Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 77753-5
Title of Case: State v. Thiefault
File Date: 05/17/2007
Oral Argument Date: 09/21/2006


SOURCE OF APPEAL
----------------
Appeal from Snohomish Superior Court
01-1-00167-6
Honorable Ronald X Castleberry

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

Counsel for Petitioner(s)
Oliver Ross Davis
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Seth Aaron Fine
Attorney at Law
Snohomish Co Pros Ofc
3000 Rockefeller Ave
Everett, WA, 98201-4060


Mary Kathleen Webber
Snohomish County Prosecutors Office
Msc 504
3000 Rockefeller Ave
Everett, WA, 98201-4061





IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 77753-5
)
v. ) En Banc
)
GAYLON LEE THIEFAULT, )
) Filed May 17, 2007
Petitioner. )
)

OWENS, J. -- Petitioner Gaylon Lee Thiefault is an inmate sentenced to life

with no possibility of parole or early release under Washington's Persistent Offender

Accountability Act (POAA) of the Sentencing Reform Act of 1981, chapter 9.94A

RCW. Thiefault contends that his sentencing counsel was ineffective by failing to

object to the superior court's comparability analysis regarding a prior Montana

conviction. We hold that the trial court's comparability analysis was erroneous. We

further hold that the failure of Thiefault's counsel to object to the erroneous

comparability analysis constitutes ineffective assistance of counsel for purposes of the

sixth amendment to the United States Constitution. Accordingly, we vacate

State v. Thiefault
No. 77753-5

Thiefault's sentence and remand for resentencing.

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No. 77753-5

Facts

Following a jury trial and conviction for indecent liberties by forcible

compulsion and attempted second degree rape, the Snohomish County Superior Court

sentenced Thiefault to life in prison with no possibility of parole under the POAA.

The court found that Thiefault was a persistent offender with three prior convictions,

including two foreign offenses -- an attempted robbery conviction from Montana and a

previous federal aggravated sexual assault conviction. The superior court conducted a

comparability analysis of the out-of-state convictions to their Washington

counterparts. The court found that the Montana and federal convictions were legally

comparable to their Washington counterparts and thus sentenced Thiefault to life in

prison with no possibility of parole. Verbatim Report of Proceedings (VRP) at 27 ("It

is clear to this court that the Montana attempted robbery does fit within the second

degree [attempted] robbery elements as defined in the statutes.").

Thiefault appealed, arguing in part that his conviction for indecent liberties and

attempted second degree rape violated double jeopardy and that his federal sexual

assault conviction could not be considered under the POAA's two-strike law. The

Court of Appeals agreed and granted Thiefault's appeal on those issues. State v.

Thiefault, noted at 116 Wn. App. 1059, 2003 Wash. App. LEXIS 718, at *11. The

court reversed Thiefault's indecent liberties conviction and remanded for resentencing.

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No. 77753-5

Id.

A different attorney represented Thiefault during resentencing and did not

object to the comparability of the prior offenses; "I'm not . . . raising that argument

because my understanding is that's already been determined." VRP at 39. The

superior court incorporated its comparability findings from the previous sentencing,

found that Thiefault constituted a persistent offender under the POAA's three-strikes

law, and sentenced him to life with no possibility of parole.

Thiefault again appealed. The Court of Appeals affirmed but remanded to

correct scriveners errors. We granted Thiefault's petition for review. State v.

Thiefault, 157 Wn.2d 1002, 136 P.3d 758 (2006).

Issue

Did Thiefault receive ineffective assistance of counsel when his attorney failed

to object to the trial court's comparability analysis-1

Analysis

Standard of Review. Courts conduct de novo review of a sentencing court's

decision to consider a prior conviction as a strike. State v. Ortega, 120 Wn. App. 165,

171, 84 P.3d 935 (2004), review granted in part and remanded, 154 Wn.2d 1031

(2005). Other questions of law are likewise reviewed de novo. Berger v. Sonneland,

144 Wn.2d 91, 103, 26 P.3d 257 (2001).

1 Because this issue is dispositive, we need not reach Thiefault's other arguments.

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No. 77753-5

Ineffective Assistance of Counsel. Thiefault contends that he received

ineffective assistance of counsel because his attorney did not object to the superior

court's comparability finding regarding the Montana conviction. We agree. To

prevail on his claim of ineffective assistance of counsel, Thiefault must overcome the

presumption of effective representation and demonstrate (1) that his lawyers'

performance in not objecting to the comparability of his offenses was so deficient that

he was deprived "counsel" for Sixth Amendment purposes and (2) that there is a

reasonable probability that the deficient performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); see also

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

In order to ascertain whether Thiefault's counsel was deficient under

Strickland's first prong, this court must conduct a comparability analysis of the

Montana conviction. Washington law employs a two-part test to determine the

comparability of a foreign offense. A court must first query whether the foreign

offense is legally comparable -- that is, whether the elements of the foreign offense are

substantially similar to the elements of the Washington offense. If the elements of the

foreign offense are broader than the Washington counterpart, the sentencing court

must then determine whether the offense is factually comparable -- that is, whether the

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No. 77753-5

conduct underlying the foreign offense would have violated the comparable

Washington statute. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). In

making its factual comparison, the sentencing court may rely on facts in the foreign

record that are admitted, stipulated to, or proved beyond a reasonable doubt. In re

Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837 (2005); State v.

Farnsworth, 133 Wn. App. 1, 22, 130 P.3d 389 (2006); Ortega, 120 Wn. App. at 171-

74. If a court concludes that a prior, foreign conviction is neither legally nor factually

comparable, it may not count the conviction as a strike under the POAA. Lavery, 154

Wn.2d at 258 ("We conclude that Lavery's 1991 foreign robbery conviction is neither

factually nor legally comparable to Washington's second degree robbery and therefore

not a strike under the POAA.").

In the instant case, the Court of Appeals found that Thiefault satisfied the first

prong of the Strickland test and demonstrated that his lawyer provided deficient

representation for Sixth Amendment purposes. The court held that the Montana

offense was broader than its Washington counterpart, in part because the Montana

statute required a lesser mens rea. The court thus concluded that the Montana

conviction was not legally comparable to Washington's version. It further held that it

could not determine if the offenses were factually comparable because the superior

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State v. Thiefault
No. 77753-5

court's record did not include facts Thiefault admitted.2 Thus, it could not determine

whether the Montana offense was factually comparable to Washington's.

Nonetheless, the court held that Thiefault could not satisfy Strickland's second

prong and establish with reasonable probability that his counsel's failure to object to

the comparability analysis prejudiced his case. The court reasoned that the superior

court would likely have given the State the opportunity to obtain information properly

establishing the facts underlying Thiefault's Montana conviction had his attorney

argued that the convictions were not comparable. The court further reasoned that

Thiefault did not demonstrate that there was a reasonable probability that the facts

underlying the Montana conviction would not have satisfied the Washington crime.

Consequently, the court held that Thiefault's counsel was not ineffective.

In his petition for review, Thiefault contends that the Court of Appeals erred by

finding that he could not meet Strickland's second prong. According to Thiefault, the

record demonstrates that the State previously sought to obtain all the possible

documentation of his Montana conviction and did not have it at the time of

2The information the State provided to the superior court regarding the Montana
conviction included a motion for leave to file information, an affidavit from a prosecutor,
and the judgment. The State did not produce the actual information or guilty plea
agreement. Further, although the motion for leave to file information and the affidavit
both described Thiefault's conduct, neither of the documents contained facts that
Thiefault admitted, stipulated to, or that were otherwise proved beyond a reasonable
doubt. See Lavery, 154 Wn.2d at 258.

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No. 77753-5

sentencing. He thus challenges the Court of Appeals' conclusion that the State would

have been able to obtain the proper documentation if the superior court granted it a

continuance. The State, on the other hand, contends that the information would likely

contain the same facts as the motion for leave to file information.3

We hold that Thiefault received ineffective assistance of counsel under

Strickland. The Court of Appeals correctly concluded that the Montana attempted

robbery statute is broader than its Washington counterpart. The Court of Appeals also

correctly found that the motion for leave to file information, the prosecutor's affidavit,

and the judgment were insufficient to establish factual comparability. Thus,

Thiefault's attorney provided deficient representation under Strickland's first prong

when he did not object to the superior court's comparability analysis. The Court of

Appeals improperly found that such deficient representation did not prejudice

3The State also contends that Thiefault's counsel was not deficient because the law
existing at the time of Thiefault's September 30, 2003, sentencing did not require a court
to rely upon facts admitted by the defendant. This argument is without merit. Prior to
Thiefault's 2003 sentencing, both case and statutory law required a sentencing court to
find that the prior convictions were comparable. See, e.g., Morley, 134 Wn.2d at 606.
Here, the superior court improperly determined that the Montana conviction was legally
comparable with Washington's statute. Because the superior court determined that
Montana and Washington had comparable elements, it did not reach the second stage of
the comparability analysis and examine Thiefault's specific conduct. Thus, under the law
in existence at the time of sentencing, Thiefault's counsel was deficient by not objecting
to the superior court's conclusion that the convictions were legally comparable.
Moreover, case law at the time of sentencing also required a sentencing court to examine
reliable evidence, such as an information. Id.

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State v. Thiefault
No. 77753-5

Thiefault. Although the State may have been able to obtain a continuance and produce

the information to which Thiefault pleaded guilty, it is equally as likely that such

documentation may not have provided facts sufficient to find the Montana and

Washington crimes comparable; in which case, the superior court could not have

deemed the Montana conviction a "strike" for purposes of the POAA. We therefore

vacate Thiefault's sentence and remand the case to superior court to conduct a factual
comparability analysis of the Montana conviction.4

Thiefault contends that upon remand he has a right to a jury determination of

his prior conviction. Thiefault argues that the United States Supreme Court holdings

in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),

4Remand for resentencing with the inclusion of the Montana offense is the appropriate
remedy where, as in this case, the trial counsel fails to object to the State's evidence of a
prior conviction. See, e.g., State v. Ford, 137 Wn.2d 472, 485-86, 973 P.2d 452 (1999)
("Accordingly, where, as here, the defendant fails to specifically put the court on notice
as to any apparent defects, remand for an evidentiary hearing to allow the State to
prove the classification of the disputed convictions is appropriate."); accord State v.
McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997) (noting that remand without
another opportunity to prove the classification of a prior offense is the appropriate
remedy if the defendant objects to the State's evidence and the State then fails to satisfy
its burden), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999). The State bears the burden of
proving the existence of a prior conviction. Ford, 137 Wn.2d at 480-81. However,
where the issue has not been fully argued before the trial court and the defendant does not
object to the evidence, the State retains an opportunity to prove the classification of an
offense upon remand. Id. at 485-86. Here, the trial court determined that Thiefault's
prior conviction was legally comparable and thus did not reach the issue of factual
comparability. Moreover, Thiefault did not object to the erroneous legal comparability
ruling. As a result, the State did not have to establish factual comparability. In such
situations, the proper remedy is remand to the trial court where the State has the
opportunity to satisfy its burden of proving factual comparability.

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No. 77753-5

and most recently in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.

2d 403 (2004), require a jury to determine whether a prior conviction is comparable.5

This court has repeatedly rejected similar arguments and held that Apprendi and

its progeny do not require the State to submit a defendant's prior convictions to a jury

and prove them beyond a reasonable doubt. See, e.g., Lavery, 154 Wn.2d at 256-57;

State v. Smith, 150 Wn.2d 135, 143, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909

(2004); State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001), cert. denied, 535 U.S.

996 (2002); see also Ortega, 120 Wn. App. 165; accord Almendarez-Torres v. United

States, 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) (holding that the

State need not prove the fact of a prior conviction to a jury).

We recently rejected this argument in Lavery. As in the instant case, the

defendant in Lavery was sentenced to life after the superior court found that a prior

federal robbery conviction constituted a strike under the POAA. 154 Wn.2d at 253.

Upon review, the court held that Lavery's federal robbery conviction was broader than

its Washington counterpart and therefore not legally comparable. Id. at 256. The

5 In Apprendi, the Court held that under the fourteenth amendment to the United States
Constitution, "[o]ther than the fact of a prior conviction, 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." 530 U.S. at 490. In Blakely, the Court
found that this state's sentencing procedure, which permitted judges to enhance a
defendant's sentence based on information the State had not proved to a jury beyond a
reasonable doubt, violated a defendant's Sixth Amendment right to a jury trial. 542 U.S.
at 305.

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court thus turned to a factual comparison of the respective crimes and whether

Apprendi and its progeny applied. The Lavery court predicated its analysis on the

holding that a life sentence without possibility of parole constitutes a penalty beyond

the statutory maximum and thus implicates Apprendi. Id. It further held that

Apprendi does not apply where the State seeks to prove the existence of a prior

conviction but does apply when a court must look to the facts underlying a foreign

offense to determine its comparability under the POAA. Id. at 256-57; accord Ortega,

120 Wn. App. at 172 ("[W]e conclude underlying facts that were not found by the trier

of fact beyond a reasonable doubt may not be used to increase the penalty of a

subsequent conviction beyond the statutory maximum."). It then examined the

superior court's record and concluded that it was devoid of any information admitted,

stipulated to, or proved beyond a reasonable doubt. Id. at 258. The court concluded

that Lavery's federal conviction could not count as a strike under the POAA. Id. The

Lavery court did not hold that Apprendi required a jury determination of facts

regarding a prior conviction.

In an analogous case, the United States Supreme Court took a similar approach

and limited the scope of judicial fact-finding but did not extend Apprendi to require a

jury determination of fact. In Shepard v. United States, 544 U.S. 13, 24, 125 S. Ct.

1254, 161 L. Ed. 2d 205 (2005), the Court held that a trial court may not look to police

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reports or complaint applications when determining whether to enhance a defendant's

sentence under the Armed Career Criminal Act of 1984 (ACCA).6 The Court reasoned

that a disputed fact regarding a prior conviction was "too much like the findings

subject to . . . Apprendi, to say that Almendarez-Torres clearly authorizes a judge to

resolve the dispute." Id. at 25. Thus, the Shepard Court limited the trial court's

factual inquiry to "the terms of the charging document, the terms of a plea agreement

or transcript of colloquy between judge and defendant in which the factual basis for

the plea was confirmed by the defendant, or to some comparable judicial record of this

information." Id. at 26. The Court declined to extend Apprendi's holding to require a

jury determination of a defendant's prior convictions under the ACCA. Id.

Thus, upon remand, the superior court may not use Thiefault's prior Montana

conviction as a strike under the POAA, unless the State satisfies its burden of proving

that the Montana conviction is factually comparable based on facts Thiefault admitted

6 The ACCA dictates a 15-year sentence for defendants who possess a firearm after three
prior convictions for serious or violent offenses. 18 U.S.C. ยง 924(e)(1).

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State v. Thiefault
No. 77753-5

to, stipulated to, or that were proved beyond a reasonable doubt. 7 If the superior court

is unable to determine that Thiefault's Montana attempted robbery conviction is

factually comparable to Washington's attempted robbery statute through examination

of the appropriate documents, it may not count the Montana offense as a strike under

the POAA.

Conclusion

We vacate Thiefault's sentence and remand for resentencing. We direct the

superior court to conduct a factual comparability analysis to determine whether the

conduct underlying Thiefault's Montana conviction constitutes attempted robbery

under Washington's narrower statute. In making such a determination, the superior

court may rely on only those facts that Thiefault stipulated or admitted to or those that

were proved beyond a reasonable doubt.

7 Thiefault makes a labored argument that double jeopardy precludes the superior court
from considering the Montana conviction in its resentencing. Thiefault contends that his
rape conviction is a lesser included offense within his life sentence with no possibility of
parole. Such a finding would require a considerable extension and attenuation of the
Supreme Court's ruling in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002), and the court denies Thiefault's argument. Id. at 605 (holding that
aggravating circumstances are "'the functional equivalent of an element of a greater
offense'" (quoting Apprendi, 530 U.S. at 494 n.19). Because we deny Thiefault's
argument as a basis of relief, we need not reach the State's motion to strike this issue.