IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 86070-4-I v. UNPUBLISHED OPINION COREY DAMON MONTGOMERY,
Appellant.
DWYER, J. — Corey Montgomery appeals from the order of the superior
court imposing a standard range sentence upon him after we vacated two of his
convictions and remanded this matter for resentencing. On appeal once more,
Montgomery asserts that the sentencing court erred by considering certain
telephone calls that he made to M.C., the subject of a lifetime no-contact order
entered against him, without first holding an evidentiary hearing. He also asserts
that the sentencing court erred by denying his request for a sentencing
alternative pursuant to the mental health sentencing act.1 Additionally,
Montgomery contends that the sentencing court erred by calculating his offender
score to include a prior out-of-state conviction.
The sentencing court, however, recognized Montgomery’s timely objection
to the challenged evidence and appropriately addressed his concerns without the
need for a separate evidentiary hearing. Moreover, while the record reflects that
1 Codified at RCW 9.94A.695. No. 86070-4-I/2
the sentencing court initially considered granting his request for a mental health
sentencing alternative, the court did not abuse its discretion by ultimately denying
his request in recognition of evidence that he had continued contact with M.C.,
who was the victim of his domestic violence convictions and who was protected
by a lifetime no-contact order. Finally, the sentencing court did not err when it
included Montgomery’s out-of-state conviction in calculating his offender score.
Accordingly, we affirm.
I
We have previously set forth the facts in this matter in an unpublished
opinion, State v. Montgomery, No. 83517-3, slip op. at 2-6 (Wash. Ct. App. Jan.
17, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/835173.pdf.
The facts pertinent to the issues before us are set forth below.
In June 2021, Montgomery was charged by third amended information
with eleven offenses arising from two domestic violence incidents involving his
girlfriend, M.C. The charges included two counts of assault in the second degree
domestic violence, one count each of assault in the third degree domestic
violence, felony assault in the fourth degree domestic violence, domestic
violence felony violation of a court order, assault of a child in the third degree,
arson in the first degree, tampering with a witness, and three counts of domestic
violence misdemeanor violation of a court order. He was found guilty as charged
after a bench trial.
In the resulting sentencing proceedings, Montgomery requested the
imposition of an alternative sentencing pursuant to the mental health sentencing
2 No. 86070-4-I/3
act. Montgomery, No. 83517-3, slip op. at 17. However, the sentencing court
“found that this was not a compelling case to apply the mental health alternative.”
Montgomery, No. 83517-3, slip op. at 17. The court calculated Montgomery’s
offender score, including a prior Alabama conviction for robbery in the first
degree, and sentenced him to a standard range term of incarceration.
Montgomery appealed his judgment and sentence to this court.2 On
review, we vacated two of the eleven convictions and remanded the matter to the
trial court for resentencing consistent with our decision.
In September 2023, the superior court held a resentencing hearing with
Montgomery appearing before the same judge who had both presided over his
bench trial and previously sentenced him. Montgomery again requested a
mental health sentencing alternative. The sentencing court then heard testimony
from Montgomery and several friends and family members in support of granting
his request for such a sentencing alternative. The court was also provided with a
statement from M.C., the victim, indicating that she favored granting the
sentencing alternative request.
With regard to this request, the court stated, “from this court’s perspective,
it’s undeniable that there is some mental health issues going on, I don’t
know that this is what this type of treatment alternative -- that this is the type of
behavior that the mental health treatment alternative was meant to address.”
The sentencing court weighed the evidence before it, including M.C.’s opinion
2 In his prior appeal, Montgomery did not challenge the trial court’s decision to deny the
mental health sentencing alternative or its decision to include his Alabama conviction for the purpose of determining his offender score. Montgomery, No. 83517-3, slip op. at 1.
3 No. 86070-4-I/4
and the court’s observations of Montgomery’s behavior during trial and at
resentencing. I also have [M.C.], who has indicated that she’s in support of this, and many family members. Again, I have concerns because the behaviors that, as I said before, that were implicated in this case, there’s domestic violence, underlying domestic violence, manipulation and control issues that need to be addressed. But there is also some -- I can’t, at this point, find that mental health is not at play here given the changes that I see in Mr. Montgomery now that he is appropriately medicated for his mental health issues. I still have concerns because he had this opportunity before to address mental health, and wasn’t doing it, and that led us to these multiple charges. So I have concerns, but he -- let’s just see. Let’s just see.
The court then deferred on ruling on Montgomery’s request, ordered the
State to prepare a presentencing investigation report pursuant to RCW
9.94A.695, and continued the sentencing proceeding until after the report was
prepared.
Prior to resumption of the resentencing hearing, the State prepared a
supplemental sentencing memorandum regarding Montgomery’s request for a
mental health sentencing alternative. In that memorandum, the State argued that
Montgomery’s request should be denied. This was so, according to the State,
because, despite the entry of a lifetime no-contact order between Montgomery
and M.C. and notwithstanding his prior convictions for violation of a no-contact
order protecting her, he had placed 302 telephone calls to M.C. while he was in
jail between July 2023 and the first resentencing hearing in September 2023.
In November 2023, the sentencing court convened another hearing on
Montgomery’s resentencing. The State presented evidence in support of its
4 No. 86070-4-I/5
memorandum at the hearing, providing transcripts and playing audio recordings
of seven of Montgomery’s telephone calls to M.C. Montgomery objected to the
telephone calls on the basis of lack of foundation, which the sentencing court
overruled, noting that M.C. had identified herself in the calls provided. In
addition, the trial court noted that it had presided over the trial and was aware of
information regarding the parties that was consistent with details in the telephone
conversations. As a result, the trial court determined that the “person in these
calls is who it purports to be, which is [M.C.].”
The trial court heard and considered the telephone calls, heard statements
from Montgomery, and denied the request for a sentencing alternative. Instead,
the court imposed a low end standard range sentence of 108 months of
confinement.3 Montgomery appeals.
II
Montgomery asserts that the sentencing court deprived him of his right to
due process by considering, over his objection, evidence of hundreds of
telephone calls—calls that he made to the victim of his crimes of conviction,
3 After initial sentencing in this matter, Montgomery pleaded guilty to one count of assault
in the second degree domestic violence arising from an unrelated incident in Pierce County. The Pierce County Superior Court imposed a sentence of 51 months, to run consecutively to the King County sentence. At resentencing, Montgomery requested that the trial court in this matter impose its sentence to be served concurrently with the Pierce County sentence. Pursuant to RCW 9.94A.589(2)(a), “[w]henever a person while under sentence for conviction of a felony commits another felony and is sentenced to another term of confinement, the latter term of confinement shall not begin until expiration of all prior terms of confinement.” Thus, a concurrent sentence would have been an exceptional sentence, had the court chosen to adopt the defense recommendation.
5 No. 86070-4-I/6
M.C., while he was in jail pending resentencing—without holding an evidentiary
hearing. We disagree.
We review a trial court’s decision to admit evidence for an abuse of
discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). “A trial
court abuses its discretion only if no reasonable person would adopt the view
espoused by the trial court.” Demery, 144 Wn.2d at 758.
Chapter 9.94A RCW, the Sentencing Reform Act of 1981 (SRA), provides
that a sentencing court “may rely on no more information than is . . . admitted,
acknowledged, or proved in a trial or at the time of sentencing.” RCW
9.94A.530(2). In criminal sentencing proceedings, the rules of evidence do not
apply, and the trial court may consider a broad range of evidence. State v.
Deskins, 180 Wn.2d 68, 83, 322 P.3d 780 (2014); ER 1101(c)(3). However,
when a defendant disputes a material fact, the court must “either not consider the
fact or grant an evidentiary hearing on the point.” RCW 9.94A.530(2). The
evidence admitted in a sentencing hearing must meet due process requirements.
State v. Strauss, 119 Wn.2d 401, 418, 832 P.2d 78 (1992), abrogated on other
grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004). “The due process clause requires that a defendant in a sentencing
hearing be given an opportunity to refute the evidence presented and that the
evidence is reliable.” Strauss, 119 Wn.2d at 418-19.
Here, as set forth above, the State requested that the court consider
transcripts and audio recordings of seven telephone calls, taken from the 302
telephone calls Montgomery placed to M.C. from jail while he was awaiting
6 No. 86070-4-I/7
resentencing. Montgomery objected to the court’s consideration of the calls,
arguing that the State had not established a proper foundation as to whether
M.C. was the individual to whom Montgomery had made the calls in question.
The trial court overruled Montgomery’s objection. The court first noted
that, in the calls for which the State provided a transcript, M.C. had expressly
identified herself. The trial court also noted that
during the trial, I had information about [M.C.], and who their children are, and their ages, and her relationship with Mr. Montgomery. So I, for purposes of sentencing, will find that . . . for the calls that were provided to me, and the information that was provided in the calls to me as far as the conversations is sufficient to establish that the person in these calls is who it purports to be, which is [M.C.].
Thus, the trial court made findings that both addressed Montgomery’s
objections to its consideration of the telephone calls and resolved the issue of the
reliability of the evidence. As Montgomery made no effort to refute the factual
contents of the telephone calls, the trial court properly complied with the
necessary due process requirements to allow consideration of new evidence
during the sentencing proceeding. Montgomery had the opportunity to raise his
concerns. The trial court addressed those concerns. There was no need for a
separate hearing. The trial court did not abuse its discretion by admitting and
considering the telephone calls as evidence in the resentencing proceeding.
III
Montgomery also contends that the sentencing court erred by denying his
request for the imposition of a mental health sentencing alternative. The
sentencing court erred in so doing, Montgomery contends, because the court did
7 No. 86070-4-I/8
not properly consider the opinion of M.C., the victim in this case, in which she
recommended that the court grant his sentencing alternative request. Although
Montgomery is correct that the sentencing court was required to consider the
victim’s opinion when determining whether to grant such a request, the record
reflects that the court considered the victim’s opinion and simply declined to
follow it. The sentencing court did not err in so doing.
RCW 9.94A.695 sets forth an alternate sentencing framework for a
defendant convicted of a felony who is diagnosed with a serious mental illness.
Pursuant to that statute, such a defendant may be eligible for a mental health
sentencing alternative if the judge determines the defendant and the community
would benefit from supervision and treatment. RCW 9.94A.695(1). The decision
to grant a sentencing alternative “is entirely at a trial court’s discretion, so long as
the court does not abuse its discretion by denying a [sentencing alternative] on
an impermissible basis.” State v. Sims, 171 Wn.2d 436, 445, 256 P.3d 285
(2011) (discussing the special sex offender sentencing alternative).
Notably, in determining whether such a sentencing alternative is
appropriate, RCW 9.94A.695 mandates that “[t]he court shall consider the
victim’s opinion whether the defendant should receive a sentence under this
section.” RCW 9.94A.695(4). Unless contrary legislative intent is apparent, the
legislature’s use of the word “shall” in a statute imposes a mandatory
requirement. State v. Gonzales, 198 Wn. App. 151, 155, 392 P.3d 1158 (2017).
Thus, the trial court was statutorily required to consider M.C.’s opinion when
8 No. 86070-4-I/9
deciding whether to grant Montgomery’s request for a mental health sentencing
alternative.
Here, at the initial hearing on resentencing, M.C. expressed her thoughts
concerning Montgomery’s request for the sentencing alternative:
I would like to add that I am in agreeance [sic] with who’s representing Corey. I do feel like I would be more comfortable with him coming out, getting the mental resources and the support that he needs to come out and, you know, be a father, and be a son, and be, you know, a family member and a member in society. I feel like he needs that in order to move forward. I don’t feel like prison time is what he needs. So I just wanted to say, I agree with that.
During the remainder of that initial hearing, the sentencing court
acknowledged M.C.’s opinion twice. First, when discussing the sentencing
scheme with Montgomery, the trial court noted that M.C. “is in support of you
receiving mental health treatment.” The trial court later reiterated, “I also have
[M.C.], who has indicated that she’s in support of this, and many family
members,” as a reason to continue the sentencing hearing to allow the State to
prepare a treatment evaluation.
Two months later, when the sentencing hearing resumed, the State
introduced the telephone calls from Montgomery to M.C. After listening to
several of the telephone calls, and allowing Montgomery to respond, the
sentencing court denied his request for mental health sentencing alternative,
stating as follows:
So, yes, we need to have your mental health issues addressed; I agree with you and your family on that. But the mental health sentencing alternative, as I stated previously, is not appropriate. Because I cannot find, as required by statute, that the community
9 No. 86070-4-I/10
will benefit by you being on that. Because you said, “What’s the worst thing that can happen if I put you on that?” You continue to violate the Court’s orders. You continue to harass [M.C.]. You start living with her again. You assault her again. This time she’s harmed. She’s killed. The kids are killed. Or you have another mental health crisis and you burn the building down, and people that are not in any way related to you or have any connection with you are murdered and killed by you. That’s the worst thing that can happen. And why is that a possibility? Because you can’t obey the simplest of orders, which is do not contact her. Three hundred and two times. And just the snippet I heard where you’re, again, manipulating her.
Thus, after hearing of Montgomery’s persistent contact in violation of the
no-contact order, the trial court denied the sentencing alternative, citing the
safety of both M.C. and the public. While the record from the first day of the
sentencing hearing demonstrates that the trial court heard and considered M.C.’s
opinion, concerns as to Montgomery’s compliance with court orders ultimately led
the court to rule at variance with M.C.’s opinion.
In so doing, the trial court did not abuse its discretion. The statute in
question requires a sentencing court to consider the victim’s opinion. We do not
question that public policy supports the legislature’s determination that this
consideration is necessary. However, public policy also supports the
legislature’s omission of any requirement that the judge adopt the victim’s
opinion. As this case illustrates, a requirement that a judge adopt the victim’s
recommendation could allow for continued victimization. M.C. was subject to
hundreds of telephone calls, and several transcripts of calls provided to the court
displayed Montgomery’s attempts to cajole and manipulate M.C. into appearing
at his sentencing hearing. Accordingly, while the trial court must consider the
10 No. 86070-4-I/11
victim’s opinion, the ultimate determination of whether to grant such a sentencing
alternative is properly assigned to the discretion of the judge.
The record reflects that the sentencing court herein considered M.C.’s
opinion but simply did not adopt it. The sentencing court expressly indicated that
it had heard and understood M.C.’s opinion regarding Montgomery’s mental
health. Indeed, after hearing this opinion, the court continued the resentencing
hearing in order to allow for the preparation of a presentence investigation report
as to the applicability of the mental health sentencing alternative in this case.
Moreover, the court’s reasoning in denying Montgomery’s request for a
mental health sentencing alternative was tenable. A defendant is not eligible for
the mental health sentencing alternative unless both the defendant and the
community would benefit by the defendant receiving supervision and treatment.
RCW 9.94A.695(1)(c). Here, the sentencing court denied the request for the
mental health alternative after it considered Montgomery’s conduct, which
showed that he would not comply with court orders and could potentially
endanger the public. Given the evidence before it, the sentencing court’s
decision to deny the sentencing alternative was not an abuse of discretion.
IV
Montgomery contends that the sentencing court erred in calculating his
offender score by determining that his previous Alabama robbery conviction was
11 No. 86070-4-I/12
legally and factually comparable to a Washington offense. For several reasons,
his claim fails.
We review de novo a challenge to the classification of an out-of-state or
federal conviction. State v. Jackson, 129 Wn. App. 95, 106, 117 P.3d 1182
(2005).
Under the SRA, a defendant’s offender score establishes the range within
which he or she must be sentenced. RCW 9.94A.530. When the defendant’s
criminal history includes an out-of-state conviction that is “comparable” to a
Washington felony, the out-of-state conviction counts toward the defendant’s
offender score as if it were the equivalent of the Washington offense. State v.
Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998); RCW 9.94A.525(3). The
State bears the burden of establishing both the existence and comparability of
out-of-state convictions by a preponderance of the evidence. State v. Ross, 152
Wn.2d 220, 230, 95 P.3d 1225 (2004). A two-part test is utilized to determine
whether an out-of-state conviction is for an offense comparable to a Washington
felony offense. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).
A court must first query whether the foreign offense is legally comparable—that is, whether the elements of the foreign offense are substantially similar to the elements of the Washington offense. If the elements of the foreign offense are broader than the Washington counterpart, the sentencing court must then determine whether the offense is factually comparable—that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute.
12 No. 86070-4-I/13
Thiefault, 160 Wn.2d at 415. The sentencing court, in making its factual
comparison, may rely on facts in the foreign record that are admitted, stipulated
to, or proved beyond a reasonable doubt. Thiefault, 160 Wn.2d at 415.
As an initial matter, a defendant’s statements may relieve the State of its
burden of proving the existence and comparability of prior out-of-state
convictions. “[A] defendant’s affirmative acknowledgement that his prior out-of-
state and/or federal convictions are properly included in his offender score
satisfies SRA requirements.” Ross, 152 Wn.2d at 230. Although a defendant
generally cannot waive a challenge to a miscalculated offender score based on
legal error, waiver can be found where the alleged error involves an agreement
to facts that are later disputed. Ross, 152 Wn.2d at 231 (citing In re Pers.
Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)). “The mere
failure to object to a prosecutor’s assertions of criminal history does not
constitute such an acknowledgment.” State v. Mendoza, 165 Wn.2d 913, 928,
205 P.3d 113 (2009). Rather, the defendant must affirmatively acknowledge the
facts and information introduced for the purposes of sentencing. Mendoza, 165
Wn.2d at 928.
At the resentencing herein, the State’s presentencing report included an
analysis of the comparability of Montgomery’s prior Alabama conviction to
applicable Washington offenses. The State outlined Montgomery’s prior
convictions and provided calculations for this offender score as it varied for each
count. The record provided to us on appeal does not include a presentencing
13 No. 86070-4-I/14
report prepared by Montgomery. However, the following exchange occurred
between Montgomery’s legal counsel and the sentencing court:
THE COURT: . . . You’re not contesting at this point any of the history as far as the standard ranges, the offender scores, the serious level, or the past robbery conviction at this point in time, is that correct?
[DEFENSE COUNSEL]: Your Honor, I have read through the State’s briefing, and I’m familiar with this case. I know the Court’s prior ruling. So, based upon that information, I’m deferring to the Court on that; I’m not objecting.
Thus, Montgomery affirmatively acknowledged the proposed standard ranges,
offender scores, as well as the comparability of the past Alabama conviction.
After considering the arguments by the parties as to the mental health sentencing
alternative, the court adopted the State’s recitation of Montgomery’s offender
score and pronounced a standard range sentence of 108 months.
By affirmatively stating that he did not challenge the State’s briefing or the
sentencing court’s prior ruling determining that his Alabama conviction was
comparable, Montgomery agreed to its inclusion in his offender score. More than
a mere failure to object, Montgomery’s statements specifically approved of the
trial court’s previous assessment of comparability for the calculation of his
offender score. He cannot now dispute that he agreed to the facts as found by
the trial court during his initial sentencing proceedings. We therefore conclude
that Montgomery has waived his right to challenge the court’s inclusion of the
Alabama offense in its calculation of his offender score.
14 No. 86070-4-I/15
Nevertheless, even if we consider his assertion, the sentencing court did
not err in concluding that the State carried its burden of establishing the
existence of and comparability of Montgomery’s out-of-state convictions by a
preponderance of the evidence.
The State does not contest whether the Alabama offense underlying his
out-of-state conviction is legally comparable to a Washington offense. Therefore,
we proceed to address Montgomery’s challenge to whether those offenses are
factually comparable.
For the factual step of the comparability analysis, “[o]ffenses are factually
comparable when the defendant’s conduct would have violated a Washington
statute.” In re Pers. Restraint of Canha, 189 Wn.2d 359, 367, 402 P.3d 266
(2017). “[T]o establish factual comparability, the State need independently prove
only those facts that, when alleged by the State, have not been admitted by the
defendant.” State v. Releford, 148 Wn. App. 478, 488, 200 P.3d 729 (2009).
In Alabama, “‘[a] voluntary guilty plea concludes the issue of guilt,
dispenses with the need for judicial fact finding, is conclusive as to the
defendant’s guilt, and is an admission of all facts sufficiently charged in the
indictment.’” G.E.G. v. State, 54 So. 3d 949, 954 (Ala. 2010) (internal quotation
marks omitted) (quoting Scott v. State, 917 So. 2d 159, 166 (Ala. Crim. App.
2005)).
Notably, in discussing facts admitted to by a defendant, we have stated
that, [t]here is no basis for us to conclude that, where a defendant enters a plea of guilty at a point in time and in a foreign jurisdiction where
15 No. 86070-4-I/16
such a plea constitutes an admission of the facts alleged by the government in the charging document, such an admission cannot be later relied upon to prove factual comparability for purposes of a subsequent sentencing in Washington.
Releford, 148 Wn. App. at 488.
A person commits the crime of robbery in Washington State
when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.190. A person is guilty of robbery in the first degree in this state
when, “[i]n the commission of a robbery or of immediate flight therefrom, he or
she: (i) Is armed with a deadly weapon; or (ii) Displays what appears to be a
firearm or other deadly weapon; or (iii) Inflicts bodily injury.” RCW
9A.56.200(1)(a). In short, robbery “‘encompasses any “taking of . . . property
[that is] attended with such circumstances of terror, or such threatening by
menace, word or gesture as in common experience is likely to create an
apprehension of danger and induce a man to part with property for the safety of
his person.”’” State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014)
(internal quotation marks omitted) (alterations in original) (quoting State v.
Shcherenkov, 146 Wn. App. 619, 624-25, 191 P.3d 99 (2008)). The possession
of a deadly weapon or display of a firearm or other deadly weapon in the course
of a robbery elevates the offense to robbery in the first degree. RCW 9A.56.200.
16 No. 86070-4-I/17
Here, Montgomery challenges only the sufficiency of the documentary
evidence relied upon by the State to prove the factual comparability of his
Alabama offense with a Washington offense.
At the resentencing hearing, the documentary evidence relied on by the
State in support of factual comparability was the grand jury indictment accusing
Montgomery of robbery in the first degree in Jefferson County, Alabama, his
signed proposed plea agreement setting forth his plea of guilty to that offense,
and a document entitled “Case Action Summary,” signed by the judge, that
stated that Montgomery pleaded guilty to robbery in the first degree as charged
in the indictment.
The grand jury indictment accused, in pertinent part, that
COREY DAMON MONTGOMERY JR. . . . did, in the course of committing a theft of $685.93 of lawful United States currency and/or coinage, the property of CARLA MCCRARY, use force or threaten the imminent use of force against the person of CARLA MCCRARY, or another person present, with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said COREY DAMON MONTGOMERY or another person actually present was armed with a deadly weapon or dangerous instrument, to-wit: a pistol, in violation of Section 13A-8-41[4] of the
4 Alabama’s criminal statute governing robbery in the first degree, Ala. Code § 13A-8-41,
reads as follows: (a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he: (1) Is armed with a deadly weapon or dangerous instrument; or (2) Causes serious physical injury to another. (b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed. (c) Robbery in the first degree is a Class A felony.
17 No. 86070-4-I/18
Alabama Criminal Code, against the peace and dignity of the State of Alabama.
Montgomery contends that the State’s reliance on the guilty plea is
misplaced as the documents do not include language regarding his specific
conduct, nor does he describe or attest to his conduct. Further, he contends the
State cannot rely on the “Case Action Summary,” both because it does not bear
his signature and because the document does not indicate that he admitted or
stipulated to any specific facts.
However, the “Case Action Summary” explicitly states that Montgomery
“pleads guilty to Robbery First Degree as charged in the indictment,” and
announces “[a]ll pleadings, findings, Orders, judgments and sentences entered
herein are filed, and it is Ordered that they be recorded and made a part of the
permanent record in this case.” The document was signed by a judicial officer,
who, in so signing, entered it into the record. We have no evidence that the
legitimacy of the plea has been assailed in Alabama. Nor are we aware of any
other reason why we should not rely on Montgomery’s plea of guilt, as duly
approved by the court.
Furthermore, Montgomery makes no argument that his conduct, as recited
in the indictment, would not have violated the statute for robbery in the first
degree in Washington. Thus, pursuant to both Alabama and Washington law,
Montgomery’s guilty plea amounts to an admission of the facts as described in
the indictment, and the facts therein are proved for the purpose of the factual
comparability analysis. The guilty plea to the facts included in the indictment
conclusively establishes that Montgomery, while armed with a pistol, committed a
18 No. 86070-4-I/19
taking of $685.93 from Carla McCrary, employing either force or threat of
imminent use of force to take said property. This conduct proves factual
comparability to Washington’s offense of robbery in the first degree. Thus, the
trial court did not err by including Montgomery’s prior out-of-state conviction in
calculating his offender score.5
Montgomery has not prevailed as to any of his assertions on appeal.
Accordingly, we hold that Montgomery has not established an entitlement to
appellate relief.
Affirmed.
WE CONCUR:
5 Montgomery acknowledges that even with exclusion of the Alabama conviction his
offender score would remain above nine and, therefore, the applicable standard sentencing range would remain unchanged.