State Of Washington, V. Seraj Tillisy ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 82109-1-I
) consolidated with
Respondent, ) No. 82111-3-I
)
v. )
)
SERAJ MEHDI TILLISY, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Seraj Tillisy challenges his judgment and sentence, arguing
that the trial court erred in finding that his two Texas convictions for fraudulent use
or possession of identifying information were comparable to Washington’s identity
theft statute. Because the Texas statute is broader than the Washington statute,
the offenses are not legally comparable. And because the State failed to present
sufficient evidence supporting its contention that Tillisy’s conduct would have
violated the Washington statute based upon the same facts, the offenses are not
factually comparable.
Tillisy also argues, and the State concedes, that his California conviction for
possession of a controlled substance was erroneously included in his offender
score in light of State v. Blake.1 We accept the State’s concession.
1 197 Wn.2d 170, 481 P.3d 521 (2021).
No. 82109-1-I/2
Because we conclude that the Texas offenses are not legally or factually
comparable to the Washington statute, we need not address Tillisy’s alternative
claim for ineffective assistance. We remand for resentencing.
FACTS
In 2020, Tillisy pleaded guilty to second degree assault with a firearm
enhancement and second degree unlawful possession of a firearm.
Tillisy’s criminal history includes two Texas convictions for fraudulent
possession or use of identifying information and one California conviction for
possession of a controlled substance.
At sentencing, Tillisy argued that his Texas convictions for fraudulent
possession or use of identifying information were not legally or factually
comparable to Washington’s identity theft statute. The trial court rejected Tillisy’s
argument finding that his Texas convictions were legally and factually comparable
to the Washington statute.
Tillisy’s two Texas convictions for fraudulent possession or use of
identifying information and his California conviction for possession of a controlled
substance each contributed one point to his offender score.
The trial court sentenced Tillisy to a standard range sentence based upon
an offender score of 11.
Tillisy appeals his sentence.
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ANALYSIS
I. Offender Score
Tillisy argues that his offender score was incorrectly calculated because his
two Texas convictions for fraudulent possession or use of identifying information
were not legally or factually comparable to Washington’s identity theft statute. We
review a trial court’s calculation of a defendant’s offender score de novo.2
A defendant’s offender score “is the sum of points accrued as a result of
prior convictions.”3 Convictions for out-of-state offenses can be included in a
defendant’s offender score where there is a comparable offense provided by
Washington law.4 Washington uses a “two-part test for comparing foreign
convictions.”5
First, under the legal prong, the “court compares the legal elements of the
out-of-state crime with those of the Washington crime. If the crimes are so
comparable, the court counts the defendant’s out-of-state conviction as an
equivalent Washington conviction.”6 “If, however, the foreign statute is broader
2 State v. Rivers, 130 Wn. App. 689, 699, 128 P.3d 608 (2005).
3
State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014) (citing
RCW 9.94A.525).
4 Id. (citing RCW 9.94A.525).
5 Id. (citing State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998)).
6 State v. Larkins, 147 Wn. App. 858, 863, 199 P. 3d 441 (2008) (citing
Morley, 134 Wn.2d at 605-06); see also id. at 861 (in holding that Ohio’s burglary
statute was not legally comparable to Washington’s burglary statute, the court
reasoned that Washington’s burglary statute is narrower because it “requires intent
to commit a crime against a person or property therein”); Olsen, 180 Wn.2d at 478
(our Supreme Court held that California’s crime of terrorist threats was not legally
comparable to Washington’s crime of felony harassment because the California
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No. 82109-1-I/4
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.”7 “In this inquiry into factual comparability, the trial court can consider only
facts proved to a trier of fact beyond a reasonable doubt or those to which the
defendant admitted or stipulated.”8 The State bears the burden of proving by a
preponderance of evidence that an out-of-state crime is comparable to a
Washington offense.9
First, we consider whether Tillisy’s two Texas convictions for fraudulent use
or possession of identifying information are legally comparable to Washington’s
identity theft statute.
Texas Penal Code section 32.51(b) provides,
[A person who,] with the intent to harm or defraud another, obtains,
possesses, transfers, or uses an item of: (1) identifying information of
another person without the other person’s consent or effective
consent; (2) information concerning a deceased natural person,
crime “criminalizes threats to commit a crime that will result in death or great bodily
injury,” but some of those same threats in Washington are not criminalized under
the Washington statute because they “do not constitute a felony”).
7 Olsen, 180 Wn.2d at 473 (citing Morley, 134 Wn.2d at 606).
8 State v. Lathem, 183 Wn. App. 390, 398, 335 P.3d 960 (2014) (citing
State v. Thomas, 135 Wn. App. 474, 480, 144 P.3d 1178 (2006)); see also State v.
Marquette, 6 Wn. App. 2d 700, 706, 431 P.3d 1040 (2018) (the court noted that
the trial court erred in concluding that a California conviction for lewd and
lascivious acts was factually comparable to Washington’s child molestation statute
because the court erroneously looked “beyond the facts acknowledged in the
guilty plea”); Larkins, 147 Wn. App. at 865 (in holding that Ohio’s burglary statute
was not factually comparable to Washington’s burglary statute, the court noted
that in finding otherwise, the trial court erred in making inferences beyond the facts
as admitted in the indictment).
9Lathem, 183 Wn. App. at 398 (citing State v. Ford, 137 Wn.2d 472, 480-
81, 973 P.2d 452 (1999)).
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No. 82109-1-I/5
including a stillborn infant or fetus, that would be identifying
information of that person were that person alive, if the item of
information is obtained, possessed, transferred, or used without legal
authorization; or (3) identifying information of a child younger than 18
years of age [has committed this offense].[10]
Under this provision, a person is “presumed to have the intent to harm or defraud
another if the actor” possesses the identifying information of three or more
people.11 The Washington identity theft statute, RCW 9.35.020(1), provides, “No
person may knowingly obtain, possess, use, or transfer a means of identification
or financial information of another person, living or dead, with the intent to commit,
or to aid or abet, any crime.”12
Here, the Texas offense is broader than the Washington offense because in
certain factual scenarios, the Texas statute presumes the element of intent. For
example, if a person in Texas possessed the identifying information of three
people, the State would only have to establish that the person possessed the
identifying information.13 But in Washington, if a person possessed the identifying
information of three people, the State would still have to establish that the person
possessed the identifying information “with the intent to commit, or to aid or abet,
10 Texas Penal Code § 32.51(b)(1)-(3).
11 Texas Penal Code § 32.51(b-1).
12 RCW 9.35.020(1).
13 Texas Penal Code § 32.51(b-1).
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No. 82109-1-I/6
any crime.”14 There is no presumption of intent under the Washington statute.15
Further, only the Washington statute contains an age-fraud exception which
exempts a person from being liable for identity theft where the person has
obtained the driver’s license of another “for the sole purpose of misrepresenting
his or her age.”16 Because the elements of the Texas statute are broader than the
elements of the Washington statute, the offenses are not legally comparable.17
Next, we must determine whether Tillisy’s two Texas convictions for
fraudulent use or possession of identifying information are factually comparable to
Washington’s identity theft statute.
Here, for both Texas convictions, the State presented the trial court with a
grand jury indictment, listing the elements of fraudulent use or possession of
identifying information and a judgment and sentence referencing Tillisy’s guilty
plea. The indictments allege that Tillisy “obtain[ed] and or possess[ed] and or
transfer[ed] and or use[d]” the “identifying information” of two different individuals,
14RCW 9.35.020(1); see also State v. Vasquez, 178 Wn.2d 1, 10, 309 P.3d
318 (2013) (“Just as mere possession of a controlled substance does not support
an inference of an intent to deliver or manufacture, neither does mere possession
of forged identification cards support an inference of an intent to injure or
defraud.”).
15 RCW 9.35.020(1).
16 RCW 9.35.020(9).
17 See In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837(2005).
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No. 82109-1-I/7
Francisco Mura and Elda Suarez, without their consent.18 And for cause number
14-DCR-067214, the State also presented Tillisy’s guilty plea, which stated,
That in Fort Bend County, Texas, I (the same individual indicted in
this cause) on August 17, 2014, committed the acts alleged in the
indictment in this cause, and that the evidence and testimony would
prove beyond a reasonable doubt that the acts and allegations in the
indictment in this cause are true and correct.[19]
But the limited facts provided by Tillisy’s grand jury indictments, judgment and
sentences, and for cause number 14-DCR-067214, his guilty plea statement, are
insufficient to establish that Tillisy’s conduct would have resulted in a conviction
under Washington’s identity theft statute based upon the same facts. 20 Those
facts do not establish what factual circumstances supported a finding that Tillisy
“knowingly” possessed the identifying information nor do they establish his “intent”
in possessing that information. Because it is unclear whether Tillisy’s conduct in
Texas would have violated the Washington statute, the offenses are not factually
comparable.
Finally, Tillisy contends, and the State concedes, that the trial court
erroneously included one point in his offender score for a California conviction for
possession of a controlled substance because in light of our Supreme Court’s
18 Compare Suppl. Clerk’s Papers (CP) at 165 with Suppl. CP at 182.
19 CP at 171-74.
20See Lavery, 154 Wn.2d at 257 (“Where the foreign statute is broader
than Washington’s, that examination may not be possible because there may have
been no incentive for the accused to have attempted to prove that he did not
commit the narrower offense.”) (citing State v. Ortega, 120 Wn. App. 165, 84 P.3d
935 (2004)).
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No. 82109-1-I/8
decision in Blake, there is no comparable Washington offense. In Blake, our
Supreme Court held Washington’s simple possession statute unconstitutional.21
And “a prior conviction which has been previously determined to have been
unconstitutionally obtained or which is constitutionally invalid on its face may not
be considered” in calculating a defendant’s offender score.22 We accept the
State’s concession.
Because Tillisy’s two Texas convictions for fraudulent use or possession of
identifying information are not legally or factually comparable to Washington’s
identity theft statute, the Texas convictions cannot be included in his offender
score. Resentencing is necessary. And because there is no longer a valid
comparable Washington offense for Tillisy’s California conviction for possession of
a controlled substance, remand is also appropriate for resentencing.
II. Ineffective Assistance
In the alternative, Tillisy contends that his counsel was ineffective for “failing
to specifically argue that the Texas and Washington statutes are not legally
comparable based on Washington’s age-fraud exception.”23 We review a claim of
ineffective assistance of counsel de novo.24
21 Blake, 197 Wn.2d at 195.
22State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719 (1986); see State
v. Markovich, No. 81423-1-I, slip op. at 13-16 (Wash. Ct. App. Aug. 2, 2021),
http://www.courts.wa.gov/opinions/pdf/81423.pdf.
23 Appellant’s Br. at 12.
24 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
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To succeed on a claim of ineffective assistance of counsel, a defendant
must prove that his counsel’s performance was deficient and prejudiced his
case.25 “There is a strong presumption that defense counsel’s conduct is not
deficient.”26 And where defense counsel’s decisions “can be characterized as
legitimate trial strategy or tactics, performance is not deficient.”27 Prejudice
requires a showing of a reasonable probability that the outcome would have been
different but for the deficient performance.28
During Tillisy’s plea colloquy before the trial court, Tillisy’s counsel explicitly
reserved the right to object at sentencing to the inclusion of certain out-of-state
convictions in his offender score. And in both his written materials and at
sentencing, Tillisy’s counsel focused his argument on the fact that the elements of
the Texas offense for fraudulent use or possession of identifying information were
broader than the elements of Washington’s identity theft statute. Ultimately, we
have determined that the Texas offenses are not legally or factually comparable
and may not be included in the computation of his offender score. Because it has
25State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)).
26State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)).
27
State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009) (citing State v.
Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).
28 Id. at 862 (citing State v. Leavitt, 111 Wn.2d 66, 72, 758 P.2d 982(1988)).
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No. 82109-1-I/10
no impact on the outcome of this appeal, there is no need for us to address
Tillisy’s alternative ineffective assistance claim.
We remand for resentencing.
WE CONCUR:
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