                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 17, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 47855-2-II

                               Respondent,

        v.

 ANDREW SMITH,                                               UNPUBLISHED OPINION

                               Appellant.

       MAXA, J. — Andrew Smith appeals his sentence following his conviction for failure to

register as a sex offender. He argues, and the State concedes, that the sentencing court erred by

including a 2001 Oregon conviction for attempted sexual abuse in his offender score because that

offense was not legally or factually comparable to the Washington offense of indecent liberties.

We accept the State’s concession and remand for resentencing.

                                             FACTS

       A judge convicted Smith for failure to register as a sex offender. The sentencing court

calculated Smith’s offender score as 10 based on Smith’s prior convictions, including three

points for a 2001 Oregon conviction for attempted sexual abuse based on conduct that occurred

in 1999. The sentencing court included the Oregon conviction in the offender score because it

found that the Oregon offense was comparable to the Washington crime of indecent liberties.

Smith was sentenced to 43 months, within the standard range for his offender score.

       Smith appeals his sentence.
No. 47855-2-II


                                            ANALYSIS

       We review a trial court’s calculation of a defendant’s offender score de novo. State v.

Olsen, 180 Wn.2d 468, 472, 325 P.3d 187, cert. denied, 135 S. Ct. 287 (2014). An out-of-state

conviction can be included in an offender score if the State meets its burden to prove the

existence of that conviction and can establish that the out-of-state offense is comparable to a

Washington offense. RCW 9.94A.525(3); Olsen, 180 Wn.2d at 472.

       When determining whether an out-of-state conviction is comparable to a similar

Washington offense, we apply a two-part test. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d

580 (2007). First, we determine whether the offenses are legally comparable – whether the

elements of the out-of-state offense are substantially similar to the elements of the Washington

offense. Id. This comparison is based on the elements of the offenses at the time the crime

occurred. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). If the

elements of the out-of-state offense are not substantially similar to the elements of the

Washington offense, they are not legally comparable. Thiefault, 160 Wn.2d at 415.

       Second, even if the offenses are not legally comparable, an out-of-state conviction can

still be included in the offender score if the offenses are factually comparable. Id. We

determine whether the defendant’s conduct underlying the out-of-state conviction would have

violated the Washington statute. Id.

       Here, the Oregon crime of attempted sexual abuse defined in ORS 163.427 and the

Washington crime of indecent liberties defined in former RCW 9A.44.100 (1997) do not have

substantially similar elements. In 1999, former RCW 9A.44.100 required that the victim not be

the offender’s spouse. In 1999 ORS 163.427 contained no such requirement. Therefore, the




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No. 47855-2-II


Washington offense included an element not in the Oregon offense, the two offenses are not

legally comparable.

        Regarding factual comparability, there are insufficient facts in the record to determine

whether Smith could have been convicted under former RCW 9A.44.100 for the conduct

underlying his Oregon conviction. Smith pled no contest to his charges under ORS 163.427.

Neither the indictment nor the plea form that Smith signed contain facts showing whether or not

the victim of that crime was his spouse. Therefore, there are insufficient facts to show factual

comparability.

        We hold that the trial court erred in including Smith’s Oregon conviction for attempted

sexual abuse in his offender score because in 1999 that offense was not comparable to the

Washington offense of indecent liberties. Accordingly, we 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

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.



 We concur:




 WORSWICK, J.




 LEE, J.




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