State Of Washington v. Kevin Lee Garrison

FLED
COURT OF APPEALS OW
STATE OF WASHINGTON

2016 APR 16 ill 8:35

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 75895-1-1
)
Appellant, ) (Consolidated with
) No. 75885-3-1)
v. )
) UNPUBLISHED OPINION
KEVIN LEE GARRISON, )
)
Respondent. ) FILED: April 16, 2018
)
LEACH, J. — This is the second appeal challenging Kevin Lee Garrison's

sentence. Both Garrison and the State appeal his sentence. The State

challenges the trial court's conclusion that a 1981 Texas conviction for voluntary

manslaughter is not comparable to a "most serious offense" in Washington and,

therefore, it could not sentence Garrison as a persistent offender. Garrison

challenges two provisions in his judgment and sentence about a curfew and sex

offender registration.

We agree that the Texas offense is not legally comparable to

manslaughter in the second degree. We do not reconsider our earlier

conclusion, which is the law of this case, that the Texas offense is not factually

comparable to manslaughter in the first degree or assault in the second degree.

For these reasons, we affirm the trial court's conclusion that it could not sentence
No. 75895-1-1/ 2

Garrison as a persistent offender.

We remand, however, so the trial court can strike the community custody

provision imposing a curfew and amend the sex offender registration notice. We

otherwise affirm.

BACKGROUND

A jury found Garrison guilty of child molestation in the second degree, as

charged.1 At sentencing, the State presented evidence of three earlier felony

convictions, including a 1981 Texas manslaughter conviction. The trial court

found the Texas manslaughter conviction comparable to the Washington crime of

manslaughter in the first degree, a "most serious offense" in Washington. The

trial court relied on this conclusion to sentence Garrison as a persistent offender

to life without the possibility of release.

On appeal, we reversed.2 We decided that the Texas offense is not

legally comparable to Washington's offense of manslaughter in the first degree

or, for purposes of a "most serious offense" analysis, to Washington's assault in

the second degree.3 We also concluded that the Texas offense is not factually

The facts of the crime are not relevant to this appeal. They are set forth
in detail in our opinion in State v. Garrison, No. 71134-2-1, slip op. at 2-5 (Wash.
Ct. App. Sept. 8, 2015)(unpublished), http://www.courts.wa.gov/opinions/
pdf/711342.pdf.
2 Garrison, slip op. at 1.
3 Garrison, slip op. at 23, 28-31.
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No. 75895-1-1 / 3

comparable to these Washington offenses.4 Finally, after noting that the parties

agreed that the Texas offense is comparable to Washington's manslaughter in

the second degree, we held that the offense had "washed out" and could not be

counted as a "most serious offense."5 Thus, we held that Garrison lacked the

prior convictions necessary to sentence him as a persistent offender and

remanded for resentencing.6

On remand, the State produced evidence to show that the Texas

conviction had not washed out. The trial court decided, however, that the Texas

offense was not comparable to second degree manslaughter in Washington and

did not reach the washout issue. Because the court decided that the Texas

conviction was not comparable to a "most serious offense" in Washington, it did

not sentence him as a persistent offender. The court imposed a standard range

sentence.

The State appeals Garrison's sentence. It claims that the trial court

should have sentenced him as a persistent offender. Garrison also appeals,

challenging issues related to his sentence. This court consolidated the appeals.

4 Garrison, slip op. at 23, 31.
5 Garrison, slip op. at 31-33; RCW 9.94A.525(2).
6 Garrison, slip op. at 33.
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ANALYSIS

Persistent Offender Sentencing

First, the State challenges the trial court's conclusion that Garrison's

Texas manslaughter conviction is not comparable to a "most serious offense" in

Washington. We agree with the trial court.

A "persistent offender" is an offender who:

(a)(i) Has been convicted in this state of any felony
considered a most serious offense; and

(ii) Has, before the commission of the offense under (a) of
this subsection, been convicted as an offender on at least two
separate occasions, whether in this state or elsewhere, of felonies
that under the laws of this state would be considered most serious
offenses and would be included in the offender score under
RCW 9.94A.525.rn

To be a strike offense for persistent offender sentencing, an earlier

conviction must be included in the defendant's offender score and must be a

"most serious offense" as defined by RCW 9.94A.030.8 To decide whether to

count an out-of-state conviction, Washington courts use a two-part test.9 A court

first considers whether the offenses are legally comparable by comparing the

elements of the foreign offense with those of the Washington offense.1° When

the elements of the foreign offense are broader than the Washington offense, the

7 RCW 9.94A.030(38).
8 State v. Morley, 134 Wn.2d 588, 603,952 P.2d 167 (1998).
9 State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).
10 Thiefault, 160 Wn.2d at 415.
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No. 75895-1-1/ 5

court must decide if the offenses are factually comparable." The State has the

burden of proving out-of-state convictions are comparable to Washington

crimes.12 We review the classification of an out-of-state conviction de novo.13

Here, the law of the case doctrine prevents us from reconsidering our

previous holding about factual comparability of Washington's manslaughter in the

first degree and assault in the second degree. We also decide that the Texas

offense is not legally comparable to manslaughter in the second degree. Thus,

the State has failed to show that the Texas offense was a "most serious offense."

The trial court properly decided that Garrison was not a persistent offender.

Manslaughter in the First Degree

First, the State asks us to reconsider our earlier holding that the Texas

offense is not factually comparable to manslaughter in the first degree. Following

the law of the case doctrine, we do not reconsider this decision. "The law of the

case doctrine provides that once there is an appellate court ruling, its holding

must be followed in all of the subsequent stages of the same litigation."14 The

doctrine "seeks to promote finality and efficiency in the judicial process."15

11 Thiefault, 160 Wn.2d at 415.
12In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456
(2005); see also Thiefault, 160 Wn.2d at 421 (Sanders, J., concurrin g).
13 State v. Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000).
14 State v. Schwab, 163 Wn.2d 664, 672, 185 P.3d 1151 (2008) (citing
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)).
15 Roberson, 156 Wn.2d at 41.
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No. 75895-1-1 /6

But under RAP 2.5(c)(2), "[t]he appellate court may at the instance of a

party review the propriety of an earlier decision of the appellate court in the same

case and, where justice would best be served, decide the case on the basis of

the appellate court's opinion of the law at the time of the later review." Courts

have recognized two applications of this exception: (1) cases where the court's

earlier decision is "'clearly erroneous" and that "erroneous decision would work

a manifest injustice to one party" and (2) cases where there has been some

intervening change in the law.16 Even then, application of this exception is

discretionary.17 Here, the State contends that this court's conclusions were

clearly erroneous because they were the result of a misunderstanding of Texas

law. We disagree.

We previously concluded that the Texas offense was not legally

comparable to Washington's manslaughter in the first degree.18 To prove

manslaughter in the first degree, the State had to prove that the defendant knew

of and disregarded a substantial risk that a homicide may occur.16 Texas, by

contrast, does not require the same culpable mental state.26 The State does not

16 Schwab, 163 Wn.2d at 672-73(quoting Roberson, 156 Wn.2d at 42).
17 Schwab, 163 Wn.2d at 672.
18 Garrison, slip op. at 23 & n.7.
18 RCW 9A.32.060(1)(a); RCW 9A.08.010(1)(c); State v. Gamble, 154
Wn.2d 457, 467, 114 P.3d 646 (2005).
20 Lugo-Lugo v. State, 650 S.W.2d 72, 81-82(Tex. Crim. App. 1983).

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No. 75895-1-1/ 7

challenge these conclusions.21 It asserts, however, that it introduced evidence to

show factual comparability.

We previously rejected the State's factual comparability argument

because we decided that the State had not introduced facts that show

comparability. To decide factual comparability, courts examine the conduct

underlying the offense and may consider the "facts in the foreign record that are

admitted, stipulated to, or proved beyond a reasonable doubt."22 The State had

introduced the charging information and the judgment and sentence to show that

Garrison had the requisite mental state and establish factual comparability. The

information alleged that Garrison "intending to cause serious bodily injury to [the

victim], intentionally and knowingly commit[ed] an act clearly dangerous to

human life, to-wit: striking the head and body of [the victim], thereby causing the

death of [the victim]." (Emphasis added.) Thus, the State argued, the

information established facts to show the necessary mental state. But as we

21 The State cites an unpublished portion of an opinion by this court for its
holding that a 1992 Texas conviction for voluntary manslaughter is comparable to
Washington's manslaughter in the first degree. State v. Jordan, 158 Wn. App.
297, 241 P.3d 464 (2010), affd, 180 Wn.2d 456, 325 P.3d 181 (2014). But this
decision is not relevant to this case for several reasons, including the fact that
Jordon ruled on the question of legal comparability of manslaughter in the first
degree, which is not before the court. The State conceded this issue in the first
appeal. See Garrison, slip op. at 23 ("The State concedes on appeal that the
prong of Texas's voluntary manslaughter statute under which Garrison was
convicted is not legally comparable to Washington's offense of manslaughter in
the first degree.").
22 Thiefault, 160 Wn.2d at 415.
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No. 75895-1-1/ 8

stated in State v. Thomas,23 sentencing courts may not simply assume the facts

in a charging document that are not directly related to the elements of the

charged offense have been proved or admitted. To conclude a defendant admits

to the facts in a charging document when he pleads guilty, the court must

consider the effect of the guilty plea under the applicable state law.24

Relying on Thomas, we decided that the charging document did not

establish the necessary facts.25 We reasoned that under Texas law, a defendant

does not admit the charging allegations with a guilty plea.26 We relied on the

Texas decision Menefee v. State.27

In Texas, on a plea of guilty before a judge, "the defendant may
consent to the proffer of evidence in testimonial or documentary
form, or to an oral or written stipulation of what the evidence
against him would be, without necessarily admitting to its veracity
or accuracy." Menefee v. State, 287 S.W.3d 9, 13(Tex. Crim. App.
2009). Alternatively, a defendant "may enter a sworn written
statement, or may testify under oath in open court, specifically
admitting his culpability or at least acknowledging generally that the
allegations against him are in fact true and correct." Menefee, 287
S.W.3d at 13.

The State produced no evidence herein of an evidentiary
stipulation or "judicial confession" in Garrison's Texas case. The
Texas paperwork related to the manslaughter conviction sets forth

23 135 Wn. App. 474, 486, 144 P.3d 1178 (2006).
24 See State v. Releford, 148 Wn. App. 478, 488, 200 P.3d 729 (2009)
(concluding that an Oklahoma offense was factually comparable to a Washington
offense because, in Oklahoma, a plea of guilty admits the facts pleaded in the
information).
25 Garrison, slip op. at 23-26.
26 Garrison, slip op. at 23-26.
27 287 S.W.3d 9(Tex. Crim. App. 2009).
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No. 75895-1-1 / 9

no underlying facts of the crime that were admitted, stipulated to, or
proven beyond a reasonable doubt.[281

The State contends that our reliance on Menefee is misplaced. It cites a number

of other Texas cases, which it claims stand for the proposition that a guilty plea

has the effect of admitting all material facts alleged in the formal criminal

charge.29 These cases cite Ex parte Williams.30

Williams is consistent with Menefee and does not undermine our earlier

conclusion. Williams stated, "The entry of a valid plea of guilty has the effect of

admitting all material facts alleged in the formal criminal charge."31 But Williams

made this statement while explaining the federal constitutional requirement, so it

does not undermine our earlier interpretation of Texas law.32 Williams observed

that Texas has an additional procedural safeguard, and its explanation about the

different standards for corroborating evidence for a guilty plea supports our

interpretation.33 In a misdemeanor case, for example, a defendant admits every

29 Garrison, slip op. at 25-26.
29 E.g. Torres v. State, 493 S.W.3d 213, 217 (Tex. App. 2016); Flores-
Alonzo v. State, 460 S.W.3d 197, 203 (Tex. App. 2015); Ex parte Jessep, 281
S.W.3d 675, 679 (Tex. App. 2009); Tiierina v. State, 264 S.W.3d 320, 322-23
(Tex. App. 2008). The State cites two Texas cases in particular, but they also do
not support its position. First, Jessep was a habeus corpus petition where legal
sufficiency of evidence could not be challenged and, thus, was not at issue. 281
S.W.3d at 680. Second, in Tijerina, the defendant had judicially confessed to the
crime, thus satisfying the State's factual burden. 264 S.W.3d at 324.
39 703 S.W.2d 674, 682(Tex. Crim. App. 1986).
31 Williams, 703 S.W.2d at 682.
32 Williams, 703 S.W.2d at 682.
33 Williams, 703 S.W.2d at 678.
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No. 75895-1-1 / 10

element of an offense in a guilty plea, with or without evidence to support the

plea.34 The same is true in felony cases where a defendant pleads guilty before

a jury.35 By contrast, as occurred in this case, and as Menefee explained, when

a defendant enters a plea of guilty before the court, the State must offer sufficient

evidence to support the judgment.36 Williams acknowledges the same factual

burden that we considered before. Thus, Williams supports rather than

undermines our decision in Garrison's first appeal.

Because the State introduced no evidence of facts that were admitted,

stipulated to, or proved beyond a reasonable doubt in the Texas proceeding, the

State cannot establish factual comparability. The State does not show that this

court's previous decision was clearly erroneous. Further, the State fails to

explain how it produces a manifest injustice.37 For these reasons, we do not

review our earlier decision on factual comparability of Washington's

manslaughter in the first degree.

Williams, 703 S.W.2d at 678.
34
Williams, 703 S.W.2d at 678.
35
36 Williams, 703 S.W.2d at 678.
37 Roberson, 156 Wn.2d at 42 (stating that "application of the [law of the
case] doctrine may be avoided where the prior decision is clearly erroneous, and
the erroneous decision would work a manifest injustice to one party" (emphasis
added)).
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No. 75895-1-1 /11

Assault in the Second Degree

The State also asks us to reconsider our earlier conclusion that the

conviction is factually comparable to assault in the second degree. But we

decline to do so for the same reason we decline to reconsider the factual

comparability of manslaughter in the first degree.

We previously held that for purposes of the "most serious offense" inquiry,

the Texas offense was not legally comparable to assault in the second degree in

Washington.38 We observed that the injury component of the Texas offense

could be shown by a protracted loss or impairment, regardless of severity, but

Washington required a substantial loss or impairment.39 We decided that

because the State produced no evidence of facts of the Texas offense that were

admitted, stipulated to, or proved beyond a reasonable doubt, the State could not

establish factual comparability of Washington's assault in the second degree and

the Texas offense. As explained above, the State has not shown this decision

was clearly erroneous.

Manslaughter in the Second Degree

Next, the State asserts that the Texas offense is comparable to

manslaughter in the second degree. As a preliminary matter, both parties rely on

the law of the case doctrine to assert that the trial court was bound by holdings in

38 Garrison, slip op. at 28-31.
39 Garrison, slip op. at 29-30.
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No. 75895-1-1 / 12

our first opinion. Because our earlier decision does not include a holding about

comparability of manslaughter in the second degree, the law of the case doctrine

does not apply.

To support its position, the State relies on our statement that "[t]he parties

agree that Garrison's 1981 Texas voluntary manslaughter conviction is

comparable to Washington's offense of manslaughter in the second degree."4°

The State mischaracterizes this statement as a holding. We accepted the

parties' agreement that the offenses are comparable to reach the washout issue

on which we resolved the case.41 The law of the case doctrine does not bind the

trial court in the way the State suggests.

Garrison also contends that the law of the case doctrine binds the trial

court on the issue of legal comparability of manslaughter in the second degree.

We disagree with this contention as well. In our first opinion, we noted the

State's concession that the Texas offense is not legally comparable to

manslaughter in the first degree. In a footnote, we explained why we agreed.

We agree. Under the Texas statute, no culpable mental
state attaches to the result. By contrast, the Washington statute
does require a culpable mental state—recklessness—with respect
to the result. A person could be convicted of Texas voluntary
manslaughter without having any culpable mental state connected
to the result of death, whereas the Washington offense of first
degree manslaughter requires that a person recklessly cause a

40 Garrison, slip op. at 31.
41 Garrison, slip op. at 31-33.
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No. 75895-1-1/ 13

person's death. Thus, the Texas statute is broader than the
Washington statute, and the offenses are not legally comparable.P21

Garrison asserts that our conclusion that no mental state attaches to the result

also applies to manslaughter in the second degree. But in the first appeal, we

considered the culpable mental state of first degree manslaughter, which is

recklessness. The culpable mental state for manslaughter in the second degree

is criminal negligence.43 Thus, we cannot rely on our limited earlier analysis of

this issue and must inquire further.

Because the law of the case doctrine does not apply, we must consider

whether the Texas offense is legally comparable to manslaughter in the second

degree. To determine legal comparability, a court must decide if the elements of

the foreign offense are substantially similar to the elements of the Washington

offense.44 Offenses are not legally comparable if the elements are different or if

the Washington statute defines the offense more narrowly than the foreign

statute does.45 To decide whether it can include the conviction in the offender

score analysis, the trial court must compare the elements of the out-of-state

crime with the elements of potentially comparable Washington crimes as defined

42Garrison, slip op. at 23 n.7.
43 RCW 9A.32.070(1). "[C]riminal negligence is distinct from
recklessness." State v. Smith, 31 Wn. App. 226, 230,640 P.2d 25 (1982).
44 Thiefault, 160 Wn.2d at 415.
45 State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999); In re Pers.
Restraint of Lavery, 154 Wn.2d 249, 255-56, 111 P.3d 837(2005).
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No. 75895-1-1 /14

on the date the out-of-state crime was committed." To decide if the conviction is

a "most serious offense," the court compares the foreign offense to Washington

offenses that would have constituted "most serious offenses" at the time that the

defendant committed the offense for which he is being sentenced.47 Here, the

relevant language is substantially the same at the time Garrison committed the

Texas offense and current offense. Thus, only one legal comparability analysis

is required."

In 1981, the Texas offense of "voluntary manslaughter" was defined as

follows: "A person commits an offense if he causes the death of an individual

under circumstances that would constitute murder under Section 19.02 of this

code, except that he caused the death under the immediate influence of sudden

passion arising from an adequate cause."" The referenced "Section 19.02"

required the State to prove that the defendant intended to "cause serious bodily

injury" and committed an act "clearly dangerous to human life."50 In Lugo-Lugo v.

State,51 Texas's highest criminal court clarified that the State need prove only

that the act was objectively clearly dangerous to human life and was done with

46 Lavery, 154 Wn.2d at 255.
47 State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139(2004).
48 Compare RCW 9A.08.010(1)(d) with former RCW 9A.08.010(1)(d)
(1975) and RCW 9A.32.070(1) with former RCW 9A.32.070(1) (1975) (adding
gender neutral language).
49 Former TEX. PENAL CODE ANN.§ 19.04(a)(1973).
60 Former TEX. PENAL CODE ANN. § 19.02(a)(1973).
61 650 S.W.2d 72, 81-82(Tex. Crim. App. 1983).
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No. 75895-1-1/ 15

intent to cause serious bodily injury. The State did not need to prove that the

defendant knew the act was clearly dangerous to human life. 52

For Washington's manslaughter in the second degree, however, the

culpable mental state attaches to the result. In Washington, "[a] person is guilty

of manslaughter in the second degree when, with criminal negligence, he or she

causes the death of another person."53 A person

acts with criminal negligence when he or she fails to be aware of a
substantial risk that a wrongful act may occur and his or her failure
to be aware of such substantial risk constitutes a gross deviation
from the standard of care that a reasonable person would exercise
in the same situation.[54]

Division Two has reasoned that criminal negligence for second degree

manslaughter requires failure to be aware of a substantial risk that a homicide

may occur.55 As Division Two observed, this is consistent with the reasoning of

our Supreme Court in State v. Gamble.56 Gamble considered the mens rea

element of first degree manslaughter.57 First degree manslaughter requires that

52 Lugo-Lugo, 650 S.W.2d at 81-82.
53 RCW 9A.32.070(1).
54 RCW 9A.08.010(d).
55 State v. Latham, 183 Wn. App. 390, 405-06, 335 P.3d 960 (2014)
(assuming without holding that criminal negligence for second degree
manslaughter required a failure to be aware of a substantial risk that a homicide
may occur)(quoting State v. Henderson, 180 Wn. App. 138, 149, 321 P.3d 298
(2014)); Gamble, 154 Wn.2d at 467-68.
56 154 Wn.2d 457, 467-68, 114 P.3d 646 (2005).
57 Gamble, 154 Wn.2d at 467-68.
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No. 75895-1-1 / 16

the defendant "recklessly cause[d] the death of another person."58 A person acts

recklessly when he "knows of and disregards a substantial risk that a wrongful

act may occur."59 Because the "wrongful act" in manslaughter in the first degree

is homicide, Gamble reasoned that Washington law required the State to prove

that the defendant "[knew] of and disregard[ed] a substantial risk that a

[homicide] may occur."6° We apply this logic to conclude that to prove

manslaughter in the second degree, the State must show that the defendant

failed to be aware of a substantial risk that a homicide may occur.

Because Washington's manslaughter in the second degree requires a

culpable mental state in connection with the homicide and the Texas offense

does not, Washington law is narrower and the offenses are not legally

comparable.61

The State passingly asserts that the Texas offense is factually comparable

to manslaughter in the second degree in Washington. But, as we have

explained, the State introduced no facts that were admitted, stipulated to, or

58 RCW 9A.32.060(1)(a).
RCW 9A.08.010(1)(c).
60 Gamble, 154 Wn.2d at 467-68 (alterations in original) (quoting RCW
9A.08.010(c)).
81 Garrison also contends that the Texas conviction is not comparable to
the Washington offense of second degree manslaughter because Texas law is
broader on the element of causation. But we need not consider this argument
because we decide that the offenses are not comparable on a difference basis.
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No. 75895-1-1 /17

proved beyond a reasonable doubt. Thus, we have no information on which we

could base a conclusion that the offenses are factually comparable.

Community Custody Condition

Garrison challenges the following community custody condition: "Abide by

a curfew of 10pm — 5am unless directed otherwise. Remain at registered

address or address previously approved by CCO [community custody officer]

during these hours."62 Garrison contends and the State concedes that the court

did not have statutory authority to impose this condition because it is not crime-

related. The Sentencing Reform Act of 198163 authorizes the trial court to

impose "crime-related prohibitions and affirmative conditions" as part of a

sentence." A condition is "crime-related" if it "prohibit[s] conduct that directly

relates to the circumstances of the crime for which the offender has been

convicted."66 "This court reviews a trial court's imposition of crime-related

community custody conditions for abuse of discretion."66 Here, the crime

occurred in the home where Garrison resided. Thus, the curfew is not directly

62 Garrison raises this challenge for the first time on appeal. But we permit
defendants to challenge illegal or erroneous sentences for the first time on
appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).
63 Ch. 9.94A ROW.
64 State v. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704(2014)(quoting
former ROW 9.94A.505(8)(1975), recodified as ROW 9.94A.505(9)).
65 ROW 9.94A.030(10).
66 State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830(2015).
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No. 75895-1-1 /18

related to the crime. We agree that the trial court abused its discretion when it

imposed this prohibition.

Sex Offender Registration

Next, Garrison contends that the trial court improperly linked the end of

Garrison's sex offender registration requirement to action by the court or sheriffs

office. A person convicted of a sex offense must register with the county

sheriff.67 Because he was convicted of a class B felony, Garrison's duty to

register ends 15 years after release from confinement if he spends 15 years in

the community without being convicted of a disqualifying offense.68 However, the

court included the following statement in the notice of registration requirements,

appendix J to the judgment and sentence: "Your duty to register does not end

until you have obtained a court order specifically relieving you of the duty to

register or you have been informed in writing by the sheriff's office that your duty

to register has ended."

As Garrison asserts and the State admits, under RCW 9A.44.140(2), the

duty to register ends automatically by operation of law after 15 years without

committing a disqualifying offense. Courts are required to notify offenders of the

RCW 9A.44.130(1).
67
68
RCW 9A.44.086(2) ("Child molestation in the second degree is a class
B felony."); former RCW 9A.44.140(2)(LAWS OF 2010, ch. 267 § 4).
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No. 75895-1-1 / 19

registration requirement.69 When they fail to provide this notice, the remedy is to

provide the notice promptly upon discovery of the oversight.70 We hold that the

trial court must also correct an error in the notice by promptly providing accurate

notice to the defendant. The trial court should correct this inaccuracy on remand.

CONCLUSION

We affirm in part and reverse in part. The trial court correctly decided that

the Texas offense is not legally comparable to a most serious offense in

Washington and cannot be used as a predicate offense for the purpose of a

persistent offender sentence. We reverse on the community custody and sex

offender registration issues, however, and remand for further proceedings

consistent with this opinion.

WE CONCUR:
phoayi_
t.csLiv\,4012,.eltr
69 "The court shall provide written notification to any defendant charged
with a sex offense or kidnapping offense of the registration requirements of RCW
9A.44.130. Such notice shall be included on any guilty plea forms and judgment
and sentence forms provided to the defendant." RCW 10.01.200.
70 State v. Munds, 83 Wn. App. 489, 494-95, 922 P.2d 215(1996); State v.
Clark, 75 Wn. App. 827, 833, 880 P.2d 562(1994).
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