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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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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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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