                                                                           FILED 

                                                                        AUGUST 12,2014 

                                                                   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. 31200-3-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
DENNIS LEROY SPROUL,                           )          UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. - Dennis Sproul, having been convicted of second degree

burglary, appeals the trial court's calculation of his offender score, its finding at the time

of sentencing that it had considered his present or future ability to pay legal fmancial

obligations (LFOs), and its order that he begin making payments toward the LFOs

immediately. Because Mr. Sproul, at sentencing, affinnatively acknowledged the

existence and comparability of the out-of-state convictions that he now seeks to challenge

and failed to object to the LFO finding and payment order, we will not consider either

challenge on appeal. We affinn the judgment and sentence.

                     FACTS AND PROCEDURAL BACKGROUND

       Dennis Sproul was found guilty of one count of burglary in the second degree

under RCW 9A.S2.030(1) following a jury trial. Mr. Sproul's criminal history provided
No. 31200-3-111
State v. Sproul


to the trial court before sentencing included Montana convictions for two counts of

felony theft. In its sentencing memorandum, the State argued that the Montana felony

theft convictions were comparable to Washington's offense of theft in the second degree,

a class C felony, and should count toward his criminal history for sentencing purposes.

The State submitted a certified copy of a judgment from Powell County, Montana,

reflecting the fact that Mr. Sproul was sentenced in January 2006 to two counts of felony

theft based upon a guilty plea.

       At the sentencing hearing, the following exchange occurred between the trial

court; Prosecutor Walter Edgar; and Mr. Sproul's defense lawyer, Jeffrey Barker:

              [THE COURT:] Mr. Edgar, is the state ready? 

              MR. EDGAR: The state is ready, your Honor. 

              Your Honor, I guess I have a question for Mr. Barker. And that is as 

       to-whether or not Mr. Sproul is agreeing to the state's determination of
       criminal history, number of convictions and offender score.
              MR. BARKER: I guess I didn't hear what he wanted me to agree to.
              THE COURT: The-
              MR. BARKER: We do agree that­
              THE COURT: -convictions and­
              MR. BARKER: -there are-­
              THE COURT: -offender score.
              MR. BARKER: Well, we do agree that there are two convictions
       out of Snohomish County, a burglary and a violation of no-contact order,
       which ran concurrent according to the judge and were same criminal
       history. In our opinion-in my opinion that makes that a two-point felony.
       Mr. Sproul indicates that he was told by the judge at that time that it would
       be a one-point felony. I told him that judge was inaccurate.
              There are also two additional theft charges in Montana both of
       which were felony offenses in Montana and also would be here. Each of
       those would count a point.
              And there is a Chelan County-possession of stolen property.

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No. 31200-3-111
State v. Sproul


              So under my rendition ofit, he would be a five.
              THE COURT: Mr. Edgar?
              MR. EDGAR: And that is what the state would have as well, your
       Honor. Those same convictions, and an offender score of five, with a
       standard range of 17 to 22 months.
              THE COURT: Is that the standard range you get, Mr. Barker? 

              MR. BARKER: Yes. 

              THE COURT: Okay. 

              MR. EDGAR: Your Honor, ifthere's no further discussion about 

       criminal history and any other matter I'm ready to proceed with a
       recommendation.
              THE COURT: Okay.

Report of Proceedings (RP) at 144-46 (emphasis added). There was no further discussion

about criminal history, other than Mr. Sproul's personal objection to treating his

Snohomish County convictions as supporting two points.

       In announcing Mr. Sproul's sentence, the trial court stated that it would "agree

with the state's sentencing memorandum as to these thefts in Montana, that they count as

... thefts in Washington, [as] Class C felonies-. And the court would find that Mr.

Sproul [has an offender score of] five." RP at 148. He did not engage in a comparability

analysis. Mr. Sproul's lawyer did not object to the court's failure to conduct a

comparability analysis, to the court's inclusion of the two Montana convictions in

calculating the offender score, or to the court's reliance on a standard range that was

based on an offender score of five.

       The judgment and sentence ordered Mr. Sproul to pay LFOs of $1 ,950,

comprising a $500 victim assessment, a $200 filing fee, a $250 jury demand fee, $400 in



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No. 31200-3-III
State v. Sproul


court appointed attorney fees, a $500 fine under RCW 9A.20.021, and a $100 DNA

(deoxyribonucleic acid) collection fee. This was the amount requested by the State, to

which Mr. Sproul raised no objection.

       While the trial court did not ask any questions or make any statements during the

sentencing hearing about Mr. Sproul's present or future ability to pay the LFOs, the

judgment and sentence included a preprinted paragraph 2.5 stating that "[t]he Court has

considered the total amount owing, the defendant's present, and future ability to pay legal

financial obligations, including the defendant's financial resources and the likelihood that

the defendant's status will change." Clerk's Papers (CP) at 98. The court ordered that

Mr. Sproul begin making monthly payments of$25 per month immediately.

       Mr. Sproul appeals.

                                        ANALYSIS

       Mr. Sproul makes two assignments of error. Firs't, he contends that the trial court

erred in including two Montana felony theft convictions in his offender score because (1)

the court failed to conduct a comparability analysis and (2) the State did not prove that

the offense was comparable to a felony in Washington. Second, he argues that an

implied finding that he had the present or future ability to pay the LFOs was not

supported by the record. For reasons that we address in tum, both issues were waived.




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No.31200-3-III
State v. Sproul


                    I. Including Montana Convictions in Offender Score

       A defendant's offender score, together with the seriousness level of his current

offense, dictates the standard sentence range used in determining his sentence. RCW

9.94A.530(l). To calculate the offender score, the court relies upon its determination of

the defendant's criminal history, comprising "the list of a defendant's prior convictions

and juvenile adjudications, whether in this state, in federal court, or elsewhere." RCW

9.94A.030(11). A prior conviction from another state is included in a defendant's

offender score only if the foreign crime is comparable to a Washington felony. See id;

RCW 9.94A.525(3). The State bears the burden of proving by a preponderance of the

evidence the existence and comparability of the out-of-state offenses. State v. Ross, 152

Wn.2d 220,230, 95 P.3d 1225 (2004).

       Notwithstanding the State's usual burden of proof, where a defendant

affirmatively acknowledges that his prior out-of state conviction is comparable and

properly included in his offender score, the trial court needs no further evidence or

analysis. State v. Wilson, 170 Wn.2d 682, 244 P.3d 950 (2010). In such a case, the

defendant waives the right to later raise a factual dispute over comparability, while

retaining the right to later raise a legal dispute. Ross, 152 Wn.2d at 231. To determine

whether a dispute is factual, we ask whether any facts must be acknowledged or

compared in order to determine whether the out-of-state conviction is comparable to a

Washington felony offense. Cf Wilson, 170 Wn.2d at 690 (finding that a legal question

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No. 31200-3-III
State v. Sproul


as to felony versus misdemeanor status is presented if "no facts must be acknowledged,

or compared").

       For the first time on appeal, Mr. Sproul points out a discrepancy between the

certified Montana judgment presented by the State and the trial court's identification of

the date of the Montana crimes and convictions set forth in the judgment and sentence.

The certified copy ofthe Powell County, Montana, judgment filed by the State bears a

January 2006 date. Yet in sentencing Mr. Sproul for the Washington crimes, the court

listed his two Powell County, Montana, convictions for felony theft as having a

sentencing date in July 2005 and a "date of crime" of August 3,2004. CP at 97. Relying

on the August 2004 crime date, Mr. Sproul argues that the Montana statutes defining

felony theft in effect on that date was broader than felony theft in Washington, meaning

that, to determine comparability, it would be necessary to look into the record of his

Montana conviction to determine whether his conduct would have constituted felony

theft in Washington-something that was not done below. This possible factual dispute

was waived, however, by Mr. Sproul's acknowledgment at the time of sentencing that

"[t]here are also two additional theft charges in Montana both of which were felony

offenses in Montana and also would be here. Each of those would count a point." RP at

145. I The date discrepancy between the certified copy of the Montana judgment and the



       I If, as appears may be the case, the trial court made a clerical mistake in listing
the dates of Mr. Sproul's Montana crimes and sentencing in the judgment and sentence,

                                              6

No. 31200-3-III
State v. Sproul


trial courfs listing of his criminal history does not change the fact that Mr. Sproul waived

any issue over the existence or comparability of two Montana felony theft convictions.

       Mr. Sproul's acknowledgement of the existence and comparability of two

Montana felony theft convictions allowed the trial court to include them in the offender

score calculation without further proof of classification. State v. Ford, 137 Wn.2d 472,

483 n.5, 973 P.2d 452 (1999). And our Supreme Court held in Ross that no denial of due

process occurs where a defendanfs affirmative acknowledgement of the existence and

comparability of out-of-state convictions relieves the State of its burden of proving those

facts. 152 Wn.2d at 232-33.

                            II.    Legal Financial Obligations

       The trial court was not presented with evidence or argument bearing on Mr.

Sproul's present or future ability to pay LFOs other than Mr. Sproul's statement, when

given the opportunity to allocute, that "I want to--<1o my best to change my life and

make better choices; that's for sure. That's all I can say. I'm sick ofthis life." RP



Mr. Sproul's remedy was to file a motion under CrR 7.8(a), which provides that
       [c]lerical mistakes in judgments, orders or other parts of the record ... may
       be corrected by the court at any time of its own initiative or on the motion
       of any party and after such notice, if any, as the court orders. Such
       mistakes may be so corrected before review is accepted by an appellate
       court, and thereafter may be corrected pursuant to RAP 7 .2(e).
A clerical error is one that, when amended, "would correctly convey the intention of the
court based on other evidence." State v. Priest, lOO Wn. App. 451, 456, 997 P.2d 452
(2000).

                                             7

No. 31200-3-III
State v. Sproul


at 148. Evidence of ability to pay was unnecessary to support the mandatory financial

obligations imposed by the court and, with respect to the financial obligations that were

discretionary, Mr. Sproul made no objection at the sentencing hearing and thereby failed

to preserve a claim of error.

       The $500 victim assessment, $100 DNA collection fee, and $200 criminal filing

fee are each required irrespective of the defendant's ability to pay. State v. Lundy, 176

Wn. App. 96,102,308 P.3d 755 (2013) (noting that, for these costs, "the legislature has

directed expressly that a defendant's ability to pay should not be taken into account").

       As to the discretionary LFOs, a sentencing court is subject to a statutory

requirement that it take some account of a defendant's ability to pay them in the future.

State v. Duncan, _    Wn. App. _ , _       P.3d _,2014 WL 1225910, at *2, petition for

review filed, No. 90188-1 (Wash. April 30, 2014); RCW 10.01.160(3); RCW

9.94A.760(2). Yet the rule established by each division of this court is that a defendant

may not challenge for the first time on appeal either a sentencing court's compliance with

the statutory requirement or its determination of his ability to pay. Duncan, 2014 WL

1225910, at *6; State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08,petitionfor

review filed, No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn. App. 906,

911,301 P.3d 492, review granted, 178 Wn.2d 1010 (2013). Mr. Sproul did not object in

the trial court to the trial court's finding or its payment order. We will not consider his

challenges to them. RAP 2.5(a).

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            No. 31200-3-111
            State v. Sproul


                  Affirmed.

                  A majority of the panel has determined that 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.



                                                             ~,
                                                         Siddoway, C.J.
                                                                                      t!-
                                                                                        i!J:­
            WE CONCUR:



            Fe~~'S
            Rawson, J.P. T. \.




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