State Of Washington, V. Ronnie Moore

• Court: Court of Appeals of Washington
• Decided: December 6, 2021
• Docket: 81756-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 81756-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION RONNIE MOORE,

Appellant.

PER CURIAM. — Ronnie Moore appeals the judgment entered upon his plea

to attempting to elude a pursing police vehicle. Moore argues, and the State

concedes, that he is entitled to recalculation of his offender score and resentencing

in light of the decision in State v. Blake,1 and because a preponderance of the

evidence in the record does not otherwise support the calculation of his offender

score. We agree and remand to the trial court to recalculate Moore’s offender

score and resentence him.

In July 2019, Moore pleaded guilty to attempting to elude a police vehicle.2

The court sentenced him in August 2020, and imposed a standard range sentence

of 29 months that he agreed to at the time of his plea, based on an offender score

of 13.

197 Wn.2d 170, 481 P.3d 521 (2021). 1

2Moore also pleaded guilty to possession with intent to deliver or manufacture a controlled substance, charged in a separate cause, and was sentenced for both crimes at the same time. Moore has appealed that judgment on similar grounds and the appeals are linked for this court’s consideration. See State v. Moore, No. 81755-8-I. No. 81756-6-I/2

After Moore filed his notice of appeal, the Supreme Court decided State v.

Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). In Blake, the court held that

Washington’s strict liability drug possession statute, RCW 69.50.4013(1), violates

state and federal due process clauses and therefore is void. Blake, 197 Wn.2d at

195. Moore contends, and the State concedes, that he is entitled to be

resentenced under Blake because his sentence was based on an offender score

that included both Washington and California simple drug possession convictions.3

See State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986)

(“[A] prior conviction [that] has been previously determined to have been

unconstitutionally obtained or which is constitutionally invalid on its face may not

be considered” in a defendant’s offender score); State v. Markovich, __ Wn. App.

__, 492 P.3d 206, 216 (2021) (Blake requires recalculation of an offender score

that includes out-of-state convictions for simple drug possession because those

crimes are no longer comparable to any valid Washington crime). Accordingly, we

accept the State’s concession.

With regard to the remainder of his criminal history, Moore contends that

the State failed to offer proof of his prior convictions and/or establish the

comparability of his prior out-of-state convictions.

3The State also notes that points added to Moore’s offender score based on his community custody status are also likely implicated by Blake, given that his community custody was based on one of the two King County convictions for possession of a controlled substance.

2 No. 81756-6-I/3

The State has the burden at sentencing of proving a defendant’s criminal

history by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913,

920, 205 P.3d 113 (2009). The State also bears the burden of proving the

existence and comparability of all out-of-state convictions it is attempting to utilize.

State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014); RCW 9.94A.525(3)

(“[o]ut-of-state convictions for offenses shall be classified according to the

comparable offense definitions and sentences provided by Washington law”). The

best evidence of a prior conviction is a certified copy of the judgment and sentence,

but the State may introduce comparable documents of records or transcripts of

prior proceedings to establish a defendant’s criminal history. State v. Hunley, 175

Wn.2d 901, 910, 287 P.3d 584 (2012).

At sentencing, the State did not present certified copies of the judgments

and sentences it relied upon to establish Moore’s prior convictions. And although

copies of the charging and sentencing documents related to two 2007 Nevada

convictions were presented to the court prior to sentencing, the court did not

determine the comparability of those convictions, because it concluded that

excluding them would not affect Moore’s standard range. The State acknowledges

that comparability will be relevant on remand because of the “certain reduction in

Moore’s offender score based upon Blake and the potential that earlier convictions

may ‘wash out.’” We accept the State’s concession as to this issue as well.

3 No. 81756-6-I/4

Based on the decision in Blake and the failure to provide sufficient evidence

to prove Moore’s prior convictions, we reverse his sentence and remand for

resentencing.