Filed
Washington State
Court of Appeals
Division Two
May 17, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47855-2-II
Respondent,
v.
ANDREW SMITH, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Andrew Smith appeals his sentence following his conviction for failure to
register as a sex offender. He argues, and the State concedes, that the sentencing court erred by
including a 2001 Oregon conviction for attempted sexual abuse in his offender score because that
offense was not legally or factually comparable to the Washington offense of indecent liberties.
We accept the State’s concession and remand for resentencing.
FACTS
A judge convicted Smith for failure to register as a sex offender. The sentencing court
calculated Smith’s offender score as 10 based on Smith’s prior convictions, including three
points for a 2001 Oregon conviction for attempted sexual abuse based on conduct that occurred
in 1999. The sentencing court included the Oregon conviction in the offender score because it
found that the Oregon offense was comparable to the Washington crime of indecent liberties.
Smith was sentenced to 43 months, within the standard range for his offender score.
Smith appeals his sentence.
No. 47855-2-II
ANALYSIS
We review a trial court’s calculation of a defendant’s offender score de novo. State v.
Olsen, 180 Wn.2d 468, 472, 325 P.3d 187, cert. denied, 135 S. Ct. 287 (2014). An out-of-state
conviction can be included in an offender score if the State meets its burden to prove the
existence of that conviction and can establish that the out-of-state offense is comparable to a
Washington offense. RCW 9.94A.525(3); Olsen, 180 Wn.2d at 472.
When determining whether an out-of-state conviction is comparable to a similar
Washington offense, we apply a two-part test. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d
580 (2007). First, we determine whether the offenses are legally comparable – whether the
elements of the out-of-state offense are substantially similar to the elements of the Washington
offense. Id. This comparison is based on the elements of the offenses at the time the crime
occurred. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). If the
elements of the out-of-state offense are not substantially similar to the elements of the
Washington offense, they are not legally comparable. Thiefault, 160 Wn.2d at 415.
Second, even if the offenses are not legally comparable, an out-of-state conviction can
still be included in the offender score if the offenses are factually comparable. Id. We
determine whether the defendant’s conduct underlying the out-of-state conviction would have
violated the Washington statute. Id.
Here, the Oregon crime of attempted sexual abuse defined in ORS 163.427 and the
Washington crime of indecent liberties defined in former RCW 9A.44.100 (1997) do not have
substantially similar elements. In 1999, former RCW 9A.44.100 required that the victim not be
the offender’s spouse. In 1999 ORS 163.427 contained no such requirement. Therefore, the
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No. 47855-2-II
Washington offense included an element not in the Oregon offense, the two offenses are not
legally comparable.
Regarding factual comparability, there are insufficient facts in the record to determine
whether Smith could have been convicted under former RCW 9A.44.100 for the conduct
underlying his Oregon conviction. Smith pled no contest to his charges under ORS 163.427.
Neither the indictment nor the plea form that Smith signed contain facts showing whether or not
the victim of that crime was his spouse. Therefore, there are insufficient facts to show factual
comparability.
We hold that the trial court erred in including Smith’s Oregon conviction for attempted
sexual abuse in his offender score because in 1999 that offense was not comparable to the
Washington offense of indecent liberties. Accordingly, we 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 in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
LEE, J.
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