Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 59559-8
Title of Case: State Of Washington, Respondent V. Brian Samuel Larkins, Appellant
File Date: 12/22/2008


SOURCE OF APPEAL
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Appeal from King County Superior Court
Docket No: 06-1-06002-1
Judgment or order under review
Date filed: 01/29/2007
Judge signing: Honorable Richard D Eadie


JUDGES
------


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Catherine Marie Mcdowall
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 59559-8-I
Respondent, )
) DIVISION ONE
v. )
) PUBLISHED OPINION
BRIAN SAMUEL LARKINS, )
)
Appellant. ) FILED: December 22, 2008

Grosse, J. -- The Washington crime of burglary requires intent to commit

a crime against a person or property therein. Here, the defendant's Ohio

burglary conviction rested on his intent to commit a misdemeanor. Because the

misdemeanor category includes crimes other than those against a person or

property, that conviction does not equate to a crime equivalent under

Washington law. We reverse and remand for resentencing.

FACTS

On November 15, 2006, Brian Larkins pleaded guilty to a felony violation

of a no contact order. In his plea, Larkins disputed the comparability of his two

out-of-state prior convictions for burglary and conspiracy in 1992 and 1996,

respectively. The 1996 conspiracy conviction in federal district court is not at

issue here. At sentencing, the trial court found the State proved by a

preponderance of the evidence that Larkins' Ohio burglary conviction was

No. 59559-8-I / 2

factually comparable with the Washington crime of burglary.

Approximately four months after Larkins was sentenced, that same issue

(whether Larkins' Ohio burglary conviction was comparable to Washington) was

before this court on Larkins' earlier violation of a no contact order. In a per
curiam decision issued on April 23, 2007,1 this court held the Ohio conviction

included in Larkins' offender score to be legally comparable to a Washington

offense precluding the need to examine the underlying factual basis for that

conviction. The Supreme Court denied Larkins' petition for review of that earlier
conviction.2

In this current appeal, Larkins again contests the inclusion of the Ohio

burglary conviction in his offender score. A commissioner of this court affirmed

the trial court's judgment and sentence on a motion on the merits holding that

the Ohio conviction was comparable and further that the doctrine of collateral

estoppel bars Larkins from relitigating this issue as this identical issue of

comparability was resolved in a previous appeal by this court. Because of

concerns regarding the comparability of the Ohio conviction and the application

of collateral estoppel, this court set the matter for oral argument.

ANALYSIS

Under the Sentencing Reform Act of 1981 (SRA), a defendant's offender
score establishes the range within which he must be sentenced.3 A court's

1 State v. Larkins, noted at 138 Wn. App. 1013 (2007).
2 State v. Larkins, 163 Wn.2d 1024, 185 P.3d 1194 (2008).
3 RCW 9.94A.530; RCW 9.94A.712(3).

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No. 59559-8-I / 3

calculation of an offender score is reviewed de novo.4 Regarding prior out-of-

state convictions, RCW 9.94A.525(3) provides:

Out-of-state convictions for offenses shall be classified according
to the comparable offense definitions and sentences provided by
Washington law. Federal convictions for offenses shall be
classified according to the comparable offense definitions and
sentences provided by Washington law. If there is no clearly
comparable offense under Washington law or the offense is one
that is usually considered subject to exclusive federal jurisdiction,
the offense shall be scored as a class C felony equivalent if it was
a felony under the relevant federal statute.

The goal is to ensure that defendants with prior convictions are treated similarly,
regardless of where those convictions occurred.5

The State bears the burden of proving both the existence and the
comparability of an offender's prior out-of-state conviction.6 The Supreme Court

has adopted a two-part test for determining whether such a conviction is

comparable to a Washington crime which, with one exception, must rise to the
level of a felony to be included in the offender score.7 First, a sentencing court

compares the legal elements of the out-of-state crime with those of the

Washington crime. If the crimes are so comparable, the court counts the
defendant's out-of-state conviction as an equivalent Washington conviction.8 If

the elements of the out-of-state crime are different, then the court must examine

4 State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
5 State v. Morley, 134 Wn.2d 588, 602, 952 P.2d 167 (1998).
6 State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999).
7 Where the current conviction is for a felony traffic offense, under the SRA, a
sentencing court may include serious misdemeanor traffic offenses in the
offender score. RCW 9.94A.525(11).
8 Morley, 134 Wn.2d at 605-06; In re Pers. Restraint of Lavery, 154 Wn.2d, 249,
254-55, 111 P.3d 837 (2005).

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No. 59559-8-I / 4

the undisputed facts from the record of the foreign conviction to determine

whether that conviction was for conduct that would satisfy the elements of the
comparable Washington crime.9

In Washington, a person is guilty of burglary if he enters or remains

unlawfully in a building or dwelling with intent to commit a crime against a person
or property therein.10 Such intent may be inferred from the facts.

In any prosecution for burglary, any person who enters or
remains unlawfully in a building may be inferred to have acted with
intent to commit a crime against a person or property therein,
unless such entering or remaining shall be explained by evidence
satisfactory to the trier of fact to have been made without such
criminal intent.[11]

In Washington, the State does not have to prove the specific crime the

defendant intended to commit, but it does have to prove the defendant entered

or remained unlawfully with intent to commit a crime against a person or property
therein.12

When Washington recodified its criminal code in 1976, the final

legislative report acknowledged the existence of different types of crimes: crimes

against persons, crimes against property, victimless crimes and miscellaneous
crimes.13 Thus, crimes exist that do not fit within the definitions for committing a

burglary in Washington.

In Ohio, Larkins was charged with one count of burglary and two counts of

9 Morley, 134 Wn.2d at 606; Lavery, 154 Wn.2d at 255.
10 RCW 9A.52.025; RCW 9A.52.030.
11 RCW 9A.52.040.
12 State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).
13 1976 Final Legislative Report, 44th Wash. Leg., at 243-44.

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No. 59559-8-I / 5

assault. The Ohio statute then in effect defined burglary as follows:

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No. 59559-8-I / 6

2911.12 BURGLARY

(A) No person, by force, stealth, or deception, shall do any of the
following:
(1) Trespass in an occupied structure or in a separately secured
or separately occupied portion thereof, with purpose to commit
therein any theft offense or any felony;
(2) Trespass in a permanent or temporary habitation of any person
when any person is present or likely to be present, with purpose to
commit in the habitation any misdemeanor that is not a theft
offense;
(3) Trespass in a permanent or temporary habitation of any person
when any person is present or likely to be present.[14]

The Ohio statute thus permits a crime other than one against a person or

property as an element of burglary. The Ohio indictment charged Larkins with

three counts. Count I charged Larkins with the felony burglary as follows:

That BRIAN SAMUEL LARKINS . . . did, by force, stealth or
deception, trespass in 1505 Irwin N.E., Canton, Ohio, a permanent or
temporary habitation of Unnie B. Lipscomb, when a person was or
persons were present or likely to be present, with purpose to commit
in the habitation a misdemeanor that was not a theft offense.

Count II charged him with the misdemeanor assault of Unnie Lipscomb on the

same date as the burglary and Count III charged him with the misdemeanor

assault of Irvin Ann Burrino, also on the same date as the burglary.

At the sentencing hearing, the court looked at the underlying facts of

Larkins guilty plea in Ohio to determine if those facts would also constitute the

crime of burglary under Washington law. The court recounted:

[T]he fact that [Larkins] pled guilty to breaking and entering a
particular house with intent to commit a misdemeanor or non-theft
crime, and in fact it was the house of a particular person, and in
fact that person was assaulted by [Larkins], and pled guilty to that,
I think the only missing link in that, and this is what I want to make

14 Former Ohio Rev.Code Ann. ยง 2911.12(A)(2) (1990).

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No. 59559-8-I / 7

clear what I am going to do on this, it doesn't say explicitly that she
was in the house when she was assaulted.

In his plea, Larkins admitted to all the underlying facts in the indictment, but he

argues that any inference drawn from the facts is tantamount to judicial fact

finding. We agree. The indictment and the Ohio statute requires that the entry

be committed with intent to commit a misdemeanor that was not a theft offense.

The Washington statute requires that the would be burglar enter with the intent
to commit "a crime against a person or property therein." 15

For the trial court to determine that Larkins committed a crime against a

person or property, it necessarily had to draw a factual inference. Under In re
Personal Restraint of Lavery,16 the sentencing court in Washington cannot draw

such a factual inference without violating Apprendi v. New Jersey.17 Apprendi

stands for the proposition that any 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. Blakely v. Washington clarified Apprendi

and held that the statutory maximum means a sentence which a judge can

impose "solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant."18

The records of the Ohio burglary conviction must establish in themselves,

without any fact finding or inference-drawing by our sentencing court, that there

15 RCW 9A.52.040.
16 154 Wn.2d 249, 111 P.3d 837 (2005).
17 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
18 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (emphasis
omitted).

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No. 59559-8-I / 8

was proof beyond a reasonable doubt that Larkins entered the habitation with

the intent to commit a crime against a person or property therein. "Any 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."19

Here, the trial court engaged in judicial fact finding when it made the

inference that the trespass on Lipscomb's property was for the purpose of

committing the assault against Lipscomb. The undisputed facts in the indictment

before the trial court do not go so far. If the inference does not inevitably follow

from the admitted facts, then a sentencing judge cannot rely on that inference,

even when the defendant stipulated to underlying facts that might support such
an inference.20

Collateral Estoppel

A commissioner of this court ruled that the doctrine of collateral estoppel

barred Larkins from relitigating the identical issue before this court. We

requested additional briefing on the matter. But at oral argument, the State

conceded that should this court find the underlying crime not comparable, then
an injustice would exist and collateral estoppel would not apply.21 We therefore

19 Lavery, 154 Wn.2d at 258.
20 See State v. Hagar, 158 Wn.2d 369, 144 P.3d 298 (2006) (Holding that even
though the defendant stipulated to certain facts in the plea agreement with the
understanding that the trial judge could engage in fact finding and impose an
exception sentence, the defendant did not agree that the crimes constituted a
"'major economic offense.'" Even though the underlying facts could support such
a finding, the defendant was still entitled to a jury).
21 See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 872, 50 P.3d 618

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No. 59559-8-I / 9

do not address the issue further.

We reverse and remand for resentencing.

WE CONCUR:

(2002) (a defendant cannot agree to be sentenced beyond what is statutorily
authorized).

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