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This opinion was

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Susan L. Carlson

Supreme Court Clerk

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

BRANDON WILLIAM GATE,

Petitioner.

NO. 9 7209-5

EN BANC

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 of RCW 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 of Appeals 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 of third 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 bail jumping. The

State calculated Gate's offender score as 16, thus qualifying him for the maximum score

of 9+. The State did not include or otherwise present to the trial court the judgment and

sentence documents proving the existence of the 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 of his criminal history on cross-examination at trial. The court's reliance on three

of these 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 of RGW 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 of the Court of Appeals and remand to the

superior court for resentencing consistent with this decision.