State v. Jordan

Fl LE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 85410-6

v.
ENBANC
ERICK DESHUM JORDAN,

Petitioner. Filed - - - - 5 2014-
MAY 1 - -

STEPHENS, J.-Erick Jordan asks this court to reverse a Court of Appeals

decision affirming his convictions and sentence for second degree murder with a

firearm enhancement and first degree unlawful possession of a firearm. At issue is

whether differences between self-defense standards in Washington and Texas bar a

sentencing court from finding that manslaughter convictions in these states are

legally comparable. We hold they do not and affirm the lower court.

FACTS AND PROCEDURAL HISTORY

On July 13, 2007, Jordan fatally shot Maurice Jackson in front of two

civilian witnesses and two police officers. Report of Proceedings (RP) (June 10,

2008) at 35-37; Clerk's Papers (CP) at 11. He fled from the scene but was
State v. Jordan (Erick Deshum), 85410-6

apprehended sometime later when he broke into the home of an elderly woman in

order to escape from the police. 10 Verbatim Report of Proceedings (VRP) (June

18, 2008) at 86, 97, 102, 105-06. When apprehended, Jordan was still carrying the

.38 caliber revolver he used to kill Jackson. RP (June 16, 2008) at 88; 12 RP (June

23, 2008) at 344. The State charged Jordan with murder in the second degree with

a firearm enhancement as well as unlawful possession of a firearm in the second

degree. CP at 11-13. A jury found him guilty ofboth charges. CP at 14-16.

At sentencing, the State proved that Jordan had previously been convicted of

voluntary manslaughter in Texas in 1992. RP Sentencing (Jan. 16, 2009) at 15-17,

19. Jordan, however, objected to the inclusion of the Texas conviction in his

offender score, arguing that his prior Texas offense was not legally comparable to

any Washington offense because Washington and Texas have different standards

for self-defense. !d. at 8. The trial court rejected this argument, finding voluntary

manslaughter in Texas to be legally comparable to second degree murder in

Washington. !d. at 19-20. Inclusion of the Texas conviction increased Jordan's

offender score to eight, 1 and the trial court sentenced him accordingly to a

standard-range sentence of 417 months. CP at 155, 169-72. Jordan appealed his

sentence, arguing, inter alia, that his Texas conviction was not legally comparable

1
In calculating Jordan's offender score, the trial court misassigned the Texas
conviction two points, rather than the statutorily prescribed three points under the
Sentencing Reform Act of 1981, chapter 9.94A RCW. Suppl. Br. of Resp't at 5 n.3.
Because we affirm the Court of Appeals, we need not consider the State's request that
Jordan's offender score be recalculated at resentencing. !d.

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to any Washington offense and that its inclusion in his offender score calculation
violated his due process rights. Br. of Appellant at 13-29.
The Court of Appeals agreed with Jordan that his Texas conviction for
voluntary manslaughter was not comparable to Washington's second degree
murder because a person could be convicted of voluntary manslaughter in Texas
without intentionally causing the death-a necessary element of second degree
murder in Washington. State v. Jordan, No. 63016-4-1, slip op. (unpublished
portion) at 7 (Wash. Ct. App. Nov. 1, 2010). The court, nonetheless, upheld the
trial court's offender score calculation because voluntary manslaughter in Texas is
legally comparable to first degree manslaughter in Washington, which scores the
same points as second degree murder under the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW. Id. at 9 n.33 (unpublished portion). Jordan
petitioned this court for review, insisting the Court of Appeals' comparability
analysis was flawed because it failed to appreciate the differences between self-
defense in Washington and Texas. According to Jordan, a Texas offense is never
comparable to any Washington offense under RCW 9.94A.525 because
Washington's self-defense laws excuse a broader range of otherwise criminal
conduct. Jordan does not dispute the Court of Appeals' analysis otherwise. We
granted review. State v. Jordan, 176 Wn.2d 1023, 301 P.3d 1047 (2013).
ANALYSIS
Questions regarding the comparability of offenses present issues of law that
we review de novo. See State v. Stockwell, 159 Wn.2d 394, 397, 150 P.3d 82

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(2007). Under the SRA, the standard sentencing range for an offense is determined
by cross-referencing a defendant's offender score with the offense's seriousness
level on the sentencing grid provided under RCW 9.94A.510. While the
seriousness level of a particular crime is predefined under RCW 9.94A.515, a
defendant's offender score is not. It is individual specific and "estimates the

dangerousness and overall culpability of the defendant." State v. Wiley, 124

Wn.2d 679, 683, 880 P.2d 983 (1994). Its calculation depends on the seriousness
of the present offense and the defendant's criminal history, including his out-of-

state convictions. RCW 9.94A.525. 2
Due Process Does Not Require Comparability ofDefenses

When considering out-of-state convictions, the SRA provides that "[oJut-of-
state convictions for offenses shall be classified according to the comparable
offense definitions and sentences provided by Washington law." RCW

9.94A.525(3) (emphasis added). We have interpreted this language to require
"substantial[] similar[ity]" between the elements of the foreign offense and the
Washington offense. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111
P.3d 837 (2005); see State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007);
State v. Sublett, 176 Wn.2d 58, 87, 292 P.3d 715 (2012) (lead opinion). If the

elements of the foreign offense are comparable to those of a Washington offense,

2
Although RCW 9.94A.525 has been amended five times since Jordan committed
the present offense, the relevant language remains the same. See LAws OF 2013,
2d Spec. Sess., ch. 35, § 8; LAWS OF 2011, ch. 166, § 3; LAWS OF 2010, ch. 274, § 403;
LAWS OF 2007, ch. 199, § 8. All references to RCW 9.94A.525 herein are to the current
statute.

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then "the inquiry ends" and the foreign crime counts toward the offender score as

if it were the comparable Washington crime. Sublett, 176 Wn.2d at 87 (lead

opinion); see also Lavery, 154 Wn.2d at 255. Jordan argues that due process

requires parity not only between elements but also available defenses. Suppl. Br.

of Pet'r at 8. Jordan points out that his argument is consistent with our suggestion

in other cases that the SRA requires comparability of elements and defenses. See

State v. Stockwell, 159 Wn.2d 394, 397, 150 P.3d 82 (2007); Lavery, 154 Wn.2d at

256. While we may have intimated this interpretation of the SRA framework in

past cases, we have never said it is required as a matter of due process. Nor do we

believe that it is.

The due process clause of the Fourteenth Amendment guarantees that "[n]o

state shall ... deprive any person of life, liberty, or property, without due process

of law." U.S. CONST. amend. XIV, § 1. Our state constitution similarly guarantees

that "[n]o person shall be deprived of life, liberty, or property, without due process

of law." CONST. art. I, § 3. Although the language of article I, section 3 is not

identical to that of the Fourteenth Amendment, we have treated our state due

process clause coextensively with its federal counterpart, and Jordan does not offer

an analysis under State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986), to

suggest different treatment applies in this case.

Well-settled precedent recognizes that the sentencing process is "less

exacting than the process of establishing guilt." Nichols v. United States, 511 U.S.

738, 747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). Minimal due process

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prohibits the State from sentencing a person convicted of a crime "on the basis of

information which is false, lacks a minimum indicia of reliability, or is

unsupported in the record," but it does not require strict proportionality between a

crime and its punishment. State v. Ford, 137 Wn.2d 472, 481, 973 P.2d 452

(1999); see Harmelin v. Michigan, 501 U.S. 957, 962-65, 111 S. Ct. 2680, 115 L.

Ed. 2d 836 (1991); Patterson v. New York, 432 U.S. 197, 211-12 n.l3, 97 S. Ct.

2319, 53 L. Ed. 2d 281 (1977); State v. Korum, 157 Wn.2d 614, 640-41, 141 P.3d

13 (2006). Under the due process clause, a sentencing judge '"may appropriately

conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come."' Nichols,

511 U.S. at 747-48 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct.

589, 30 L. Ed. 2d 592 (1972)). Thus, prior to Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United States Supreme Court

has upheld sentencing enhancements based on a defendant's criminal history even

when such conduct did not result in a conviction. Nichols, 511 U.S. at 747 (citing

Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949);

McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986)).

In Blakely, however, the Court held that the Sixth Amendment's right to a

jury trial (as incorporated into the Fourteenth Amendment and hence applicable to

the states), coupled with the Fourteenth Amendment's due process requirement of

proofbeyond a reasonable doubt, provides a constitutional limit on the facts that a

sentencing court can use to support a sentence above a statutorily mandated range.

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542 U.S. 296. Because inclusion of his Texas conviction in his offender score

affected the maximum possible sentence the sentencing court was authorized to

enter, we interpret Jordan's due process clause argument as an application of those

protections. This argument, however, is not persuasive.

The United States Supreme Court has repeatedly stated that Blakely's

constitutional protections do not apply to '"the fact of a prior conviction,"' !d. at

301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000)). Only where the exact facts of a prior offense is used to

increase the statutory maximum sentence a sentencing judge is authorized to enter

does Blakely-type due process clause protections apply to limit judicial inquiry into

the underlying circumstances of the prior conviction. See Descamps v. United

States,_ U.S._, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013); Shepard v. United

States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).

In this case, we do not have a debate about either the existence of the prior

conviction or the facts of the underlying conviction. Instead, only the effect of the

prior conviction is at issue. The parties disagree about whether a particular Texas

conviction, with particular elements, and specific jury instructions (which are part

of our record) is legally "comparable," in the language of RCW 9.94A.525(3), to

any Washington conviction. This is a debate about a question of law, not fact.

Blakely's limit on the facts that a judge can use to raise the statutory maximum is

therefore inapplicable here. Whether the Court of Appeals' comparability analysis

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in this case complied with the statutory requirements of the SRA is a matter of
statutory interpretation, not due process.
RCW 9.94A.525(3) Does Not Require Comparability ofSelf-Defense Laws

When interpreting the meaning of statutes, '"[t]he court's fundamental
objective is to ascertain and carry out the Legislature's intent."' State v. Pannell,
173 Wn.2d 222, 226-27, 267 P.3d 349 (2011) (alteration in original) (quoting
Dep 't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)).

We have repeatedly recognized that the legislature purposefully created the
SRA scheme broadly in order to "'ensure that defendants with equivalent prior
convictions are treated "the same way, regardless of whether their prior
convictions were incurred in Washington or elsewhere.""' State v. Morley, 134
Wn.2d 588, 602, 952 P.2d 167 (1998) (quoting State v. Villegas, 72 Wn. App. 34,
38-39, 863 P.2d 560 (1993) (quoting State v. Weiand, 66 Wn. App. 29, 34, 831
P.2d 749 (1992))). The SRA instructs that "[o]ut-of-state convictions for offenses
shall be classified according to the comparable offense definitions and sentences
provided by Washington law." RCW 9.94A.525(3). Once a sentencing judge

determines the comparability of an offense, the judge tallies "points" reflecting the
legislature's unfettered judgment about the relative severity of such prior
convictions and rounds down the sum "to the nearest whole number." RCW
9.94A.525(7)-(21). As illustrated under the SRA, crimes as diverse as
premeditated murder and attempted kidnapping count the same number of points.
RCW 9.94A.525(4) (scoring anticipatory offenses as completed offenses), (9)

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(assigning three points for any serious violent offense), .030(45) (defining "serious

violent offense"). And, convictions for attempt crimes are scored as if they were
completed offenses. RCW 9.94A.525(4). The SRA even provides that if the
sentencing court is unable to find a "clearly comparable offense" for a federal
felony, "the offense shall be scored as a class C felony equivalent." RCW
9.94A.525(3).
Given the legislature's broad purpose and the SRA's loose point assignment,

we have interpreted the SRA as requiring rough comparability-not precision-
among offenses. See Stockwell, 159 Wn.2d at 397 (noting "comparability analysis
is not an exact science"). Accordingly, we have declined to interpret the SRA to
require judges to "conduct the tedious task of comparing out-of-state criminal
procedures to in-state procedures" as part of its comparability analysis, reasoning
that such interpretation would be "clearly contrary to the purposes of the SRA."
Morley, 134 Wn.2d at 596-98. Moreover, we noted that such interpretation would

defeat the SRA framework because it "would exclude every out-of-state conviction
from a defendant's criminal history." Id. Instead, we have consistently confirmed

that legal comparability is satisfied when the elements of the foreign offense are
comparable to those of a Washington offense. Sublett, 176 Wn.2d at 87 (lead
opinion); Thiefault, 160 Wn.2d at 415; Lavery, 154 Wn.2d at 255-56.
We recognize that in Washington, absence of self-defense has been
considered an "element" of the crime. State v. McCullum, 98 Wn.2d 484, 493-94,
656 P.2d 1064 (1983) ("Once the issue of self-defense is properly raised," then

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negating it becomes an actual element: "the absence of self-defense becomes

another element of the offense which the State must prove beyond a reasonable
doubt."); State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). But
whether the failure of a court or jury to find the absence of self-defense in
convicting a defendant on a foreign offense renders that conviction categorically
not comparable to a Washington offense is not a question we must consider in this
case. Here, the documents from the Texas conviction (which the State filed with

the Washington court at sentencing) show that the Texas jury was instructed on
self-defense and told that the State had the burden to disprove it. CP at 55. And,
the jury convicted Jordan anyway. CP at 56. While Washington and Texas law

may vary on when a defendant's conduct is excused as a matter of self-defense--
such as when a defendant can take advantage of a "stand your ground" type of
law-the SRA does not require exactitude, only "comparability." Lavery, 154

Wn.2d at 255. And we find Texas' self-defense law, as articulated in the jury
instruction, sufficiently comparable to that of Washington.
Requiring sentencing courts to consider the nuances of out-of-state self-
defense laws is not only unnecessary under the SRA's comparability analysis, but

it would also have far-reaching effects. Consider the possible nuances of self-
defense. Unlike Washington, some 19 states ·still impose a common-law duty to

retreat as a condition of claiming self-defense outside the home. See Eugene

Volokh, Duty to Retreat and Stand Your Ground: Counting the States, THE
VOLOKH CONSPIRACY (July 17, 2013, 10:11 AM), http://www.volokh.com/

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2013/07/17/duty-to-retreat/. Convictions for murder, manslaughter, and assault

from these states, including New York, Massachusetts, Pennsylvania, and

Nebraska, among 13 others, would fail the legal comparability test under Jordan's

rule. !d. Even for those states that do not require a duty to retreat, the scope of the

so-called "castle doctrine" varies from state to state, as does the extent to which a

defendant may claim self-defense on behalf of a third person. If the SRA required

courts to compare self-defense laws from foreign states for exact equality, many

otherwise comparable convictions for serious violent offenses will go uncounted,

notwithstanding that the legislature "obviously intended out-of-state convictions to

be considered" as part of a defendant's offender score. Morley, 134 Wn.2d at 597-

98.
Subjecting diverse out-of-state self-defense laws to the SRA comparability

analysis would also create the "minitrials over prior convictions" we have

consistently rejected. Wiley, 124 Wn.2d at 686; State v. Irish, 173 Wn.2d 787,

790, 272 P.3d 207 (2012) (declining to "turn the current sentencing proceeding

into an appellate review of all of the defendant's prior convictions" (citing State v.

Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986))). And,

construing the SRA as requiring analysis of the context of self-defense laws would
likely generate a tidal wave of claims for postconviction relief. See Morley, 134

Wn.2d at 598 (noting that such a holding "would apply retroactively to the date the

SRA was enacted," and that "every single prisoner with out-of-state prior

convictions" could attack his or her sentence (citing In re Pers. Restraint of

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Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997))). This would flout the

legislature's intent in creating a rough comparability scheme under the SRA.

CONCLUSION

Jordan's Texas manslaughter conviction was properly counted in his

criminal history under the SRA. We adhere to our long-standing interpretation of

the SRA as not requiring exact comparability and hold that a court need not

analyze divergent self-defense laws as part of its comparability analysis. Nor does

due process impose such a requirement. Because Jordan's sentence was consistent

with both the SRA and constitutional minimums, we affirm the Court of Appeals.

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WE CONCUR:

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