                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 10, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 51026-0-II

                               Respondent,

        v.

 RICHARD SCOTT MCLAUGHLIN,                                    UNPUBLISHED OPINION

                               Appellant.

       CRUSER, J. — Richard McLaughlin appeals his sentence for delivery of a controlled

substance – methamphetamine. He argues that the trial court erred by finding a 1991 Ohio

conviction for gross sexual imposition factually comparable to the Washington crime of second

degree child molestation. McLaughlin also challenges the trial court’s imposition of legal financial

obligations (LFOs) despite a finding of indigence.

       Because the trial court relied on facts included in the indictment that were directly related

to the elements of the 1991 Ohio conviction, we hold that the trial court did not err in finding

factual comparability and affirm that determination. However, we reverse McLaughlin’s sentence

and remand his case for resentencing using a correct offender score. Regarding LFOs, we hold

that the trial court did not err in imposing the crime victim penalty assessment but remand to the

trial court to amend McLaughlin’s judgment and sentence to reflect that the crime victim penalty

assessment cannot be satisfied from funds that are subject to 42 U.S.C. § 407(a) and strike the

criminal filing fee. Additionally, we remand for the trial court to determine whether the State has
No. 51026-0-II


already collected McLaughlin’s deoxyribonucleic acid (DNA), and upon submission of a verified

petition of indigence, make an individualized inquiry into McLaughlin’s ability to pay the crime

analysis laboratory fee.

                                             FACTS

       On February 2, 2016, McLaughlin was arrested at his residence for delivery of

methamphetamine based on a controlled purchase operation set up with a confidential informant.

On September 6, the State charged McLaughlin with delivery of a controlled substance

(methamphetamine). Following trial, a jury found McLaughlin guilty.

       During sentencing, the State argued that McLaughlin’s offender score was 4 with a range

of “20 plus to 60 months” due to McLaughlin’s relevant criminal history. 1 Verbatim Report of

Proceedings (VRP) at 312. The crimes included in the relevant criminal history were (1) a 2009

Skamania County conviction for failure to register as a sex offender, (2) a 2002 Skamania County

conviction of possession of controlled substance – methamphetamine, and (3) a 1991 Ohio

conviction of gross sexual imposition. The State used McLaughlin’s 1991 Ohio conviction as a

multiplier of McLaughlin’s possession of a controlled substance conviction, but did not count the

Ohio conviction as a point in his offender score. The State presented a certified copy of the Ohio

indictment.   The relevant language contained within the Ohio indictment on gross sexual

imposition is as follows:

               The Grand Jurors of the County of Hamilton, in the name and by authority
       of the State of Ohio, upon their oaths do find and present that Richard S.
       McLaughlin, on or about the 3rd day of July in the year Nineteen Hundred and
       Ninety-One at the County of Hamilton and State of Ohio aforesaid, had sexual
       contact with [DLB], a person who was not Richard S. McLaughlin’s spouse at the
       time, and the said [DLB] was less than thirteen years of age.



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No. 51026-0-II


Second Suppl. Exs. at 3-4.1

       The State argued that the Ohio crime of gross sexual imposition was comparable to second

degree child molestation in the State of Washington. Although the trial court stated that the

definition of “sexual contact” is “somewhat broader” out of Ohio, it ruled that “the sexual contact

would fit under Washington law of sexual contact if he’d committed those acts . . . in the State of

Washington.” 1 VRP at 324-25. The trial court adopted the State’s argument and set the offender

score at 4 with a standard sentencing range of “20 to 60 months.” Id. at 325. The court imposed

a “midrange” sentence of 40 months. Id. at 326.

       The trial court imposed mandatory LFOs, including (1) a criminal filing fee, (2) a DNA

collection fee, (3) a crime laboratory fee, and (4) a crime victim penalty assessment. McLaughlin

testified that he is disabled and receives social security disability benefits. The trial court found

McLaughlin indigent and waived the mandatory drug fine.

                                            ANALYSIS

                       I. COMPARABILITY OF OUT-OF-STATE CONVICTIONS

       McLaughlin first argues that the trial court erred in finding the Ohio conviction factually

comparable to the Washington crime of second degree child molestation because it relied on

unproven facts. He argues that the documents reviewed by the trial court at sentencing—the

indictment, plea agreement, and judgment and sentence—were not documents that the trial court



1
 In 1991, McLaughlin was charged with one count of felonious sexual penetration and one count
of gross sexual imposition. He pleaded guilty to the reduced charge of “Gross Sexual Imposition
F/3” on count 1 and “Gross Sexual Imposition With Specification F/3” on count 2. Second Suppl.
Exs. at 6. Only one count of gross sexual imposition was used to calculate McLaughlin’s offender
score. However, the record does not indicate which count the court used to calculate his offender
score.

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No. 51026-0-II


is permitted to review in determining factual comparability. He contends that the State cannot

present “facts” to prove comparability without violating his rights to proof beyond a reasonable

doubt and trial by a jury. Appellant’s Opening Br. at 11. McLaughlin further argues that the State

failed to prove that the plea to having committed gross sexual imposition under former 29 Ohio

Rev. Code § 2907.05 (1990) was for conduct that would have amounted to second degree child

molestation if committed in Washington. We disagree with McLaughlin’s contentions.

A. STANDARD OF REVIEW AND PRINCIPLES OF LAW

       We review the classification of out-of-state convictions for sentencing purposes de novo.

State v. Jackson, 129 Wn. App. 95, 106, 117 P.3d 1182 (2005). To determine the comparability

of a foreign offense, Washington courts first determine whether the foreign offense is legally

comparable—meaning, whether the elements of the foreign offense are substantially similar to the

elements of the Washington offense. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).

If the elements of the crimes are not identical or the foreign statute is broader, the court then

determines factual comparability.2 State v. Olsen, 180 Wn.2d 468, 473, 325 P.3d 187 (2014).

       Offenses are factually comparable when the conduct for which the defendant was convicted

would have violated a Washington statute. Id. at 473. To determine factual comparability, the

court may rely only on any facts that were admitted, stipulated, or proved to the fact finder beyond

a reasonable doubt. Id. at 473-74. The State bears the burden of providing sufficient evidence to

prove by a preponderance of the evidence that a foreign offense is comparable with a Washington

offense. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 252, 111 P.3d 837 (2005).



2
 The State concedes that the 1991 Ohio conviction is not legally comparable. Thus, we address
only the factual comparability prong.

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No. 51026-0-II


       “‘[T]he sentencing court may look at the defendant’s conduct, as evidenced by the

indictment or information, to determine whether the conduct would have violated the comparable

Washington statute.” State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998) (quoting State v.

Mutch, 87 Wn. App. 433, 437, 942 P.2d 1018 (1997)). When a defendant pleads guilty, the only

acts conceded are “the elements of the crime stated in the indictment.” State v. Bunting, 115 Wn.

App. 135, 143, 61 P.3d 375 (2003).

B. RELEVANT OHIO AND WASHINGTON STATUTES

       On August 28, 1991, McLaughlin pleaded guilty to “Gross Sexual Imposition With

Specification F/3.” Second Suppl. Exs. at 6-7. The relevant language of the Ohio law on “Gross

Sexual Imposition” at the time of the 1991 conviction is as follows:

               (A)    No person shall have sexual contact with another, not the spouse of
       the offender; cause another, not the spouse of the offender, to have sexual contact
       with the offender; or cause two or more persons to have sexual contact when any
       of the following applies:
               ....
               (4)    The other person, or one of the other persons, is less than thirteen
       years of age, whether or not the offender knows the age of that person.

Former 29 OHIO REV. CODE § 2907.05 (1990).

       Ohio defined “sexual contact” as “any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,

for the purpose of sexually arousing or gratifying either person.” Former OHIO REV. CODE §

2907.01(B) (1990).

       The State compared the Ohio offense to the Washington offense of second degree child

molestation under RCW 9A.44.086(1) which states, in relevant part,

       A person is guilty of child molestation in the second degree when the person has,
       or knowingly causes another person under the age of eighteen to have, sexual

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No. 51026-0-II


        contact with another who is at least twelve years old but less than fourteen years
        old and not married to the perpetrator and the perpetrator is at least thirty-six
        months older than the victim.

C. FACTUAL COMPARABILITY

        McLaughlin argues that the trial court erred by finding his 1991 Ohio conviction for gross

sexual imposition factually comparable to the Washington crime of second degree child

molestation. McLaughlin contends that the trial court erred because the State did not prove the

age of the victim beyond a reasonable doubt, and at the time McLaughlin pleaded guilty, the crime

of gross sexual imposition was a strict liability offense. We disagree.

        1. AGE OF THE VICTIM

        McLaughlin argues that the State “relied on the allegation that the victim was less than 13

as if it was proven, saying that proved that the defendant [McLaughlin] was convicted in Ohio of

a specific section of the statute affected people that age, rather than any of the other sections of the

Ohio law.” Appellant’s Opening Br. at 14. He relies on the fact that the plea form documents did

not contain a statement of facts regarding age. However, this argument misinterprets the law.

        When making a factual comparability analysis, the sentencing court is not limited to facts

contained in the plea form documents. See Morley, 134 Wn.2d at 606. In fact, “‘the sentencing

court may look at the defendant’s conduct, as evidenced by the indictment or information, to

determine whether the conduct would have violated the comparable Washington statute.’” Id.

(quoting Mutch, 87 Wn. App. at 437). Additionally, “the State need not independently prove those

facts related to the foreign conviction that were admitted by the defendant.” State v. Releford, 148

Wn. App. 478, 482, 200 P.3d 729 (2009).




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No. 51026-0-II


       The Ohio indictment stated, under the second count for gross sexual imposition, that

McLaughlin “had sexual contact with [DLB], a person who was not Richard S. McLaughlin’s

spouse at the time, and the said [DLB] was less than thirteen years of age.” Second Suppl. Exs. at

4. While it is true that courts must remain focused on the elements of the charged crime, Morley,

134 Wn.2d at 606, the victim’s age is a relevant element of the 1991 crime of gross sexual

imposition. Former OHIO REV CODE § 2907.05(A)(4). When McLaughlin pleaded guilty to gross

sexual imposition, he conceded to the “elements of the crime stated in the indictment.” Bunting,

115 Wn. App. at 143. Therefore, McLaughlin conceded to the fact that “[DLB] was less than

thirteen years of age.” Second Suppl. Exs. at 4.

       2. STRICT LIABILITY

       McLaughlin further argues that the State failed to prove that the plea to having committed

gross sexual imposition was for conduct that would have amounted to second degree child

molestation if committed in Washington because at the time of his conviction, gross sexual

imposition, as proscribed by former 29 Ohio Rev. Code § 2907.05, did not require proof of a

culpable mental state. We disagree.

       At the time of McLaughlin’s gross sexual imposition conviction in 1991, former 29 Ohio

Rev. Code § 2907.05 required proof of sexual contact. Ohio defined “sexual contact” as “any

touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock,

pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.” Former OHIO REV. CODE § 2907.01(B) (emphasis added). McLaughlin

refers this court to Ohio v. Astley, 36 Ohio App. 3d 247, 250, 523 N.E.2d 322 (1987), where the

Tenth Appellate District of Ohio interpreted gross sexual imposition to be “a strict liability offense


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No. 51026-0-II


and requires no precise culpable state of mind. All that is required is a showing of the proscribed

sexual contact.” Former 29 OHIO REV. CODE § 2907.05.

       However, other Ohio appellate courts did not agree with Astley. In April 1991, months

before McLaughlin’s conviction in October 1991, the Fourth District held that the “assertion that

there is no mens rea element in proving sexual contact is misplaced based on the clear language”

of former 29 Ohio Rev. Code § 2907.01(B). In re Matter of Grigson, 1991 WL 62177 at *3 (Ohio

Ct. App.). In 1992, the Ohio Supreme Court decided whether evidence was sufficient to prove the

element of purpose, specifically whether the defendant engaged in “innocent contact” with his

daughter or his contact was “for the purpose of sexual arousal and gratification.” Ohio v. Schaim,

65 Ohio St. 3d 51, 57, 600 N.E.2d 661 (1992). In 1994, the Second District interpreted the

definition of “sexual contact” under former 29 Ohio Rev. Code § 2907.01 and held that a culpable

mental state is required for a gross sexual imposition conviction. Ohio v. Mundy, 99 Ohio App.

3d 275, 288, 650 N.E.2d 502 (1994). The Mundy court held that in order to convict the defendant

of the offense, the state must prove beyond a reasonable doubt that “the defendant’s subjective

purpose or specific intention” in touching the victim was sexual arousal or gratification. Id.

       Here, the mens rea element of the Ohio offense is substantially similar to the elements of

the Washington offense. At the time of the conviction in Ohio, “sexual contact” was defined as

“any touching of an erogenous zone of another, including without limitation the thigh, genitals,

buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing

or gratifying either person.”     Former OHIO REV. CODE § 2907.01(B) (emphasis added).

Washington defined “sexual contact” as “any touching of the sexual or other intimate parts of a

person done for the purpose of gratifying sexual desire of either party.” RCW 9A.44.010(2)


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No. 51026-0-II


(emphasis added). Both offenses require the offender touch the victim for a sexual purpose or

intent. Without this element, nothing would distinguish sexual imposition or child molestation

from ordinary assault and from noncriminal touching.

       Because the facts in the indictment were conceded in the guilty plea, Bunting, 115 Wn.

App. at 143, and both offenses contain the element of touching of the sexual or other intimate parts

of another “for the purpose of gratifying sexual desire of either party,” the 1991 Ohio conviction

is factually comparable to the Washington crime of second degree child molestation at the time

the crime took place. RCW 9A.44.010(2), .086(1); former OHIO REV. CODE § 2907.05.

                                        II. OFFENDER SCORE

       The trial court determined that McLaughlin’s offender score was 4. The parties agree that

the court used the 1991 Ohio conviction as a multiplier of his possession of a controlled substance

conviction. However, the court did not count McLaughlin’s 1991 Ohio conviction as a point in

his offender score. The parties concede that if McLaughlin’s 1991 Ohio conviction is factually

comparable, as we determined above, the sentencing court erred when it failed to include the 1991

Ohio conviction as a point in McLaughlin’s offender score. The State argues that the offender

score error is harmless. We disagree.

       Under the Sentencing Reform Act of 1981, ch. 9.94A RCW, a sentencing court is required

to properly calculate the offender score before imposing a sentence. State v. Parker, 132 Wn.2d

182, 189, 937 P.2d 575 (1997). “A sentencing court acts without statutory authority . . . when it

imposes a sentence based on a miscalculated offender score.” In re Pers. Restraint of Johnson,

131 Wn.2d 558, 568, 933 P.2d 1019 (1997).




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No. 51026-0-II


        The parties concede that the sentencing court erroneously excluded McLaughlin’s Ohio

conviction from his offender score, thereby finding his offender score was a 4 with a standard

range of 20 to 60 months. Under RCW 9.94A.517, McLaughlin’s standard range remains 20+ to

60 months whether his offender score is a 4 or a 5. RCW 9.94A.517(1). The State argues that

because the standard range would not have changed, any error in calculating McLaughlin’s

offender score was harmless. RCW 9.94A.517(1).

        We hold that McLaughlin’s correct offender score is a 5; however, we cannot conclude this

error was harmless. We cannot know that the sentencing court would impose the same sentence

using the correct offender score, and we are required to remand for the sentencing court to

recalculate his offender score because the sentencing court acted without statutory authority when

it imposed a sentence based on a miscalculated offender score.3 Johnson, 131 Wn.2d at 568.

                                III. LEGAL FINANCIAL OBLIGATIONS

        McLaughlin challenges the sentencing court’s imposition of the criminal filing fee, the

DNA collection fee, the crime laboratory fee, and crime victim penalty assessment. We remand

to the trial court to strike the criminal filing fee, consider whether the State has previously collected

McLaughlin’s DNA, and, upon submission of a verified petition of indigence, consider

McLaughlin’s ability to pay the crime laboratory fee. However, we affirm the crime victim penalty

assessment.




3
  We do not suggest by this opinion that the trial court is foreclosed from imposing the same
sentence. We remand because the sentence must be predicated on an accurate offender score.
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No. 51026-0-II


A. CRIMINAL FILING FEE

       Recent legislation prohibits the imposition of certain LFOs, including the criminal filing

fee, on a defendant who is indigent under RCW 10.101.010(3)(a)-(c). RCW 36.18.020(h); State

v. Ramirez, 191 Wn.2d 732, 746, 426 P.3d 714 (2018). These statutory amendments apply

prospectively to cases pending on appeal. Ramirez, 191 Wn.2d at 747.

       A person is indigent under RCW 10.101.010(3)(a) if he or she receives public assistance,

including disabled assistance benefits, at any stage of the court proceeding. At sentencing, the

court found McLaughlin was indigent under RCW 10.101.010(3)(a) because McLaughlin receives

disabled assistance benefits. Therefore, the trial court’s imposition of the criminal filing fee on

McLaughlin is prohibited.

B. DNA COLLECTION FEE

       The legislature recently amended RCW 43.43.7541 and established that the DNA

collection fee is no longer mandatory if the offender’s DNA has been previously collected as a

result of a prior conviction. LAWS OF 2018, ch. 269, § 18. RCW 43.43.7541 requires the collection

of a DNA sample from every adult or juvenile convicted of a felony. McLaughlin has two prior

felony convictions in Washington, but the record on appeal is silent as to whether the State

previously collected his DNA. If such collection occurred, the trial court’s imposition of the DNA

collection fee was improper.

       On remand, the trial court must determine whether McLaughlin previously had a DNA

sample collected. The burden is on the State to show that McLaughlin has not previously provided

a DNA sample before the court may impose a DNA collection fee. See State v. Houck, 9 Wn. App.

2d 636, 651, 446 P.3d 646 (2019).


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No. 51026-0-II


C. CRIME LABORATORY ANALYSIS FEE

        The sentencing court ordered McLaughlin to pay a crime laboratory fee. RCW 43.43.690

governs the mandatory imposition of the crime laboratory fee. RCW 43.43.690(1) states,

        When an adult offender has been adjudged guilty of violating any criminal statute
        of this state and a crime laboratory analysis was performed by a state crime
        laboratory, in addition to any other disposition, penalty, or fine imposed, the court
        shall levy a crime laboratory analysis fee of one hundred dollars for each offense
        for which the person was convicted.

        However, “[u]pon a verified petition by the person assessed the fee, the court may suspend

payment of all or part of the fee if it finds that the person does not have the ability to pay the fee.”

RCW 43.43.690(1). Here, the record is silent as to whether McLaughlin has petitioned the trial

court to suspend the crime laboratory fee. On remand, if McLaughlin submits a verified petition,

the trial court shall determine whether to impose the crime laboratory fee.

D. CRIME VICTIM PENALTY ASSESSMENT

        The sentencing court also ordered McLaughlin to pay a crime victim penalty assessment.

Indigency as defined in RCW 10.101.010(3)(a) through (c), is not grounds for failing to impose

the crime victim penalty assessment under RCW 7.68.035. RCW 9.94A.760(1). Therefore, the

victim penalty assessment remains a mandatory LFO. State v. Catling, 193 Wn.2d 252, 259, 438

P.3d 1174 (2019).

        Additionally, receipt of disabled assistance benefits also does not relieve a defendant from

the imposition of the crime victim penalty assessment. Id. at 264. However, the Social Security

Act’s antiattachment provision states that social security moneys cannot be reached to satisfy a

debt. Catling, 193 Wn.2d at 264; 42 U.S.C. § 407(a). Therefore, the crime victim penalty

assessment cannot be satisfied by funds subject to 42 U.S.C. § 407(a). Catling, 193 Wn.2d at 264-


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No. 51026-0-II


65. Accordingly, we remand to the trial court to amend the judgment and sentence to reflect that

the crime victim penalty assessment cannot be satisfied out of funds subject to 42 U.S.C. § 407(a).

                                         CONCLUSION

        We affirm the sentencing court’s determination that McLaughlin’s 1991 Ohio conviction

of gross sexual imposition is factually comparable to the Washington crime of second degree child

molestation. However, we reverse his sentence, and remand for resentencing using the correct

offender score. On remand, we instruct the trial court to strike the criminal filing fee and amend

McLaughlin’s judgment and sentence to reflect that the victim penalty assessment cannot be

satisfied from funds that are subject to 42 U.S.C. § 407(a). We further instruct the court to

determine whether the State has already collected McLaughlin’s DNA and if he submits a verified

petition, to make an individualized inquiry into McLaughlin’s ability to pay the crime laboratory

fee. However, we affirm the crime victim penalty assessment.

        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 2.06.040,

it is so ordered.



                                                     CRUSER, J.
 We concur:



 WORSWICK, J.




 LEE, A.C.J.


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