State v. Olsen

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This .opinion-was filed for record
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 89134-6
Respondent,
En Bane
v.
Filed May 15, 2014
EDWARD MARK OLSEN,
Petitioner.
J.M. JOHNSON,J.*-In this case, we consider Washington's treatment
of foreign convictions for sentencing purposes in light of the recent United
States Supreme Court case Descamps v. United States,_ U.S._, 133 S. Ct.
227 6, 186 L. Ed. 2d 43 8 (20 13 ). Petitioner Edward Olsen was convicted of a
number of crimes, including attempted second degree murder, for an incident
of domestic violence against the mother of his children. His offender score at
*Justice James M. Johnson is serving as a justice pro tempore of the Supreme Court
pursuant to Washington Constitution article IV, section 2(a).
State v. Olsen (Edward Mark), No. 89134-6
sentencing was six and he received an exceptional sentence of 360 months.
Olsen claims that a foreign conviction for terrorist threats was not COII:\parable
to Washington's felony harassment and should not have been included in his
offender score. The Court of Appeals, Division Two, affirmed Olsen's
convictions and sentence. We affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
This case arose out of an incident of domestic violence perpetrated by
petitioner Olsen against the mother of his children, Bonnie Devenny. Olsen
broke into Devenny's house, poured gasoline on her while she was sleeping,
and told her that she was going to die. Police later recovered a lighter near
the bed. Olsen has a history of threatening and committing acts of domestic
violence against Devenny, including a California conviction for terrorist
threats for which he pleaded no contest. During the California incident, Olsen
allegedly wrapped duct tape around Devenny's legs and told her that he was
going to kill her, cut her up into little pieces, and put the pieces in a plastic
storage container.
For the gasoline incident, Olsen was charged in Kitsap County Superior
Court by second amended information of attempted first degree murder,
attempted second degree murder, first degree burglary, felony harassment,
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State v. Olsen (Edward Mark), No. 89134-6
and third degree malicious mischief. All felony counts included domestic
violence aggravators for the purposes ofRCW 9.94A.535 because the crime
occurred in the presence of Devenny and Olsen's 12-year-old son. A jury
convicted Olsen as charged on all counts except attempted first degree murder.
Olsen was sentenced using an offender score of six, in part because his
California conviction for terrorist threats was found to be comparable to
Washington's felony harassment. The trial court imposed an exceptional
sentence of 360 months.
Olsen appealed to Division Two of the Court of Appeals, which
affirmed his convictions and sentence. State v. Olsen, 175 Wn. App. 269, 309
P.3d 518 (2013). The Court of Appeals opinion was issued on June 27, 2013,
one week after Descamps was issued by the United States Supreme Court.
The Court of Appeals opinion did not address Descamps. Olsen filed a
petition for review in this court. We granted review only on the issue of
comparability of the California conviction, including the propriety of
examining the facts of the foreign conviction in light of Descamps. State v.
Olsen, 178 Wn.2d 1018, 312 P.3d 651 (2013). We affirm the Court of
Appeals.
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State v. Olsen (Edward Mark), No. 89134-6
ANALYSIS
We review the trial court's calculation of a defendant's offender score
de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007) (citing
State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003)). We also review de
novo claims that the petitioner's sentence violates his right to a jury trial under
the Sixth Amendment to the United States Constitution. State v. Mutch, 171
Wn.2d 646, 656, 254 P.3d 803 (2011) (citing State v. Alvarado, 164 Wn.2d
556, 560-61, 563, 192 P.3d 345 (2008)).
A. Washington's Comparability of Foreign Convictions under the
Sentencing Reform Act (SRA)
The SRA creates a grid of standard sentencing ranges calculated
according to the crime's seriousness level and the defendant's offender score.
RCW 9.94A.505, .510, .520, .525; State v. Ford, 137 Wn.2d 472, 479, 973
P .2d 452 (1999). The offender score is the sum of points accrued as a result
of prior convictions. RCW 9.94A.525. Pursuant to RCW 9.94A.525(3),
"[ oJut-of-state convictions for offenses shall be classified according to the
comparable offense definitions and sentences provided by Washington law."
The State bears the burden of proving the existence and comparability of all
out-of-state convictions. Ford, 137 Wn.2d at 480.
We first stated Washington's two-part test for comparing foreign
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State v. Olsen (Edward Mark), No. 89134-6
convictions in State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998).
Under the legal prong, courts compare the elements of the out-of-state
conviction to the relevant Washington crime. If the foreign conviction is
identical to or narrower than the Washington statute and thus contains all the
most serious elements of the Washington statute, then the foreign conviction
counts towards the offender score as if it were the Washington offense. Id. at
606. If, however, the foreign statute is broader than the Washington statute,
the court moves on to the factual prong-determining whether the defendant's
conduct would have violated the comparable Washington statute. !d. (citing
State v. Duke, 77 Wn. App. 532, 535, 892 P.2d 120 (1995)).
In In re Personal Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d
837 (2005), we recognized that Morley's factual analysis could prove
problematic after Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000). InApprendi, the United States Supreme Court held that
except for a prior conviction, a "fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. We have consistently
held that the existence of a prior conviction need not be presented to a jury
and proved beyond a reasonable doubt. Lavery, 154 Wn.2d at 256 (citing
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State v. Olsen (Edward Mark), No. 89134-6
State v. Smith, 150 Wn.2d 135, 141-43, 75 P.3d 934 (2003)). In Lavery, we
recognized that, as in the case of prior convictions, a certified copy of a prior
judgment is highly reliable evidence when analyzing foreign crimes that are
legally comparable to Washington crimes. Id. at 256-57. However, this is not
the case for foreign crimes that are not legally comparable. "In essence, such
crimes are different crimes." !d. at 257.
We concluded that "Apprendi does not apply where the State seeks to
prove the existence of a prior conviction but does apply when a court must
look to the facts underlying a foreign offense to determine its comparability."
State v. Thiefault, 160 Wn.2d 409, 419, 158 P.3d 580 (2007) (citing Lavery,
154 Wn.2d at 256-57). Avoiding conflict with Apprendi, we narrowed
Morley's factual prong to consider only facts that were admitted, stipulated
to, or proved beyond a reasonable doubt. Lavery, 154 Wn.2d at 258; Thiefault,
160 Wn.2d at 415. We held that Lavery's prior foreign robbery conviction
was neither factually nor legally comparable to Washington's second degree
robbery statute and thus could not count as a strike under the Persistent
Offender Accountability Act of the SRA. Lavery, 154 Wn.2d at 258.
B. Descamps
We granted review in this case to consider the comparability of the
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State v. Olsen (Edward Mark), No. 89134-6
California conviction, including the propriety of examining the facts of the
foreign conviction in light of Des camps. We consider, in part, whether our
current comparability analysis survives Descamps. We hold that it does.
On June 20, 2013, the United States Supreme Court issued its opinion
in Des camps. In that case, the defendant was convicted in federal district
court of possession of a firearm by a convicted felon. He was sentenced under
the Armed Career Criminal Act of 1984 (ACCA), 1 which increases the
sentences for some federal defendants who have three prior violent felony
convictions. Descamps, 133 S. Ct. at 2281. To determine whether a past
conviction qualifies, courts use the "categorical approach." Id. This involves
comparing the elements of the statute forming the basis of the defendant's
conviction with the elements of the "generic crime," which is the offense as
commonly understood. Jd. To qualify as an ACCA predicate, the prior
conviction's statutory elements must be the same as or narrower than those of
the generic offense. Id.In analyzing ACCA predicates, federal courts use the "modified
categorical approach" when a prior conviction involves a divisible statute.
Such statutes set out one or more elements of the offense in the alternative.
1
18 U.S.C. § 924(e).
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State v. Olsen (Edward Mark), No. 89134-6
Id. One example of a divisible statute is a burglary statute involving entry
into a building or an automobile. Id. When one alternative matches an
element of the generic offense but the other does not, sentencing courts may
consult some documents, 2 including the indictment and jury instructions, to
determine which alternative was the basis for the conviction. The court then
applies the categorical approach by comparing the conviction crime elements
with the generic crime elements. Id. If the elements of the defendant's prior
conviction, as they are charged, are the same or narrower than the generic
offense, the conviction can be used to impose an ACCA sentence.
The modified categorical approach is a necessary extension of the
categorical approach. "Because the statute is 'divisible'-i.e., comprises
multiple, alternative versions of the crime-a later sentencing court cannot
tell, without reviewing something more, if the defendant's conviction was for
the generic (building) or non-generic (automobile) form of [the crime]." Id.
at 2284.
2
The United States Supreme Court in Johnson v. United States, 559 U.S. 133, 144, 130 S.
Ct. 1265, 176 L. Ed. 2d 1 (2010), listed which documents can be reviewed in a modified
categorical approach, including "charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions
and verdict forms."
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State v. Olsen (Edward Mark), No. 89134-6
In Descamps, the United States Supreme Court considered whether
sentencing courts can consult outside documents when a defendant is
convicted under an indivisible statute that is broader than the generic offense.
Id. at 2283. This would involve courts looking to a case's underlying facts to
determine if the defendant's conduct met the elements of the generic crime
even if the charging statute was broader. The Court ultimately held that
"sentencing courts may not apply the modified categorical approach when the
crime of which the defendant was convicted has a single, indivisible set of
elements." !d. at 2282. This means that unless a statute contains elements set
out in the alternative, courts may not look to outside documents to determine
the basis for the conviction. If a prior offense contains broader statutory
elements than the generic offense, sentencing courts are forbidden from using
the prior offense as the basis for an ACCA sentence, regardless of the
underlying criminal conduct.
The Court in Descamps recognized that fact inquiries
would (at the least) raise serious Sixth Amendment concerns if it
went beyond merely identifying a prior conviction. Those
concerns . . . counsel against allowing a sentencing court to
"make a disputed" determination "about what the defendant and
state judge must have understood as the factual basis of the prior
plea," or what the jury in a prior trial must have accepted as the
theory of the crime.
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State v. Olsen (Edward Mark), No. 89134-6
Id. at 2288 (quoting Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct.
1254, 161 L. Ed. 2d 205 (2005) (plurality opinion)). Under the Sixth
Amendment, it is inappropriate to "extend[ ] judicial factfinding beyond the
recognition of a prior conviction." Id.; see also Apprendi, 530 U.S. at 490.
Descamps' Sixth Amendment implications do not call into question
Washington's comparability analysis under the SRA. A long line of cases
supports the use of the categorical and modified categorical approaches for
analyzing foreign convictions under the ACCA. See Johnson v. United States,
559 U.S. 133, 144, 130 S. Ct. 1265,-176 L. Ed. 2d 1 (2010) (approving of the
modified categorical approach for divisible statutes); Nijhawan v. Holder, 557
U.S. 29, 41, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009) (expressing approval of
the modified categorical approach); Shepard, 544 U.S. at 13 (recognizing that
the categorical approach applies to plea agreements); Taylor v. United States,
495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (establishing the
categorical and modified categorical approaches to the ACCA). This federal
framework is consistent with the Lavery framework, which limits our
consideration of facts that might have supported a prior conviction to only
those facts that were clearly charged and then clearly proved beyond a
reasonable doubt to a jury or admitted by the defendant.
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State v. Olsen (Edward Mark), No. 89134-6
The United States Supreme Court's consideration of Sixth Amendment
rights does apply to state cases. See Apprendi, 530 U.S. at 476 (recognizing
that the Fourteenth Amendment extends the Due Process Clause of the Fifth
Amendment and notice and jury trial guaranties of the Sixth Amendment to
proceedings in state courts). Our clarifications of the factual prong in Lavery
and Thiefault guarantee that judicial determinations will not usurp the role of
the jury in violation of the Sixth Amendment.
C. The Trial Court's Determination of Olsen's Offender Score
Olsen claims that the California crime of terrorist threats is broader than
the Washington crime of felony harassment and therefore was improperly
used to calculate his offender score. CAL. PENAL CODE § 422(a) defined
"terrorist threats" 3 as
[a]ny person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing,
or by means of an electronic communication device, is to be
taken as a threat, even if there is no intent of actually carrying it
out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific
as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or
3
Olsen was charged with making "terrorist threats" under CAL. PENAL CODE § 422(a)
(1998). The name of the crime has since been changed to "criminal threats" but the
substance of the statute remains unchanged.
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State v. Olsen (Edward Mark), No. 89134-6
her. own safety or for his or her immediate family's safety.
(Emphasis added.)
Pursuant to former RCW 9A.46.020 (1999):
(1)A person is guilty ofharassment if:
(a) Without lawful authority, the person knowingly
threatens:
(i) To cause bodily injury immediately or in the
future to the person threatened or to any other person....
(b) The person by words or conduct places the person
threatened in reasonable fear that the threat will be carried out.
(2) A person who harasses another is guilty of a gross
misdemeanor . . . except that the person is guilty of a class C
felony if . . . (b) the person harasses another person under
subsection (1 )(a)(i) of this section by threatening to kill the
person threatened or any other person.
Under the legal prong of our two-part test, we first compare the
elements of the out-of-state conviction to the relevant Washington crime. If
the foreign conviction is identical to, or narrower than, the Washington
statute, the foreign conviction counts towards the offender score as if it were
the Washington offense. Morley, 134 Wn.2d at 606. Here, the two statutes
are not legally comparable because the California statute criminalizes threats
to commit a crime that will result in death or great bodily injury. See CAL.
PENAL CODE § 422. Under the Washington statute, threats of great bodily
injury generally do not constitute a felony. Former RCW 9A.46.020(2).
We, therefore, move on to the factual prong, under which we determine
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State v. Olsen (Edward Mark), No. 89134-6
whether the defendant's conduct would have violated the comparable
Washington statute. Morley, 134 Wn.2d at 606. We may consider only facts
that were admitted, stipulated to, or proved beyond a reasonable doubt.
Thiefault, 160 Wn.2d at 415.
For his California conviction of terrorist threats, Olsen pleaded no
contest to all counts. Under California law, the '"legal effect of such a plea,
to a crime punishable as a felony, shall be the same as that of a plea of guilty
for all purposes."' People v. Wallace, 33 Cal. 4th 738,749,93 P.3d 1037, 16
Cal. Rptr. 3d 96 (2004) (quoting CAL. PENAL CODE § 1016(3)). Moreover,
"[a] guilty plea 'admits every element of the crime charged."' Id. (quoting
People v. Thomas, 41 Cal. 3d 837, 844 n.6, 718 P.2d 94, 226 Cal.·Rptr. 107
(1986)). Under California law, even where the statutory elements are in the
disjunctive, if the charging document presents them in the conjunctive, a
guilty plea admits each of the elements. People v. Tuggle, 232 Cal. App. 3d
147, 154-55,283 Cal. Rptr. 422 (1991), overruled on other grounds by People
v. Jenkins, 10 Cal. 4th 234, 893 P.2d 1224, 40 Cal. Rptr. 2d 903 (1995).
Count I of the information alleges, in part, that Olsen "did willfully and
unlawfully threaten to commit a crime which would result in death and great
bodily injury to [Devenny]." Ex. 37 (emphasis added). Olsen, therefore,
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State v. Olsen (Edward Mark), No. 89134-6
admitted threatening to commit a crime that would result in both death and
great bodily injury to Devenny.
Olsen further alleges that Cal. Penal Code§ 422lacks the element that
the victim fears death, which former RCW 9A.46.020 requires. Suppl. Br. of
Pet'r at 2. The California statute requires the threat to "convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of
the threat, and thereby causes that person reasonably to be in sustained fear
for his or her own safety." CAL. PENAL CODE § 422(a). Because the statute
is written in the disjunctive, the type of fear relates back to the type of threat-
either of death or great bodily injury. Here, Olsen admitted to threatening
both death and great bodily injury by implicitly admitting all elements of the
crime through a no contest plea. See Wallace, 33 Cal. 4th at 749; Tuggle, 232
Cal. App. 3d at 154-55. Accordingly, the requirement that Devenny feared
death is satisfied.
In performing the factual analysis as narrowed in Lavery and Thiefault,
it is evident that Olsen's California conviction for terrorist threats under Cal.
Penal Code§ 422 is factually comparable to felony harassment under former
RCW 9A.46.020. The trial court properly calculated Olsen's offender score
using the foreign conviction.
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State v. Olsen (Edward Mark), No. 89134-6
Olsen claims that because the California conviction should not have
been used in his offender score, a separate conviction for custodial
interference washes out. He, therefore, contends that his offender score
should be four instead of six. However, since the California conviction was
properly included in his offender score, the custodial interference conviction
does not wash out.
CONCLUSION
Because Olsen admitted facts surrounding his California conviction
that would have satisfied Washington's felony harassment statute, the trial
court properly included the foreign conviction in his offender score.
Washington's comparability analysis of foreign convictions surv1ves
Des camps. We, therefore, affirm the Court of Appeals.
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State v. Olsen (Edward Mark), No. 89134-6
WE CONCUR:
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