

Accordingly, we reverse Burch's sentence and remand for resentencing.

       A majority 'of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
  0



                                                                                 a
                                                    I                    J.
We concur:




HUNT,
         P. ./
          J
                        y



B   R,       J.




                                                3
