June 10, 2014

Washington v. Olsen - Out-of-State Felony Convictions Work Against You

by The Law Office of Timothy L. Healy

The Washington Supreme Court has ruled that an out-of-state conviction for "making a terrorist threat" could count against a defendant as a felony, to be factored into his sentencing score.
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The defendant argued upon appeal that this decision was improper, given that Washington State doesn't have the same charge on its books. Tacoma domestic violence defense attorneys know that this issue arises frequently in cases where a defendant has out-of-state convictions.

The problem is that criminal laws can vary vastly from state to state. What is considered a crime in Utah is not necessarily a crime in California. What the courts in Washington have historically tried to do, per the 1998 decision in State v. Morley, is to compare elements of the out-of-state conviction to the relevant crime in Washington. And so courts will apply the former conviction as a sentencing factor accordingly.

However, if the out-of-state law is broader than the Washington law, the court proceeds to analyze whether the conduct involved in the prior conviction is comparable to the violation of any Washington State statute (per the 1995 ruling in State v. Duke).

Sometimes, these determinations are fairly straightforward and governed by prior case law. For example, the definition of rape in most states is nearly identical, and the prior conviction will be applied to the sentencing score accordingly.

But in a case like Washington v. Olsen, the legal questions get murkier because there is no comparable charge for "making terrorist threats."

However, what the court found was that the defendant's actions prompting the out-of-state conviction on this charge were comparable to the Washington statute pertaining to felony harassment. As such, the scoring for that crime was factored into his sentence.

The defendant appealed, but both the appellate court and later the Washington Supreme Court affirmed the trial court's rulings.

The case arose as a result of an alleged domestic violence incident committed by the defendant against the mother of his children. Prosecutors alleged that the defendant broke into the woman's home and doused her in gasoline while she was sleeping. When she awoke, he told her she was going to die. Police later found lighter fluid near the bed. However, she managed to escape.

The defendant was charged with attempted first-degree murder, attempted second-degree murder, first-degree burglary, felony harassment, and third-degree malicious mischief. All of these felony charges were aggravated by the fact that they were considered to arise out of a situation of domestic violence (per RCW 9.94A.535), due to the fact that the couple's 12-year-old son witnessed the event.

At trial, defendant was convicted on all charges except attempted first-degree murder. In determining his sentencing, the court factored in a prior California conviction for terrorist threats, aligning it with the Washington State charge of felony harassment.

The defendant had previously pleaded no contest to that charge after reportedly wrapping duct tape around the legs of this same woman and threatening to "cut her up into little pieces" and put her in a plastic storage container.

He was ultimately sentenced to 30 years, with those aggravating factors playing a significant role in his stiff penalty. He appealed, citing the 2013 U.S. Supreme Court decision in Descamps v. U.S., which held that in order for a foreign conviction to be used against a defendant in another jurisdiction, the conviction's statutory elements have to be either the same or narrower than those of the generic offense.

The Washington Supreme Court held that the methods practiced in this state survive the Decamps opinion and are legally valid. Therefore, the sentencing was affirmed.

If you have been arrested for domestic violence in Tacoma, contact Timothy L. Healy at 888-312-3093 - a 24-hour hotline.

Additional Resources:
Washington v. Olsen, May 15, 2014, Washington State Supreme Court

More Blog Entries:
5-Year Cyberstalking Sentence Upheld by Appellate Court, May 27, 2014, Tacoma Sex Crimes Defense Lawyer Blog