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^ IN CLERKS OFFICE \ ■s COURT.SWBECFWASHiNSTOM DATE_ 

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c This opinion was 

### ^ filedfor record
Susan L. Carlson Supreme Court Clerk mepjusTK^ 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 calculatedGate's offender score as 9+,the highest category,based onnumerous alleged prior convictions. Inproving these allegedprior 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 thatNo.97209-5 Page 2

Gate's failure to object at the sentencing hearing amounted to an acknowledgement of his criminalhistory 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,wereverse the Courtof Appeals and remand for anew sentencing hearing.

FACTS Following Gate's convictions ofburglary,theft,and malicious mischief,the trial courthad 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 degreeburglary 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,oftwo counts ofsecond degree burglary, one count ofsecond degree theft, and
one count ofthird degree theft.

The prosecutor's sentencing memorandum summarized Gate's criminal history.It listed the above alleged convictions,it listed additional convictionsfrom 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 thejudgment 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'sNo.97209-5 Page 3

calculation ofhis 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 ofAppeals explained, this case is governed by the principles identified in Hunley.In calculating the offender score,the State mustprove the criminal history by a preponderance ofthe 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 ofAppeals identified the correctprecedent,itmisapplied 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 ofplea 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 contravenesHunley.



### It is irrelevant that the prosecutor summarized criminal history since such a summary does not satisfy the State's burden ofproof,/c/. at 910.Asto waiver,the State argues that Gate failed to object to the prosecutor's summary ofhis criminal history, 

### citing RGW 9.94A.530(2). But for the waiver to be effective, the defense must affirmatively acknowledgethe criminalhistory. 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—isunconstitutional 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 ofproof.



### The Court ofAppeals is correctthat 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 ofthis criminal history beyond a reasonable doubt.

We therefore reverse the decision ofthe Court ofAppeals and remand to the superior court for resentencing consistent with this decision.