State Of Washington v. Kevin Lee Garrison ( 2018 )

FLED
COURT OF APPEALS OW
STATE OF WASHINGTON
2016 APR 16 ill 8:35
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 75895-1-1
)
Appellant, ) (Consolidated with
) No. 75885-3-1)
v. )
) UNPUBLISHED OPINION
KEVIN LEE GARRISON, )
)
Respondent. ) FILED: April 16, 2018
)
LEACH, J. — This is the second appeal challenging Kevin Lee Garrison's
sentence. Both Garrison and the State appeal his sentence. The State
challenges the trial court's conclusion that a 1981 Texas conviction for voluntary
manslaughter is not comparable to a "most serious offense" in Washington and,
therefore, it could not sentence Garrison as a persistent offender. Garrison
challenges two provisions in his judgment and sentence about a curfew and sex
offender registration.
We agree that the Texas offense is not legally comparable to
manslaughter in the second degree. We do not reconsider our earlier
conclusion, which is the law of this case, that the Texas offense is not factually
comparable to manslaughter in the first degree or assault in the second degree.
For these reasons, we affirm the trial court's conclusion that it could not sentence
No. 75895-1-1/ 2
Garrison as a persistent offender.
We remand, however, so the trial court can strike the community custody
provision imposing a curfew and amend the sex offender registration notice. We
otherwise affirm.
BACKGROUND
A jury found Garrison guilty of child molestation in the second degree, as
charged.1 At sentencing, the State presented evidence of three earlier felony
convictions, including a 1981 Texas manslaughter conviction. The trial court
found the Texas manslaughter conviction comparable to the Washington crime of
manslaughter in the first degree, a "most serious offense" in Washington. The
trial court relied on this conclusion to sentence Garrison as a persistent offender
to life without the possibility of release.
On appeal, we reversed.2 We decided that the Texas offense is not
legally comparable to Washington's offense of manslaughter in the first degree
or, for purposes of a "most serious offense" analysis, to Washington's assault in
the second degree.3 We also concluded that the Texas offense is not factually
The facts of the crime are not relevant to this appeal. They are set forth
in detail in our opinion in State v. Garrison, No. 71134-2-1, slip op. at 2-5 (Wash.
Ct. App. Sept. 8, 2015)(unpublished), http://www.courts.wa.gov/opinions/
pdf/711342.pdf.
2 Garrison, slip op. at 1.
3 Garrison, slip op. at 23, 28-31.
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No. 75895-1-1 / 3
comparable to these Washington offenses.4 Finally, after noting that the parties
agreed that the Texas offense is comparable to Washington's manslaughter in
the second degree, we held that the offense had "washed out" and could not be
counted as a "most serious offense."5 Thus, we held that Garrison lacked the
prior convictions necessary to sentence him as a persistent offender and
remanded for resentencing.6
On remand, the State produced evidence to show that the Texas
conviction had not washed out. The trial court decided, however, that the Texas
offense was not comparable to second degree manslaughter in Washington and
did not reach the washout issue. Because the court decided that the Texas
conviction was not comparable to a "most serious offense" in Washington, it did
not sentence him as a persistent offender. The court imposed a standard range
sentence.
The State appeals Garrison's sentence. It claims that the trial court
should have sentenced him as a persistent offender. Garrison also appeals,
challenging issues related to his sentence. This court consolidated the appeals.
4 Garrison, slip op. at 23, 31.
5 Garrison, slip op. at 31-33; RCW 9.94A.525(2).
6 Garrison, slip op. at 33.
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ANALYSIS
Persistent Offender Sentencing
First, the State challenges the trial court's conclusion that Garrison's
Texas manslaughter conviction is not comparable to a "most serious offense" in
Washington. We agree with the trial court.
A "persistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony
considered a most serious offense; and
(ii) Has, before the commission of the offense under (a) of
this subsection, 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 and would be included in the offender score under
RCW 9.94A.525.rn
To be a strike offense for persistent offender sentencing, an earlier
conviction must be included in the defendant's offender score and must be a
"most serious offense" as defined by RCW 9.94A.030.8 To decide whether to
count an out-of-state conviction, Washington courts use a two-part test.9 A court
first considers whether the offenses are legally comparable by comparing the
elements of the foreign offense with those of the Washington offense.1° When
the elements of the foreign offense are broader than the Washington offense, the
7 RCW 9.94A.030(38).
8 State v. Morley, 134 Wash. 2d 588, 603,952 P.2d 167 (1998).
9 State v. Thiefault, 160 Wash. 2d 409, 415, 158 P.3d 580 (2007).
10 Thiefault, 160 Wash. 2d at 415.
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No. 75895-1-1/ 5
court must decide if the offenses are factually comparable." The State has the
burden of proving out-of-state convictions are comparable to Washington
crimes.12 We review the classification of an out-of-state conviction de novo.13
Here, the law of the case doctrine prevents us from reconsidering our
previous holding about factual comparability of Washington's manslaughter in the
first degree and assault in the second degree. We also decide that the Texas
offense is not legally comparable to manslaughter in the second degree. Thus,
the State has failed to show that the Texas offense was a "most serious offense."
The trial court properly decided that Garrison was not a persistent offender.
Manslaughter in the First Degree
First, the State asks us to reconsider our earlier holding that the Texas
offense is not factually comparable to manslaughter in the first degree. Following
the law of the case doctrine, we do not reconsider this decision. "The law of the
case doctrine provides that once there is an appellate court ruling, its holding
must be followed in all of the subsequent stages of the same litigation."14 The
doctrine "seeks to promote finality and efficiency in the judicial process."15
11 Thiefault, 160 Wash. 2d at 415.
12In re Pers. Restraint of Cadwallader, 155 Wash. 2d 867, 876, 123 P.3d 456
(2005); see also Thiefault, 160 Wash. 2d at 421 (Sanders, J., concurrin g).
13 State v. Beals, 100 Wash. App. 189, 196, 997 P.2d 941 (2000).
14 State v. Schwab, 163 Wash. 2d 664, 672, 185 P.3d 1151 (2008) (citing
Roberson v. Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005)).
15 Roberson, 156 Wash. 2d at 41.
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But under RAP 2.5(c)(2), "[t]he appellate court may at the instance of a
party review the propriety of an earlier decision of the appellate court in the same
case and, where justice would best be served, decide the case on the basis of
the appellate court's opinion of the law at the time of the later review." Courts
have recognized two applications of this exception: (1) cases where the court's
earlier decision is "'clearly erroneous" and that "erroneous decision would work
a manifest injustice to one party" and (2) cases where there has been some
intervening change in the law.16 Even then, application of this exception is
discretionary.17 Here, the State contends that this court's conclusions were
clearly erroneous because they were the result of a misunderstanding of Texas
law. We disagree.
We previously concluded that the Texas offense was not legally
comparable to Washington's manslaughter in the first degree.18 To prove
manslaughter in the first degree, the State had to prove that the defendant knew
of and disregarded a substantial risk that a homicide may occur.16 Texas, by
contrast, does not require the same culpable mental state.26 The State does not
16 Schwab, 163 Wash. 2d at 672-73(quoting Roberson, 156 Wash. 2d at 42).
17 Schwab, 163 Wash. 2d at 672.
18 Garrison, slip op. at 23 & n.7.
18 RCW 9A.32.060(1)(a); RCW 9A.08.010(1)(c); State v. Gamble, 154
Wash. 2d 457, 467, 114 P.3d 646 (2005).
20 Lugo-Lugo v. State, 650 S.W.2d 72, 81-82(Tex. Crim. App. 1983).
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No. 75895-1-1/ 7
challenge these conclusions.21 It asserts, however, that it introduced evidence to
show factual comparability.
We previously rejected the State's factual comparability argument
because we decided that the State had not introduced facts that show
comparability. To decide factual comparability, courts examine the conduct
underlying the offense and may consider the "facts in the foreign record that are
admitted, stipulated to, or proved beyond a reasonable doubt."22 The State had
introduced the charging information and the judgment and sentence to show that
Garrison had the requisite mental state and establish factual comparability. The
information alleged that Garrison "intending to cause serious bodily injury to [the
victim], intentionally and knowingly commit[ed] an act clearly dangerous to
human life, to-wit: striking the head and body of [the victim], thereby causing the
death of [the victim]." (Emphasis added.) Thus, the State argued, the
information established facts to show the necessary mental state. But as we
21 The State cites an unpublished portion of an opinion by this court for its
holding that a 1992 Texas conviction for voluntary manslaughter is comparable to
Washington's manslaughter in the first degree. State v. Jordan, 158 Wash. App.
297, 241 P.3d 464 (2010), affd, 180 Wash. 2d 456, 325 P.3d 181 (2014). But this
decision is not relevant to this case for several reasons, including the fact that
Jordon ruled on the question of legal comparability of manslaughter in the first
degree, which is not before the court. The State conceded this issue in the first
appeal. See Garrison, slip op. at 23 ("The State concedes on appeal that the
prong of Texas's voluntary manslaughter statute under which Garrison was
convicted is not legally comparable to Washington's offense of manslaughter in
the first degree.").
22 Thiefault, 160 Wash. 2d at 415.
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No. 75895-1-1/ 8
stated in State v. Thomas,23 sentencing courts may not simply assume the facts
in a charging document that are not directly related to the elements of the
charged offense have been proved or admitted. To conclude a defendant admits
to the facts in a charging document when he pleads guilty, the court must
consider the effect of the guilty plea under the applicable state law.24
Relying on Thomas, we decided that the charging document did not
establish the necessary facts.25 We reasoned that under Texas law, a defendant
does not admit the charging allegations with a guilty plea.26 We relied on the
Texas decision Menefee v. State.27
In Texas, on a plea of guilty before a judge, "the defendant may
consent to the proffer of evidence in testimonial or documentary
form, or to an oral or written stipulation of what the evidence
against him would be, without necessarily admitting to its veracity
or accuracy." Menefee v. State, 287 S.W.3d 9, 13(Tex. Crim. App.
2009). Alternatively, a defendant "may enter a sworn written
statement, or may testify under oath in open court, specifically
admitting his culpability or at least acknowledging generally that the
allegations against him are in fact true and correct." Menefee, 287
S.W.3d at 13.
The State produced no evidence herein of an evidentiary
stipulation or "judicial confession" in Garrison's Texas case. The
Texas paperwork related to the manslaughter conviction sets forth
23 135 Wash. App. 474, 486, 144 P.3d 1178 (2006).
24 See State v. Releford, 148 Wash. App. 478, 488, 200 P.3d 729 (2009)
(concluding that an Oklahoma offense was factually comparable to a Washington
offense because, in Oklahoma, a plea of guilty admits the facts pleaded in the
information).
25 Garrison, slip op. at 23-26.
26 Garrison, slip op. at 23-26.
27 287 S.W.3d 9(Tex. Crim. App. 2009).
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No. 75895-1-1 / 9
no underlying facts of the crime that were admitted, stipulated to, or
proven beyond a reasonable doubt.[281
The State contends that our reliance on Menefee is misplaced. It cites a number
of other Texas cases, which it claims stand for the proposition that a guilty plea
has the effect of admitting all material facts alleged in the formal criminal
charge.29 These cases cite Ex parte Williams.30
Williams is consistent with Menefee and does not undermine our earlier
conclusion. Williams stated, "The entry of a valid plea of guilty has the effect of
admitting all material facts alleged in the formal criminal charge."31 But Williams
made this statement while explaining the federal constitutional requirement, so it
does not undermine our earlier interpretation of Texas law.32 Williams observed
that Texas has an additional procedural safeguard, and its explanation about the
different standards for corroborating evidence for a guilty plea supports our
interpretation.33 In a misdemeanor case, for example, a defendant admits every
29 Garrison, slip op. at 25-26.
29 E.g. Torres v. State, 493 S.W.3d 213, 217 (Tex. App. 2016); Flores-
Alonzo v. State, 460 S.W.3d 197, 203 (Tex. App. 2015); Ex parte Jessep, 281
S.W.3d 675, 679 (Tex. App. 2009); Tiierina v. State, 264 S.W.3d 320, 322-23
(Tex. App. 2008). The State cites two Texas cases in particular, but they also do
not support its position. First, Jessep was a habeus corpus petition where legal
sufficiency of evidence could not be challenged and, thus, was not at issue. 281
S.W.3d at 680. Second, in Tijerina, the defendant had judicially confessed to the
crime, thus satisfying the State's factual burden. 264 S.W.3d at 324.
39 703 S.W.2d 674, 682(Tex. Crim. App. 1986).
31 Williams, 703 S.W.2d at 682.
32 Williams, 703 S.W.2d at 682.
33 Williams, 703 S.W.2d at 678.
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No. 75895-1-1 / 10
element of an offense in a guilty plea, with or without evidence to support the
plea.34 The same is true in felony cases where a defendant pleads guilty before
a jury.35 By contrast, as occurred in this case, and as Menefee explained, when
a defendant enters a plea of guilty before the court, the State must offer sufficient
evidence to support the judgment.36 Williams acknowledges the same factual
burden that we considered before. Thus, Williams supports rather than
undermines our decision in Garrison's first appeal.
Because the State introduced no evidence of facts that were admitted,
stipulated to, or proved beyond a reasonable doubt in the Texas proceeding, the
State cannot establish factual comparability. The State does not show that this
court's previous decision was clearly erroneous. Further, the State fails to
explain how it produces a manifest injustice.37 For these reasons, we do not
review our earlier decision on factual comparability of Washington's
manslaughter in the first degree.
Williams, 703 S.W.2d at 678.
34
Williams, 703 S.W.2d at 678.
35
36 Williams, 703 S.W.2d at 678.
37 Roberson, 156 Wash. 2d at 42 (stating that "application of the [law of the
case] doctrine may be avoided where the prior decision is clearly erroneous, and
the erroneous decision would work a manifest injustice to one party" (emphasis
added)).
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No. 75895-1-1 /11
Assault in the Second Degree
The State also asks us to reconsider our earlier conclusion that the
conviction is factually comparable to assault in the second degree. But we
decline to do so for the same reason we decline to reconsider the factual
comparability of manslaughter in the first degree.
We previously held that for purposes of the "most serious offense" inquiry,
the Texas offense was not legally comparable to assault in the second degree in
Washington.38 We observed that the injury component of the Texas offense
could be shown by a protracted loss or impairment, regardless of severity, but
Washington required a substantial loss or impairment.39 We decided that
because the State produced no evidence of facts of the Texas offense that were
admitted, stipulated to, or proved beyond a reasonable doubt, the State could not
establish factual comparability of Washington's assault in the second degree and
the Texas offense. As explained above, the State has not shown this decision
was clearly erroneous.
Manslaughter in the Second Degree
Next, the State asserts that the Texas offense is comparable to
manslaughter in the second degree. As a preliminary matter, both parties rely on
the law of the case doctrine to assert that the trial court was bound by holdings in
38 Garrison, slip op. at 28-31.
39 Garrison, slip op. at 29-30.
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No. 75895-1-1 / 12
our first opinion. Because our earlier decision does not include a holding about
comparability of manslaughter in the second degree, the law of the case doctrine
does not apply.
To support its position, the State relies on our statement that "[t]he parties
agree that Garrison's 1981 Texas voluntary manslaughter conviction is
comparable to Washington's offense of manslaughter in the second degree."4°
The State mischaracterizes this statement as a holding. We accepted the
parties' agreement that the offenses are comparable to reach the washout issue
on which we resolved the case.41 The law of the case doctrine does not bind the
trial court in the way the State suggests.
Garrison also contends that the law of the case doctrine binds the trial
court on the issue of legal comparability of manslaughter in the second degree.
We disagree with this contention as well. In our first opinion, we noted the
State's concession that the Texas offense is not legally comparable to
manslaughter in the first degree. In a footnote, we explained why we agreed.
We agree. Under the Texas statute, no culpable mental
state attaches to the result. By contrast, the Washington statute
does require a culpable mental state—recklessness—with respect
to the result. A person could be convicted of Texas voluntary
manslaughter without having any culpable mental state connected
to the result of death, whereas the Washington offense of first
degree manslaughter requires that a person recklessly cause a
40 Garrison, slip op. at 31.
41 Garrison, slip op. at 31-33.
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No. 75895-1-1/ 13
person's death. Thus, the Texas statute is broader than the
Washington statute, and the offenses are not legally comparable.P21
Garrison asserts that our conclusion that no mental state attaches to the result
also applies to manslaughter in the second degree. But in the first appeal, we
considered the culpable mental state of first degree manslaughter, which is
recklessness. The culpable mental state for manslaughter in the second degree
is criminal negligence.43 Thus, we cannot rely on our limited earlier analysis of
this issue and must inquire further.
Because the law of the case doctrine does not apply, we must consider
whether the Texas offense is legally comparable to manslaughter in the second
degree. To determine legal comparability, a court must decide if the elements of
the foreign offense are substantially similar to the elements of the Washington
offense.44 Offenses are not legally comparable if the elements are different or if
the Washington statute defines the offense more narrowly than the foreign
statute does.45 To decide whether it can include the conviction in the offender
score analysis, the trial court must compare the elements of the out-of-state
crime with the elements of potentially comparable Washington crimes as defined
42Garrison, slip op. at 23 n.7.
43 RCW 9A.32.070(1). "[C]riminal negligence is distinct from
recklessness." State v. Smith, 31 Wash. App. 226, 230,640 P.2d 25 (1982).
44 Thiefault, 160 Wash. 2d at 415.
45 State v. Ford, 137 Wash. 2d 472, 479, 973 P.2d 452 (1999); In re Pers.
Restraint of Lavery, 154 Wash. 2d 249, 255-56, 111 P.3d 837(2005).
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No. 75895-1-1 /14
on the date the out-of-state crime was committed." To decide if the conviction is
a "most serious offense," the court compares the foreign offense to Washington
offenses that would have constituted "most serious offenses" at the time that the
defendant committed the offense for which he is being sentenced.47 Here, the
relevant language is substantially the same at the time Garrison committed the
Texas offense and current offense. Thus, only one legal comparability analysis
is required."
In 1981, the Texas offense of "voluntary manslaughter" was defined as
follows: "A person commits an offense if he causes the death of an individual
under circumstances that would constitute murder under Section 19.02 of this
code, except that he caused the death under the immediate influence of sudden
passion arising from an adequate cause."" The referenced "Section 19.02"
required the State to prove that the defendant intended to "cause serious bodily
injury" and committed an act "clearly dangerous to human life."50 In Lugo-Lugo v.
State,51 Texas's highest criminal court clarified that the State need prove only
that the act was objectively clearly dangerous to human life and was done with
46 Lavery, 154 Wash. 2d at 255.
47 State v. Varga, 151 Wash. 2d 179, 191, 86 P.3d 139(2004).
48 Compare RCW 9A.08.010(1)(d) with former RCW 9A.08.010(1)(d)
(1975) and RCW 9A.32.070(1) with former RCW 9A.32.070(1) (1975) (adding
gender neutral language).
49 Former TEX. PENAL CODE ANN.§ 19.04(a)(1973).
60 Former TEX. PENAL CODE ANN. § 19.02(a)(1973).
61 650 S.W.2d 72, 81-82(Tex. Crim. App. 1983).
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No. 75895-1-1/ 15
intent to cause serious bodily injury. The State did not need to prove that the
defendant knew the act was clearly dangerous to human life. 52
For Washington's manslaughter in the second degree, however, the
culpable mental state attaches to the result. In Washington, "[a] person is guilty
of manslaughter in the second degree when, with criminal negligence, he or she
causes the death of another person."53 A person
acts with criminal negligence when he or she fails to be aware of a
substantial risk that a wrongful act may occur and his or her failure
to be aware of such substantial risk constitutes a gross deviation
from the standard of care that a reasonable person would exercise
in the same situation.[54]
Division Two has reasoned that criminal negligence for second degree
manslaughter requires failure to be aware of a substantial risk that a homicide
may occur.55 As Division Two observed, this is consistent with the reasoning of
our Supreme Court in State v. Gamble.56 Gamble considered the mens rea
element of first degree manslaughter.57 First degree manslaughter requires that
52 Lugo-Lugo, 650 S.W.2d at 81-82.
53 RCW 9A.32.070(1).
54 RCW 9A.08.010(d).
55 State v. Latham, 183 Wash. App. 390, 405-06, 335 P.3d 960 (2014)
(assuming without holding that criminal negligence for second degree
manslaughter required a failure to be aware of a substantial risk that a homicide
may occur)(quoting State v. Henderson, 180 Wash. App. 138, 149, 321 P.3d 298
(2014)); Gamble, 154 Wash. 2d at 467-68.
56 154 Wash. 2d 457, 467-68, 114 P.3d 646 (2005).
57 Gamble, 154 Wash. 2d at 467-68.
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No. 75895-1-1 / 16
the defendant "recklessly cause[d] the death of another person."58 A person acts
recklessly when he "knows of and disregards a substantial risk that a wrongful
act may occur."59 Because the "wrongful act" in manslaughter in the first degree
is homicide, Gamble reasoned that Washington law required the State to prove
that the defendant "[knew] of and disregard[ed] a substantial risk that a
[homicide] may occur."6° We apply this logic to conclude that to prove
manslaughter in the second degree, the State must show that the defendant
failed to be aware of a substantial risk that a homicide may occur.
Because Washington's manslaughter in the second degree requires a
culpable mental state in connection with the homicide and the Texas offense
does not, Washington law is narrower and the offenses are not legally
comparable.61
The State passingly asserts that the Texas offense is factually comparable
to manslaughter in the second degree in Washington. But, as we have
explained, the State introduced no facts that were admitted, stipulated to, or
58 RCW 9A.32.060(1)(a).
RCW 9A.08.010(1)(c).
60 Gamble, 154 Wash. 2d at 467-68 (alterations in original) (quoting RCW
9A.08.010(c)).
81 Garrison also contends that the Texas conviction is not comparable to
the Washington offense of second degree manslaughter because Texas law is
broader on the element of causation. But we need not consider this argument
because we decide that the offenses are not comparable on a difference basis.
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No. 75895-1-1 /17
proved beyond a reasonable doubt. Thus, we have no information on which we
could base a conclusion that the offenses are factually comparable.
Community Custody Condition
Garrison challenges the following community custody condition: "Abide by
a curfew of 10pm — 5am unless directed otherwise. Remain at registered
address or address previously approved by CCO [community custody officer]
during these hours."62 Garrison contends and the State concedes that the court
did not have statutory authority to impose this condition because it is not crime-
related. The Sentencing Reform Act of 198163 authorizes the trial court to
impose "crime-related prohibitions and affirmative conditions" as part of a
sentence." A condition is "crime-related" if it "prohibit[s] conduct that directly
relates to the circumstances of the crime for which the offender has been
convicted."66 "This court reviews a trial court's imposition of crime-related
community custody conditions for abuse of discretion."66 Here, the crime
occurred in the home where Garrison resided. Thus, the curfew is not directly
62 Garrison raises this challenge for the first time on appeal. But we permit
defendants to challenge illegal or erroneous sentences for the first time on
appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008).
63 Ch. 9.94A ROW.
64 State v. Johnson, 180 Wash. App. 318, 325, 327 P.3d 704(2014)(quoting
former ROW 9.94A.505(8)(1975), recodified as ROW 9.94A.505(9)).
65 ROW 9.94A.030(10).
66 State v. Irwin, 191 Wash. App. 644, 656, 364 P.3d 830(2015).
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No. 75895-1-1 /18
related to the crime. We agree that the trial court abused its discretion when it
imposed this prohibition.
Sex Offender Registration
Next, Garrison contends that the trial court improperly linked the end of
Garrison's sex offender registration requirement to action by the court or sheriffs
office. A person convicted of a sex offense must register with the county
sheriff.67 Because he was convicted of a class B felony, Garrison's duty to
register ends 15 years after release from confinement if he spends 15 years in
the community without being convicted of a disqualifying offense.68 However, the
court included the following statement in the notice of registration requirements,
appendix J to the judgment and sentence: "Your duty to register does not end
until you have obtained a court order specifically relieving you of the duty to
register or you have been informed in writing by the sheriff's office that your duty
to register has ended."
As Garrison asserts and the State admits, under RCW 9A.44.140(2), the
duty to register ends automatically by operation of law after 15 years without
committing a disqualifying offense. Courts are required to notify offenders of the
RCW 9A.44.130(1).
67
68
RCW 9A.44.086(2) ("Child molestation in the second degree is a class
B felony."); former RCW 9A.44.140(2)(LAWS OF 2010, ch. 267 § 4).
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No. 75895-1-1 / 19
registration requirement.69 When they fail to provide this notice, the remedy is to
provide the notice promptly upon discovery of the oversight.70 We hold that the
trial court must also correct an error in the notice by promptly providing accurate
notice to the defendant. The trial court should correct this inaccuracy on remand.
CONCLUSION
We affirm in part and reverse in part. The trial court correctly decided that
the Texas offense is not legally comparable to a most serious offense in
Washington and cannot be used as a predicate offense for the purpose of a
persistent offender sentence. We reverse on the community custody and sex
offender registration issues, however, and remand for further proceedings
consistent with this opinion.
WE CONCUR:
phoayi_
t.csLiv\,4012,.eltr
69 "The court shall provide written notification to any defendant charged
with a sex offense or kidnapping offense of the registration requirements of RCW
9A.44.130. Such notice shall be included on any guilty plea forms and judgment
and sentence forms provided to the defendant." RCW 10.01.200.
70 State v. Munds, 83 Wash. App. 489, 494-95, 922 P.2d 215(1996); State v.
Clark, 75 Wash. App. 827, 833, 880 P.2d 562(1994).
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