In re Personal Restraint of Lar

In the matter of the personal restraint of: MICHAEL A. LAR, Petitioner.

No. 45365-7-II

Court of Appeals of Washington, Division 2

April 21, 2015

UNPUBLISHED OPINION

BJORGEN, A.C.J.

Following a jury trial, the trial court sentenced Michael Anthony Lar to a life term without the possibility of early release under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1982, chapter 9.94A RCW, and we affirmed on appeal.^[1] In this timely personal restraint petition (PRP), Lar challenges his kidnapping • conviction and his sentence, arguing that (1) the trial court erred in sentencing him under the POAA because the prior federal bank robbery convictions relied on are not comparable to most serious offenses under Washington law, (2) his trial and appellate counsel rendered ineffective assistance by failing to adequately challenge the comparability of Lar's prior federal convictions at sentencing and on direct appeal, (3) his kidnapping conviction should have merged with his attempted robbery conviction because the restraint involved was merely incidental to the robbery attempt, and (4) the sentencing court improperly imposed discretionary legal financial obligations without considering Lar's ability to pay. We grant the petition in part, reverse Lar's POAA sentence, and remand for resentencing.

FACTS

The State charged Lar with burglary, kidnapping, and attempted robbery, all in the first degree, and a jury returned guilty verdicts on all counts.^[2]

Lar had previously pled guilty on two occasions in federal district court to bank robbery charges: on one occasion, Lar pled guilty to one count of bank robbery and one count of armed bank robbery, and that court sentenced him for both crimes in one proceeding on January 31, 1997. As part of the plea deal Lar stipulated to a statement of facts underlying each charge, but did not expressly admit that he intended to permanently deprive the banks of the money.

On the other occasion, Lar pled guilty to two counts of bank robbery in 1985, and the federal district court sentenced him for both counts in one proceeding. Although the complaint in the federal prosecution describes the conduct at issue similarly to that underlying Lar's 1997 robbery convictions, the information merely sets out the statutory elements of federal bank robbery along with the amounts of money taken. The record contains nothing indicating that Lar stipulated to any statement of the facts underlying the 1985 charges.

In 2005, our Supreme Court held that the federal crime of bank robbery is not legally comparable to second degree robbery under Washington law. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255-56, 111 P.3d 837 (2005). Nonetheless, although Lar made a general comparability objection to the use of his prior federal convictions in the sentencing proceeding at issue here, he did not specifically challenge their comparability based on Lavery.^[3]

The sentencing court found the prior federal convictions comparable to most serious offenses under the POAA, stating that it thus had no discretion to exercise, and sentenced Lar to a life term without the possibility of early release. As part of the sentence, the court imposed a $ 1, 000 jail recoupment fee and $ 11, 025 in court-appointed attorney fees. The court's order contained a boilerplate finding concerning Lar's present or future ability to meet these obligations, but nothing else in the record indicates whether the court actually considered Lar's ability to pay.

Lar timely submits this petition, and has not previously submitted a PRP in this matter.

ANALYSIS

After setting out the standard of review for PRPs, we first address the comparability of Lar's 1985 and 1997 federal bank robbery convictions to most serious offenses under Washington law. We then turn to Lar's claim that the conduct underlying his kidnapping conviction was merely incidental to that underlying the charged robbery. Finally, we address the sentencing court's imposition of discretionary legal financial obligations.

I. Standard of Review

To obtain relief in a timely PRP,

a petitioner must show either that he or she was actually and substantially prejudiced by constitutional error or that his or her .trial suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.

In re Pers. Restraint of Finstad, 177 Wn.2d 501 506, 301 P.3d 450 (2013). A personal restraint petitioner who presents a meritorious ineffective assistance of counsel claim "has necessarily met his burden to show actual and substantial prejudice" and is thus entitled to relief. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

II. Comparability of Lar's Federal Bank Robbery Convictions

Lar first asks us to address his claim directly and vacate his POAA sentence because he objected to the use of his prior 1985 and 1997 federal convictions in the sentencing court. Lar contends that, because his prior convictions are not comparable to most serious offenses under Washington law, he is not a persistent offender within the meaning of the POAA. We agree.

A sentencing court must impose a sentence of total confinement for life without the possibility of release on a "persistent offender." RCW 9.94A.570. As relevant here, a persistent offender is one who stands convicted of a felony defined as a "most serious offense, " also called a "strike" offense, .see Lavery, 154 Wn.2d at 252, and has previously "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." RCW 9.94A.030(37)(a)(ii). In the first degree, kidnapping, burglary, and attempted robbery all qualify as most serious offenses. RCW 9.94A.030(32)(a); RCW 9A.40.020; RCW 9A.52.020; former RCW 9A.56.200 (1990).

We review de novo a trial court's determination that a prior conviction from another jurisdiction is comparable to a strike offense, applying the following test:

A court must first query whether the foreign offense is legally comparable-that is, whether the elements of the foreign offense are substantially similar to the elements of the Washington offense. If the elements of the foreign offense are broader than the Washington counterpart, the sentencing court must then determine whether the offense is factually comparable-that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute.

State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007) (citing State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998)). If the conviction is comparable to a strike offense under either prong, a sentencing court may properly rely on it in imposing a POAA sentence. See Thiefault, 160Wn.2d at 415.

A. Legal Comparability

In Lavery, our Supreme Court vacated a life sentence imposed under the POAA on the ground that the prior federal bank robbery convictions on which the sentencing court had relied were not comparable to most serious offenses^[4] under Washington law. 154 Wn.2d at 253-62. The Lavery court addressed the legal prong of the comparability test as follows:

The crime of federal bank robbery is a general intent crime. The crime of second degree robbery in Washington, however, requires specific intent to steal as an essential, nonstatutory element. Its definition is therefore narrower than the federal crime's definition. . . . Because the elements of federal bank robbery and robbery under Washington's criminal statutes are not substantially similar, we conclude that federal bank robbery and second degree robbery in Washington are not legally comparable.

Lavery, 154 Wn.2d at 255-56 (citations omitted). The State concedes that federal bank robbery is not legally comparable to the relevant most serious offense under Washington law. We accept the State's concession, as Lavery requires. 154 Wn.2d at 256.

B. Factual Comparability

The State contends instead that the trial court properly relied on Lar's federal bank robbery convictions because the facts to which Lar stipulated and admitted as part of his plea deals establish specific intent to steal. When factually comparing a "foreign" conviction, a court "may consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt." State v. Olsen, 180 Wn.2d 468, 478, 325 P.3d 187, cert, denied, 135 S.Ct. 287 (2014).

As the State points out, under Washington law a guilty plea generally admits the allegations in the information. In re Pers. Restraint of Francis, 170 Wn.2d 517, 530, 242 P.3d 866(2010). We have held, however, that

[i]n order to determine that which was admitted by the defendant as a result of the entry of a guilty plea, it is necessary to look to the law of the state in which the defendant entered the plea as that law existed at the time of the plea.

State v. Releford, 148 Wn.App. 478, 489, 200 P.3d 729 (2009) (emphasis omitted). The rationale for this rule would apply equally to guilty pleas entered in the federal courts. Under federal precedents, "a plea of guilty admits only the elements of the charge necessary for a conviction." Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007); accord United States v. Forrester, 616 F.3d 929, 945-46 (9th Cir. 2010); United States v. Cazares, 121 F.3d 1241, 1246-47 (9th Cir. 1997).

In neither plea deal did Lar admit to the facts as stated in the complaint, and because he pled guilty, the government never proved those facts beyond a reasonable doubt. State v. Bunting, 142 Wn.App. 135, 142, 61 P.3d 375 (2003). The federal statute on which Lar's prior convictions rest provides in relevant part:

(a) Whoever, by force and violence, or

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