                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         February 6, 2019



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 49614-3-II

                                Respondent,
                                                              UNPUBLISHED OPINION
         v.

    BENJAMIN JEROME WILLIAMS,

                                Appellant.


        MAXA, C.J. – Benjamin Williams appeals his sentence of life confinement without the

possibility of release under the Persistent Offender Accountability Act (POAA), RCW

9.94A.570, for his conviction of second degree rape. He also appeals his conviction of fourth

degree assault on double jeopardy grounds.1

        The trial court found that Williams qualified as a persistent offender under the POAA

based on his current second degree rape conviction and a prior conviction of attempted first

degree rape in Oregon. The court ruled that the Oregon conviction was factually comparable to

attempted second degree rape in Washington, a strike offense under the POAA.

        We hold that (1) the trial court did not err in finding that Williams’s Oregon conviction of

attempted first degree rape was a prior conviction under the POAA because it was factually




1
 Williams also was convicted of second degree assault, third degree rape of a child, third degree
child molestation, and unlawful imprisonment. However, he does not challenge those
convictions.
No. 49614-3-II


comparable to attempted second degree rape in Washington, (2) having the trial court find by a

preponderance of the evidence that he had a prior strike offense under the POAA rather than

having the jury find that fact beyond a reasonable doubt does not violate the right to a jury trial

and due process or equal protection under controlling authority, (3) Williams’s convictions for

both second degree and fourth degree assault violate double jeopardy because the trial court did

not instruct the jury that each charge had to be based on separate criminal conduct, and (4) the

trial court will be able to address on remand the imposition of a criminal filing fee as part of

Williams’s sentence and a scrivener’s error in recording Williams’s criminal history.

       Accordingly, we affirm Williams’s sentence under the POAA for his second degree rape

conviction, vacate Williams’s fourth degree assault conviction, and remand to the trial court for

resentencing consistent with this opinion.

                                              FACTS

       In 2005, Williams pleaded guilty to attempted first degree rape and fourth degree assault

in Oregon. Williams’s petition to enter a guilty plea stated that he unlawfully and intentionally

attempted, by forcible compulsion, to engage in sexual intercourse with the victim and

unlawfully and recklessly caused physical injury to the victim.

       In 2014, the State charged Williams with second degree rape, third degree child rape,

third degree child molestation, second degree assault with an enhancement factor for intent to

commit a felony with sexual motivation, fourth degree assault, and unlawful imprisonment with

sexual motivation. After trial, the jury found Williams guilty of all counts, but found that

Williams did not have a sexual motivation for either the second degree assault or unlawful

imprisonment convictions.




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No. 49614-3-II


       At sentencing, the State presented certified copies of the judgment and sentence for

Williams’s 2005 Oregon conviction of attempted first degree rape. The trial court found that

Williams’s Oregon conviction of attempted first degree rape was factually comparable to

attempted second degree rape in Washington. Therefore, the court ruled that the Oregon

conviction constituted a strike offense under the POAA.

       The trial court sentenced Williams to a term of life in prison without the possibility of

release as a persistent offender for the second degree rape conviction based on his current

conviction and his Oregon conviction of attempted first degree rape. The court also sentenced

Williams to 70 months confinement for the second degree assault conviction and 364 days

confinement as a consecutive sentence for the fourth degree assault conviction.

       Williams appeals the trial court’s finding that his Oregon conviction of attempted first

degree rape was factually comparable to attempted second degree rape in Washington and his

conviction of fourth degree assault.

                                           ANALYSIS

A.     COMPARABILITY OF OREGON OFFENSE

       Williams argues that the trial court erred in finding that his 2005 Oregon conviction of

attempted first degree rape was a prior strike offense for purposes of the POAA. He argues that

the Oregon conviction was not factually comparable to attempted second degree rape in

Washington. We disagree.

       1.   Legal Principles

       RCW 9.94A.570 states that anyone convicted as a persistent offender shall be sentenced

to a term of total confinement for life without the possibility of release. Under former RCW

9.94A.030(37) (2012), the definition of persistent offender includes someone who twice has been




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No. 49614-3-II


convicted of certain listed offenses in Washington or convicted of comparable out-of-state

offenses. Those listed offenses include both second degree rape and attempted second degree

rape. Former RCW 9.94A.030(37)(b)(i). We review de novo whether an offense can be

classified as a strike offense under former RCW 9.94A.030(37). See State v. Latham, 183 Wn.

App. 390, 396-97, 335 P.3d 960 (2014).

       For an out-of-state offense to be classified as a prior conviction for purposes of the

POAA, that offense must be comparable to a Washington offense that is listed in former RCW

9.94A.030(37). See Latham, 183 Wn. App. at 397. The State has the burden of proving by a

preponderance of the evidence that an out-of-state offense is comparable to a Washington

offense. Id. at 398.

       We apply a two-part test to determine whether an out-of-state offense is comparable to a

Washington offense. In re Pers. Restraint of Canha, 189 Wn.2d 359, 367, 402 P.3d 266 (2017).

First, we determine if the offenses are legally comparable by comparing their elements. Id.

Second, if the offenses are not legally comparable we determine whether the offenses are

factually comparable by deciding if “the defendant’s conduct would have violated a Washington

statute.” Id. In assessing factual comparability, we can consider only those facts in the out-of-

state proceeding that were proven to a trier of fact beyond a reasonable doubt or to which the

defendant admitted or stipulated. Id. Admitted facts include facts in the defendant’s plea

statement. State v. Arndt, 179 Wn. App. 373, 381, 320 P.3d 104 (2014).

       Here, the State concedes that attempted first degree rape in Oregon is not legally

comparable to attempted second degree rape in Washington. The State argues and the trial court

found that the offenses are factually comparable.




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       2.    Factual Comparability Analysis

       Williams pleaded guilty to attempted first degree rape and fourth degree assault in the

2005 Oregon proceeding. In his petition to enter a guilty plea, Williams stated:

       I did unlawfully [and] intentionally attempt, by forcible compulsion, to engage in
       sexual intercourse [with] [victim] [and] as part of the same act and transaction I did
       unlawfully [and] recklessly cause physical injury to [victim].

Clerk’s Papers at 124. The question here is whether that admitted conduct would have supported

a conviction of attempted second degree rape in Washington.

       In Washington, a person is guilty of second degree rape if he or she engages in sexual

intercourse by forcible compulsion. RCW 9A.44.050(1)(a). And in Washington, criminal

attempt is defined as any act which is a substantial step toward the commission of a crime with

intent to commit that specific crime. RCW 9A.28.020(1). Accordingly, to be factually

comparable to attempted second degree rape, Williams’s admitted conduct must have

demonstrated that he (1) specifically intended to engage in sexual intercourse by forcible

compulsion, and (2) took a substantial step towards the completion of that crime. See State v.

DeRyke, 149 Wn.2d 906, 913, 73 P.3d 1000 (2003).

             a.   Forcible Compulsion

       Williams argues that his admission that he attempted by forcible compulsion to engage in

sexual intercourse fails to establish forcible compulsion under Washington law because Oregon

has a broader definition of that term. We disagree.

       In Washington, “forcible compulsion” is defined as “physical force which overcomes

resistance, or a threat, express or implied, that places a person in fear of death or physical injury

to herself or himself or another person.” RCW 9A.44.010(6) (emphasis added). The degree of

physical force required to constitute forcible compulsion must be more than that required to




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No. 49614-3-II


achieve penetration and must be directed at overcoming the victim’s resistance. State v. Corey,

181 Wn. App. 272, 277, 325 P.3d 250 (2014).

       Oregon’s definition of forcible compulsion is “to compel by (a) Physical force; or (b) A

threat, express or implied, that places a person in fear of immediate or future death or physical

injury to self or another person.” Former OR. REV. STAT. (ORS) 163.305(2)(2009) (emphasis

added). The Oregon statute does not expressly require physical force that overcomes resistance.

       However, the Washington and Oregon definitions of forcible compulsion essentially are

the same. There is no meaningful difference between using physical force to compel an act and

using physical force to overcome resistance to engage in that act. Compelling a person to engage

in an act necessarily implies that the person is resisting. Otherwise, there would be no need to

compel the act.

       We hold that Williams’s Oregon offense is factually comparable to attempted second

degree rape in Washington with regard to the specific intent requirement.

             b.   Substantial Step

       Williams also argues that his admitted conduct in his plea statement did not articulate a

substantial step toward committing second degree rape, which is a necessary element of

attempted second degree rape. We disagree.

       In Washington, criminal attempt is defined as any act which is substantial step toward the

commission of a crime with intent to commit that specific crime. RCW 9A.28.020(1). In

Oregon, criminal attempt requires “intentionally engag[ing] in conduct which constitutes a

substantial step toward commission of the crime.” ORS 161.405(1) (emphasis added). “A

‘substantial step’ is an act that is ‘strongly corroborative’ of the actor’s criminal purpose.” State

v. Wilson, 1 Wn. App. 2d 73, 83, 404 P.3d 76 (2017) (quoting State v. Johnson, 173 Wn.2d 895,




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No. 49614-3-II


899, 270 P.3d 591 (2012)). Williams admitted in his plea statement that he intentionally

attempted by forcible compulsion to engage in sexual intercourse with the victim. Therefore, by

admitting his attempt, Williams admitted that he took a substantial step toward engaging in

sexual intercourse by forcible compulsion.

        Williams argues that his plea statement did not articulate a specific substantial step. But

his statement indicated that he took an act which amounted to forcible compulsion, which clearly

would constitute a substantial step. And Williams provides no authority for the proposition that

a defendant must admit to specific conduct for an out-of-state attempt offense to be comparable

to a Washington attempt offense.

        We hold that Williams’s Oregon offense is factually comparable to attempted second

degree rape in Washington with regard to the substantial step requirement.

             c.   Summary

        Williams’s plea statement is sufficient to show that he intended to engage in sexual

intercourse with the victim by forcible compulsion and took a substantial step toward that act.

Therefore, Williams’s Oregon offense of attempted first degree rape is factually comparable to

the Washington offense of attempted second degree rape. Accordingly, we hold that the trial

court did not err in ruling that the Oregon conviction constituted a strike offense under the

POAA.

B.      TRIAL COURT FINDING PRIOR STRIKE OFFENSE

        Williams argues that his POAA sentence is invalid because having the trial court find by

a preponderance of the evidence that he had a prior strike offense under the POAA rather than

having the jury find that fact beyond a reasonable doubt violates (1) the right to a jury trial and

due process, and (2) equal protection. We disagree.




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No. 49614-3-II


          1.   Right to Jury/Due Process

          Williams claims that he has a constitutional right to have a jury find, beyond a reasonable

doubt, that he had a prior strike offense under the POAA. But this claim is inconsistent with

United States Supreme Court and Washington Supreme Court precedent.

          In Apprendi v. New Jersey, the United States Supreme Court held that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530

U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis added). Whether a

defendant had a prior strike offense under the POAA is a fact of a prior conviction.

          Williams argues that subsequent developments in United States Supreme Court

jurisprudence have eroded Apprendi’s prior conviction exception. But our Supreme Court has

stated that based on Apprendi, “We have consistently held that the existence of a prior conviction

need not be presented to a jury and proved beyond a reasonable doubt.” State v. Olsen, 180

Wn.2d 468, 473, 325 P.3d 187 (2014). And our Supreme Court has expressly stated that the

“argument that recent United States Supreme Court precedent dictates that his prior convictions

must be proved to a jury beyond a reasonable doubt is unsupported.” State v. Witherspoon, 180

Wn.2d 875, 892, 329 P.3d 888 (2014).

          We hold that having the trial court find by a preponderance of the evidence that he had a

prior strike offense under the POAA did not violate Williams’s right to a jury trial or due process

rights.

          2.   Equal Protection

          Williams argues that having the trial court find by a preponderance of the evidence that

he had a prior strike offense under the POAA when elements of crime must be proved to the jury




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No. 49614-3-II


beyond a reasonable doubt violates the equal protection clause of the Fourteenth Amendment.

He claims that treating sentencing factors differently than elements of a crime cannot withstand

scrutiny.

       We previously held that the State has a rational basis for treating sentencing factors under

the POAA differently than elements of a crime, and that the POAA does not violate equal

protection. State v. McKague, 159 Wn. App. 489, 517-19, 246 P.3d 558, affirmed on other

grounds by 172 Wn.2d 802 (2011). Both Division One and Division Three of this court have

agreed. State v. Williams, 156 Wn. App. 482, 496-98, 234 P.3d 1174 (2010); State v. Langstead,

155 Wn. App. 448, 453-57, 228 P.3d 799 (2010). Williams has not presented any compelling

reason to disregard this authority.

       We hold that having the trial court find by a preponderance of the evidence that he had a

prior strike offense under the POAA did not violate Williams’s right to equal protection.

C.     DOUBLE JEOPARDY

       Williams argues, and the State concedes, that his convictions of second degree assault

and the lesser included offense of fourth degree assault violate double jeopardy. We agree.

       The constitutional guarantee against double jeopardy protects defendants from being

punished multiple times for the same offense. State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803

(2011); see U.S. CONST. amend. V; WASH. CONST. art. I, § 9. We review double jeopardy claims

de novo. State v. Classen, 4 Wn. App. 2d 520, 531, 422 P.3d 489 (2018). The remedy for a

violation of double jeopardy is to vacate the lesser charge or the charge that carries a lesser

sentence. State v. Albarran, 187 Wn.2d 15, 21-22, 383 P.3d 1037 (2016).

       Where the trial court fails to adequately instruct the jury that it must find that each

conviction was based on separate and distinct conduct, the possibility that a defendant may




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No. 49614-3-II


receive multiple punishments for the same criminal conduct violates double jeopardy. Mutch,

171 Wn.2d at 662. Multiple convictions violate double jeopardy if it was not “ ‘manifestly

apparent to the jury that the State [was] not seeking to impose multiple punishments for the same

offense.’ ” Id. at 664 (alteration in original) (quoting State v. Berg, 147 Wn. App. 923, 931, 198

P.3d 529 (2008)).

       Here, the State did not argue and the trial court did not instruct the jury that the second

degree assault and fourth degree assault charges must be based on separate facts or conduct.

Because the court did not provide a separate and distinct conduct instruction, it was not clear to

the jury whether the same act that constituted second degree assault also could be the basis for

the fourth degree assault conviction.

       We accept the State’s concession and hold that Williams’s convictions of second degree

assault and fourth degree assault violate double jeopardy. Accordingly, we vacate Williams’s

conviction of fourth degree assault and remand to the trial court for resentencing.

D.     CRIMINAL FILING FEE

       Williams argues that the trial court’s imposition of a criminal filing fee as part of his

sentence must be vacated under the 2018 amendments to RCW 36.18.020(2)(h), which now

prohibits imposition of the criminal filing fee on an indigent defendant. Because we remand for

resentencing on other issues, the trial court will be able to address this issue at resentencing.

E.     SCRIVENER’S ERROR

       Williams argues, and the State concedes, that the trial court erred by recording two

Oregon convictions of second degree assault as comparable to class B felonies in Washington in

his criminal history in the judgment and sentence. Because we remand for resentencing on other

issues, the trial court will be able to correct this scrivener’s error in Williams’s criminal history.




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No. 49614-3-II


                                          CONCLUSION

        We affirm Williams’s sentence under the POAA for his second degree rape conviction,

vacate Williams’s fourth degree assault conviction, and remand to the trial court for resentencing

consistent with this opinion.

        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, C.J.


 We concur:



 MELNICK, J.



 SUTTON, J.




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