This opinion was
/FIWEV ^ filed for record
^ IN CLERKS OFFICE \
■s COURT.SWBECFWASHiNSTOM
DATE_ QIC 1 2 Susan L. Carlson
^(ll\kjAAA^, Supreme Court Clerk
cmepjusTK^
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 9 7209-5
Respondent,
EN BANC
BRANDON WILLIAM GATE,
Petitioner.
Filed: December 12,2019
PER CURIAM—^A jury found Brandon Gate guilty of burglary, theft, and
malicious mischief in Okanogan County Superior Court. At sentencing, the State
calculated Gate's offender score as 9+, the highest category, based on numerous alleged
prior convictions. In proving these alleged prior convictions, the State failed to provide
copies of the relevant judgment and sentence forms, relying instead on a prosecutor's
summary of Gate's criminal history. Gate did not object, and the trial court used the 9+
offender score in calculating the appropriate sentencing range. On appeal. Gate argued
that the calculated sentencing range was erroneous because the State failed to meet its
burden of proving his criminal history at sentencing. The Court of Appeals disagreed
and affirmed the sentence. After Gate petitioned this court for review, we directed the
State to answer. In its answer, the Okanogan County prosecuting attorney argued that
No.97209-5 Page 2
Gate's failure to object at the sentencing hearing amounted to an acknowledgement of
his criminal history under the plain language ofRCW 9.94A.530(2). The State failed to
note, however, that this court has held the cited portion of the statute to be
unconstitutional because it risks shifting the burden to prove criminal history from the
State to the defendant. State v. Hunley, 175 Wn.2d 901, 917,
287 P.3d 584 (2012).
Accordingly, we reverse the Court ofAppeals and remand for a new sentencing hearing.
FACTS
Following Gate's convictions of burglary, theft, and malicious mischief, the
trial court had to determine his offender score for sentencing purposes. Gate testified at
trial, and in cross-examination, he acknowledged a portion of his criminal history.
Specifically, he admitted that he "remembered" a May 8, 2015, conviction for second
degree burglary and second degree theft; he "believed" he was convicted ofthird degree
theft on May 6, 2016; he agreed that he was convicted on April 11, 2017, of second
degree burglary and second degree theft; and he agreed he was convicted on April 12,
2017, of two counts of second degree burglary, one count of second degree theft, and
one count of third degree theft.
The prosecutor's sentencing memorandum summarized Gate's criminal
history. It listed the above alleged convictions, it listed additional convictions from May
2006 that did not "wash out," and it included convictions for assaulting a law
enforcement officer, for intimidating a public servant, and for felony bailjumping. The
State calculated Gate's offender score as 16,thus qualifying him for the maximum score
of9+. The State did not include or otherwise present to the trial court the judgment and
sentence documents proving the existence ofthe alleged convictions.
At sentencing, the trial court noted that Gate had an extensive criminal
history. It focused on the cases brought in superior court and identified numerous
convictions that occurred after 2014 but did not list the relevant cause numbers. The
court did not ask Gate whether he acknowledged and agreed with the prosecution's
No.97209-5 Page 3
calculation of his offender score, but Gate did not object to the trial court's summary of
bis criminal history. The court calculated bis offender score as 9+, listing 10 different
criminal offenses in Gate's criminal history in the judgment and sentence. The court
imposed a total sentence of 60 months in prison, to be served consecutively to the
sentences imposed on two other convictions.
ANALYSIS
As the Gourt of Appeals explained, this case is governed by the principles
identified in Hunley.In calculating the offender score,the State must prove the criminal
history by a preponderance of the evidence. Id. at 909-10. A prosecutor's unsupported
summary of criminal history is not sufficient to satisfy the State's burden.
Id. at 910.
And it is not sufficient that the defendant does not object to the offender score
calculation since such a rule would effectively shift the burden of proving criminal
history to the defendant.
Id. at 912.
Although the Gourt of Appeals identified the correct precedent,it misapplied
Hunley when it affirmed Gate's sentence. The court held that the State met its burden
because the prosecutor had summarized the criminal history based on a review of plea
agreements and criminal databases, defense counsel did not object, appellate counsel
did not argue the criminal history calculation was incorrect, and Gate acknowledged
much ofhis criminal history on cross-examination at trial. The court's reliance on three
ofthese four factors directly contravenes Hunley.
It is irrelevant that the prosecutor summarized criminal history since such a
summary does not satisfy the State's burden of proof,/c/. at 910. As to waiver,the State
argues that Gate failed to object to the prosecutor's summary of his criminal history,
citing RGW 9.94A.530(2). But for the waiver to be effective, the defense must
affirmatively acknowledge the criminal history. 175 Wn.2d at 915-16. Gontrary
to the State's position, the portion ofRGW 9.94A.530(2) on which the State relies was
held unconstitutional in Hunley.
Id. at 917 ("the amendment to RGW 9.94A.530(2)—
No.97209-5 Page 4
which makes the defendant's failure to object to a criminal history summary an
acknowledgment—is unconstitutional on its face"). Accordingly, neither Gate's failure
to object nor his appellate counsel's failure to argue that the calculation was incorrect
satisfies the State's burden of proof.
The Court of Appeals is correct that trial testimony might substitute as proof
of criminal history. In determining the proper offender score, the court may rely on
information that is admitted, acknowledged, or proved in a trial or at sentencing. Id. at
909. But here, as discussed above. Gate only directly admitted to convictions with
respect to two prior cause numbers and vaguely admitted to two more. The judgment
and sentence lists a criminal history that includes additional offenses never directly
admitted by Gate, including August 2006 offenses for third degree assault, felony bail
jumping, and intimidating a public servant. Consistent with Hunley, the State has not
proved all of this criminal history beyond a reasonable doubt.
We therefore reverse the decision ofthe Court of Appeals and remand to the
superior court for resentencing consistent with this decision.
