State v. Brown

1

STATE OF WASHINGTON, Respondent, v. MAURICE A. BROWN, Appellant

No. 82936-0-I

Court of Appeals of Washington, Division 1

August 15, 2022

UNPUBLISHED OPINION

Andrus, C.J.

- Maurice Anthony Brown appeals his conviction and sentence for two counts of promoting prostitution. Brown contends the trial court erred in including two out-of-state burglary convictions in his offender score because they are not comparable to any Washington crimes. He also argues the two burglary convictions wash out despite a subsequent out-of-state forgery conviction. Brown further maintains the trial court failed to determine if his two prior Washington drug conspiracy convictions from 2010 constituted the same criminal conduct. In a statement of additional grounds, Brown raises a number of allegations, from prosecutorial misconduct to ineffective assistance of counsel.

We conclude the trial court properly included Brown's Georgia burglary convictions from 1997 and 1998 in the offender score and correctly held that his 2004 Georgia forgery conviction, while old enough to wash out, interrupted the ten- year washout period for the prior burglaries. We further conclude Brown failed to raise the same criminal conduct issue with the trial court. Finally, we conclude the arguments Brown raises in his statement of additional grounds lack merit.

FACTS

The State charged Brown with two counts of promoting prostitution in the first degree and two counts of rape in the second degree, relating to victims E.P. and J.B. The State alleged Brown forced these women to work for him as prostitutes for financial gain, sexually assaulted them, and used physical abuse and drugs to keep them compliant. A jury convicted Brown of promoting prostitution in the first degree relating to victim E.P. and promoting prostitution in the second degree relating to victim J.B.^[1] It deadlocked on the two rape charges.

At a retrial of the rape charges, Brown waived the right to counsel and represented himself. A jury acquitted him of one rape charge and deadlocked again on the second. The court subsequently granted the State's motion to dismiss this remaining rape charge.

At sentencing, the State argued Brown had an offender score of "5" based on four prior felony convictions that scored and one current offense. The four felonies included two Georgia burglary convictions from 1997 and 1998, a 2004 Georgia conviction for forgery, and two 2012 Washington convictions under the Uniform Controlled Substances Act for conspiracy to deliver cocaine and heroin. The State contended the two Georgia burglaries were comparable to Washington's residential burglary statute, RCW 9A.52.020 or the second-degree burglary statute, RCW 9A.52.030. It acknowledged that Brown's 2004 forgery conviction washed out but argued it nevertheless prevented the earlier burglaries from washing out.

Brown did not dispute his prior convictions, did not challenge the comparability of the burglary convictions under Washington law, and did not argue that his two drug convictions constituted the same course of conduct. Instead, Brown argued the Georgia forgery conviction had not been included in his offender score when he was sentenced in 2012 and should not be included in his score at this stage. Brown also contended his offender score should be zero because all of his prior convictions should wash out.

The sentencing court overruled Brown's objections, finding the State proved Brown's prior convictions by a preponderance of the evidence. It noted that Brown had stipulated in his 2012 plea agreement that the Georgia burglary and forgery convictions should be counted in his offender score. The court concluded that the Georgia burglaries were comparable to burglary, a class B felony under Washington law. The court also concluded that the Georgia forgery conviction was comparable to Washington forgery, a class C felony. Finally, the court determined that, even though the forgery conviction washed out, it interrupted the 10-year crime-free period that was required for the prior Georgia burglary convictions to wash out.

The court sentenced Brown at the high end of the standard range on each count, 61 months and 22 months, to run concurrently, based on an offender score of 5. Brown appeals.

ANALYSIS

Brown's Offender Score

Brown contends that the trial court erred in calculating his offender score because (1) the two Georgia burglary convictions are not comparable to any burglary offense in Washington; (2) the 2004 Georgia forgery conviction washed out and cannot be the basis for interrupting the washout period applicable to the burglary convictions; and (3) his two conspiracy to deliver controlled substances convictions constituted the same course of conduct.^[2]

(1) Legal and factual comparability of the Georgia burglary convictions

Brown first argues that his 1997 and 1998 burglary convictions from Georgia should have been excluded from his offender score. We disagree.

A defendant's offender score is calculated by examining a defendant's criminal history. RCW 9.94A.525; RCW 9.94A.030(11). Prior convictions result in offender score points in accordance with the rules provided in RCW 9.94A.525. Under RCW 9.94A.525(3), out-of-state convictions "shall be classified according to the comparable offense definitions and sentences provided by Washington law."

To compare offenses, we use a two-part test. Matter of Canha, 189 Wn.2d 359, 367, 402 P.3d 266 (2017). First we analyze legal comparability by comparing the elements of the out-of-state offense to the most comparable Washington offense. Id.; In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005).

When the crimes' elements are the same, the offenses are legally comparable, our analysis ends, and the crime is included in the offender score. Id.

If the elements are "substantially similar," or if the foreign jurisdiction's definition of the crime is narrower than Washington's definition, then the out-of-state conviction applies toward the defendant's offender score. Lavery, 154 Wn.2d at 255; State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). If the out-of-state offense is broader than the most closely comparable Washington statute, then the court proceeds to the second step of the test: conducting a factual comparability analysis. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998).

Offenses are factually comparable when the defendant's conduct would have violated a Washington statute. Canha, 189 Wn.2d at 367. We may rely on facts that were admitted stipulated, or proved to the fact finder beyond a reasonable doubt. Id. The comparability of offenses is a question of law that we review de novo. State v. Jordan, 180 Wn.2d 456, 460, 325 P.3d 181 (2014).

In 1996, a Georgia grand jury indicted Brown on one count of burglary. Brown pleaded guilty to this charge on March 17, 1997. In 1997, a Georgia grand jury again indicted Brown on one count of burglary. On February 9, 1998, Brown pleaded guilty to this charge and confirmed that he was "in fact guilty."

Georgia's burglary statute in effect at the time of Brown's crimes was not legally comparable to Washington's residential burglary and second-degree burglary statutes. The relevant portion of Georgia's burglary statute provided:

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.

Former Ga. Code Ann. § 16-7-1(a) (1980).

Washington's residential burglary statute at the relevant times stated that "[a] person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." RCW 9A.52.025(1); former RCW 9A.52.025(1) (1989). And contemporaneous with Brown's Georgia burglaries, Washington's second-degree burglary statute stated that "[a] person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." Former RCW 9A.52.030(1) (1989).

Brown and the State agree that the Georgia burglary statute is broader than Washington's burglary statutes because Georgia law characterizes the unlawful entry into a vehicle as a burglary, whereas the Washington burglary statutes exclude vehicles from their scope. The Georgia burglary statute is thus not legally comparable to either Washington burglary statute, and we move on to analyze factual comparability.

The State contends that Brown's Georgia burglary convictions are factually comparable. We agree. Factual comparability requires us to evaluate whether the defendant's conduct would have violated a Washington statute. Lavery, 154 Wn.2d at 255. The key inquiry is whether, under the Washington statute, the defendant could have been convicted if the same acts were committed in Washington. State v. Thomas, 135 Wn.App. 474, 485, 144 P.3d 1178 (2006).

To protect the defendant's constitutional right to a jury we consider only the "facts that were admitted, stipulated to, or proved beyond a reasonable doubt." State v. Olsen, 180 Wn.2d 468, 478, 325 P.3d 187 (2014) (quoting State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007)). And to determine the facts to which a defendant admitted as part of a prior guilty plea, Washington courts "look to the law of the state in which the defendant entered the plea[.]" State v. Releford, 148...