Filed Washington State Court of Appeals Division Two
November 19, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 52471-6-II
Respondent,
v.
JONATHAN CHRISTOPHER CONIGLIO, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Jonathan Coniglio appeals from the sentence imposed following his
guilty plea to felony harassment, asserting that the trial court erred by (1) calculating his offender
score based on an out-of-state conviction that was not legally or factually comparable to a
Washington offense, (2) imposing certain discretionary legal financial obligations (LFOs), and
(3) ordering interest to accrue on his LFOs. The State concedes that the trial court erred by
including Coniglio’s out-of-state conviction in its offender score calculation. We accept the
State’s concession and remand for resentencing to recalculate Coniglio’s offender score. We
also remand for the trial court to strike the LFO interest provision and to reconsider the
imposition of LFOs in light of statutory amendments to the LFO statutes.
FACTS
Coniglio pleaded guilty to felony harassment based on threats to kill. At sentencing, the
parties disputed whether Coniglio’s prior Arkansas conviction for aggravated assault upon a
certified law officer should be included in his offender score calculation. The State conceded No. 52471-6-II
that the Arkansas offense was not legally comparable to a Washington offense but argued that it
was factually comparable to third degree assault.
In support of its argument that Coniglio’s Arkansas offense was factually comparable to
third degree assault, the State presented certified copies of the Arkansas charging document,
sentencing order, and a document titled “Prosecutor’s Short Report of Circumstances.” Clerk’s
Papers (CP) at 14. The Arkansas prosecutor’s report was not signed by Coniglio or his defense
counsel and contains the following handwritten statement, “Def. then spat on Officer [who]
arrested him.” CP at 14. The State argued that the handwritten statement showed that Coniglio’s
Arkansas offense was factually comparable to third degree assault. Defense counsel argued that
the trial court should not consider the statement contained in the Arkansas prosecutor’s report
because Coniglio did not admit or stipulate to the factual statement and because the factual
statement was not proven beyond a reasonable doubt.
The trial court noted that the statement was not a stipulation or admission but instead
appeared to be a finding of the Arkansas court. The trial court found that Coniglio “intentionally
spat on the individual [who] arrested him” based on the statement. Report of Proceedings (RP)
at 43. From this finding, the trial court concluded that the Arkansas offense was factually
comparable to third degree assault and calculated Coniglio’s offender score as 1.
The State requested the trial court to impose LFOs that included a $200 criminal filing
fee and $500 court-appointed counsel fee. The trial court asked Coniglio about his finances and
work history. Coniglio said that he grew up working in steel mills and oil fields. The following
exchange then took place:
[Trial court]: Okay. When’s the last time you worked full-time?
2 No. 52471-6-II
[Coniglio]: The last time—I get disability, but the last time was 2014— 2015. [Trial court]: And the disability, is it social security disability? [Coniglio]: Yes, Your Honor. [Trial court]: Are you a hundred percent disabled? [Coniglio]: Um, I can work too but I have a severe mental disability and I have a hard time controlling what I say. [Trial court]: Okay, but in terms of what social security pays though, did they find you’re 50 percent disabled, 100 percent disabled; do you know? [Coniglio]: I get only $500 a month and I can work, I make $2000 a month on.
RP at 47-48. Coniglio also told the trial court that he has a temporary service day laborer job
waiting for him in Cheyenne, Wyoming. Coniglio said that he did not have any child support
obligations or outstanding legal financial obligations. The trial court imposed the State’s
requested LFOs. Coniglio’s judgment and sentence contains a provision providing that his LFOs
“shall bear interest from the date of the judgment until payment in full, at the rate applicable to
civil judgments.” CP at 23. Coniglio appeals from his sentence.
ANALYSIS
I. COMPARABILITY OF PRIOR ARKANSAS OFFENSE
Coniglio first contends that the trial court erred by including his prior Arkansas offense in
its offender score calculation because the offense was not legally comparable to a Washington
offense and because the State failed to prove that his conduct forming the basis for the Arkansas
offense was factually comparable to a Washington offense. The State concedes error and we
accept the State’s concession.
We review a trial court’s offender score calculation de novo. State v. Olsen, 180 Wn.2d
468, 472, 325 P.3d 187 (2014). Under RCW 9.94A.525(3), “Out-of-state convictions for
offenses shall be classified according to the comparable offense definitions and sentences
3 No. 52471-6-II
provided by Washington law.” The State has the burden to prove by a preponderance of the
evidence the existence and comparability of a defendant’s out-of-state convictions. State v.
Collins, 144 Wn. App. 547, 554, 182 P.3d 1016 (2008).
To determine comparability of offenses, the trial court must first determine if the crimes
are legally comparable. Olsen, 180 Wn.2d at 472. If the crimes are not legally comparable, the
trial court then determines whether the crimes are factually comparable. Olsen, 180 Wn.2d at
473. To determine factual comparability, the court looks at whether the defendant’s conduct
underlying the out-of-state conviction would have constituted a crime in Washington. Olsen,
180 Wn.2d at 473. In determining factual comparability, the trial court may “consider only facts
that were admitted, stipulated to, or proved beyond a reasonable doubt.” Olsen, 180 Wn.2d at
473-74.
Here, the parties agreed at sentencing that Coniglio’s Arkansas conviction for aggravated
assault upon a certified law officer was not legally comparable to a Washington offense. We
therefore turn to whether the trial court erred by finding that Coniglio’s conduct underlying his
conviction for the Arkansas offense was factually comparable to third degree assault.
The State concedes that the trial court erred by finding the offenses comparable because it
considered facts that were not admitted, stipulated, or proved beyond a reasonable doubt. We
agree.
Here, in finding that Coniglio’s Arkansas conviction was factually comparable to third
degree assault, the trial court relied on a statement in the Arkansas prosecutor’s report that
Coniglio “spat on Officer [who] arrested him.” CP at 14. But, as the State appropriately
concedes on appeal, it did not present evidence that Coniglio had admitted or stipulated to this
4 No. 52471-6-II
factual statement, and it did not present evidence that this factual statement was proved beyond a
reasonable doubt. Accordingly, the trial court’s reliance on the statement was improper and did
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Filed Washington State Court of Appeals Division Two
November 19, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 52471-6-II
Respondent,
v.
JONATHAN CHRISTOPHER CONIGLIO, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Jonathan Coniglio appeals from the sentence imposed following his
guilty plea to felony harassment, asserting that the trial court erred by (1) calculating his offender
score based on an out-of-state conviction that was not legally or factually comparable to a
Washington offense, (2) imposing certain discretionary legal financial obligations (LFOs), and
(3) ordering interest to accrue on his LFOs. The State concedes that the trial court erred by
including Coniglio’s out-of-state conviction in its offender score calculation. We accept the
State’s concession and remand for resentencing to recalculate Coniglio’s offender score. We
also remand for the trial court to strike the LFO interest provision and to reconsider the
imposition of LFOs in light of statutory amendments to the LFO statutes.
FACTS
Coniglio pleaded guilty to felony harassment based on threats to kill. At sentencing, the
parties disputed whether Coniglio’s prior Arkansas conviction for aggravated assault upon a
certified law officer should be included in his offender score calculation. The State conceded No. 52471-6-II
that the Arkansas offense was not legally comparable to a Washington offense but argued that it
was factually comparable to third degree assault.
In support of its argument that Coniglio’s Arkansas offense was factually comparable to
third degree assault, the State presented certified copies of the Arkansas charging document,
sentencing order, and a document titled “Prosecutor’s Short Report of Circumstances.” Clerk’s
Papers (CP) at 14. The Arkansas prosecutor’s report was not signed by Coniglio or his defense
counsel and contains the following handwritten statement, “Def. then spat on Officer [who]
arrested him.” CP at 14. The State argued that the handwritten statement showed that Coniglio’s
Arkansas offense was factually comparable to third degree assault. Defense counsel argued that
the trial court should not consider the statement contained in the Arkansas prosecutor’s report
because Coniglio did not admit or stipulate to the factual statement and because the factual
statement was not proven beyond a reasonable doubt.
The trial court noted that the statement was not a stipulation or admission but instead
appeared to be a finding of the Arkansas court. The trial court found that Coniglio “intentionally
spat on the individual [who] arrested him” based on the statement. Report of Proceedings (RP)
at 43. From this finding, the trial court concluded that the Arkansas offense was factually
comparable to third degree assault and calculated Coniglio’s offender score as 1.
The State requested the trial court to impose LFOs that included a $200 criminal filing
fee and $500 court-appointed counsel fee. The trial court asked Coniglio about his finances and
work history. Coniglio said that he grew up working in steel mills and oil fields. The following
exchange then took place:
[Trial court]: Okay. When’s the last time you worked full-time?
2 No. 52471-6-II
[Coniglio]: The last time—I get disability, but the last time was 2014— 2015. [Trial court]: And the disability, is it social security disability? [Coniglio]: Yes, Your Honor. [Trial court]: Are you a hundred percent disabled? [Coniglio]: Um, I can work too but I have a severe mental disability and I have a hard time controlling what I say. [Trial court]: Okay, but in terms of what social security pays though, did they find you’re 50 percent disabled, 100 percent disabled; do you know? [Coniglio]: I get only $500 a month and I can work, I make $2000 a month on.
RP at 47-48. Coniglio also told the trial court that he has a temporary service day laborer job
waiting for him in Cheyenne, Wyoming. Coniglio said that he did not have any child support
obligations or outstanding legal financial obligations. The trial court imposed the State’s
requested LFOs. Coniglio’s judgment and sentence contains a provision providing that his LFOs
“shall bear interest from the date of the judgment until payment in full, at the rate applicable to
civil judgments.” CP at 23. Coniglio appeals from his sentence.
ANALYSIS
I. COMPARABILITY OF PRIOR ARKANSAS OFFENSE
Coniglio first contends that the trial court erred by including his prior Arkansas offense in
its offender score calculation because the offense was not legally comparable to a Washington
offense and because the State failed to prove that his conduct forming the basis for the Arkansas
offense was factually comparable to a Washington offense. The State concedes error and we
accept the State’s concession.
We review a trial court’s offender score calculation de novo. State v. Olsen, 180 Wn.2d
468, 472, 325 P.3d 187 (2014). Under RCW 9.94A.525(3), “Out-of-state convictions for
offenses shall be classified according to the comparable offense definitions and sentences
3 No. 52471-6-II
provided by Washington law.” The State has the burden to prove by a preponderance of the
evidence the existence and comparability of a defendant’s out-of-state convictions. State v.
Collins, 144 Wn. App. 547, 554, 182 P.3d 1016 (2008).
To determine comparability of offenses, the trial court must first determine if the crimes
are legally comparable. Olsen, 180 Wn.2d at 472. If the crimes are not legally comparable, the
trial court then determines whether the crimes are factually comparable. Olsen, 180 Wn.2d at
473. To determine factual comparability, the court looks at whether the defendant’s conduct
underlying the out-of-state conviction would have constituted a crime in Washington. Olsen,
180 Wn.2d at 473. In determining factual comparability, the trial court may “consider only facts
that were admitted, stipulated to, or proved beyond a reasonable doubt.” Olsen, 180 Wn.2d at
473-74.
Here, the parties agreed at sentencing that Coniglio’s Arkansas conviction for aggravated
assault upon a certified law officer was not legally comparable to a Washington offense. We
therefore turn to whether the trial court erred by finding that Coniglio’s conduct underlying his
conviction for the Arkansas offense was factually comparable to third degree assault.
The State concedes that the trial court erred by finding the offenses comparable because it
considered facts that were not admitted, stipulated, or proved beyond a reasonable doubt. We
agree.
Here, in finding that Coniglio’s Arkansas conviction was factually comparable to third
degree assault, the trial court relied on a statement in the Arkansas prosecutor’s report that
Coniglio “spat on Officer [who] arrested him.” CP at 14. But, as the State appropriately
concedes on appeal, it did not present evidence that Coniglio had admitted or stipulated to this
4 No. 52471-6-II
factual statement, and it did not present evidence that this factual statement was proved beyond a
reasonable doubt. Accordingly, the trial court’s reliance on the statement was improper and did
not support its factual comparability determination.
The State asserts that the appropriate remedy is to remand for resentencing at which it
may present additional evidence to support a factual comparability determination. We agree.
RCW 9.94A.530(2) provides in relevant part, “On remand for resentencing following
appeal or collateral attack, the parties shall have the opportunity to present and the court to
consider all relevant evidence regarding criminal history, including criminal history not
previously presented.” See also State v. Jones, 182 Wn.2d 1, 10-11, 338 P.3d 278 (2014)
(Because the “no second chance” rule was rooted in judicial economy rather than due process
concerns, legislature had authority to enact the statutory remand provision of RCW
9.94A.530(2)). Accordingly, at resentencing the State may present additional evidence that
Coniglio’s prior Arkansas conviction was factually comparable to a Washington offense.
II. LFOS
Next, Coniglio contends that on remand the trial court should be required to strike the
criminal filing fee, court-appointed counsel fee, and LFO interest provision from his judgment
and sentence. We agree that the LFO interest provision should be stricken from Coniglio’s
judgment and sentence.
In 2018, our legislature amended former RCW 36.18.020(h) to prohibit the imposition of
a criminal filing fee if a defendant is indigent as defined in RCW 10.101.010(3)(a)-(c). LAWS OF
2018, ch. 269, §17. The legislature also amended former RCW 10.01.160 to prohibit the
imposition of discretionary costs on indigent defendants, including costs for court-appointed
5 No. 52471-6-II
counsel. LAWS OF 2018, ch. 269, §6; State v. Smith, 9 Wn. App. 2d 122, 127, 442 P.3d 265
(2019). And former RCW 10.82.090 (2015) was amended to prohibit interest accrual on
nonrestitution LFOs. LAWS OF 2018, ch. 269, §1. Our Supreme Court has held that these
amendments apply to cases pending on direct review that were not final when the amendments
were enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018). The 2018
amendments apply here because this case was not final when the amendments took effect.
Coniglio asserts that the imposition of the criminal filing fee and court-appointed counsel
fee was improper because the trial court found him indigent for purposes of appeal. But the
record does not reveal whether the trial court found Coniglio indigent under the specific
subsections that apply to prohibit the imposition of the criminal filing fee and court-appointed
counsel fee, RCW 10.101.010(3)(a) through (c), or whether it found him indigent only under
RCW 10.101.010(d).
The State argues that remand for a determination of whether Coniglio qualifies as
indigent under the relevant provisions of RCW 10.101.010(3) is not warranted because the
record does not support a finding of indigency under those provisions. In support of this
argument, the State asserts that Coniglio told the trial court that he stopped receiving social
security disability benefits in 2014 or 2015. But the State reads Coniglio’s statement, “The last
time—I get disability, but the last time was 2014—2015” out of context. RP at 47. Coniglio’s
statement was in response to the trial court’s question of when was the last time he had worked
full time. The State also ignores Coniglio’s later statement that he presently receives $500 a
month in social security benefits.
6 No. 52471-6-II
Accordingly, on remand the trial court must reconsider imposition of the criminal filing
fee and court-appointed counsel fee under the current statutes governing the imposition of LFOs
on indigent defendants. Because the amendment to RCW 10.82.090 prohibiting interest accrual
on nonrestitution LFOs applies regardless of whether a defendant is indigent, on remand the trial
court must strike this provision.
We remand for resentencing. On remand, the trial court must recalculate Coniglio’s
offender score, strike the LFO interest provision, and reconsider the LFOs consistent with this
opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J. We concur:
Glasgow, J.
Cruser, J.