State v. McCorkle

Talmadge, J.

(concurring) — Consistent with my dissent in the companion case of State v. Ford, I concur here for the reasons articulated at page 496 of the majority opinion. I agree with the majority view that McCorkle raised a sufficient objection at sentencing to preserve for review the alleged error as to classification of his out-of-state convictions.

It is undisputed McCorkle challenged the calculation of his criminal history at sentencing, insisting his offender score should be 6. He specifically argued certain out-of-state convictions should not be included in his offender score because they “washed out” under RCW 9.94A.360(2). The State acknowledged McCorkle’s “wash out” argument at sentencing and admitted it had been unable to secure certified documentation from the Ohio Department of Corrections, which it claims would resolve the issue. The State also responded to McCorkle’s “wash out” argument by noting a 1989 Clark County conviction, endorsed by his attorney at that time, which listed his offender score as 9, based on the convictions he now alleges have washed out.

The State argued McCorkle’s offender score should be 13, relying on various conflicting documents regarding his *498criminal history including a presentence investigation report and FBI rap sheet. The sentencing court rejected both views, setting McCorkle’s offender score at 10, obtaining this score by adding a 1991 conviction for attempted burglary to the offender score of 9 derived from the 1989 Clark County conviction. The trial court explained it was using the 1989 Clark County offender score determination as a base because it had been endorsed by McCorkle’s attorney at that time. The trial court ignored the fact, noted by McCorkle’s attorney, that Pierce County convictions in 1986 and 1991, also contemporaneously endorsed by Mc-Corkle’s attorneys, determined his offender score to be 0 and 3 respectively.

Remand for an evidentiary hearing and resentencing is appropriate here because, unlike the appellant in Ford, Mc-Corkle sufficiently raised the issue of classification below. Because McCorkle specifically argued at sentencing that his prior convictions “washed out” under the SRA, he sufficiently put into contention the issue of classification of those prior convictions, as such classification is a requisite first step in determining whether earlier convictions “wash out.” See RCW 9.94A.360(2) and (3).1 Thus, McCorkle sufficiently raised the issue in the trial court below to the necessary degree to (1) allow opportunity for the trial court to correct the asserted error, and (2) put all parties on notice of the contended issue. See State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976) (“Objections must be accompanied by a reasonably definite statement of the grounds therefor so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect.” (quoting Presnell v. Safeway Stores, Inc., 60 Wn.2d 671, 675, 374 P.2d 939 (1962)).

*499Given the State’s acknowledgment of, and argument against, McCorkle’s “wash out” contention, it cannot be said any party or the sentencing court lacked sufficient notice of the issues presently before us, including the classification of convictions. Unlike Ford, the asserted error here is properly preserved for appeal. Remand for an evi-dentiary hearing and resentencing is available to McCorkle, and appropriate given the confused and conflicting documentation upon which the State and sentencing court relied in determining his offender score.

Because such classification is a necessary first step in determining whether “wash out” has occurred, McCorkle’s case is distinguishable from Ford. Ford never asserted a wash out claim under RCW 9.94A.360(2) before the sentencing court; he simply attempts to assert for the first time on appeal that his California offenses are not comparable to Washington offenses.