State v. McCorkle , 137 Wash. 2d 490 ( 1999 )

Johnson, J.

This is the companion case to State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999). Like Ford, this case raises the question whether failure to specifically object at sentencing to the classification of prior out-of-state convictions waives the issue on direct appeal.

The Court of Appeals held that failure to specifically object did not waive the issue on appeal. Finding the evidence insufficient to determine whether any of the disputed convictions were properly included in the defendant’s offender score, the Court of Appeals remanded for an eviden-tiary hearing, and for resentencing based thereon.

We affirm.

FACTS

Respondent, Edward A. McCorkle, pleaded guilty in Pierce County Superior Court to one count of robbery in the first degree. At sentencing, McCorkle stipulated to six prior convictions. He disputed seven other out-of-state convictions offered by the State. Specifically, McCorkle objected to the use of any conviction for which there was no certified judgment, and to the use of any pre-1986 convictions, arguing these convictions had “washed out” under the provisions of the Sentencing Reform Act of 1981 (SRA). Based on the six stipulated convictions, McCorkle calculated his offender score as 6. The State argued for the inclusion of the 7 unstipulated out-of-state convictions, resulting in a total of 13 prior convictions and an offender score of 10. The trial court agreed with the State, calculated McCorkle’s offender score at 10, and sentenced McCorkle to a term within the standard range of 171 months. (With an offender score of 6, the standard range would have been 77 to 102 months. See State v. McCorkle, 88 Wn. App. 485, 491 n.2, 945 P.2d 736 (1997)).

The Court of Appeals reversed. McCorkle, 88 Wn. App. 485. The court specifically found McCorkle had made only a general objection to the inclusion of the unstipulated convictions in his offender score. McCorkle, 88 Wn. App. at 490-91. Nevertheless, holding that challenges to an offender score calculation may be raised for the first time on appeal, the court reached the merits of McCorkle’s argument. McCorkle, 88 Wn. App. at 500 (citing State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994)).

Accordingly, the Court of Appeals attempted to classify McCorkle’s unstipulated prior out-of-state convictions by comparing the elements to comparable Washington crimes. McCorkle, 88 Wn. App. at 493-98. Of the seven disputed convictions, the court found the record insufficient to determine whether six of the convictions were comparable to Washington felonies, and that possibly all seven disputed convictions were not properly includable in McCorkle’s offender score. McCorkle, 88 Wn. App. at 498.

It appeared to the Court of Appeals that at least two of the disputed convictions were not properly included in the offender score because they amounted to misdemeanors under Washington law. McCorkle, 88 Wn. App. at 495-96, 498. The evidence was insufficient to determine the classification of four of the other disputed convictions. McCorkle, 88 Wn. App. at 496-97. Of the one disputed conviction which the court found would be classified as a felony under Washington law (a Georgia burglary), it was impossible to tell whether it would be a class A, B, or C felony. McCorkle, 88 Wn. App. at 496. This determination, combined with the classification of a subsequent unauthorized use of a vehicle conviction in Ohio, of which the evidence was insufficient to determine a classification under Washington law, was critical to determining whether the Georgia conviction “washed out” under the SRA. McCorkle, 88 Wn. App. at 498.

Because of the lack of specific objection, the Court of Appeals remanded for an evidentiary hearing that the State might meet its burden of proving the classification of the disputed out-of-state convictions, and for resentencing based thereon. McCorkle, 88 Wn. App. at 502-03.

The State appealed. We granted review limited to whether McCorkle waived any challenge to the classification of the disputed convictions by failing to specifically object at sentencing. We now affirm the Court of Appeals.

ANALYSIS

In State v. Ford, 137 Wn.2d 472, we held that a challenge to the classification of out-of-state convictions may be raised for the first time on appeal. Ford, 137 Wn.2d at 484-85. Our holding in Ford was directly controlled by the clear burden of proof placed on the State by the SRA. We reaffirmed in Ford, and we do so again here, that under the SRA the State is required to prove the existence and classification of prior-out-of-state convictions by a preponderance of the evidence. See Ford, 137 Wn.2d at 482-83. Objection to unsupported argument regarding classification is not required in order to put the State to its proof. Ford, 137 Wn.2d at 483. Under the SRA., the State’s burden is mandatory.

Our holding in Ford controls the outcome in this case. However, we address two additional arguments not raised in Ford.

First, we reject the State’s argument that allowing an appeal in this case contravenes the prohibition against appeal of standard range sentences contained in RCW 9.94A.210(1), and our decision in State v. Mail, 121 Wn.2d 707, 854 P.2d 1042 (1993). RCW 9.94A.210(1) precludes only appellate review of challenges to the length of time imposed within the standard range. State v. Ammons, 105 Wn.2d 175, 182-83, 713 P.2d 719, 718 P.2d 796 (1986). Here, McCorkle does not challenge the length of his sentence within the standard range. Rather, he argues the standard range itself was incorrectly calculated by using prior out-of-state convictions which should not have been included in his offender score. Because the sentencing court must first calculate the correct standard range before imposing sentence within that range, failure to do so is legal error subject to review. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).

Finally, McCorkle argues he did specifically object to the classification of the disputed out-of-state convictions. We agree. At sentencing, McCorkle argued the convictions should not be included in his offender score because they “washed out” under RCW 9.94A.360(2). Whether a prior out-of-state conviction “washes out” cannot be determined without first classifying the conviction as a class A, B, or C felony under Washington law. See RCW 9.94A.360(2). Thus, McCorkle’s “wash out” objection necessarily encompassed classification of the disputed convictions.

In Ford we adopted the reasoning of the Court of Appeals in McCorkle and stated where the State fails to carry its burden of proof after a specific objection, it would not be provided a further opportunity to do so. Ford, 137 Wn.2d at 485. Here, however, McCorkle does not cross-appeal the Court of Appeals’ decision. Thus, despite the specific objection in this case, we remand for an evidentiary hearing and resentencing based thereon, in accordance with the Court of Appeals’ analysis.

Affirmed.

Guy, C.J., Durham, Smith, Madsen, Alexander, and Sanders, JJ., and Dolliver, J. Pro Tern., concur.