IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 81994-1-I ) Respondent, ) ) v. ) ) GEORGE DONALD HATT, JR., ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — George Hatt challenges his judgment and sentence,
arguing that the trial court erred by failing to accurately state the required
mandatory minimum term for his first degree murder conviction with a firearm
enhancement. Hatt also contends that the court erred in noting his two prior
California felony convictions on his judgment and sentence as class B felonies
for “comparability” purposes. Because Hatt’s judgment and sentence accurately
states the required terms of confinement, it is not facially invalid. Because the
State concedes that one of Hatt’s prior California convictions was incorrectly
included on his judgment and sentence as a class B rather than a class C felony
for comparability purposes, we accept the State’s concession that remand is
appropriate for resentencing. No. 81994-1-I/2
FACTS
In 2017, a jury found George Hatt guilty of first degree murder, second
degree unlawful possession of a firearm, possession of an unlawful firearm, and
one count of tampering with physical evidence.1 The jury also found that Hatt
was armed with a firearm when he committed the murder.2
That July, based upon an offender score of 4, the trial court sentenced
Hatt to a total term of 434 months of confinement. Hatt appealed his convictions
to this court. This court affirmed Hatt’s convictions but remanded for
resentencing for the trial court to recalculate Hatt’s offender score because his
two firearm convictions constituted the “same criminal conduct” and to strike the
criminal filing fee.3
On September 11, 2020, the trial court resentenced Hatt based upon an
offender score of 3. That same day, the court entered an amended judgment
and sentence. The amended judgment and sentence noted that his conviction
for first degree murder contained a “mandatory minimum term of 300 months” of
confinement which included a mandatory term of 60 months for the firearm
enhancement.4 His amended judgment and sentence also included his two prior
1State v. Hatt, 11 Wn. App. 2d 113, 127, 452 P.3d 577 (2019), review denied, 195 Wn.2d 1011, 460 P.3d 176 (2020), cert. denied, 141 S. Ct. 345, 208 L. Ed. 2d 80 (2020). 2 Id. 3 Id. at 141-45. 4 Clerk’s Papers (CP) at 41.
2 No. 81994-1-I/3
California felony convictions that had not “washed out.”5 The court resentenced
Hatt to the high end of the standard range, 421 months.
Hatt appeals his sentence. ANALYSIS
Hatt contends that the trial court exceeded its “statutory authority” in
imposing the “mandatory minimum sentence” for first degree murder and
therefore, his “judgment and sentence [is] facially invalid.”6
As a general rule, we do not review the length of a standard range criminal
sentence imposed by a trial court.7 But we can review a trial court’s “underlying
legal conclusions and determinations” in imposing a sentence for an abuse of
discretion.8 A trial court abuses its discretion if its decision is based on untenable
grounds or untenable reasons.9
A sentence is facially invalid if it is unauthorized by law.10 Under the
“mandatory minimum terms” statute, RCW 9.94A.540, “An offender convicted of
the crime of murder in the first degree shall be sentenced to a term of total
confinement not less than twenty years [or 240 months].”11 And a firearm
5Hatt’s prior convictions include eleven felonies, but all of them except for two had washed out for purposes of calculating his offender score. 6 Appellant’s Br. at 7, 10. 7 State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). 8 Id. at 147. 9 State v. Vaughn, 83 Wn. App. 669, 681, 924 P.2d 27 (1996). 10In re Pers. Restraint of Rivera, 152 Wn. App. 794, 799, 218 P.3d 638 (2009), aff’d sub nom. In re Jackson, 175 Wn.2d 155, 283 P.3d 1089 (2012); In re Pers. Restraint of Tobin, 165 Wn.2d 172, 175-76, 196 P.3d 670 (2008). 11 RCW 9.94A.540(1)(a).
3 No. 81994-1-I/4
enhancement for first degree murder, a class A felony, adds a five-year (60
month) mandatory term.12
Here, Hatt’s judgment and sentence provides that his “confinement time”
for his conviction of first degree murder includes a “mandatory minimum term of
300 months.”13 His judgment and sentence also notes that included in the
“mandatory minimum term of 300 months” is 60 months of confinement for the
firearm enhancement.14 Therefore, the total minimum term of confinement the
court could impose was 300 months. Because Hatt’s judgment and sentence
properly provides the mandatory minimum term of confinement on his first
degree murder conviction together with the mandatory term of confinement for
the firearm enhancement, Hatt’s judgment and sentence is not facially invalid.
Hatt argues that the language on his judgment and sentence is misleading
because it could be interpreted as “a sentence of what de facto amounts to a
mandatory minimum term of 360 months, which exceeds the trial court’s
sentencing authority.”15 And Hatt contends that if his judgment was interpreted
as imposing a minimum term of 360 months, it would affect his ability to obtain
earned early release.16 But even if the language on a defendant’s judgment and
sentence is “confusing,” that alone does not “render the judgment and sentence
12 RCW 9.94A.533(3)(a), (e). 13 CP at 41. 14 Id. 15 Appellant’s Br. at 8. 16 See also State v. Conley, 121 Wn. App. 280, 286, 87 P.3d 1221 (2004).
4 No. 81994-1-I/5
facially invalid.”17 Here, the language describing the mandatory minimum term is
accurate and not misleading. Hatt’s argument is not compelling.18
Hatt also argues that his offender score was “incorrectly calculated,” which
rendered his “judgment and sentence facially invalid.”19 We review a trial court’s
calculation of a defendant’s offender score de novo.20
A defendant’s offender score “is the sum of points accrued as a result of
prior convictions.”21 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.22 Washington uses a “two-part test for comparing foreign
17See In re Pers. Restraint of Rivera, 152 Wn. App. 794, 800, 218 P.3d 638
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 81994-1-I ) Respondent, ) ) v. ) ) GEORGE DONALD HATT, JR., ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — George Hatt challenges his judgment and sentence,
arguing that the trial court erred by failing to accurately state the required
mandatory minimum term for his first degree murder conviction with a firearm
enhancement. Hatt also contends that the court erred in noting his two prior
California felony convictions on his judgment and sentence as class B felonies
for “comparability” purposes. Because Hatt’s judgment and sentence accurately
states the required terms of confinement, it is not facially invalid. Because the
State concedes that one of Hatt’s prior California convictions was incorrectly
included on his judgment and sentence as a class B rather than a class C felony
for comparability purposes, we accept the State’s concession that remand is
appropriate for resentencing. No. 81994-1-I/2
FACTS
In 2017, a jury found George Hatt guilty of first degree murder, second
degree unlawful possession of a firearm, possession of an unlawful firearm, and
one count of tampering with physical evidence.1 The jury also found that Hatt
was armed with a firearm when he committed the murder.2
That July, based upon an offender score of 4, the trial court sentenced
Hatt to a total term of 434 months of confinement. Hatt appealed his convictions
to this court. This court affirmed Hatt’s convictions but remanded for
resentencing for the trial court to recalculate Hatt’s offender score because his
two firearm convictions constituted the “same criminal conduct” and to strike the
criminal filing fee.3
On September 11, 2020, the trial court resentenced Hatt based upon an
offender score of 3. That same day, the court entered an amended judgment
and sentence. The amended judgment and sentence noted that his conviction
for first degree murder contained a “mandatory minimum term of 300 months” of
confinement which included a mandatory term of 60 months for the firearm
enhancement.4 His amended judgment and sentence also included his two prior
1State v. Hatt, 11 Wn. App. 2d 113, 127, 452 P.3d 577 (2019), review denied, 195 Wn.2d 1011, 460 P.3d 176 (2020), cert. denied, 141 S. Ct. 345, 208 L. Ed. 2d 80 (2020). 2 Id. 3 Id. at 141-45. 4 Clerk’s Papers (CP) at 41.
2 No. 81994-1-I/3
California felony convictions that had not “washed out.”5 The court resentenced
Hatt to the high end of the standard range, 421 months.
Hatt appeals his sentence. ANALYSIS
Hatt contends that the trial court exceeded its “statutory authority” in
imposing the “mandatory minimum sentence” for first degree murder and
therefore, his “judgment and sentence [is] facially invalid.”6
As a general rule, we do not review the length of a standard range criminal
sentence imposed by a trial court.7 But we can review a trial court’s “underlying
legal conclusions and determinations” in imposing a sentence for an abuse of
discretion.8 A trial court abuses its discretion if its decision is based on untenable
grounds or untenable reasons.9
A sentence is facially invalid if it is unauthorized by law.10 Under the
“mandatory minimum terms” statute, RCW 9.94A.540, “An offender convicted of
the crime of murder in the first degree shall be sentenced to a term of total
confinement not less than twenty years [or 240 months].”11 And a firearm
5Hatt’s prior convictions include eleven felonies, but all of them except for two had washed out for purposes of calculating his offender score. 6 Appellant’s Br. at 7, 10. 7 State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). 8 Id. at 147. 9 State v. Vaughn, 83 Wn. App. 669, 681, 924 P.2d 27 (1996). 10In re Pers. Restraint of Rivera, 152 Wn. App. 794, 799, 218 P.3d 638 (2009), aff’d sub nom. In re Jackson, 175 Wn.2d 155, 283 P.3d 1089 (2012); In re Pers. Restraint of Tobin, 165 Wn.2d 172, 175-76, 196 P.3d 670 (2008). 11 RCW 9.94A.540(1)(a).
3 No. 81994-1-I/4
enhancement for first degree murder, a class A felony, adds a five-year (60
month) mandatory term.12
Here, Hatt’s judgment and sentence provides that his “confinement time”
for his conviction of first degree murder includes a “mandatory minimum term of
300 months.”13 His judgment and sentence also notes that included in the
“mandatory minimum term of 300 months” is 60 months of confinement for the
firearm enhancement.14 Therefore, the total minimum term of confinement the
court could impose was 300 months. Because Hatt’s judgment and sentence
properly provides the mandatory minimum term of confinement on his first
degree murder conviction together with the mandatory term of confinement for
the firearm enhancement, Hatt’s judgment and sentence is not facially invalid.
Hatt argues that the language on his judgment and sentence is misleading
because it could be interpreted as “a sentence of what de facto amounts to a
mandatory minimum term of 360 months, which exceeds the trial court’s
sentencing authority.”15 And Hatt contends that if his judgment was interpreted
as imposing a minimum term of 360 months, it would affect his ability to obtain
earned early release.16 But even if the language on a defendant’s judgment and
sentence is “confusing,” that alone does not “render the judgment and sentence
12 RCW 9.94A.533(3)(a), (e). 13 CP at 41. 14 Id. 15 Appellant’s Br. at 8. 16 See also State v. Conley, 121 Wn. App. 280, 286, 87 P.3d 1221 (2004).
4 No. 81994-1-I/5
facially invalid.”17 Here, the language describing the mandatory minimum term is
accurate and not misleading. Hatt’s argument is not compelling.18
Hatt also argues that his offender score was “incorrectly calculated,” which
rendered his “judgment and sentence facially invalid.”19 We review a trial court’s
calculation of a defendant’s offender score de novo.20
A defendant’s offender score “is the sum of points accrued as a result of
prior convictions.”21 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.22 Washington uses a “two-part test for comparing foreign
17See In re Pers. Restraint of Rivera, 152 Wn. App. 794, 800, 218 P.3d 638 (2009) (“The judgment and sentence also lists the term of confinement as 333 ± 60 months, with a handwritten notation stating: ‘for deadly weapon.’ While the judgment and sentence’s use of the deadly weapon language is confusing, this does not render the judgment and sentence facially invalid because it cites the correct statutory authority for the five-year firearm enhancement.”), aff’d sub nom. In re Jackson, 175 Wn.2d 155, 283 P.3d 1089 (2012). 18 In a related argument, Hatt contends that his judgment and sentence erroneously includes a 2003 California conviction for simple possession, which is a “void offense” under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Hatt acknowledges the California conviction for simple possession was not included in his offender score but focuses upon the separate obligation of the prosecutor to prove and the court to determine the defendant’s criminal history. But section 2.2 of Hatt’s judgment and sentence determining his criminal history does not include his 2003 California conviction for simple possession. Rather, it is only included in a document attached to his judgment and sentence titled “Prosecutor’s Understanding of Defendant’s Criminal History.” Compare CP at 38 with CP at 51. Because Hatt’s simple possession conviction was not included in the court’s pronouncement of his criminal history in his actual judgment and sentence, we need not address the impact of Blake on “comparability.” 19 Appellant’s Br. at 10. 20 State v. Rivers, 130 Wn. App. 689, 699, 128 P.3d 608 (2005). 21 State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014) (citing RCW 9.94A.525). 22 Id.
5 No. 81994-1-I/6
convictions.”23 First, under the legal prong, the court compares the elements of
the Washington crime with the elements of the out-of-state crime.24 “If the
foreign conviction is identical or narrower than the Washington statute . . . the
foreign conviction counts toward the offender score.”25 Second, if the court
determines that the out-of-state crime is broader than the Washington crime, the
court determines under the factual prong “whether the defendant’s conduct would
have violated the comparable Washington statute.”26 The State bears the burden
of proving a comparable offense for all out-of-state convictions.27
Here, at sentencing in 2017, the State noted that only two of Hatt’s prior
California felony convictions could count toward his offender score because the
others had washed out. At the hearing, the State argued that Hatt’s 1991
conviction for “sale in lieu of a controlled substance” and his 2001 conviction for
“possession of [a] firearm” were both class B felonies for comparability
purposes.28 And the court appeared to accept the State’s contention that both
Hatt’s 1991 and 2001 California convictions were class B felonies.29
The State concedes that Hatt’s 1991 conviction was incorrectly noted on
his judgment and sentence as a class B offense. Because counting Hatt’s 1991
23 Id. at 472 (citing State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998)). 24 Id. 25 Id. at 472-73. 26 Id. at 473 (citing Morley, 134 Wn.2d at 605-06). 27 Id. at 472. 28 Report of Proceedings (July 6, 2017) at 8. 29 Id. at 8, 16-17, 41-44.
6 No. 81994-1-I/7
conviction as a class B rather than class C felony could have resulted in a
miscalculation of his offender score, we accept the State’s concession that
remand for resentencing is appropriate.
Additionally, Hatt argues that the trial court erred in including his 2001
California conviction for “possession of [a] firearm by a felon” on his judgment
and sentence as a class B offense.30 But Hatt’s September 11, 2020 judgment
and sentence listed his 2001 conviction for possession of firearm by a felon as a
class C felony.31 Hatt’s argument is misguided. But any potential error resulting
from the inconsistency between the trial court’s oral decision and Hatt’s judgment
and sentence can also be addressed at resentencing on remand.
Therefore, we remand for resentencing.
WE CONCUR:
30 Appellant’s Br. at 12-14. 31 CP at 38.