                                                                                       FILED
                                                                             COURT OF APPEALS


                IN THE COURT OF APPEALS OF THE STAT                              MF    ASH       k          4
                                                    DIVISION II
                                                                             STATE OF WASHINGTON

                                                                             BY
 STATE OF WASHINGTON,                                                             No. t   4'
                                                                                               7 Y2 -II

                                        Respondent,                       UNPUBLISHED OPINION


           v.




 TIMOTHY R. RESTORFF,


                                        Appellant.


       BJORGEN, A.C. J. —            A jury returned a verdict finding Timothy Restorff guilty of second

degree assault, with a special verdict finding that he committed his offense while armed with a

deadly weapon. Restorff appeals his conviction and sentence, asserting that the trial court ( 1)

violated his right to counsel by failing to adequately inquire about his complaints regarding

counsel' s performance and (2) miscalculated his offender score by including in its calculation

offenses that had washed out and an Oregon offense that was not comparable to a Washington

offense.   Additionally, in his       statement of additional grounds      for   review ( SAG),     Restorff raises


issues that are not properly before us because the issues either refer to matters outside the trial

record or require us to reweigh the evidence and evaluate the credibility of witnesses. Because

the trial court did not violate Restorff' s right to counsel and because his SAG arguments are not


properly before us in a direct appeal, we affirm Restorff's conviction. However, because the

sentencing      court erred   in   finding   that Restorff' s Oregon   conviction of   first degree       sexual abuse
No. 44857 -2 -II



was factually comparable to the Washington crime of first degree child molestation, we remand
                                                                             1
for   correction of   Restorff' s   offender score and   for resentencing.


                                                    FACTS


          On January 7, 2013, David Robinson was pumping gas into his car at a Kelso gas station

when Restorff pulled his truck into the station and parked closely behind Robinson' s car.

Robinson asked Restorff to back his truck up so that he could exit the station. Restorff backed

his truck up and then started insulting Robinson. After the two men began arguing, Restorff

grabbed a knife from his dashboard and exited his truck. Robinson backed away when he saw

Restorff approach him with the knife. Restorff kicked and jabbed his knife at Robinson.


Robinson put his hand up to block Restorff and sustained multiple stab wounds to his hand.

When Robinson attempted to call 911 on his cell phone, Restorff knocked the phone out of his


hand and stomped on it. After a witness to the incident approached Restorff and said something

to him, he returned to his truck. Based on this incident, the State charged Restorff with second


degree assault and alleged that Restorff committed the offense while armed with a deadly

weapon.




          At a February 12 status hearing, defense counsel requested to continue the omnibus

hearing for one week so that he could discuss a new plea offer with Restorff. Restorff interjected

that he had already discussed the matter with defense counsel and had told counsel that he did

not want to accept the plea offer. Restorff also told the trial court that he believed his counsel


was not acting in his best interest because counsel ( 1) was unable to tell him whether his

previous Oregon conviction of first degree sexual abuse would be comparable to a Washington




1 Because we remand for resentencing, we do not address whether the sentencing court erred by
including in its offender score calculations convictions Restorff argues had washed out.
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No. 44857 -2 -II



strike offense under the Persistent Offender Accountability Act (POAA) and ( 2) could not obtain

security camera footage that Restorff claimed would prove that he was acting in self -defense

when he stabbed Robinson. The trial court acknowledged Restorff s concerns and continued the


omnibus hearing for one week to allow Restorff time to try to resolve his issues with defense

counsel, stating:


        So it sounds like you had desires that more information be found out about prior
        convictions and whether they qualify as strike offenses and the like and a little more
        time to talk         about      the   plea offers.        So maybe it might not be a bad idea to set this
        matter over a week so you could take a look at that. So that' s what I' ll do. I' ll set
        the matter over to February 19th at 9 o' clock in the morning and we can address
        those issues             at   that time.       If you have other concerns, you can address those
        concerns at that time also.

Verbatim Report           of   Proceedings ( VRP)            at   3.   After the .trial court announced its ruling, Restorff

stated, "   I'   m not   going to talk to this         man....         I have nothing further to say to him." RP at 3 - 4.


        The following week at the omnibus hearing, Restorff again expressed dissatisfaction with

defense counsel, and the following exchange took place:

                         Restorff]:I' ve been trying to fire my attorney.
                         Trial      Why is that?
                                 court] :. '

                      Restorff] :  Misleading. In the beginning, he told me I was facing three
            strikes. And he tells me he' s going to get the videos —security videos from Safeway

            and it' s been two months now, going on, and he telling me there ain' t no videos to
        be had.


                         Trial   court]:       Well,   so, what' s—      what' s misleading about that?
                         Restorff]:            Well —and
                                                 then he' s writing me and telling me there is no
            strikes, and then he' s telling me he can' t tell if there' s a strike from Oregon, and he
            can' t —you know, how do I go and make a decision when I' m getting conflicting

            information? The first plea bargain I got was 17 to 22. You know—
                         Trial   court] :      Okay, then. And it sounds -
                         Restorff] : —           all I—
                         Trial   court]: —       like you didn' t take that, so now you' re in a different
            position, right?

                         Restorff]:            How     can   I tell     you   when   I don' t know   what   I' m   —I'   m

            looking at?




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No. 44857 -2 -II



RP at 6 -7. The trial court asked the State and defense counsel whether Restorff was facing a

third strike. The State told the trial court it was possible that Restorff s previous Oregon


conviction could be categorized as a strike offense but that it would require " pretty extensive

legal   research      for   either   party to know for       certain."    RP at 7 -8. Defense counsel told the trial .


court he had advised Restorff that his Oregon conviction could count as a strike offense, but that


he could not tell for certain whether the offense would be comparable to a Washington strike


offense because he had " not yet seen anything in the way of court paperwork from Oregon that

would    indicate      what    the   status   is." RP   at   8.   Regarding the security video footage, defense

counsel told the trial court that his investigator had sought out the video footage that Restorff


requested, but that the video footage did not exist. The trial court declined Restorff' s request to


dismiss counsel, stating:

                 Okay. So, Mr. Restorff, it sounds like what' s going on is just that things
          aren' breaking the way you want them to. Your attorney' s got an investigator
                  t

          looking for the video that you said exists. It doesn' t. They haven' t got the
          paperwork from Oregon to make a good decision on whether or not this is a three -
          strike case or not.  The fact that he can' t give you pat answers is not a reason for
          me to excuse him, and it' s certainly not a reason to consider his performance less
          than stellar. So it sounds to me like you better be making up your mind to talk to

           defense counsel] because he' s the only one working on your behalf right now.

RP at 10.


          At the start of his jury trial, the trial court informed Restorff about his CrR 3. 5 hearing

rights. Restorff told the trial court that he had discussed the matter with defense counsel and that

he   was "   putting [ his] trust in him, I       guess."         RP at 14. At the conclusion of his trial, the jury

returned a verdict finding Restorff guilty of second degree assault and returned a special verdict

finding Restorff was armed with a deadly weapon when he committed his offense.

          At sentencing, Restorff agreed with the prosecutor' s statement of his criminal history,

that his offender score would include one point for each of his previous burglary convictions, and


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No. 44857 -2 -II



that only his previous third degree assault conviction had washed out. Restorff also agreed that

he had pled no contest to the Oregon offense of first degree sexual abuse, but stated that he


would not stipulate that his Oregon offense was comparable to a Washington strike offense.

After the trial court confirmed with defense counsel that the remaining issue for sentencing was

only whether Restorff s Oregon offense was comparable to the Washington crime of first degree

child molestation, it continued the sentencing hearing to provide the parties with time to brief the

matter. At the continued sentencing hearing, the trial court stated that it had reviewed the State' s

sentencing memorandum, and it then heard the State' s argument regarding the comparability of

Restorff s Oregon conviction of first degree sexual abuse to the Washington offense of first


degree child molestation. Defense counsel declined to present any counter -argument, stating

only that Restorff would not stipulate to comparability of the offenses.

       The trial court noted that the Oregon offense of first degree sexual abuse was broader

than the Washington offense of first degree child molestation because first degree child


molestation contained   two   essential elements   that   first degree   sexual abuse   did   not, (   1) that the


perpetrator was not married to the victim, and (2) that the perpetrator was at least 36 months


older than the victim. The trial court found that the offenses were comparable based on


information contained within Restorff s Oregon indictment that showed that Restorff was at least


36 months older than his sexual abuse victim and that he was not married to the victim when he

committed the offense. The trial court thus included Restorff' s Oregon conviction when


calculating his offender score at six, and it sentenced Restorff within the standard range based on

that offender score and the addition of his deadly weapon sentence enhancement. Restorff

appeals his conviction and sentence.




                                                     5
No. 44857 -2 -II



                                                          ANALYSIS


                                                    I. RIGHT TO COUNSEL


             Restorff first contends that the trial court violated his right to counsel when it refused to


appoint new defense counsel without adequately inquiring into Restorff s conflict with his

appointed counsel. We disagree.


             Indigent criminal defendants have a constitutional right to assistance of counsel at public


expense during all critical stages of the criminal proceedings. State v. Devlin, 164 Wn. App. 516,

525, 267 P. 3d 369 ( 2011).          The constitutional right to assistance of counsel at public expense does


not, however, provide a criminal defendant with an absolute right to choose any particular

advocate. State v. Stenson, 132 Wn.2d 668, 733, 940 P. 2d 1239 ( 1997).


                       A criminal defendant who is dissatisfied with appointed counsel must show
             good cause to warrant substitution of counsel, such as a conflict of interest, an
             irreconcilable conflict, or a complete breakdown in communication between the
             attorney    and   the   defendant.
                                            Attorney -client conflicts justify the grant of a
             substitution motion only when counsel and defendant are so at odds as to prevent
             presentation of an adequate defense. The general loss of confidence or trust alone
             is not sufficient to substitute new counsel.


Stenson, 132 Wn.2d at 734 ( citations omitted).


             A trial court has discretion to determine whether " an indigent defendant' s dissatisfaction


with his court- appointed counsel is meritorious and justifies the appointment of new counsel."


State   v.   DeWeese, 117 Wn.2d 369, 376, 816 P. 2d 1 ( 1991).                      We thus review a trial court' s denial


of a motion to substitute counsel for an abuse of discretion. Stenson, 132 Wn.2d at 733.


             In this   review, we consider       three   factors: ( 1) the nature and extent of the alleged conflict,


including " the extent and nature of the breakdown in communication between attorney and client

and   the breakdown' s effect         on   the   representation      the   client   actually   receives "; (   2) the adequacy

of the court' s inquiry; and ( 3) the timeliness of the motion and the effect of any substitution on



                                                                 6
No. 44857 -2 -II



the scheduled proceedings. In re Pers. Restraint ofStenson, 142 Wn.2d 710, 724, 16 P. 3d 1

 2001).    Restorff challenges only the second factor, asserting that the trial court abused its

discretion by denying his substitution motion without conducting an adequate inquiry into his

issues    with   defense   counsel. "   An adequate inquiry must include a full airing of the concerns .. .

and a meaningful      inquiry by the      trial   court."   State v. Cross, 156 Wn.2d 580, 610, 132 P. 3d 80


 2006).


          Restorff initially expressed dissatisfaction with his defense counsel at a February 12,

2013 status hearing. Specifically, Restorff stated that defense counsel was not working in his

best interest because counsel could not advise him whether his prior Oregon offense would be

considered a strike offense under the POAA and could not obtain certain video evidence. The


trial court acknowledged Restorff s concerns and set the omnibus hearing over for one week to

allow Restorff and defense counsel time to try to resolve their differences. The following week,

Restorff again raised the same two concerns with his defense counsel. The trial court addressed


each of Restorff' s concerns. Regarding Restorff' s concern about defense counsel' s inability to

determine the comparability of his prior Oregon offense, the trial court noted that defense

counsel had not yet received the necessary paperwork to make a comparability

determination. On his concern about counsel' s inability to secure the video footage he had

requested, the trial court noted that counsel' s investigator had found that the footage did not


exist. Restorff did not again assert, as he did at the February 12 status hearing, that he would

refuse to communicate with his defense counsel, and he did not again raise any concerns with his

counsel' s representation throughout the trial. The trial court' s inquiry into Restorff s complaints

allowed Restorff to fully apprise it of all his concerns with defense counsel' s representation.




                                                               7
No. 44857 -2 -II



         Further, the trial court addressed each of the two concerns raised by Restorff, questioned

the State and defense counsel about those concerns, determined that Restorff s concerns were


unfounded, and denied his motion to substitute counsel. Accordingly, the record shows that the

trial court conducted an adequate inquiry into Restorff s concerns with his appointed counsel.

Cross, 156 Wn.2d at 610. In addition, the record does not demonstrate that Restorff had an

irreconcilable conflict or complete breakdown in communication with his defense counsel to


justify the grant of his substitution motion. The record shows that, by the start of trial, Restorff

and his defense counsel had worked out their differences and were actively communicating with

each other. At best, Restorff s stated concerns showed his general loss of confidence in defense

counsel, which alone is insufficient to warrant the substitution of counsel. Stenson, 132 Wn.2d


at 734. For these reasons, the trial court did not abuse its discretion by denying Restorff s

substitution motion.



                                     II. OFFENDER SCORE CALCULATION


             Next, Restorff asserts that the trial court erred at sentencing by including in its offender

score calculation ( 1) an Oregon conviction for first degree sexual abuse that the trial court found


comparable to the Washington offense of first degree child molestation and ( 2) convictions that


Restorff contends had washed out. We agree that the trial court erred by finding Restorff s

Oregon conviction of first degree sexual abuse comparable to the Washington offense of first


degree child molestation and, thus, remand for resentencing.

             A defendant may challenge an offender score calculation for the first time on appeal.

State   v.   Arndt, 179 Wn.   App.   373, 388   n. 9,   320 P. 3d 104 ( 2014). We review de novo a trial


court' s calculation of a defendant' s offender score. State v. Wilson, 113 Wn. App. 122, 136, 52

P. 3d 545 ( 2002).      At sentencing, the State bears the burden of proving by a preponderance of the



                                                            8
No. 44857 -2 -II



evidence the existence of the defendant' s prior convictions. State v. Ammons, 105 Wn.2d 175,

186, 713 P. 2d 719 ( 1986). The State does                  not meet   this burden   with "[   b] are assertions,

unsupported       by   evidence."    State v. Hunley, 175 Wn.2d 901, 910, 287 P. 3d 584 ( 2012).

However, a trial court may rely on a defendant' s stipulation or acknowledgement of prior

convictions without        further   proof.    State   v.   Roy,   147 Wn.   App.    309, 316, 195 P. 3d 967 ( 2008). A


 defendant' s mere failure to object to State assertions of criminal history at sentencing does not

result   in   an acknowledgment," rather, "[           t]here must be some affirmative acknowledgment of the


facts and information alleged at sentencing in order to relieve the State of its evidentiary

obligations."      Hunley, 175 Wn.2d at 912

          Restorff contends that the State failed to prove that his prior Oregon offense of first

degree sexual abuse was comparable to the Washington crime of first degree child molestation


and, therefore, the trial court erred by including that offense in its offender score calculation.

Following our recent decision in Arndt, 179 Wn. App. 373, we agree and remand for

resentencing consistent with this opinion.

          We review de novo a trial court' s classification of out -of -state crimes. State v.


Labarbera, 128 Wn.          App.     343, 348, 115 P. 3d 1038 ( 2005). " When prior out-of-state 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; Former RCW

9. 94A. 525( 3) ( 2011).     An out -of -state conviction may not be used to increase the defendant' s

offender score 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).

          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
No. 44857 -2 -II



2005).    A foreign offense is legally comparable if "the elements of the foreign offense are

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


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. Lavery, 154 Wn.2d at 255. The State bears the burden of

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

preponderance of    the    evidence.    State   v.   Ross, 152 Wn.2d 220, 230, 95 P. 3d 1225 ( 2004). " 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.


         Restorff pled no contest2 to first degree sexual abuse in Oregon under former ORS


163. 425 ( 1983).   Former ORS 163. 425 provided in relevant part:


         A person commits the crime of sexual abuse in the first degree when that person:
          a) Subjects another person to sexual contact; and
          A) The victim is less than 12 years of age.


When Restorff committed his first degree sexual abuse offense in Oregon, the Washington crime


of first degree child molestation was defined in relevant part as follows:


         A person is guilty of child molestation in the first degree when the person has sexual
         contact with another who is less than twelve years old and not married to the
         perpetrator and the perpetrator is at least thirty -six months older than the victim.



2
    A no contest guilty plea in Oregon is similar to an Alford guilty plea in Washington. Compare
OREGON REVISED STATUTES 135. 335, 135. 395 with In re Pers. Restraint of Cross, 178 Wn.2d
519, 525 -28, 309 P. 3d 1186 ( 2013), petition for cert. filed December 17, 2014 ( discussing
requirements for entering an Alford plea in Washington) ( citing North Carolina v. Alford, 400

U. S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970)).

                                                            10
No. 44857 -2 -II



Former RCW 9A.44. 083 ( 1990).


          The trial court correctly determined that Washington' s crime of first degree child

molestation contained two essential elements that the Oregon crime of first degree sexual abuse


did   not: (   1) that the victim was not married to the perpetrator and ( 2) that the perpetrator was at


least 36 months older than the victim. Therefore, the trial court was required to find the crimes


factually comparable before it could include the Oregon offense in its offender score calculation.

Morley, 134 Wn.2d at 606.

          In finding that Restorff was at least 36 months older than the victim when committing his

Oregon offense of first degree sexual abuse, the trial court relied on Restorff s criminal


indictment,      which contained a   heading listing his date   of   birth   as   June 10, 1961.   Restorff argues


that the trial court' s reliance on the printed date of his birth in the heading of his indictment

violated his jury trial right under Apprendi v. New Jersey, 530 U. S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 ( 2000),     because he did not admit to having that date of birth and because a jury did

not find beyond a reasonable doubt that it was his date of birth. Assuming that Restorff is

correct in this contention, his no- contest plea agreement nonetheless provided a sufficient


admission from which the trial court could find that he was at least 36 months older than the


victim when he committed his offense.


          In his no- contest plea agreement, Restorff admitted that he was " 30 years of age" when

submitting his plea on April 15, 1992. Ex. 1, at 2. Accordingly, Restorff' s admission showed

that he was at least 36 months older than the victim, who was under 12 years old at the time of

the offense, when he committed first degree sexual abuse on or between June 13, 1991 and July

2, 1991.




                                                       11'
No. 44857 -2 -II



        Turning to the question of marital status, Restorff is correct that nothing in the plea

documents show his admission to being unmarried to the victim when he committed his offense.

The State argues that, because the minimum age at which a person may marry in Oregon is 17

years old, Restorff could not have been married to his victim when he committed his offense as a


matter of law. We rejected a similar claim in Arndt, where we held that the State failed to prove


the factual comparability between the defendant' s Oregon crime of third degree rape and the

Washington crime of third degree child rape. Arndt, 179 Wn. App. at 388. In so holding, we

rejected the State' s argument that the trial court could infer that the defendant and the third


degree rape victim were unmarried because the victim was below the minimum age of marriage


in Oregon. In rejecting this argument, we recognized that it was not impossible for the defendant

and the victim to have been married outside of Oregon, stating:

        The State' s arguments do not show that it was impossible for Arndt and the victim
        to have been   married.... [   I] n California there is no minimum age for marriage
        with a court order and written parental consent, Cal. Fam. Code 302, while in
        Washington, a superior court judge may waive the age requirements on a showing
        of necessity. RCW 26. 04. 010( 2).

Arndt, 179 Wn. App. at 389,. n.10.

        As in Arndt, the State here did not present any evidence about Restorff s and the victim' s

marital status, an element of Washington' s crime of first degree child molestation. As in Arndt,


the fact that the victim was below the minimum age of marriage in Oregon does not prove that


Restorff and the victim were unmarried at the time of the Oregon offense. Accordingly, the trial

court erred by including that conviction in its calculation of Restorff s offender score, and we




                                                  12
No. 44857 -2 -II



remand        for resentencing. 3   Because the sentencing court must recalculate Restorff s offender

score when resentencing him on remand, and because Restorff will not be bound by his prior

offender score agreement,4 we do not address his claim that the sentencing court erred by

including       prior offenses    in its offender score calculation that Restorff contends had washed out.

                                                              II. SAG


          In his SAG, Restorff first appears to argue that his counsel was ineffective for failing to ( 1)

obtain certain video evidence, ( 2)            hire   an   investigator, ( 3)   request a bail reduction hearing, and ( 4)

spend    any time preparing         a   defense. All of these arguments refer to matters that are outside the


record on appeal.          Accordingly, we cannot address these arguments in Restorff s direct appeal.

State v. McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251 ( 1995).


          Restorff also argues in his SAG that Robinson attacked him at the gas station and, thus, he


acted    in         defense when
               self -                   he   stabbed   Robinson.       The nature of this argument is unclear, but it


appears that Restorff is asking our court to reevaluate the persuasiveness of evidence and the

credibility of his testimony in support of his self -defense claim. However, we defer to the jury on

issues   of witness      credibility    and   the   persuasiveness of evidence.                  State v. Snider, 70 Wn.2d 326,


327, 422 P. 2d 816 ( 1967).          Accordingly, we do not further address this argument.




3 Whether the State may have another opportunity to introduce evidence to show the factual
comparability of Restorff s Oregon offense to a Washington crime or whether it must rely on the
record established at       the   prior sentencing hearing is           controlled          by   RCW 9. 94A. 530( 2). See State
v.   Jones,           Wn.2d ,       338 P. 3d 278 ( 2014).

4
    See State    v.   Reinhart, 77 Wn.       App.   454, 458 -59, 891 P. 2d 735 ( 1995) (              interpreting former
RCW 9. 94A. 360( 6)(        a), recodified as         RCW 9. 94A. 525( 5)(      a)(   1))    to require " current sentencing
court" to determine whether defendant' s multiple prior offenses encompassed the same criminal
conduct).


                                                                  13
No. 44857 -2 -II



        We affirm Restorff' s conviction, but remand for correction of his offender score and 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.




                                                                          ALC, 1
 We concur:




      aoteltsdoo,

 W iRSWICK, 7.




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