FILED
AUGUST 12,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31200-3-III
Respondent, )
)
v. )
)
DENNIS LEROY SPROUL, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, C.J. - Dennis Sproul, having been convicted of second degree
burglary, appeals the trial court's calculation of his offender score, its finding at the time
of sentencing that it had considered his present or future ability to pay legal fmancial
obligations (LFOs), and its order that he begin making payments toward the LFOs
immediately. Because Mr. Sproul, at sentencing, affinnatively acknowledged the
existence and comparability of the out-of-state convictions that he now seeks to challenge
and failed to object to the LFO finding and payment order, we will not consider either
challenge on appeal. We affinn the judgment and sentence.
FACTS AND PROCEDURAL BACKGROUND
Dennis Sproul was found guilty of one count of burglary in the second degree
under RCW 9A.S2.030(1) following a jury trial. Mr. Sproul's criminal history provided
No. 31200-3-111
State v. Sproul
to the trial court before sentencing included Montana convictions for two counts of
felony theft. In its sentencing memorandum, the State argued that the Montana felony
theft convictions were comparable to Washington's offense of theft in the second degree,
a class C felony, and should count toward his criminal history for sentencing purposes.
The State submitted a certified copy of a judgment from Powell County, Montana,
reflecting the fact that Mr. Sproul was sentenced in January 2006 to two counts of felony
theft based upon a guilty plea.
At the sentencing hearing, the following exchange occurred between the trial
court; Prosecutor Walter Edgar; and Mr. Sproul's defense lawyer, Jeffrey Barker:
[THE COURT:] Mr. Edgar, is the state ready?
MR. EDGAR: The state is ready, your Honor.
Your Honor, I guess I have a question for Mr. Barker. And that is as
to-whether or not Mr. Sproul is agreeing to the state's determination of
criminal history, number of convictions and offender score.
MR. BARKER: I guess I didn't hear what he wanted me to agree to.
THE COURT: The-
MR. BARKER: We do agree that
THE COURT: -convictions and
MR. BARKER: -there are-
THE COURT: -offender score.
MR. BARKER: Well, we do agree that there are two convictions
out of Snohomish County, a burglary and a violation of no-contact order,
which ran concurrent according to the judge and were same criminal
history. In our opinion-in my opinion that makes that a two-point felony.
Mr. Sproul indicates that he was told by the judge at that time that it would
be a one-point felony. I told him that judge was inaccurate.
There are also two additional theft charges in Montana both of
which were felony offenses in Montana and also would be here. Each of
those would count a point.
And there is a Chelan County-possession of stolen property.
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No. 31200-3-111
State v. Sproul
So under my rendition ofit, he would be a five.
THE COURT: Mr. Edgar?
MR. EDGAR: And that is what the state would have as well, your
Honor. Those same convictions, and an offender score of five, with a
standard range of 17 to 22 months.
THE COURT: Is that the standard range you get, Mr. Barker?
MR. BARKER: Yes.
THE COURT: Okay.
MR. EDGAR: Your Honor, ifthere's no further discussion about
criminal history and any other matter I'm ready to proceed with a
recommendation.
THE COURT: Okay.
Report of Proceedings (RP) at 144-46 (emphasis added). There was no further discussion
about criminal history, other than Mr. Sproul's personal objection to treating his
Snohomish County convictions as supporting two points.
In announcing Mr. Sproul's sentence, the trial court stated that it would "agree
with the state's sentencing memorandum as to these thefts in Montana, that they count as
... thefts in Washington, [as] Class C felonies-. And the court would find that Mr.
Sproul [has an offender score of] five." RP at 148. He did not engage in a comparability
analysis. Mr. Sproul's lawyer did not object to the court's failure to conduct a
comparability analysis, to the court's inclusion of the two Montana convictions in
calculating the offender score, or to the court's reliance on a standard range that was
based on an offender score of five.
The judgment and sentence ordered Mr. Sproul to pay LFOs of $1 ,950,
comprising a $500 victim assessment, a $200 filing fee, a $250 jury demand fee, $400 in
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No. 31200-3-III
State v. Sproul
court appointed attorney fees, a $500 fine under RCW 9A.20.021, and a $100 DNA
(deoxyribonucleic acid) collection fee. This was the amount requested by the State, to
which Mr. Sproul raised no objection.
While the trial court did not ask any questions or make any statements during the
sentencing hearing about Mr. Sproul's present or future ability to pay the LFOs, the
judgment and sentence included a preprinted paragraph 2.5 stating that "[t]he Court has
considered the total amount owing, the defendant's present, and future ability to pay legal
financial obligations, including the defendant's financial resources and the likelihood that
the defendant's status will change." Clerk's Papers (CP) at 98. The court ordered that
Mr. Sproul begin making monthly payments of$25 per month immediately.
Mr. Sproul appeals.
ANALYSIS
Mr. Sproul makes two assignments of error. Firs't, he contends that the trial court
erred in including two Montana felony theft convictions in his offender score because (1)
the court failed to conduct a comparability analysis and (2) the State did not prove that
the offense was comparable to a felony in Washington. Second, he argues that an
implied finding that he had the present or future ability to pay the LFOs was not
supported by the record. For reasons that we address in tum, both issues were waived.
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No.31200-3-III
State v. Sproul
I. Including Montana Convictions in Offender Score
A defendant's offender score, together with the seriousness level of his current
offense, dictates the standard sentence range used in determining his sentence. RCW
9.94A.530(l). To calculate the offender score, the court relies upon its determination of
the defendant's criminal history, comprising "the list of a defendant's prior convictions
and juvenile adjudications, whether in this state, in federal court, or elsewhere." RCW
9.94A.030(11). A prior conviction from another state is included in a defendant's
offender score only if the foreign crime is comparable to a Washington felony. See id;
RCW 9.94A.525(3). The State bears the burden of proving by a preponderance of the
evidence the existence and comparability of the out-of-state offenses. State v. Ross, 152
Wn.2d 220,230, 95 P.3d 1225 (2004).
Notwithstanding the State's usual burden of proof, where a defendant
affirmatively acknowledges that his prior out-of state conviction is comparable and
properly included in his offender score, the trial court needs no further evidence or
analysis. State v. Wilson, 170 Wn.2d 682, 244 P.3d 950 (2010). In such a case, the
defendant waives the right to later raise a factual dispute over comparability, while
retaining the right to later raise a legal dispute. Ross, 152 Wn.2d at 231. To determine
whether a dispute is factual, we ask whether any facts must be acknowledged or
compared in order to determine whether the out-of-state conviction is comparable to a
Washington felony offense. Cf Wilson, 170 Wn.2d at 690 (finding that a legal question
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No. 31200-3-III
State v. Sproul
as to felony versus misdemeanor status is presented if "no facts must be acknowledged,
or compared").
For the first time on appeal, Mr. Sproul points out a discrepancy between the
certified Montana judgment presented by the State and the trial court's identification of
the date of the Montana crimes and convictions set forth in the judgment and sentence.
The certified copy ofthe Powell County, Montana, judgment filed by the State bears a
January 2006 date. Yet in sentencing Mr. Sproul for the Washington crimes, the court
listed his two Powell County, Montana, convictions for felony theft as having a
sentencing date in July 2005 and a "date of crime" of August 3,2004. CP at 97. Relying
on the August 2004 crime date, Mr. Sproul argues that the Montana statutes defining
felony theft in effect on that date was broader than felony theft in Washington, meaning
that, to determine comparability, it would be necessary to look into the record of his
Montana conviction to determine whether his conduct would have constituted felony
theft in Washington-something that was not done below. This possible factual dispute
was waived, however, by Mr. Sproul's acknowledgment at the time of sentencing that
"[t]here are also two additional theft charges in Montana both of which were felony
offenses in Montana and also would be here. Each of those would count a point." RP at
145. I The date discrepancy between the certified copy of the Montana judgment and the
I If, as appears may be the case, the trial court made a clerical mistake in listing
the dates of Mr. Sproul's Montana crimes and sentencing in the judgment and sentence,
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No. 31200-3-III
State v. Sproul
trial courfs listing of his criminal history does not change the fact that Mr. Sproul waived
any issue over the existence or comparability of two Montana felony theft convictions.
Mr. Sproul's acknowledgement of the existence and comparability of two
Montana felony theft convictions allowed the trial court to include them in the offender
score calculation without further proof of classification. State v. Ford, 137 Wn.2d 472,
483 n.5, 973 P.2d 452 (1999). And our Supreme Court held in Ross that no denial of due
process occurs where a defendanfs affirmative acknowledgement of the existence and
comparability of out-of-state convictions relieves the State of its burden of proving those
facts. 152 Wn.2d at 232-33.
II. Legal Financial Obligations
The trial court was not presented with evidence or argument bearing on Mr.
Sproul's present or future ability to pay LFOs other than Mr. Sproul's statement, when
given the opportunity to allocute, that "I want to--<1o my best to change my life and
make better choices; that's for sure. That's all I can say. I'm sick ofthis life." RP
Mr. Sproul's remedy was to file a motion under CrR 7.8(a), which provides that
[c]lerical mistakes in judgments, orders or other parts of the record ... may
be corrected by the court at any time of its own initiative or on the motion
of any party and after such notice, if any, as the court orders. Such
mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7 .2(e).
A clerical error is one that, when amended, "would correctly convey the intention of the
court based on other evidence." State v. Priest, lOO Wn. App. 451, 456, 997 P.2d 452
(2000).
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No. 31200-3-III
State v. Sproul
at 148. Evidence of ability to pay was unnecessary to support the mandatory financial
obligations imposed by the court and, with respect to the financial obligations that were
discretionary, Mr. Sproul made no objection at the sentencing hearing and thereby failed
to preserve a claim of error.
The $500 victim assessment, $100 DNA collection fee, and $200 criminal filing
fee are each required irrespective of the defendant's ability to pay. State v. Lundy, 176
Wn. App. 96,102,308 P.3d 755 (2013) (noting that, for these costs, "the legislature has
directed expressly that a defendant's ability to pay should not be taken into account").
As to the discretionary LFOs, a sentencing court is subject to a statutory
requirement that it take some account of a defendant's ability to pay them in the future.
State v. Duncan, _ Wn. App. _ , _ P.3d _,2014 WL 1225910, at *2, petition for
review filed, No. 90188-1 (Wash. April 30, 2014); RCW 10.01.160(3); RCW
9.94A.760(2). Yet the rule established by each division of this court is that a defendant
may not challenge for the first time on appeal either a sentencing court's compliance with
the statutory requirement or its determination of his ability to pay. Duncan, 2014 WL
1225910, at *6; State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08,petitionfor
review filed, No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn. App. 906,
911,301 P.3d 492, review granted, 178 Wn.2d 1010 (2013). Mr. Sproul did not object in
the trial court to the trial court's finding or its payment order. We will not consider his
challenges to them. RAP 2.5(a).
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No. 31200-3-111
State v. Sproul
Affirmed.
A majority of the panel has determined that 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.
~,
Siddoway, C.J.
t!-
i!J:
WE CONCUR:
Fe~~'S
Rawson, J.P. T. \.
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