                                                                                                                t` Gi= APPEALS
                                                                                                               DIVISI0tq 11
                                                                                                      23 P, JAN 22 AN 9. 19
                                                                                                       ST

                                                                                                           Y



      IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                                        i


                                                    DIVISION II


STATE OF WASHINGTON,                                                                 No. 44042 -3 -II


                                        Respondent,


         u



DEDRICK DEMOND THOMAS,                                                          UNPUBLISHED OPINION




         JOHANSON, A.C. J. —            Dedrick Thomas          appeals   his   sentence   for   witness   tampering.   He


argues that the trial court incorrectly concluded that an out -of - tate failure to appear conviction
                                                                  s

was    factually   comparable     to   a   Washington bail      jumping     conviction.     We agree and remand for

                                                         1
resentencing   consistent with         this   opinion.



                                                             FACTS


         In August 2007, a jury convicted Thomas on eight counts of witness tampering alleged to

have occurred between January 6 and 9, 2007. After initially affirming his sentence, we reversed

after our Supreme Court granted Thomas' s petition for review and remanded the case for

reconsideration.     State   v.   Thomas, 158 Wn.            App.   797, 799 -800, 243 P. 3d 941 ( 2010) ( Thomas 1).


We remanded for resentencing on the ground that multiple calls to a single witness should have

been treated as one unit of prosecution. Thomas I, 158 Wn. App. at 802.

1
    A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14 and then referred it to a panel of judges.
No. 44042 -3 -II



          On    remand        in April 2011, the trial court dismissed seven of the eight counts and


resentenced     Thomas.         The trial court calculated the new sentence using an offender score that

included two Arkansas convictions, one for theft (2000) and another for failing to appear ( 2001).

Thomas again appealed and in an unpublished opinion we reversed the sentence on the ground


that the trial court erred in failing to perform an on- the -record comparability analysis of the out-

of - tate convictions
   s                          before   including    them    in the    offender score.   State v. Thomas, noted at 169


Wn.   App.     1006 ( 2012) ( Thomas II).


          On October 5, 2012, the trial court again resentenced Thomas. At the sentencing hearing,

it conducted a comparability analysis of the two convictions. The State did not submit additional

documentation but stated that it was relying on documentation filed under separate cause number

and "   incorporated last time into the            record   in this   case.    Verbatim Report of Proceedings ( VRP)


 Oct. 5, 2012)      at   4.    These documents were the felony informations for both charges and the

judgment and disposition orders.


          The trial court examined the Arkansas theft conviction and compared the Arkansas theft


elements to the       Washington theft                        It
                                                   statute: - - - concluded, "    Based -on the -elements of the two


crimes, I' m going to find that theft in Arkansas that Mr. Thomas was convicted of and theft in

Washington are [ legally] comparable and that finding is by a preponderance of the evidence."

VRP ( Oct. 5, 2012) at 9.


          The    court   then turned to the failure to                appear   conviction.   It acknowledged that the


elements     were "   slightly different," in that Washington had " the mental state requirement of


knowing,"      which     the Arkansas      statute    lacked. VRP ( Oct. 5, 2012)       at   10. It, however, concluded


that the   convictions were "          factually   comparable."        VRP ( Oct. 5, 2012)    at   10.   Consequently, the




                                                                 2
No. 44042 -3 -II


trial   court   used   these   convictions      in calculating Thomas'         s    sentence.    Thomas appeals the


inclusion of the failure to appear conviction in his offender score.

                                                      ANALYSIS


          We review the trial court' s classification of out - state crimes and the trial court' s
                                                             of -


calculation of a defendant' s offender score de novo. State v. Labarbera, 128 Wn. App. 343, 348,

115 P. 3d 1038 ( 2005); State         v.   Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816 ( 2007). " When prior

    of state
out -  -        convictions     are    used    to   increase   an   offender       score,   the State must prove the


conviction would       be   a [ comparable]      felony   under    Washington law."         Labarbera, 128 Wn. App.

at 348; RCW 9. 94A.525( 3).


          An out -of - tate conviction may not be used to increase the defendant' s offender score
                     s

unless the State proves it is equivalent to a felony in Washington. State v. Weiand, 66 Wn. App.

29, 31 - 32, 831 P.2d 749 ( 1992).              If the State fails to establish a sufficient record, then the


sentencing court lacks the necessary evidence to determine if the out -of state convictions should
                                                                          -

be included in the      offender score.        State v. Ford, 137 Wn.2d 472, 480 -81, 973 P. 2d 452 ( 1999).


If the State provides sufficient evidence, the sentencing court `
                                                                must -conduct -
                                                                              the- comparison on

the record. Labarbera, 128 Wn. App. at 349.

          A foreign conviction is equivalent to a Washington offense if there is either legal or

factual comparability.         In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255 -58, 111 P. 3d 837

 2005).     A foreign offense is legally comparable if "the elements of the foreign offense are
                                                                                 2
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 two statutes are not identical or if the




2 The State does not dispute that the statutes are not legally comparable. It, however, argues that
the trial court correctly concluded that that Arkansas conviction was factually comparable.
                                                               3
No. 44042 -3 -II


foreign statute is broader than the Washington definition of the particular crime, the trial court


must   then determine       whether   the    offense      is   factually    comparable.            State v. Morley, 134 Wn.2d

588, 606, 952 P. 2d 167 ( 1998).


          A conviction is factually comparable where the defendant' s conduct would have violated

a comparable      Washington      statute.    In   re   Lavery,       154 Wn. 2d     at   255.      The State bears the burden


of providing sufficient evidence to prove the comparability of prior out -of - tate convictions by a
                                                                             s

preponderance of      the   evidence.   Ford, 137 Wn.2d               at   479 -80. "     In making its factual comparison,

the sentencing court may rely on facts in the foreign record that are admitted, stipulated to, or

proved    beyond    a reasonable      doubt."        Thiefault, 160 Wn.2d               at   415 (   citing In re Lavery, 154

Wn.2d     at   258; State   v.   Farnsworth, 133 Wn.               App.     1,   22, 130 P. 3d 389 ( 2006),         modified on




remand,    2007 WL 1223669;            and    State     v.     Ortega, 120 Wn.            App.      165,   171 -74, 84 P. 3d 935


 2004),   modified on remand,         131 Wn.      App.        591, 128 P. 3d 146 ( 2006), review denied, 160 Wn.2d


1002 ( 2007)). " When the sentencing               court     incorrectly    calculates       the   standard range ...,   remand is


the remedy unless the record clearly indicates the sentencing court would have imposed the same

sentence-anyway."        State v. Parker, 1-32 Wn.2d- 182; 189 937 P. 2d - 75 ( 1997)
                                                                         5

          Thomas' s Arkansas information charging him with failure to appear defined his conduct

as having

          FAILED TO APPEAR for trial                 on    1   count of    Residential       Burglary ( B Felony), in
          violation of   ACA § 5 -39 -201; after having been lawfully set at liberty on the
          condition he appear in the Circuit Court on January 8, 2001, he failed to appear
          being without reasonable excuse, in violation of ACA § 5 -54 -120, all against the
          peace and dignity of the State of Arkansas.




                                                                  M
No. 44042 -3 - II




Ex. 2. At the time he committed the crime, the former Arkansas Code, section 5 -54 -120 ( 1975),

provided:




                    a)    A person commits the offense of failure to appear if he or she fails to
         appear without reasonable excuse subsequent to having been:

                    2)     Lawfully set at liberty upon condition that he or she appear at a
         specified time, place, and court.


         Washington, before July 1, 2001, defined bail jumping as follows:

         Any person having been released by court order or admitted to bail with the
         requirement of a subsequent personal appearance before any court of this state,
         and who knowingly fails to appear as required is guilty of bail jumping.

Former RCW 9A. 76. 170( 1) (             1983).   Bail jumping is a felony when the person is being held on

felony   charges.      Former RCW 9A.76. 170( 3)(           a) -( c).    The " knowingly" element in Washington' s

 former) bail   jumping       statute required       the State to " prove beyond a reasonable doubt that [ the


defendant] knew,         or was aware      that he   was required       to    appear at   the [   scheduled]   hearing."   State


v.   Ball, 97 Wn.   App.    534, 536, 987 P. 2d 632 ( 1999) (            quoting State v. Bryant, 89 Wn. App. 857,

870, 950 P. 2d 1004 ( 1998), review denied, 137 Wn.2d 1017 ( 1999)).


         Thomas' s information provides that he was released " on the condition he appear in the

Circuit Court       on    January 8,     2001,"     that " he failed to         appear"     and that he further lacked a


 reasonable     excuse."       Ex. 2.      In Arkansas, a reasonable excuse may include being released

without   being     advised   in   open court or      by   mail of      the   future   appearance condition.        Stewart v.


State, 362 Ark. 400, 208 S. W.3d 768, 771 ( 2005).                      Because Thomas pled guilty to the amended

information,    which       sets   out   both that he      was   released       upon   the "   condition he appear in the


Circuit Court     on     January   8, 2001,"      and that he lacked a reasonable excuse for failing to appear,

the facts as charged by the State support that Thomas was aware that he was required to appear


                                                                 5
No. 44042 -3 - II



in   court on    January       8, 2001, but failed to do      so.        See Ball, 97 Wn.          App.     at   536.    Thus, the trial


court did not err in concluding that this offense was factually comparable to the Washington bail

jumping offense based on the facts alleged in the information.

           The remaining issue is whether the facts alleged in the information or other documents

before the trial        court amount to an admission                by     Thomas       of   the   facts    charged.       See State v.


Thomas, 135 Wn.              App.   474, 144 P. 3d 1178 ( 2006) (            in order to establish factual comparability,

the State must prove those facts that, when alleged, have not been admitted by the defendant or

proved     by   the State),     review   denied, 161 Wn.2d 1009 ( 2007). The trial court quoted portions of


the information          when     conducting its factual comparability                     analysis.       At sentencing, Thomas

focused on whether the charged facts were factually comparable to the Washington bail jumping

crime and did not specifically argue that these facts were incorrect or that he never admitted

them when entering his plea.3 A challenge to the calculation of the defendant' s offender score

for sentencing purposes may be raised for the first time on appeal, however, including a

challenge       to    classification     of       of state
                                              out -  -        convictions.            Ford, 137 Wn.2d               at   477; State v.


McCorkle! 137 - n2d 490, 973 - 2d 461 ( 1-999). - - - -- - - -- - - - - - - -- - -- - -
              W              P.


           The       court   records   show       that Thomas        entered      a "   negotiated plea of guilty or nolo


contendere"          to the    failure to     appear   charge.           Ex. 1   at   2.     The State did not provide any

documentation to show which type of plea Thomas actually entered, so we examine both types.

In State v. Releford, we held that where the charging state' s law provides that a guilty plea

represents "       an admission of the facts alleged by the government in the charging document,"


3    The   trial      court,    however,      noted    that   in    prior     hearings,       Thomas "           didn' t affirmatively
acknowledge           that those    were    his   convictions."          VRP ( Oct. 5, 2012)         at    6.    It also noted that on
remand      for resentencing, "        He needed to either affirmatively say, yes, I was convicted of those
things, and /or the Court needed to do, on the record, the analysis. VRP ( Oct. 5, 2012 at 11).

                                                                   rel
No. 44042 -3 -II



these facts     can   be   relied upon   by   a   sentencing     court   conducting       a    comparability     analysis.    148


Wn.     App.   478, 488, 200 P. 3d 729 ( 2009) ( noting that in Oklahoma,                         a   guilty   plea "   admits the


facts   pleaded   in the Information "), review denied, 166 Wn.2d 1028 ( 2009).                           This reasoning has

been    extended      to   nolo   contendere      or    no   contest   pleas.    In State Y. Olsen, for example, we

concluded that under California law, a " no contest" plea was considered " the same" as a guilty

plea.   175 Wn.       App.   269, 309 P. 3d 518,        review granted     in   part,   178 Wn.2d 1018 ( 2013);           see also




generally State       v.   Heath, 168 Wn.     App.       894, 900 -01, 279 P. 3d 458 ( 2012) ( considering whether


a   Florida    no contest plea with withheld adjudication counts as a " conviction "),                           review denied,


177 Wn.2d 1008 ( 2013).             Because California law treats a guilty plea as an admission to every

element of the charged crime, we concluded that under the facts set out in the Olsen information,


a no contest plea to a California terroristic threats charge was factually comparable to a

Washington harassment             conviction.          Olsen, 309 P. 3d 525 -26..          Unlike in Releford or Olsen,


however, the State here provides no Arkansas authority to establish that a defendant entering

either a plea of guilty or a nolo contendere plea admits all charged facts.

          Arkansas CrR 24. 6 provide s


          The court shall not enter a judgment upon a plea of guilty or nolo contendere
          without making such inquiry as will establish that there is a factual basis for the
          plea.




With respect to Arkansas pleas under this rule:


                      The requirement of a factual basis for a plea does not require that the
          appellant be proven guilty, but merely that there was sufficient evidence from
          which the trial court could conclude that the appellant would be found guilty if he
          elected to proceed to trial. A factual basis may be established by addressing the

          accused,      the defense    counsel,        the   prosecutor,   or   all   three.    The purpose of the

          factual basis requirement is to prevent an accused from pleading guilty on the
          mistaken assumption that his conduct was unlawful when it was not.




                                                                 7
No. 44042 -3 - II



O' Connor   v.   State, 367 Ark. 173, 238 S. W. 3d 104, 107 ( 2006) ( internal                         citations omitted).     Thus,


because    an    Arkansas trial            court    taking    a    guilty      plea    may     ascertain    the   factual basis "   by

addressing the       accused,   the defense          counsel,     the   prosecutor, or all      three," it does not appear that a



defendant is required to admit the facts as charged by the State when entering a guilty plea.

O' Connor, 238 S. W.2d           at   107. Moreover, for nolo contendere pleas, a defendant is not required


to admit that he committed the charged acts:

          The defendant] was not required to admit his guilt or that he committed the acts
         alleged by the prosecution in order to demonstrate knowledge that his conduct
         was unlawful.  To satisfy the requirements of the rule, the trial court only had to
         determine that the prosecution could present sufficient evidence for a conviction
         in order to determine that there was substantial compliance with Rule 24. 6, not
         that the defendant           was    in   accord or agreement with              that   evidence.     It was simply
         not necessary, under those circumstances, for appellant, who entered a plea of
         nolo contendere, to admit that he committed the acts as described.

O' Connor, 238 S. W.3d at 107 -08.


         It is not clear from. the evidence before the trial court that the sentencing judge complied

with    Arkansas CrR 24. 6            when    Thomas.      entered       his   plea.    And, this rule requires only that the

sentencing judge establish a factual basis for the plea rather than having a defendant admit to the

facts   charged      by   the State   or   having     the State    prove       the facts..    Consequently, because the record

lacks any basis for concluding that Thomas admitted to the charged facts in the failure to appear

information when he entered his plea, we remand for resentencing.

          Thomas      raises additional            issues in his      statement of additional grounds (             SAG).    He first


questions    why his         sentence "      is    not   ran [ sic]     concurrent with another case that I have that


occurred    at   a   totally different        time."       At his most recent resentencing, the parties discussed

running his      present sentence consecutive                to " Cause No.        06 -1- 04327 -0."       RP ( Oct. 5, 2012) at 11.


This    cause number         corresponds          to two 2007         convictions       for   assaults (   first degree   and second
No. 44042 -3 -II



degree) that    occurred       in August 2006       and were sentenced           in March 2007.          The prosecutor noted


that at Thomas' s initial sentencing in November 2007 and first resentencing in April 2011, the

court   imposed    consecutive sentences.              Thomas requested the court impose concurrent sentences.


The court imposed consecutive sentences.


         RCW 9. 94A.589( 3) provides:


         whenever a person is sentenced for a felony that was committed while the person
         was not under sentence for conviction of a felony, the sentence shall run

         concurrently with any felony sentence which has been imposed by any court in
         this or another state or by a federal court subsequent to the commission of the
         crime being sentenced unless the court pronouncing the current sentence
         expressly orders that they be served consecutively.

Here, Thomas committed the assaults that are the subject of the 2006 cause number in August

2006.    He committed the witness tampering crimes that are the subject of the instant appeal in

January 2007. In March 2007, he was sentenced for first and second degree assault. And he was

originally    sentenced        on   the   witness   tampering          conviction   in November 2007.              Thus, RCW,.


9. 94A.589 provides for concurrent sentences unless the trial court " expressly orders" consecutive

sentences.       Here, the trial court had the statutory authority to and did order consecutive

sentences.




         Thomas also states that he wants to challenge the comparability analysis and amount of

criminal   history   points      he   received   for   prior convictions.        We have already addressed Thomas' s

Arkansas failure to            appear   conviction.          We briefly address his Arkansas theft conviction and
                                                                                       4
conclude     that it is   legally   comparable      to   a   Washington     offense.




4
    In Thomas II,         we   examined     the theft        conviction    and   concluded, "     Although it appears that
Thomas' s Arkansas theft conviction was legally comparable to a Washington felony, the
sentencing     court      failed to   conduct    the     requisite     comparability       analysis on   the   record,"   noted at


169 Wn. App. 1006, 2012 WL 2501089, at * 4.

                                                                   C
No. 44042- 3- 11


            At the time of Thomas' s conviction, Arkansas defined theft as follows:

                        a)         A person commits theft of property if he:
                        1)
                         Knowingly takes or exercises unauthorized control over, or makes
           an unauthorized transfer of an interest in, the property of another person, with the
           purpose of depriving the owner thereof, or
                        2)   Knowingly obtains the property of another person, by deception or by
           threat, with the purpose of depriving the owner thereof.

                         b)]( 2)Theft of property is a Class C felony if.
                        A)    The value of the property is less than two thousand five hundred
            dollars ($ 2, 500) but      more    than five hundred dollars ($ 500);      or

                        B)   The property is obtained by threat; or
                        C)    The property is a firearm valued at less than two thousand five
            hundred dollars ($ 2, 500);         or

                        D) The property is a credit card ...           or credit card account number.

                        b)]( 3) Theft of property is a Class           C felony if the property is livestock,
            and   the   value of    the livestock is in    excess of   two   hundred dollars ($ 200).


Former ACA § 5 -36 -103 ( 1997).                 In 2000, when Thomas committed the Arkansas theft offense,


all   of   the   conduct proscribed        in former ACA §           5 -36 -103 constituted a felony in Washington

state.     At that time, Washington defined "[ t] heft" as:


                        a)   To wrongfully obtain or exert unauthorized control over the property
            or services of another or the value thereof, with intent to deprive him of such
            property or services; or
                        b)   By color -or aid _ deception - -
                                              of          to obtain control- overthe -
                                                                                     property or
            services of another or the value thereof, with intent to deprive him of such
            property or services; or
                        To appropriate lost or misdelivered property or services of another, or
                        c)

            the value thereof, with intent to deprive him of such property or services.

Former RCW 9A.56. 020( 1) (               1975). "   Theft in the first degree,"      a class B felony, was defined in

2000 as theft of:


                        a)    Property     or   services   which     exceed( s)   one thousand five hundred
            dollars in value other than a firearm as defined in RCW 9. 41 . 010; or
                        b)    Property of any value other than a firearm as defined in RCW
            9. 4 1. 010 taken from the person of another.




                                                                10
No. 44042 -3 - II



Former RCW 9A. 56. 030( 1) (          1995). " Theft in the        second     degree,"   a class C felony, was defined

as theft of:


                    a)       Property or services which exceed( s) two hundred and fifty dollars
         in value other than a firearm as defined in RCW 9. 41. 010, but does not exceed
         one thousand five hundred dollars in value; or
                    b)  A public record, writing, or instrument kept, filed, or deposited
         according to law with or in the keeping of any public office or public servant; or
                    c)       An access device; or
                    d)       A motor vehicle, of a value less than one thousand five hundred
         dollars.


Former RCW 9A. 56. 040( 1) (          1995).    Thomas' s Arkansas theft conviction was legally comparable

to a Washington felony because " the elements of the foreign offense are substantially similar to

the   elements    of     the Washington        offense."     Thiefault, 160 Wn. 2d          at   415.     The trial court,


therefore, correctly counted this offense when calculating Thomas' s offender score.

         The remaining two points in Thomas' s offender score come from the two previously

mentioned       Washington        felony    assault   convictions.      The parties discussed these convictions


during   the April 21,        2011 sentencing, during which the prosecutor provided copies of the

judgment      and sentence        for these   convictions.        RCW 9. 94A.525( 7) governs the calculation of


offender scores,        providing, " If the    present conviction       is for   a nonviolent offense ...          count one



point   for   each adult prior     felony   conviction."     Thus, Thomas properly received 1 point for each

prior felony conviction.5




5 The two prior assaults were sentenced on the same day. The record does not show whether the
original sentencing court for these convictions or the present sentencing court conducted an
analysis      whether       the    convictions        qualified    as   the      same    criminal       conduct.       RCW
9. 94A.525( 5)(   a)(   i). Nevertheless, the same criminal conduct issue, because it involves factual
determinations and an exercise of discretion by the trial court, cannot be raised for the first time
on appeal.  State v. Nitsch, 100 Wn. App. 512, 523, 997 P. 2d 1000, review denied, 141 Wn.2d
1030 ( 2000).


                                                              11
No. 44042 -3 - II



        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.



                                                                        A   f +


                                                               Johanson, A.C. J.




                                               12
