State of Washington v. Michael A. Smith ( 2019 )

FILED
AUGUST 15, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35847-0-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
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MICHAEL A. SMITH, )
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Appellant. )
PENNELL, J. — On January 3, 2018, Michael Alan Smith was found guilty of
attempting to elude a pursuing police vehicle, reckless driving, and driving while license
suspended in the first degree. At sentencing, the State filed a statement of Mr. Smith’s
prior convictions to demonstrate his criminal history and that his offender score was 10.
No other documentation was provided in support of Mr. Smith’s criminal history. Mr.
Smith did not affirmatively acknowledge his criminal history, nor did he object to it
during sentencing. The trial court sentenced Mr. Smith to consecutive standard-range
sentences for the three offenses.
No. 35847-0-III
State v. Smith
Mr. Smith appeals his judgment and sentence, asserting that his constitutional due
process rights 1 were violated because the State’s criminal history list illustrating Mr.
Smith’s prior convictions was unsupported, and he did not acknowledge his criminal
history at sentencing. The State concedes that it did not provide supporting
documentation establishing the existence of Mr. Smith’s prior convictions, and that
Mr. Smith did not acknowledge his criminal history. It also stipulates that remand for
resentencing is appropriate.
Sentencing errors resulting in unlawful sentences may be raised for the first time
on appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). The State has the
burden of establishing a defendant’s prior criminal history by a preponderance of the
evidence to determine his or her offender score at sentencing. State v. Ford, 137 Wash. 2d
472, 479-80, 973 P.2d 452 (1999). The State’s burden is relieved only when the
defendant affirmatively acknowledges his or her prior criminal history. State v. Hunley,
175 Wash. 2d 901, 912, 917, 287 P.3d 584 (2012). Because Mr. Smith did not affirmatively
acknowledge his criminal history, the State was not relieved of its burden to prove the
facts and information necessary to justify use of Mr. Smith’s prior convictions in
calculating his offender score. Id. at 912. Therefore, remand for resentencing is
1
U.S. CONST. amend. XIV; WASH. CONST., art. I, § 3.
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No. 35847-0-III
State v. Smith
appropriate. See State v. Richmond, 3 Wash. App. 2d 423, 436-37, 415 P.3d 1208, review
denied, 191 Wash. 2d 1009 (2018).
Mr. Smith also submitted a statement of additional grounds for review,
challenging his trial counsel’s license to practice law and performance. These arguments
relate to facts and materials that exist outside the record. The proper avenue for bringing
claims based on evidence outside the record is through a personal restraint petition, not a
direct appeal. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). We
therefore decline to review these arguments.
We vacate Mr. Smith’s sentence and remand to the trial court for resentencing
consistent with the terms of this decision. Mr. Smith’s request to deny appellate costs to
the State is rendered moot since he is the prevailing party on review.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, C.J. Fearing, J.
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