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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                DIVISION II

 STATE OF WASHINGTON,                                                        No. 44808 -4 -II


                                     Respondent,


          v.

                                                                        UNPUBLISHED OPINION
 EDDIE LEE TRICE,


                                     Appellant.




         MAXA, J. —    Eddie Lee Trice appeals the calculation of his offender score for sentencing,

alleging that the trial court erred by ( 1) counting two points for his 1989 Arkansas aggravated

robbery conviction and ( 2) counting one point for his 1996 Florida sexual battery conviction.

We hold that Trice' s Arkansas aggravated robbery conviction was factually comparable to a

conviction in Washington for attempted first degree robbery, and therefore was properly

included in his offender score. But we accept the State' s concession that Trice' s Florida

conviction should not have been included in his offender score. Therefore, we affirm in part,


reverse in part, and remand for resentencing.

                                                     FACTS


          In 2008, a jury found Trice guilty of three counts of first degree child rape, one count of

first degree    child molestation, and one count of      first degree   burglary – all committed on May 8,

2006.    At sentencing, for purposes of calculating the offender score, Trice stipulated to and the

trial   court   found four   prior   felony   convictions.   These included    a   1989   aggravated   robbery
44808 -4 -II



conviction in.Arkansas and a 1996 sexual battery conviction in Florida. The trial court ruled that

the 1996 Florida conviction for sexual battery was comparable to a Washington crime for

Persistent Offender Accountability Act (POAA) purposes. State v. Trice, noted at 168 Wn. App.

1009, 2012 WL 1699858, at * 4.                     Therefore, the trial court sentenced Trice as a " two strikes"


offender to life confinement without the possibility of release for the three rape convictions. The

trial court also ruled that the 1989 Arkansas aggravated robbery conviction was not comparable to

a   Washington "      strike"   offense for POAA purposes, but included the conviction in calculating

Trice'   s offender score.      Trice, 2012 WL 1699858,                 at *   4, * 14.


          Trice appealed, and we accepted the State' s concession that it had failed to prove that the

Florida    statute was      legally   or     factually   comparable       to the Washington   statute.    Trice, 2012 WL


1699858,     at *   11.   We did not consider whether the Arkansas aggravated robbery conviction could

be included in the offender score because Trice did not support the argument with legal authority.

Trice, 2012 WL 1699858,               at *   14.   We remanded for resentencing, but noted that the trial court

was required to determine Trice' s offender score anew and that both parties could submit

additional evidence         regarding      criminal      history.   Trice, 2012 WL 1699858,      at *   14.


          At the resentencing hearing, Trice again stipulated to the four prior felony convictions.

The trial court ruled that the 1989 Arkansas aggravated robbery conviction was comparable to first

degree attempted robbery in Washington and counted that conviction as two points on his offender

score. The trial court ruled that Trice' s 1996 Florida sexual battery conviction was not legally or

factually comparable to a Washington crime, but counted that conviction as a point on Trice' s

offender score anyway because it was a felony.




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44808 -4 -II




          Following the trial court' s rulings on comparability, Trice' s calculated offender score was

five: two points for the Arkansas aggravated robbery conviction, one point for the Florida sexual

battery conviction, and two points for the current offense. Trice appeals.

                                                   ANALYSIS


          Trice argues that the trial court miscalculated his offender score by including his 1989

Arkansas conviction for aggravated robbery and his 1996 Florida conviction for sexual battery in

his offender score. The State argues that the Arkansas conviction was comparable to a


Washington conviction, but concedes that the Florida conviction should not have been included


in the offender score. We hold that the trial court properly included the Arkansas conviction in

calculating Trice' s offender score, and we accept the State' s concession that the Florida

conviction should not have been included.


A.        CALCULATING OFFENDER SCORE - OUT -OF -STATE CONVICTIONS


          Under the      Sentencing   Reform Act   of   1981( SRA),   chapter 9. 94A RCW, the sentencing

court uses the defendant' s prior convictions to determine an offender score which, along with the

seriousness level of the current offense, establishes his or her presumptive standard sentencing

range.    State   v.   Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187 ( 2014). A defendant' s sentence is


determined based on the law in effect when the defendant committed the current offense. RCW


9. 94A.345; see also In re Pers. Restraint of Carrier, 173 Wn.2d 791, 809, 272 P. 3d 209 ( 2012).

          We review a sentencing court' s calculation of an offender score de novo. Olsen, 180

Wn.2d at 472. In addition, we review underlying factual determinations under an abuse of

discretion standard. In re Pers. Restraint ofToledo- Sotelo, 176 Wn.2d 759, 764, 297 P. 3d 51


 2013).



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             The State must prove the existence of prior felony convictions used to calculate an

offender score      by    a preponderance of     the   evidence.    RCW 9. 94A. 500( 1);    see also Olsen, 180


Wn.2d at 472. If the convictions are from another jurisdiction, the State also must prove that the


underlying       offense would      have been    a   felony under   Washington law. RCW 9. 94A.525( 3); State


v.   Ford, 137 Wn.2d 472, 480, 973 P. 2d 452 ( 1999). The existence of a prior conviction is a


question of fact. In re Pers. Restraint ofAdolph, 170 Wn.2d 556, 566, 243 P. 3d 540 ( 2010).

             Where the defendant' s offenses resulted in out -of -state convictions, RCW 9. 94A.525( 3)


provides that such offenses " shall be classified according to the comparable offense definitions

and sentences provided            by Washington       law." This statute requires the sentencing court to make


a determination of whether the out -of -state conviction is comparable to a Washington conviction.

State   v.   Morley,     134 Wn.2d 588, 601, 952 P. 2d 167 ( 1998).             Only if the convictions are

comparable can the out -of -state conviction be included in the offender score. State v. Thiefault,

160 Wn.2d 409, 415, 158 P. 3d 580 ( 2007).


             Our Supreme Court has adopted a two -part analysis for determining whether an out -of-

state conviction is comparable to a Washington conviction. Olsen, 180 Wn.2d at 472. First, the

                                                                                comparable —whether    the elements
sentencing       court   determines    whether   the   offenses are   legally

of the out -of -state offense are substantially similar to the elements of the Washington offense.

Olsen, 180 Wn.2d           at   472 -73. If the elements of the out -of s
                                                                        - tate offense are broader than the


elements of the Washington offense, they are not legally comparable. Olsen, 180 Wn.2d at 473;

In re Pers. Restraint ofLavery, 154 Wn.2d 249, 258, 111 P. 3d 837 ( 2005).




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44808 -4 -II




        Second, even if the offenses are not legally comparable, the sentencing court still can

include the out -of s- tate conviction in the offender score if the offense is factually comparable.

Olsen, 180 Wn.2d      at   473.   Determining factual comparability involves analyzing whether the

defendant' s conduct underlying the out -of -state conviction would have violated the comparable

Washington     statute.    Thiefault, 160 Wn.2d   at   415.   In making this factual comparison, the

sentencing court cannot consider evidence not presented in the out -of -state proceeding. State v.

Arndt, 179 Wn.     App     373, 379, 320 P. 3d 104 ( 2014).     And the sentencing court may rely on facts

in the out -of s-tate record only if they are admitted, stipulated to, or proved beyond a reasonable

doubt. Olsen, 180 Wn.2d at 474 -45; Thiefault, 160 Wn.2d at 415.


        If an out -of s- tate conviction involves an offense that is neither legally or factually

comparable to a Washington offense, the sentencing court may not include the conviction in the

defendant' s   offender score.     Thiefault, 160 Wn.2d at 415. If a defendant has been erroneously

sentenced, we remand the defendant' s case to the sentencing court for resentencing. State v.

Wilson, 170 Wn.2d 682, 691, 244 P. 3d 950 ( 2010).


B.       ARKANSAS AGGRAVATED ROBBERY CONVICTION


        Trice argues that his 1989 Arkansas conviction for aggravated robbery is not legally or

factually comparable to any Washington crime, and therefore was improperly included in the

calculation of his offender score. We hold that the elements of Arkansas' aggravated robbery




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44808 -4 -II




statute are not legally comparable to Washington' s attempted first degree robbery offense, but

that the offenses are factually comparable.'

          1.        Legal Comparability

        Trice argues that the Arkansas robbery statute is not legally comparable to attempted first

degree robbery in Washington because the statutes require differing intents. We agree.

        At the time Trice committed the offense of aggravated robbery in 1987, 2 Arkansas'

robbery    statute stated: "      A person commits robbery if, with the purpose of committing a felony or

misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to

immediately          employ     physical    force   upon another."      Former Ark. Code § 5- 12- 102( a)   (   1987).

Washington'          s    1987 definition   of   robbery   stated   in part:   "   A person commits robbery when he

unlawfully takes personal property from the person of another or in his presence against his will

by the use or threatened use of immediate force, violence, or fear of injury to that person or his
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property       or   the   person or   property    of anyone."       Former RCW 9A.56. 190 ( 1975).




1 The State also argues that the Arkansas aggravated robbery offense is legally and factually
comparable to Washington' s crimes of first degree and second degree robbery. We need not
address these arguments because we affirm on an alternate basis.

2 Trice committed the Arkansas crime in 1987 and was convicted in 1989. Under the
comparability analysis, we address the statutes in effect at the time the crime was committed.
See RCW 9. 94A.345.

3
    RCW 9A.56. 190            was amended        in 2011. However, there were no substantive changes other
than the addition of gender neutral references.

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44808 -4 -II



           In 1987, Washington' s     attempt statute stated: "         A person is guilty of an attempt to

commit a crime if, with intent to commit a specific crime, he does any act which is a substantial

                                      that              Former RCW 9A. 28. 020( 1) (         1981).   And to have
step toward the       commission of          crime."



committed attempted        first degree robbery       a person must      have: ( 1) intended to commit the crime


of (2)    unlawfully   taking " personal property from          the   person of another" (   3) while armed with a


deadly weapon and ( 4) have actually taken a substantial step toward the commission of that

crime.     See former RCW 9A.56. 190; former RCW 9A.56. 200 ( 1975); former RCW 9A.28. 020( 1)


 1981).


           Here, the elements of an Arkansas aggravated robbery conviction are broader than the

elements of a conviction         in Washington for      attempted      first degree robbery. An Arkansas


conviction requires a person to act with " the purpose of committing a felony or misdemeanor

theft."    Former Ark. Code § 5- 12- 102( a)      (   1987) (   emphasis added).      Conversely, a Washington

conviction requires a person to intend to commit first degree robbery, which in 1987 did not

encompass       the   category   of misdemeanor       thefts. See RCW 9A.20. 010( 2)(        a) &   former RCW


9A.56. 200 ( robbery in the first degree        was categorized as a class        A   felony).   As a result, the


elements for Arkansas' aggravated robbery are broader than Washington' s attempted first degree

robbery, and we hold the two offenses are not legally comparable.

           2.    Factual Comparability

           Trice' s conviction based on Arkansas' 1987 aggravated robbery statute still can be

included in his offender score if the facts underlying the conviction are factually comparable to

an attempted first degree robbery conviction in Washington. See Thiefault, 160 Wn.2d at 415.




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44808 -4 -II




The State argues that Trice' s guilty plea admitted sufficient facts for his Arkansas conviction to

constitute a conviction in Washington for attempted first degree robbery. We agree.

          The sentencing court may rely on facts in the out -of s- tate record if the defendant has
admitted    those   facts. Thiefault, 160 Wn.2d           at   415.    Such an admission may occur in a guilty

plea.    Arndt, 179 Wn.     App.   at    381 ( stating "[   a] sentencing court properly can consider facts

conceded    by the defendant in         a   guilty   plea as an admitted     fact "); State    v. Tewee, 176 Wn. App.

964, 970, 309 P. 3d 791 ( 2013),            review    denied, 179 Wn.2d 1016 ( 2014) ( considering             admission in

guilty   plea).   Here, Trice voluntarily entered into a guilty plea. Washington courts treat an out-

of-state guilty plea as an admission of a crime' s elements if the convicting state also does. See,

e. g., Olsen, 180 Wn.2d at 478 -479 ( treating California nolo contendere plea as a plea of guilty

for all purposes when California law would have given it such treatment).

          In Arkansas    courts, a   voluntary guilty          plea   is the defendant'   s   trial. Graham   v.   State,   188


S. W. 3d 893, 895 ( Ark. 2004). "           A guilty plea is inherently an admission of all of the elements of

the charges and constitutes a waiver of any defense that might have been raised at the trial of the

charges."      Standridge   v.   State, 2012 Ark.       App.    563, 423 S. W.3d 677, 681.            As a result, Arkansas


case law requires us to treat Trice' s voluntary guilty plea as an admission of the charges in his

1987 charging document.

          Count 1 of Trice' s charging document accused him of "unlawfully, feloniously,

employ[ ing] physical force upon BETTY GRIFFIN and CLARENCE GRIFFIN, with the
purpose of                   a   theft   while armed with a           deadly weapon,      to -wit:   a shotgun."   Clerk' s
               committing


Papers at 146. Accordingly, we treat Trice' s guilty plea as an admission that Trice unlawfully



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44808 -4 -II



employed physical force against two people, while armed with a shotgun, with the purpose of


committing a theft. See Standridge, 423 S. W.3d at 681.

         These admitted facts are sufficient to show that Trice' s conduct underlying his Arkansas

conviction would have supported a Washington conviction of attempted first degree robbery. By

                                     admitted —at a minimum —that   it was his purpose to take
pleading guilty in Arkansas, Trice


personal property from another, i.e. a theft, while armed with a deadly weapon. Because Trice' s

charging document also contended that Trice employed " physical force" upon two people in the

commission of his crime, these facts also support a finding that Trice' s conduct would have

constituted a " substantial step" towards the commission of first degree robbery in Washington.

Therefore, we hold that Trice' s 1989 conviction of aggravated robbery in Arkansas was factually

comparable to a conviction in Washington of attempted first degree robbery.

         Because Trice' s 1989 Arkansas conviction for aggravated robbery was factually

comparable to Washington' s crime of attempted first degree robbery, we hold that the trial court

properly included that conviction in Trice' s offender score. We affirm the trial court on this

issue.


C.       FLORIDA SEXUAL BATTERY CONVICTION


         Trice argues that the 1996 Florida conviction is not comparable to a Washington felony,

and therefore the trial court erred by including that in his offender score. The State agrees that

Trice' s 1996 Florida conviction was not legally or factually comparable to a Washington felony

and concedes that the conviction should not have been included in his offender score. We accept

the State' s concession.




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44808 -4 -II



          At Trice' s 2013 sentencing hearing, the State contended that Florida' s sexual battery

statute was legally comparable to Washington' s former third degree rape statute. However, the

elements of the Florida statute are broader than Washington' s former third degree rape statute

because the Florida statute does not impose a requirement that the perpetrator and victim not be

married.    Compare former Fla. Stat. Ann. § 794. 001( 3) ( 1996) with former RCW 9A.44. 060( 1)


 1979).    Accordingly, the Florida conviction is not legally comparable to a Washington third
degree rape conviction. And there were no facts in the record that were admitted, stipulated to,


or proved beyond a reasonable doubt that could establish factual comparability.

          Despite finding that Trice' s Florida sexual battery conviction was not legally or factually

comparable to Washington' s definition of third degree rape, the trial court reasoned that because

Trice' s sexual battery conviction was a Florida felony, Trice' s sexual battery conviction should

count as one point in Trice' s offender score. This ruling was incorrect. If an out -of -state

conviction involves an offense that is neither legally nor factually comparable to a Washington

offense, the sentencing court may not include the conviction in the defendant' s offender score.

Olsen, 180 Wn.2d at 478; Thiefault, 160 Wn.2d at 415.


          Because Florida' s 1996 sexual battery statute is neither legally nor factually comparable

to a Washington statute, Trice' s conviction under the Florida sexual battery statute cannot be

used in computing his sentencing offender score. Accordingly, we hold that the sentencing court

erred by allocating Trice one point for his 1996 sexual battery conviction and we remand for

resentencing.




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44808 -4 -I1




        We hold that the trial court did not err in including Trice' s 1989 Arkansas conviction in

his offender score, but did err in including Trice' s 1996 Florida conviction in his offender score.

Accordingly, we affirm in part, reverse in part, and 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 pursuant to RCW 2. 06. 040, it is

so ordered.




 We concur:




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