IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87693-7-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION FRANKLIN DEAN WHITEMAN JR.,
Appellant.
SMITH, J. — Franklin Whiteman was found guilty of second-degree
burglary in Snohomish County Superior Court. Prior to Whiteman’s conviction in
Washington, he was convicted in Montana of burglary and escape. The trial
court included both Montana convictions in Whiteman’s offender score,
increasing his sentence from 16 to 33 months. Because Whitman’s burglary
conviction is factually comparable to Washington’s burglary statute and
Montana’s escape statute is legally comparable to Washington’s equivalent
statute, we affirm the trial court.
FACTS
In November 2024, Whiteman was terminated from the Snohomish
County adult drug treatment court/adult recovery court program. Pursuant to the
program’s contract, the defendant agreed to submit to a stipulated bench trial
and he was convicted as charged. Prior to Whiteman’s conviction in No. 87693-7-I/2
Washington, he was convicted of two crimes in Montana: burglary in 2012 and
escape in 2016.
At the sentencing hearing in January 2025, the State submitted the
following exhibits regarding Whiteman’s Montana burglary conviction: judgment,
affidavit and motion for leave to file information, and information. The judgment
stated that Whiteman pleaded guilty to burglary felony. The information detailed
that Whiteman “knowingly entered or remained unlawfully in an occupied
structure with the purpose to commit an offense therein, to wit: the Defendant,
unlawfully entered 2121 10th Avenue North, Billings, Yellowstone County,
Montana.” The State filed similar documentation for Whiteman’s Montana
escape conviction.
The State recommended that Whiteman’s out-of-state convictions should
be counted in his offender score. The sentencing court ruled that Montana’s
burglary statute was broader than Washington’s, but Whiteman’s case was
factually similar by a preponderance of the evidence. Specifically, the court held
that Whiteman “[pleaded] guilty to the information as filed which excluded the
vehicle.”
Addressing Whiteman’s escape conviction, Whiteman asserted that
Washington’s affirmative defense of uncontrollable circumstances legally
distinguishes it from Montana’s escape statute. However, the court ruled that the
legal prongs of Montana’s and Washington’s statute were legally comparable.
The court held that “uncontrollable circumstances, if proved, would negate the
2 No. 87693-7-I/3
‘willing and knowing’ aspect of the statute by itself” and that is not a basis to
exclude the conviction. Both Montana convictions were included in Whiteman’s
offender score, and he was sentenced to 33 months. Whiteman appeals.
ANALYSIS
Whiteman asserts that the sentencing court miscalculated his offender
score when it included the Montana burglary and escape convictions because
both Montana statutes are not legally comparable to a Washington felony. The
State contends that Whiteman’s offender score was properly calculated because
the Montana and Washington’s statutes are legally and factually comparable.
This court reviews a defendant’s offender score de novo. State v. Olsen,
180 Wn.2d 468, 472, 325 P.3d 187 (2014).
Legal Standard
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, dictates
“standard sentencing ranges calculated according to the crime’s seriousness
level and the defendant’s offender score.” Olsen, 180 Wn.2d at 472. Under
RCW 9.94A.525(3), when calculating a defendant’s offender score, “[o]ut-of-state
convictions for offenses shall be classified according to the comparable offense
definitions and sentences provided by Washington law.” The SRA requires the
State “to prove by a preponderance of the evidence the existence and
comparability of a defendant’s prior out-of-state conviction.” State v. Ross, 152
Wn.2d 220, 230, 95 P.3d 1225 (2004). An illegal or erroneous sentence “may be
challenged for the first time on appeal.” State v. Ford, 137 Wn.2d 472, 477, 973
3 No. 87693-7-I/4
P.2d 452 (1999). If the court finds that a defendant was erroneously sentenced,
the court must “remand [their] case to the sentencing court for resentencing.”
Ross, 152 Wn.2d at 229. Washington has a two-prong test to evaluate foreign
convictions. Olsen, 180 Wn.2d at 472.
a. Legal Comparability
First, the court must compare the elements of the out-of-state crime to the
Washington criminal statute in effect when the out-of-state crime was committed.
State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). “If the foreign
conviction is identical to or narrower than the Washington statute . . . then the
foreign conviction counts toward the offender score.” Olsen, 180 Wn.2d at 472-
473. Washington’s statute and the foreign statute do not need to be exact, the
SRA requires rough comparability, not precision. State v. Jordan, 180 Wn.2d
456, 465, 325 P.3d 181 (2014). “The foreign statute establishing the offense
carries with it the construction placed on it by the other jurisdiction’s controlling
court.” State v. Davis, 3 Wn. App. 2d 763, 771, 418 P.3d 199 (2018).
b. Factual Comparability
If a foreign statute is broader than Washington’s, the court must analyze
“whether the defendant’s conduct would have violated the comparable
Washington statute.” Olsen, 180 Wn.2d at 473. The defendant’s conduct can be
evaluated through “ ‘the indictment or information.’ ” Morley, 134 Wn.2d at 606
(internal quotation marks omitted) (quoting State v. Mutch, 87 Wn. App. 433, 437,
942 P.2d 1018 (1997)). “The key inquiry is under what Washington statute could
4 No. 87693-7-I/5
the defendant have been convicted if [they] had committed the same acts in
Washington.” State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997)
(emphasis added). Consistent with the United States Supreme Court’s ruling in
Apprendi,1 Washington’s Supreme Court held that “the existence of a prior
conviction need not be presented to a jury and proved beyond a reasonable
doubt.” In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837
(2005). However, “[a]ny attempt to examine the underlying facts of
a foreign conviction, facts that were neither admitted or stipulated to, nor proved
to the finder of fact beyond a reasonable doubt in the foreign conviction, proves
problematic.” Lavery, 154 Wn.2d at 258. The trial court’s factual inquiry is
limited to the details in the charging document, plea agreement, or transcript of
colloquy between the judge and defendant. State v. Thiefault, 160 Wn.2d 409,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87693-7-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION FRANKLIN DEAN WHITEMAN JR.,
Appellant.
SMITH, J. — Franklin Whiteman was found guilty of second-degree
burglary in Snohomish County Superior Court. Prior to Whiteman’s conviction in
Washington, he was convicted in Montana of burglary and escape. The trial
court included both Montana convictions in Whiteman’s offender score,
increasing his sentence from 16 to 33 months. Because Whitman’s burglary
conviction is factually comparable to Washington’s burglary statute and
Montana’s escape statute is legally comparable to Washington’s equivalent
statute, we affirm the trial court.
FACTS
In November 2024, Whiteman was terminated from the Snohomish
County adult drug treatment court/adult recovery court program. Pursuant to the
program’s contract, the defendant agreed to submit to a stipulated bench trial
and he was convicted as charged. Prior to Whiteman’s conviction in No. 87693-7-I/2
Washington, he was convicted of two crimes in Montana: burglary in 2012 and
escape in 2016.
At the sentencing hearing in January 2025, the State submitted the
following exhibits regarding Whiteman’s Montana burglary conviction: judgment,
affidavit and motion for leave to file information, and information. The judgment
stated that Whiteman pleaded guilty to burglary felony. The information detailed
that Whiteman “knowingly entered or remained unlawfully in an occupied
structure with the purpose to commit an offense therein, to wit: the Defendant,
unlawfully entered 2121 10th Avenue North, Billings, Yellowstone County,
Montana.” The State filed similar documentation for Whiteman’s Montana
escape conviction.
The State recommended that Whiteman’s out-of-state convictions should
be counted in his offender score. The sentencing court ruled that Montana’s
burglary statute was broader than Washington’s, but Whiteman’s case was
factually similar by a preponderance of the evidence. Specifically, the court held
that Whiteman “[pleaded] guilty to the information as filed which excluded the
vehicle.”
Addressing Whiteman’s escape conviction, Whiteman asserted that
Washington’s affirmative defense of uncontrollable circumstances legally
distinguishes it from Montana’s escape statute. However, the court ruled that the
legal prongs of Montana’s and Washington’s statute were legally comparable.
The court held that “uncontrollable circumstances, if proved, would negate the
2 No. 87693-7-I/3
‘willing and knowing’ aspect of the statute by itself” and that is not a basis to
exclude the conviction. Both Montana convictions were included in Whiteman’s
offender score, and he was sentenced to 33 months. Whiteman appeals.
ANALYSIS
Whiteman asserts that the sentencing court miscalculated his offender
score when it included the Montana burglary and escape convictions because
both Montana statutes are not legally comparable to a Washington felony. The
State contends that Whiteman’s offender score was properly calculated because
the Montana and Washington’s statutes are legally and factually comparable.
This court reviews a defendant’s offender score de novo. State v. Olsen,
180 Wn.2d 468, 472, 325 P.3d 187 (2014).
Legal Standard
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, dictates
“standard sentencing ranges calculated according to the crime’s seriousness
level and the defendant’s offender score.” Olsen, 180 Wn.2d at 472. Under
RCW 9.94A.525(3), when calculating a defendant’s offender score, “[o]ut-of-state
convictions for offenses shall be classified according to the comparable offense
definitions and sentences provided by Washington law.” The SRA requires the
State “to prove by a preponderance of the evidence the existence and
comparability of a defendant’s prior out-of-state conviction.” State v. Ross, 152
Wn.2d 220, 230, 95 P.3d 1225 (2004). An illegal or erroneous sentence “may be
challenged for the first time on appeal.” State v. Ford, 137 Wn.2d 472, 477, 973
3 No. 87693-7-I/4
P.2d 452 (1999). If the court finds that a defendant was erroneously sentenced,
the court must “remand [their] case to the sentencing court for resentencing.”
Ross, 152 Wn.2d at 229. Washington has a two-prong test to evaluate foreign
convictions. Olsen, 180 Wn.2d at 472.
a. Legal Comparability
First, the court must compare the elements of the out-of-state crime to the
Washington criminal statute in effect when the out-of-state crime was committed.
State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). “If the foreign
conviction is identical to or narrower than the Washington statute . . . then the
foreign conviction counts toward the offender score.” Olsen, 180 Wn.2d at 472-
473. Washington’s statute and the foreign statute do not need to be exact, the
SRA requires rough comparability, not precision. State v. Jordan, 180 Wn.2d
456, 465, 325 P.3d 181 (2014). “The foreign statute establishing the offense
carries with it the construction placed on it by the other jurisdiction’s controlling
court.” State v. Davis, 3 Wn. App. 2d 763, 771, 418 P.3d 199 (2018).
b. Factual Comparability
If a foreign statute is broader than Washington’s, the court must analyze
“whether the defendant’s conduct would have violated the comparable
Washington statute.” Olsen, 180 Wn.2d at 473. The defendant’s conduct can be
evaluated through “ ‘the indictment or information.’ ” Morley, 134 Wn.2d at 606
(internal quotation marks omitted) (quoting State v. Mutch, 87 Wn. App. 433, 437,
942 P.2d 1018 (1997)). “The key inquiry is under what Washington statute could
4 No. 87693-7-I/5
the defendant have been convicted if [they] had committed the same acts in
Washington.” State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997)
(emphasis added). Consistent with the United States Supreme Court’s ruling in
Apprendi,1 Washington’s Supreme Court held that “the existence of a prior
conviction need not be presented to a jury and proved beyond a reasonable
doubt.” In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837
(2005). However, “[a]ny attempt to examine the underlying facts of
a foreign conviction, facts that were neither admitted or stipulated to, nor proved
to the finder of fact beyond a reasonable doubt in the foreign conviction, proves
problematic.” Lavery, 154 Wn.2d at 258. The trial court’s factual inquiry is
limited to the details in the charging document, plea agreement, or transcript of
colloquy between the judge and defendant. State v. Thiefault, 160 Wn.2d 409,
419-20, 158 P.3d 580 (2007).
Burglary Conviction
Whiteman asserts that the court erred when it included his Montana
burglary conviction in his offender score because it is not legally or factually
comparable. Whiteman stresses that his conviction is not factually comparable
because the information does not detail whether he unlawfully entered an
occupied structure other than a vehicle. The State concedes that the Montana
1 The Apprendi United States Supreme Court held that “except for a prior conviction, a ‘fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Lavery, 154 Wn.2d at 256 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
5 No. 87693-7-I/6
burglary statute is not legally comparable to Washington’s. However, the State
contends that the information reflects facts that would result in a conviction had
Whiteman committed the acts in Washington.
a. Legally Comparability
Under Montana’s burglary statute, “(1) A person commits the offense of
burglary if the person knowingly enters or remains unlawfully in an occupied
structure and: (a) the person has the purpose to commit an offense in the
occupied structure; or (b) the person knowingly or purposely commits any other
offense within that structure.” MONT. CODE ANN. § 45-6-204(1). Occupied
structure is defined as “any building, vehicle, or other place suitable for human
occupancy.” MONT. CODE ANN. § 45-2-101(47). Under Washington’s equivalent
burglary statute, “a person is guilty of residential burglary if, with intent to commit
a crime against a person or property therein, the person enters or remains
unlawfully in a dwelling other than a vehicle.” RCW 9A.52.025(1).
Montana’s burglary statute includes unlawfully entering or remaining in a
vehicle. Comparatively, Washington’s statute has a narrower definition of the
crime because it details that burglary is in “a dwelling other than a vehicle.”
RCW 9A.52.025(1). The Montana and Washington’s statutes are not legally
comparable because a person can be convicted of vehicle burglary in Montana
but could not be in Washington.
6 No. 87693-7-I/7
b. Factually Comparability
Because the burglary statutes are not legally comparable, we look to
Whiteman’s conduct in his Montana burglary conviction. The State submitted the
information and an affidavit and motion for leave to file information. Whiteman
entered a guilty plea for his burglary charge. The State did not submit the plea
and agreement to this court for review, and there were no facts proven to a finder
of fact beyond a reasonable doubt. Therefore, we are limited to the facts in the
information. The details in the affidavit and motion for leave to file information
are unreviewable because the analysis of them would require this court to make
findings of fact.
The information does not state the specific type of occupied dwelling
Whiteman entered or remained in. However, the information described the
dwelling as an address, stating that Whiteman “unlawfully entered 2121 10th
Avenue North, Billings, Yellowstone County, Montana.” Address is defined as
“[t]he place where mail or other communication is sent.” BLACK’S LAW
DICTIONARY, 47 (12th ed. 2024); see also State v. Morgan, 32 Wn. App. 236, 237,
646 P.2d 1387 (1982) (defining address as the “(p)lace where mail or other
communications will reach person . . . [g]enerally a place of business or
residence”). The information does not indicate that it is referencing the location
of a vehicle. Because the information describes the dwelling by an address, the
facts of Whiteman’s burglary conviction would result in a conviction under the
7 No. 87693-7-I/8
similar Washington statute. Whiteman’s burglary conviction is factually
comparable.
Escape Conviction
Whiteman contends that his Montana escape conviction was not legally
comparable to Washington’s escape conviction because Whiteman never
admitted to any facts that would prevent him from meeting an exception under
the Washington escape statute. The State asserts that the affirmative defense to
Washington’s escape statute is not an element of the crime, and therefore, not a
factor to consider in a legal comparability analysis.
a. Comparability of the Elements
Under MONT. CODE ANN. § 45-7-306, a person commits escape if they
“knowingly or purposely eludes official detention or fails to return to official
detention following temporary leave granted for a specific purpose or limited
time.” In Washington, escape is when a person (a) “knowingly escapes from a
detention facility[,]” (b) “knowingly escapes from custody” when charged with a
felony, or (c) when they are “committed under chapter 10.77 RCW . . . and being
under an order of conditional release, [they] knowingly leave[] or remain[] absent
from the state of Washington without prior court authorization.”
RCW 9A.76.120(1). Our court has found that “a person who, while on work
release or furlough, is not within the area where [they are] authorized to be at a
particular time, or a person who has remained in an area where [they were]
authorized to go beyond the time permitted [them], has escaped ‘from a
8 No. 87693-7-I/9
detention facility.’ ” State v. Kent, 62 Wn. App. 458, 460, 814 P.2d 1195 (1991)
(quoting State v. Peters, 35 Wn. App. 427, 431, 667 P.2d 136 (1983)).
Montana’s escape statute is similar to Washington’s escape statute under
RCW 9A.76.120(1)(a).
Whiteman contends that this court should consider RCW 9A.76.120(2),
which allows an affirmative defense as an exception, if uncontrollable
circumstances prevented the person from remaining in custody. However, our
legal comparability analysis looks at the elements of the Washington and foreign
statutes. Our Supreme Court has found that “[t]he focus of the comparability
inquiry remains on the elements of the crimes, and not the defenses.” State v.
Sublett, 176 Wn.2d 58, 89, 292 P.3d 715 (2012) (plurality opinion). Further, “[a]
statutory exception is an affirmative defense unless the statute reflects legislative
intent to treat proof of the absence of the exception as one of the elements of a
cause of action, or the exception operates to negate an element of the action.”
Asplundh Tree Expert Co. v. Dep’t of Lab. & Indus., 145 Wn. App. 52, 61, 185
P.3d 646 (2008). If on its face, the statute’s meaning is plain, “then the court
must give effect to that plain meaning as an expression of legislative intent.”
Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4
(2002).
RCW 9A.76.120(2) states, “it is an affirmative defense to a prosecution
under this section that uncontrollable circumstances prevented the person from
remaining in custody.” The statute plainly states that uncontrollable
9 No. 87693-7-I/10
circumstances is an affirmative defense. Uncontrollable circumstances under
RCW 9A.76.120(2) is not an element of escape. Therefore, the affirmative
defense cannot be considered in a comparability analysis.2
Even if this court reviewed the statutes’ exceptions or defenses as
Whiteman contends, Washington and Montana’s escape statutes are still legally
comparable. Montana’s highest court recognizes the defense of justification to
escape. State v. Stuit, 176 Mont. 84, 89, 576 P.2d 264 (1978) (“We hold that
under Montana law the defense of justification is an affirmative defense which
must be proved by the defendant by a preponderance of the evidence”). To
meet a justification defense, four conditions must exist at the time of escape: 1) The defendant was faced with a specific threat of death, or substantial bodily injury in the immediate future. 2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory. 3) There is [no] time or opportunity to resort to the courts. 4) The prisoner immediately reports to the proper authorities when [they have] attained a position of safety from the immediate threat.
State v. Strandberg, 223 Mont. 132, 135, 724 P.2d 710 (1986). Conversely,
under Washington’s escape statute, the similar defense is “that uncontrollable
circumstances prevented the person from remaining in custody or in the
2 Whiteman contends that Montana’s escape statute is broader than Washington’s equivalent because in Montana, a person could be convicted for failing to return to official detention for uncontrollable circumstances. Because we find that uncontrollable circumstances are not reviewable in a legal comparability analysis, Montana’s escape statute is not broader than Washington.
10 No. 87693-7-I/11
detention facility or from returning to custody or to the detention facility.”3
RCW 9A.76.120(2). The person must not have contributed to the circumstances,
and they must have returned “to custody or the detention facility as soon as such
circumstances ceased to exist.” RCW 9A.76.120(2). We find that Washington
and Montana’s escape statutes are legally comparable.4 The court did not err in
including Whiteman’s Montana escape conviction in his offender score.
We affirm.
WE CONCUR:
3 Uncontrollable circumstances is defined as: “[(1)] an act of nature such as a flood, earthquake, or fire, . . . [(2)] a medical condition that requires immediate hospitalization or treatment, . . . [(3)] an act of a human being such as an automobile accident or [(4)] threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.” RCW 9A.76.010. 4 The State asserts that even if the sentencing court erred by looking to
exhibits other than the judgment and information, any error in factual comparability is harmless. This is harmless error only if legal comparability is found.