                                                                          FILED
                                                                        JULY 9, 2020
                                                               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

IN THE MATTER OF THE PERSONAL                )
RESTRAINT OF EDWARD LEON                     )         No. 35738-4III
NELSON.                                      )
                                             )
                                             )         UNPUBLISHED OPINION
                                             )
                                             )
                                             )

      FEARING, J. — In a personal restraint petition, Edward Nelson challenges his life

sentence as a persistent offender. He argues that the sentencing court erroneously

concluded that a 1991 conviction for promoting prostitution in the first degree was a

strike offense when the crime is now redefined to exclude the conduct for which he was

convicted. Because the current crime of promoting commercial sexual abuse of a minor

covers the same conduct for which Nelson was convicted in 1991, we deny Nelson’s

argument and dismiss his petition.

                                      FACTS

      The question on appeal concerns whether the sentencing court, as a result of a

2016 conviction for attempted first degree robbery could sentence petitioner Edward
No. 35738-4-III
Pers. Restraint of Nelson


Nelson as a persistent offender. In 1987, a Washington State court convicted Nelson of

second degree kidnapping and attempted first degree robbery. In 1991, another

Washington State court convicted Nelson of promoting prostitution in the first degree.

The 1991 information alleged:

               That the defendant EDWARD LEON NELSON in King County,
       Washington during a period of time intervening between June 4, 1991
       through June 11, 1991, did advance or profit from prostitution of a person
       less than eighteen years old.

Br. of Petitioner Apx. I at 1 (emphasis added).

       The most recent crime that gave rise to this personal restraint petition occurred on

August 15, 2014. On that date, Edward Nelson attempted to gain possession of

oxycodone at a Yakima Rite Aid store pharmacy counter while threatening to shoot the

clerk. When he did not succeed, he demanded money while showing a gun. When later

pursued by law enforcement officers, Nelson fled in his car.

                                      PROCEDURE

       The State of Washington charged Edward Nelson with attempted first degree

robbery, unlawful possession of a firearm, and eluding a police officer. In 2016, a jury

found Edward Nelson guilty of attempted first degree robbery and returned a special

finding that Nelson was armed with a firearm when he committed the crime. The jury

also found Nelson guilty of attempting to elude a pursuing police vehicle. The jury

acquitted Nelson of first degree unlawful possession of a firearm.


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       The sentencing court sentenced Edward Nelson as a persistent offender pursuant

to RCW 9.94A.570. The court determined that Nelson’s conviction for attempted first

degree robbery was his third “most serious offense” conviction for purposes of the

Persistent Offender Accountability Act (POAA), RCW 9.94A.570. We call “most

serious offenses” strike offenses, as the offender is only allowed three strikes as if batting

in a baseball game. The court calculated the 1987 conviction of second degree

kidnapping and attempted first degree robbery as the first most serious offense. The

court deemed the 1991 conviction of promoting prostitution in the first degree as the

second strike, despite the section of the promoting prostitution in the first degree statute,

under which Nelson was convicted, no longer existing by 2016. The sentencing court did

not conduct a comparability analysis with any current crime.

       Edward Nelson appealed his conviction for attempted first degree robbery to this

court, and this court affirmed his conviction. State v. Nelson, no. 34032-5-III, (Wash. Ct.

App. May 2, 2017) (unpublished),

https://www.courts.wa.gov/opinions/pdf/340325_ord.pdf. Nelson did not challenge his

sentence on appeal. The Washington State Supreme Court granted review of Nelson’s

challenge to his conviction and also affirmed.

       In the meantime, Edward Nelson filed this personal restraint petition. Nelson asks

that this court vacate his lifetime sentence as a persistent offender because his 1991

conviction for promoting prostitution in the first degree is not a strike offense for

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Pers. Restraint of Nelson


purposes of the persistent offender accountability act. He also contends that his trial

counsel and former appellate counsel acted ineffectively by failing to earlier challenge his

lifetime sentence.

                                   LAW AND ANALYSIS

       Edward Nelson filed his personal restraint petition within one year of his appeal

being final. Therefore, his petition is timely. RCW 10.73.090(1). Edward Nelson

remains confined, so he is “restrained” under RAP 16.4(b).

       In a personal restraint petition, the petitioner “must show either that he . . . was

actually and substantially prejudiced by constitutional error or that his . . . trial suffered

from a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice.” In re Personal Restraint of Finstad, 177 Wn.2d 501,

506, 301 P.3d 450 (2013). Edward Nelson claims that his offender score was

miscalculated. A sentence based on an incorrect offender score is a fundamental defect

that inherently results in a miscarriage of justice. In re Personal Restraint of Goodwin,

146 Wn.2d 861, 868, 50 P.3d 618 (2002). Therefore, if Nelson proves that his 1991

conviction does not qualify as a strike offense, his sentence should be deemed erroneous,

and he should be resentenced. In re Personal Restraint of Canha, 189 Wn.2d 359, 402

P.3d 266 (2017).

       We must decide whether to include Edward Nelson’s 1991 conviction for the

crime of promoting prostitution in the first degree, as defined in former RCW

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Pers. Restraint of Nelson


9A.88.070(1)(b) (1975), is a strike offense for purposes of the POAA. The determination

depends on whether the conviction is comparable to the current crime of promoting

commercial sexual abuse of a minor under RCW 9.68A.101.

       We travel through the provisions of the long and winding POAA before analyzing

the two crimes. In 1993, over a decade after Washington’s adoption of the Sentencing

Reform Act of 1981, (SRA), ch. 9.94A RCW, the Washington citizens revived the former

habitual criminal statute in a modified form. SETH AARON FINE, 13B WASHINGTON

PRACTICE: CRIMINAL LAW AND SENTENCING § 42:9 (3D ED. 2019). Unlike habitual

criminal statutes, which could apply to a minor crime like petit larceny as well as to

serious felonies, the 1993 Persistent Offender Accountability Act applies to persons

convicted on three occasions of “most serious crimes.” RCW 9.94A.030(37); State v.

Hart, 188 Wn. App. 453, 460, 353 P.3d 253 (2015). The act precludes prosecutors from

agreeing not to assert prior convictions during sentencing. Whenever a sentencing court

concludes an offender is a “persistent offender,” the court must impose a life sentence,

and the offender is not eligible for any form of early release. RCW 9.94A.570; State v.

Hart, 188 Wn. App. 453, 460, 353 P.3d 253 (2015).

       “Most serious offenses” include all Class A felonies, among many other crimes.

RCW 9.94A.030(32). An attempt to commit any of these felonies is also a “most serious

offense.” RCW 9.94A.030(32). First degree robbery, the attempt of which was Edward

Nelson’s 2016 conviction and one of Nelson’s 1987 convictions, is a Class A felony.

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Pers. Restraint of Nelson


RCW 9A.56.200(2). Therefore, with his 2016 conviction, Nelson had at least two strike

offenses by reason of attempted robberies.

       We must determine if Edward Nelson’s 1991 conviction for promoting

prostitution in the first degree constitutes a third strike offense. Under RCW

9.94A.030(32)(m), promoting prostitution in the first degree is a strike offense, despite its

classification as a Class B felony. RCW 9A.88.070(2). But on Nelson’s conviction in

1991, the law defined the crime differently from the definition in 2014 when he

committed his most recent serious offense. So we must determine if another section of

the POAA applies.

       Comparable federal and out-of-state crimes, and comparable crimes under former

Washington law, also count as “most serious offenses.” RCW 9.94A.030(32)(t) defines

as a “serious criminal offense:”

               Any felony offense in effect at any time prior to December 2, 1993,
       that is comparable to a most serious offense under this subsection, or any
       federal or out-of-state conviction for an offense that under the laws of this
       state would be a felony classified as a most serious offense under this
       subsection;

       RCW 9A.88.070 defined promoting prostitution in the first degree both in 1991

and 2014. The 1991 version of RCW 9A.88.070, however, included an alternative

element not found in the 2014 version of the statute. In 1991, the statute declared:

              (1) A person is guilty of promoting prostitution in the first degree if
       he or she knowingly:


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Pers. Restraint of Nelson


              (a) advances prostitution by compelling a person by threat or force to
      engage in prostitution or profits from prostitution which results from such
      threat or force; or
              (b) advances or profits from prostitution of a person less than
      eighteen years old.

Former RCW 9A.88.070 (1975). The 1991 charging document against Edward Nelson

alleged that Edward Nelson only violated section (b) of RCW 9A.88.070(1).

In 2007, the Washington Legislature removed subsection (1)(b) from RCW 9A.88.070.

LAWS OF 2007, ch. 368, § 13. In turn, in 2012, the legislature added a new section (1)(b)

to the statute. LAWS OF 2012, ch. 141, § 1. The statute in 2014, in 2016, and now reads:

             (1) A person is guilty of promoting prostitution in the first degree if
      he or she knowingly advances prostitution:
             (a) By compelling a person by threat or force to engage in
      prostitution or profits from prostitution which results from such threat or
      force; or
             (b) By compelling a person with a mental incapacity or
      developmental disability that renders the person incapable of consent to
      engage in prostitution or profits from prostitution that results from such
      compulsion.

RCW 9A.88.070.

      In 2007, when the Washington Legislature removed subsection (1)(b) from RCW

9A.88.070, the legislature created the new crime of promoting commercial sexual abuse

of a minor and placed in a new statute, RCW 9.68A.101, language similar to that

removed from RCW 9A.88.070(1)(b). See LAWS OF 2007, ch. 368, § 13. In 2010, the

legislature also classified the new crime of promoting commercial sexual abuse of a



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Pers. Restraint of Nelson


minor as a Class A felony. LAWS OF 2010, ch. 289, § 14 (2). RCW 9.68A.101 reads, in

relevant part:

               (1) A person is guilty of promoting commercial sexual abuse of a
       minor if he or she knowingly advances commercial sexual abuse or a
       sexually explicit act of a minor or profits from a minor engaged in sexual
       conduct or a sexually explicit act.
               (2) Promoting commercial sexual abuse of a minor is a class A
       felony.
               (3) For the purposes of this section:
               (a) A person “advances commercial sexual abuse of a minor” if,
       acting other than as a minor receiving compensation for personally
       rendered sexual conduct or as a person engaged in commercial sexual abuse
       of a minor, he or she causes or aids a person to commit or engage in
       commercial sexual abuse of a minor, procures or solicits customers for
       commercial sexual abuse of a minor, provides persons or premises for the
       purposes of engaging in commercial sexual abuse of a minor, operates or
       assists in the operation of a house or enterprise for the purposes of engaging
       in commercial sexual abuse of a minor, or engages in any other conduct
       designed to institute, aid, cause, assist, or facilitate an act or enterprise of
       commercial sexual abuse of a minor.
               (b) A person “profits from commercial sexual abuse of a minor” if,
       acting other than as a minor receiving compensation for personally
       rendered sexual conduct, he or she accepts or receives money or anything
       of value pursuant to an agreement or understanding with any person
       whereby he or she participates or will participate in the proceeds of
       commercial sexual abuse of a minor.

       The State argues that the crime of promoting prostitution in the first degree under

former RCW 9A.88.070(1)(b) is comparable to the crime of promoting commercial

sexual abuse of a minor under RCW 9.68A.101. Edward Nelson responds that the

elements of the two statutes are not comparable under the analysis outlined in State v.

Webb, 183 Wn. App. 242, 247-48, 333 P.3d 470 (2014). He argues former RCW


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9A.88.070(1)(b) does not contain the words “commercial sexual abuse of a minor.” We

agree with the State.

       A comparability analysis, under RCW 9.94A.030(32)(t), contains a legal and

factual prong. State v. Webb, 183 Wn. App. at 249. First, to determine if a crime is

comparable to a most serious offense, this court looks to the elements of the crime. State

v. Webb, 183 Wn. App. at 247; State v. Failey, 165 Wn.2d 673, 677, 201 P.3d 328

(2009); State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). If the elements of

the prior conviction are comparable to the elements of a most serious offense on their

face, the prior conviction is considered a most serious offense under the legal prong.

State v. Webb, 183 Wn. App. at 247-48. If however, the statute, under which a defendant

was earlier convicted, is broader than the current statute, this court next looks to the

defendant’s conduct as stated in the indictment or information to determine if the crime is

comparable. State v. Morley, 134 Wn.2d at 606; State v. Webb, 183 Wn. App. at 248. In

making this factual comparison, the sentencing court may rely on facts in the former

record only if they are admitted, stipulated to, or proved beyond a reasonable doubt.

State v. Webb, 183 Wn. App. at 248. The burden of proof is on the State to demonstrate a

prior conviction is comparable. State v. Webb, 183 Wn. App. at 248.

       We compare the elements of “prostitution” in the former RCW 9A.88.070 and

“commercial sexual abuse” in the current RCW 9.68A.101 in order to determine if the

elements of these crimes are comparable. Under the former RCW 9A.88.070, a person

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committed promoting prostitution in the first degree if he profited off of prostitution of a

minor. The term “prostitution” in 1991 and now means “engages or agrees or offers to

engage in sexual conduct with another person in return for a fee.” RCW 9A.88.030(1).

At the time of Edward Nelson’s conviction for promoting prostitution in the first degree,

the following definitions were provided for the crime:

               (1) “Advances prostitution.” A person “advances prostitution” if,
       acting other than as a prostitute or as a customer thereof, he causes or aids a
       person to commit or engage in prostitution, procures or solicits customers
       for prostitution, provides persons or premises for prostitution purposes,
       operates or assists in the operation of a house of prostitution or a
       prostitution enterprise, or engages in any other conduct designed to
       institute, aid, or facilitate an act or enterprise of prostitution.
               (2) “Profits from prostitution.” A person “profits from prostitution”
       ” if, acting other than as a prostitute receiving compensation for personally
       rendered prostitution services, he accepts or receives money or other
       property pursuant to an agreement or understanding with any person
       whereby he participates or is to participate in the proceeds of prostitution
       activity.

Former RCW 9A.88.060 (1975).

       The definition of promoting prostitution in the first degree echoes the definitions

for “advances commercial sexual abuse of a minor” or “profits from commercial sexual

abuse of a minor” under the current RCW 9.68A.101(3).

              (a) A person “advances commercial sexual abuse of a minor” if,
       acting other than as a minor receiving compensation for personally
       rendered sexual conduct or as a person engaged in commercial sexual abuse
       of a minor, he or she causes or aids a person to commit or engage in
       commercial sexual abuse of a minor, procures or solicits customers for
       commercial sexual abuse of a minor, provides persons or premises for the
       purposes of engaging in commercial sexual abuse of a minor, operates or

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Pers. Restraint of Nelson


       assists in the operation of a house or enterprise for the purposes of engaging
       in commercial sexual abuse of a minor, or engages in any other conduct
       designed to institute, aid, cause, assist, or facilitate an act or enterprise of
       commercial sexual abuse of a minor.
               (b) A person “profits from commercial sexual abuse of a minor” if,
       acting other than as a minor receiving compensation for personally
       rendered sexual conduct, he or she accepts or receives money or anything
       of value pursuant to an agreement or understanding with any person
       whereby he or she participates or will participate in the proceeds of
       commercial sexual abuse of a minor.

RCW 9.68A.101. The definition of minor under RCW 9.68A.011(5) is identical to that

used in promoting prostitution in the first degree.

       Guidance as to what constitutes “commercial sexual abuse” is found in the

definition of that specific crime under RCW 9.68A.100.

              (1) A person is guilty of sexual guilty of commercial sexual abuse of
       a minor if:
              (a) He or she provides anything of value to a minor or a third person
       as compensation for a minor having engaged in sexual conduct with him or
       her;
              (b) He or she provides or agrees to provide anything of value to a
       minor or a third person pursuant to an understanding that in return therefore
       such minor will engage in sexual conduct with him or her; or
              (c) He or she solicits, offers, or requests to engage in sexual conduct
       with a minor in return for anything of value.

RCW 9.68A.100. Sexual conduct is identified identically for purposes of the statutes.

RCW 9A.44.010(1), (2); RCW 9.68A.101(5); RCW 9A.88.030(2).

       We disagree with Edward Nelson’s argument that the 1991 crime, for which he

was convicted, no longer exists. The crime still exists and, as argued by the State, the

legislature separated the section specific to minors making it a detached crime. Although

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the new statute uses the term “commercial sexual abuse” of a minor, this phrase parallels

the crime of promoting “prostitution” of a person less than eighteen years of age.

Prostitution requires that sexual contact or intercourse be committed. Commercial sexual

abuse of a minor, likewise, requires that sexual contact or intercourse be committed.

Both crimes also emphasize the commercial nature of the offenses. Here, for the

purposes of this analysis, prostitution and commercial sexual abuse are the same within

the context of these statutes. Because we conclude that the two crimes are legally

comparable we do not address factual comparability.

       Edward Nelson also contends that he received ineffective assistance of trial

counsel and appellate counsel when they failed to raise the issue of a comparability

analysis. To determine ineffectiveness of counsel, the Washington State Supreme Court

employs a two-part test provided by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v.

Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Under this test, Edward Nelson

must show that (1) his trial counsel’s failure to object to the comparability of his two

offenses constituted deficient performance and (2) the deficiency prejudiced his defense.

State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). Because we conclude that

the trial court correctly included Edward Nelson’s 1991 conviction for promoting

prostitution in the first degree as a strike offense, Edward Nelson suffered no prejudice



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by reason of his trial counsel’s and his previous appellate counsel’s failure to assert lack

of comparability.

                                        CONCLUSION

       We conclude that the sentencing court committed no error when adjudging

Edward Nelson’s 1991 conviction for promoting prostitution in the first degree as a

serious criminal offense under the Persistent Offender Accountability Act. We dismiss

Nelson’s personal restraint petition.

       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.


                                              _________________________________
                                              Fearing, J.

WE CONCUR:



______________________________
Lawrence-Berrey, J.



______________________________
Pennell, C.J.




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