State v. Ford

Talmadge, J.

(dissenting) — Earl Lee Ford alleges certain out-of-state crimes would not be felonies under Washington law, but he failed to object to his offender score at trial on that basis. In failing to do so, he is barred from raising the issue for the first time on appeal. RAP 2.5(a). The majority ignores that rule and our case law on preserving error on review. For these reasons, I dissent.

In sentencing proceedings under the Sentencing Reform Act of 1981 (SRA), a defendant’s offender score is based on his or her criminal history (prior convictions and juvenile adjudications in this state, in federal court or elsewhere). RCW 9.94A.030(12). In establishing such a criminal history for sentencing purposes, the State must prove by a preponderance of evidence that a prior conviction exists. State v. Ammons, 105 Wn.2d 175, 186 , 713 P.2d 719 , 718 P.2d 796 , cert. denied, 479 U.S. 930 , 107 S. Ct. 398 , 93 L. Ed. 2d 351 (1986). While the State bears the burden of proving the existence of the prior convictions, the State and the defendant share an obligation under the SRA to provide accurate information regarding the defendant’s criminal history to the trial court:

The prosecuting attorney and the defendant shall each provide the court with their understanding of what the defendant’s criminal history is prior to a plea of guilty pursuant to a plea *487 agreement. All disputed issues as to criminal history shall be decided at the sentencing hearing.

RCW 9.94A.100. See also Ammons, 105 Wn.2d at 183 (where the defendant enters a guilty plea, RCW 9.94A.100 requires him to disclose his prior convictions); In re Personal Restraint of Williams, 111 Wn.2d 353, 365 , 759 P.2d 436 (1988)(same); State v. Hardesty, 129 Wn.2d 303, 315-16 , 915 P.2d 1080 (1996) (noting RCW 9.94A.100 requires defendant and prosecutor to provide trial court with their understanding of defendant’s criminal history, but holding where defendant defrauds trial court regarding criminal history he has no expectation of finality in such fraudulently obtained sentence).

For purposes of a defendant’s offender score calculation under the SRA, the State must prove any out-of-state conviction is a felony under Washington law. RCW 9.94A.360(3) provides that “[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.” See State v. Weiand, 66 Wn. App. 29, 31-32 , 831 P.2d 749 (1992); State v. Cabrera, 73 Wn. App. 165, 168 , 868 P.2d 179 (1994); State v. Duke, 77 Wn. App. 532, 534 , 892 P.2d 120 (1995).

In this case, Ford, a scam artist who bilked numerous elderly victims, objected to the calculation of his offender score at trial, arguing that his California convictions for grand theft, residential burglary, and forgery should not be counted because he was committed for treatment as a consequence of his California crimes. At no time in the trial court did Ford contend the California offenses were not comparable to Washington State felonies. In the absence of any effort by Ford to challenge the comparability of the California felonies, the State merely asserted at trial the California convictions were felonies without further proof. The trial court imposed an exceptional sentence based on Ford’s criminal history. Now, for the first time on appeal, Ford raises the question of the comparability of the California offenses to Washington offenses.

The general policy of Washington’s appellate courts is to *488 require a party to make an objection to an error initially in the trial court. This affords the trial court the full opportunity to correct any alleged error and to create a factual record with respect to the issue for the appellate courts to consider. See RAP 2.5(a); State v. Sengxay, 80 Wn. App. 11, 15 , 906 P.2d 368 (1995) (failure to timely object at trial waives appellate review of nonconstitutional issues); State v. Barber, 38 Wn. App. 758, 770 , 689 P.2d 1099 (1984), review denied, 103 Wn.2d 1013 (1985) (same); Reed v. Pennwalt Corp., 93 Wn.2d 5 , 604 P.2d 164 (1979) (dismissal of appeal is appropriate where record failed to show what, if any, exceptions or objections were made to allegedly erroneous instructions given by trial court or to court’s refusal to give requested instructions). In a criminal setting, we applied this rule in State v. McAlpin, 108 Wn.2d 458, 462 , 740 P.2d 824 (1987):

At no time prior to the trial court’s oral pronouncement of sentence did defendant’s counsel challenge the accuracy of the juvenile record, even though the trial court explicitly afforded him the opportunity to do so. It may be that counsel did not challenge the juvenile record because he concluded that the best tactical choice was to avoid emphasizing the record to the sentencing judge. Nevertheless, the absence of a timely challenge to the record or a timely request for an evidentiary hearing waives this issue for purposes of appellate review.

This rule also comports with due process principles of fundamental fairness. In fairness, the opposing party to a new issue should have an opportunity to be heard on it. This opportunity should not be delayed until the appellate stage, absent unusual circumstances. See RAP 2.5(a).

Moreover, a general objection with respect to a trial court decision is insufficient to preserve a specific issue for review. We explained this policy in State v. Boast, 87 Wn.2d 447, 451 , 553 P.2d 1322 (1976) (quoting Haslund v. City of Seattle, 86 Wn.2d 607, 614 , 547 P.2d 1221 (1976), and Presnell v. Safeway Stores, Inc., 60 Wn.2d 671, 675 , 374 P.2d 939 (1962)), holding:

*489 “insofar as possible, there shall be one trial on the merits with all issues fully and fairly presented to the trial court at that time so the court may accurately rule on all issues involved and correct errors in time to avoid unnecessary retrials.” With regard to objections to evidence, it has long been the rule in this jurisdiction that an objection which does not specify the particular ground upon which it is based is insufficient to preserve the question for appellate review. “Objections must be accompanied by a reasonably definite statement of the grounds therefor so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect.”

(Citations omitted.) See also Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 339 , 878 P.2d 1208 (1994) (if an exception is inadequate to apprise the judge of certain points of law, those points will not be considered on appeal); State v. Wixon, 30 Wn. App. 63, 78 , 631 P.2d 1033 , review denied, 96 Wn.2d 1012 (1981) (where review of record of murder prosecution indicated counsel objected to testimony on relevancy grounds and no hearsay objection was made, no hearsay objection was preserved for appeal); State v. Guloy, 104 Wn.2d 412, 422 , 705 P.2d 1182 (1985) (an objection which does not specify the particular ground upon which it is based is insufficient to preserve the question for appellate review), cert. denied, 475 U.S. 1020 , 106 S. Ct. 1208 , 89 L. Ed. 2d 321 (1986); State v. Mail, 121 Wn.2d 707, 712 , 854 P.2d 1042 (1993) (a challenge to information presented or considered during sentencing must be both timely and specific).

The majority’s approach—allowing any objection with respect to the calculation of an offender score to constitute a sufficient objection to raise any issue subsequently on appeal—constitutes bad policy. This rule permits creative parties to raise entirely new issues on appeal, issues for which appellate courts do not have an adequate record. The majority contributes to the continuing erosion of the clear difference between trial courts and appellate courts. Instead of applying the fundamental principle of appellate review which requires parties to present their claims of error at *490 the trial court level to afford the trial court the opportunity to correct such error and develop a factual record before the issues arrive at the appellate stage, the majority would allow yet another issue to be raised at the appellate stage for the first time. This effectively transforms appellate courts into fact finders, a role for which appellate courts are ill-equipped.

We adopt court rules for the purpose of fair and efficient presentation of issues in our court system. If we carve judicial exceptions to every court rule we have adopted, we give little guidance to litigants or to the courts as to the operation of our system of justice. This is both unwise and unfair. By court rule and by decisional law, Ford was obliged to make a specific objection to the comparability of the out-of-state convictions to Washington State felonies in order to preserve the error for review. He did not do so. We should not reach the issue he raises. I would affirm the decision of the Court of Appeals in this case. 6

Alexander, J., and Dolliver, J. Pro Tern., concur with Tal-MADGE, J.

This is not to say that under our rules, Ford is without a remedy. He is entitled to present a personal restraint petition and claim the error he is now raising. See RAP 16.4(c)(3) (material facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government).