                                                               FILED
                                                            AUGUST 15, 2019
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )         No. 35847-0-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
MICHAEL A. SMITH,                            )
                                             )
                     Appellant.              )

       PENNELL, J. — On January 3, 2018, Michael Alan Smith was found guilty of

attempting to elude a pursuing police vehicle, reckless driving, and driving while license

suspended in the first degree. At sentencing, the State filed a statement of Mr. Smith’s

prior convictions to demonstrate his criminal history and that his offender score was 10.

No other documentation was provided in support of Mr. Smith’s criminal history. Mr.

Smith did not affirmatively acknowledge his criminal history, nor did he object to it

during sentencing. The trial court sentenced Mr. Smith to consecutive standard-range

sentences for the three offenses.
No. 35847-0-III
State v. Smith


       Mr. Smith appeals his judgment and sentence, asserting that his constitutional due

process rights 1 were violated because the State’s criminal history list illustrating Mr.

Smith’s prior convictions was unsupported, and he did not acknowledge his criminal

history at sentencing. The State concedes that it did not provide supporting

documentation establishing the existence of Mr. Smith’s prior convictions, and that

Mr. Smith did not acknowledge his criminal history. It also stipulates that remand for

resentencing is appropriate.

       Sentencing errors resulting in unlawful sentences may be raised for the first time

on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). The State has the

burden of establishing a defendant’s prior criminal history by a preponderance of the

evidence to determine his or her offender score at sentencing. State v. Ford, 137 Wn.2d

472, 479-80, 973 P.2d 452 (1999). The State’s burden is relieved only when the

defendant affirmatively acknowledges his or her prior criminal history. State v. Hunley,

175 Wn.2d 901, 912, 917, 287 P.3d 584 (2012). Because Mr. Smith did not affirmatively

acknowledge his criminal history, the State was not relieved of its burden to prove the

facts and information necessary to justify use of Mr. Smith’s prior convictions in

calculating his offender score. Id. at 912. Therefore, remand for resentencing is



       1
           U.S. CONST. amend. XIV; WASH. CONST., art. I, § 3.

                                              2
No. 35847-0-III
State v. Smith


appropriate. See State v. Richmond, 3 Wn. App. 2d 423, 436-37, 415 P.3d 1208, review

denied, 191 Wn.2d 1009 (2018).

       Mr. Smith also submitted a statement of additional grounds for review,

challenging his trial counsel’s license to practice law and performance. These arguments

relate to facts and materials that exist outside the record. The proper avenue for bringing

claims based on evidence outside the record is through a personal restraint petition, not a

direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We

therefore decline to review these arguments.

       We vacate Mr. Smith’s sentence and remand to the trial court for resentencing

consistent with the terms of this decision. Mr. Smith’s request to deny appellate costs to

the State is rendered moot since he is the prevailing party on review.

       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.

                                          _________________________________
                                          Pennell, J.

WE CONCUR:



______________________________            _________________________________
Lawrence-Berrey, C.J.                     Fearing, J.

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