*421¶20 (concurring) — The majority concludes (1) the sentencing court improperly found Gaylon Lee Thiefault’s prior Montana attempted robbery conviction legally comparable to Washington’s crime of second degree attempted robbery and (2) Thiefault’s counsel’s failure to object to that finding constitutes ineffective assistance of counsel. The majority therefore vacates Thiefault’s sentence and remands for resentencing based on whether the facts surrounding Thiefault’s Montana conviction would constitute a crime under Washington law. I concur in the result; however, I write separately to emphasize the general rule that the State is held to the existing record on remand. State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997).
Sanders, J.¶21 It is the State’s burden to prove an out-of-state conviction is comparable to a Washington crime by a preponderance of the evidence. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). Comparability may be shown either by demonstrating legal comparability — the elements of the crimes are legally identical — or factual comparability — the conduct underlying the out-of-state crime would have violated a comparable Washington statute. Id. At Thiefault’s sentencing hearing, the State claimed Thiefault’s Montana conviction was comparable to a Washington crime. The State prepared a factual record8 and argued in its brief both legal and factual comparability of the two crimes. See Clerk’s Papers at 55 (State’s Sentencing Br., Snohomish Super. Ct. No. 01-1-00167-6) (“At the very least . . . the defendant’s particular conduct would have violated the comparable Washington statutes.”).
*422¶22 For the purpose of legal comparability, the majority appropriately holds the State to the existing record and finds the crimes not legally comparable. Majority at 416 n.3. The majority also appropriately remands to the trial court “to conduct a factual comparability analysis of the Montana conviction.” Majority at 417. This analysis, however, must be conducted on the existing factual record. This approach is consistent with Ford because in Ford we were careful to limit our holding to the specific facts of that case. Ford, 137 Wn.2d at 485 {“Under the present facts . . . we recognize that defense counsel has some obligation to bring the deficiencies of the State’s case to the attention of the sentencing court.” (emphasis added)). The “present facts” referenced in Ford included the State’s unsubstantiated assertion that certain California convictions would be classified as felonies under Washington law, the State’s failure to argue legal or factual comparability in any way, and the trial court’s erroneous finding that certain convictions would be classified as felonies under Washington law despite the complete lack of supporting evidence. This case is factually distinguishable from Ford in that here the State has made a full attempt to argue both legal and factual comparability, as it provided a record supporting both arguments at Thiefault’s sentencing.
¶23 Our ruling in In re Personal Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005) is instructive. In Cadwallader the State, at sentencing, presented what it believed to be Cadwallader’s complete criminal history. Cadwallader did not object to the State’s presentation of his criminal history, nor did he object to the characterization of his 1978 rape conviction as a predicate strike offense; accordingly, the trial court accepted Cadwallader’s plea of guilty and sentenced him to life as a persistent offender. Id. at 870. In April 2000 Cadwallader filed a personal restraint petition arguing his life sentence was invalid because the 1978 rape conviction had “washed out.” Id. at 871.
¶24 The Court of Appeals opined because Cadwallader failed to object to his criminal history at sentencing *423(thereby failing to put the sentencing court on notice that his 1978 conviction had washed out), the State should have the opportunity on remand to prove the presence of a 1985 theft conviction which “interrupted” the wash out period. Id. at 871-72. We disagreed, stating, “[g]iven that Cadwallader had no obligation to disclose his criminal history, it follows that he had no obligation to object to the State’s failure to include the 1985 Kansas theft conviction in his criminal history.” Id. at 876.
¶25 The same considerations in Cadwallader apply to the case at bar. Here, because Thiefault was under no obligation to prove the comparability of his Washington and Montana offenses (this was exclusively the State’s burden), he was under no obligation to object to the State’s failure to present evidence sufficient to establish factual comparability. In essence, Cadwallader serves as a reminder to the State that it must come to court prepared to meet its primary burden of proof; if it fails to do so, we will not hold the defendant responsible for bringing such deficiencies to the judge’s attention.
¶26 Forcing the defendant to “object” to a potential weakness in the State’s case makes no sense — it is the State’s burden of proof. Whether or not that burden is met is a matter of considering competent evidence, not “objecting” to an otherwise appropriate procedure. We have repeatedly cited Ford to emphasize the State’s burden in this context, not to eviscerate it. See, e.g., Cadwallader, 155 Wn.2d at 877-78 (“A ‘defendant is simply not obligated to disprove the State’s position, at least insofar as the State has failed to meet its primary burden of proof.’ ” (quoting Ford, 137 Wn.2d at 482)); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002) (“The burden of establishing criminal history by a preponderance of the evidence lies with the prosecution . . . .” (citing Ford, 137 Wn.2d at 477)); In re Pers. Restraint of Call, 144 Wn.2d 315, 330, 28 P.3d 709 (2001) (“ ‘[I]t is the State, not the defendant, which bears the ultimate burden of ensuring the record supports the existence and classification of out-of-*424state convictions.’ ” (quoting Ford, 137 Wn.2d at 480)). Unquestionably, the court in Ford neither held nor implied that any failure to object on the part of defense counsel must result in a renewed opportunity for the State to supplement the record of its case on remand.
¶27 Here the sentencing court found the crimes legally comparable, eliminating the need for that court to address factual comparability and obviating the need for an objection, even if appropriate. Accordingly, nothing occurred in the proceeding which could possibly have warranted an objection from Thiefault’s counsel. It would make little sense for us to punish Thiefault on remand for failing to object to a supposed error the sentencing court had not committed.
¶28 For the above reasons, I concur in the result and would hold the State to the existing record on remand.
Alexander, C.J., and J.M. Johnson, J., concur with Sanders, J.
In an appendix to the sentencing brief in which the State argued for factual similarity, the State included the following evidence of the facts surrounding Thiefault’s Montana convictions: (1) a motion for leave to file information for a Montana crime, (2) an affidavit of the Montana prosecutor, and (3) two Montana judgments. These documents could serve no purpose other than as evidence supporting the State’s argument for factual comparability.