### COURT

## FILED OF

## APPEALS r1 

### ALS 

### 201s APR 21 

## API 9: 02 STAT- aF 

### BY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the matter ofthe personal restraint of: No. 45365 - 7 -II MICHAEL A. LAR,

Petitioner. UNPUBLISHED OPINION

BJORGEN, A.C.J. — 

### Following ajurytrial,the trial court sentenced Michael Anthony Lar to a life term without the possibility ofearly release underthe Persistent OffenderAccountability Act (POAA) ofthe Sentencing Reform Act of 1982, chapter 9.94A RCW, and we affirmed on appeal.' In this 

### timely personal restraint petition (PRP), Lar challenges his kidnapping 

### conviction and his sentence, arguing that (1) the trial court erred in sentencing him underthe POAA because the prior federal bank robbery convictions relied on are not comparable to most serious offenses under Washington law, (2) his trial and appellate counsel rendered ineffective 

### assistance by failing to adequately challenge the comparability ofLar's priorfederal convictions

at sentencing and on direct appeal, (

### 3) his kidnapping conviction should have merged with his 

### attempted robbery conviction because the restraint involved was merely incidental to the robbery 

### attempt, and (4) the sentencing court improperly imposed discretionary legal financial

State v. Lar, noted at 167 Wn.App. 1047, 2012 WL 1426537 (2012).No. 45365 -7 -II



### obligations without considering Lar's abilityto pay. We grant the petition in part, reverse Lar's POAA sentence, and remand for resentencing. FACTS 

### The State charged Lar with burglary, kidnapping, and attempted robbery, all inthe first 

### degree, and ajury returned guiltyverdicts on all counts.2 Larhad previously pled guilty on two occasions in federal district court to bank robbery charges: 

### on one occasion, Lar pled guilty to one count ofbank robbery and one count ofarmed bank robbery, and that court sentenced him for both crimes in one proceeding on January 31, 1997. As part ofthe plea deal, Lar stipulated to a statement offacts underlying each charge, but did not expressly admit that he intended to permanently deprive the banks ofthe money. 

### On the other occasion, Larpled guilty to two counts ofbank robbery in 1985, and the federal district court sentenced him for both counts in one proceeding. Although the complaint in the federal prosecution describes the conduct at issue similarly to that underlying Lar's 1997 

### robbery convictions, the information merely sets outthe statutory elements offederal bank robbery along with the amounts ofmoney taken. The record contains nothing indicating that Lar stipulated to any statement ofthe facts underlying the 1985 charges. 

### In 2005, our Supreme Court held thatthe federal crime ofbank robbery is not legally 

### comparable to second degree robbery underWashington law. In re Pers. Restraint ofLavery, 154 Wn.2d 249, 255 -56, 111 P. 3d 837 (2005). Nonetheless, although Lar made a general



### 2 The substantive facts underlying the convictions at issue arose out ofa failed bank robbery and are stated in our opinion affirming Lar's convictions on direct appeal. Lar, 167 Wn.App. 1047, 2012 WL 1426537, at * 

### 1 -4. We do not repeatthem here as they have no bearing on our decision. 2No. 45365 - 7 -II 

### comparability objection to the use ofhis prior federal convictions in the sentencing proceeding at issue here, he did not specifically challenge their comparability based on Lavery.3 The sentencing court found the prior federal convictions comparable to most serious 

### offenses underthe POAA, stating that itthus had no discretion to exercise, and sentenced Larto a life term withoutthe possibility ofearly release. As part ofthe sentence, the court imposed a 1, 000 jail recoupment fee and $ 11, 025 in court-appointed attorney fees. The court' s order contained a boilerplate finding concerning Lar's present or future ability to meetthese 

### obligations, but nothing else in the record indicates whetherthe court actually considered Lar's ability to pay. 

### Lartimely submits this petition, and has not previously submitted a PRP inthis matter. ANALYSIS 

### After setting out the standard ofreview for PRPs, we first address the comparability of Lar's 1985 and 1997 federal bank robbery convictions to most serious offenses under 

### Washington law. We then turn to Lar' s claim that the conduct underlying his kidnapping conviction was merely incidental to that underlying the charged robbery. Finally,we address the 

### sentencing court' s imposition ofdiscretionary legal financial obligations. I. STANDARD OF REVIEW To obtain relief in a timely PRP, a petitioner must show either that he or she was actually and substantially 

### prejudiced by constitutional errororthathis or hertrial suffered from afundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage ofjustice.



### 3 On direct appeal, Lar challenged the mandatory life sentence on other grounds, but did not raise a comparability challenge. Lar, noted at 167 Wn.App. 1047. 3No. 45365 -741

In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 506, 301 P. 3d 450 (2013). A personal restraint petitionerwho presents a meritorious ineffective assistance ofcounsel claim "has necessarily met his burden to show actual and substantial prejudice" and is thus entitled to relief. In re Pers. 

### Restraint ofCrace, 174 Wn.2d 835, 846 - 47, 280 P.3d 1102 (2012). II. COMPARABILITY OF LAR' S FEDERAL BANK ROBBERY CONVICTIONS 

### Larfirst asks us to address his claim directly and vacate his POAA sentence because he objected to the use of his prior 1985 and 1997 federal convictions in the sentencing court. Lar contends that, because his prior convictions are not comparable to most serious offenses under Washington law, he is not a persistent offender within the meaning ofthe POAA. We agree. 

### A sentencing court must impose a sentence oftotal confinement for life withoutthe possibility of release on a " persistent offender." RCW 9.94A.570. As relevant here, a persistent

offender is one who stands convicted of a 

### felony defined as a " most serious offense," also called 

### a " strike" offense, see Lavery, 154 Wn.2d at 252, and has previously "been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, offelonies that

under the laws ofthis state would be considered most serious offenses." RCW 9. 94A.030( 37)( a)( ii). In the first degree, kidnapping, burglary, and attempted robbery all qualify

as most serious offenses. RCW 9. 94A.030(32)( a); RCW 9A.40.020; RCW 9A.52.020; former RCW 9A.56.200 ( 1990). We review de novo a trial court' s determination that a prior conviction from another jurisdiction is comparable to a strike offense, applying the following test:

A court must first query whether the foreign offense is legally comparable — that is, whetherthe elements ofthe foreign offense are substantially similarto the elements ofthe Washington offense. If the elements ofthe foreign offense are broader than the Washington counterpart, the sentencing court mustthen determine whether the offense is factually comparable — that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute. 4No. 45365 -7 -II

State v. Thiefault, 160 Wn.2d 409, 415, 158 P. 3d 580 (2007) (citing State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 ( 1998)). Ifthe conviction is comparable to a strike offense under either 

### prong, a sentencing court may properly rely on it in imposing a POAA sentence. See Thiefault, 160 Wn.2d at 415. A. Legal Comparability 

### In Lavery, our Supreme Courtvacated a life sentence imposed under the POAA on the ground that the prior federal bank robbery convictions on which the sentencing court had relied were not comparable to most serious offenses' under Washington law. 154 Wn.2d at 253 -62. 

### The Lavery court addressed the legal prong ofthe comparability test as follows:

The crime of federal bank robbery is a general intent crime. The crime of 

### second degree robbery in Washington, however, requires specific intent to steal as an essential, nonstatutory element. Its definition is therefore narrower than the federal crime' s definition.... Because the elements offederal bank robbery and robbery under Washington' s criminal statutes are not substantially similar, we conclude that federal bank robbery and second degree robbery in Washington are 

### not legally comparable. Lavery, 154 Wn.2d at 255 -56 ( citations omitted). The State concedes that federal bank robbery 

### is not legally comparable to the relevant most serious offense underWashington law. We accept the State' s concession, as Lavery requires. 154 Wn.2d at 256.



### 4The Lavery court compared the federal bank robbery conviction to asecond degree robbery conviction because committing robbery against afinancial institution did not automatically elevate the offense to the first degree when Lavery committed the crime at issue, as it does under 

### current law. See Lavery, 154 Wn.2d at 252 (noting thatthe prior bank robbery conviction dated from 1991); 

### compare RCW 9A.56.200 with former RCW 9A.56.200. The distinction has no bearing on the analysis here, however, because the specific intent elementthat rendered the crimes not comparable in Lavery, 154 Wn.2d at 255 -56, also applies to first degree robbery. State v. Kjorsvik, 117 Wn.2d 93, 96, 98, 812 P.2d 86 ( 1991). 5No. 45365 -7 -II

B. 

### Factual Comparability The State contends instead thatthe trial court properly relied on Lar's federal bank 

### robbery convictions because the facts to which Lar stipulated and admitted as part ofhis plea deals establish specific intent to steal. When factually comparing a " foreign" conviction, a court 

### may consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt." State v. Olsen, 180 Wn.2d 468, 478, 325 P. 3d 187, cert. denied, 135 S. Ct. 287 (2014). As the State points out, under Washington law a guilty plea generally admits the allegations in the information. In re Pers. Restraint ofFrancis, 170 Wn.2d 517, 530, 242 P.3d 866 ( 2010). We have held, however, that i]n orderto determine that which was admitted by the defendant as a result ofthe 

### entry of a guilty plea, it is necessary to look to the law ofthe state in which the defendant entered the plea as that law existed at the time ofthe plea. State v. Releford, 148 Wn.App. 478, 489, 200 P. 3d 729 (2009) ( emphasis omitted). The 

### rationale forthis rule would apply equally to guilty pleas entered in the federal courts. Under federal precedents, " 

### a plea ofguilty admits only the elements ofthe charge necessary for a
conviction." Malta - Espinoza v. Gonzales, 478 F. 3d 1080, 1082 n.3 ( 9th Cir. 2007); accord United States v. Forrester, 616 F.3d 929, 945 -46 ( 9th Cir. 2010); United States v. Cazares, 121 F.3d 1241, 1246 -

47 (9th Cir. 1997). In neither plea deal did Lar admit to the facts as stated in the complaint, and because he 

### pled guilty,the government never proved those facts beyond a reasonable doubt. State v. Bunting, 142 Wn.App. 135, 142, 61 P. 3d 375 ( 2003). The federal statute on which Lar' s prior convictions rest provides in relevant part: 

### a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person orpresence ofanother, or obtains or attempts to obtain by extortion 

### any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any 6No. 45365 - 7 -II

savings and loan association ... Shall be fined under this title or imprisoned not more than twenty years, or both. 

### d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) ofthis section, assaults any person, or puts injeopardy the 

### life ofany person bythe use ofa dangerous weapon ordevice, shall be fined under this title or imprisoned not more than twenty - five years, or both. 18 U.S. C. § 2113( a), ( d). 

### Underthe precedents discussed above, then,the only facts properly 

### considered in the comparability analysis are ( 1) the factual allegations in the charging documents 

### directly relating to elements essential to the prior convictions underthis statute, togetherwith (2) the facts to which Lar stipulated as part ofthe 1997 plea deal.

1. The 1985 Convictions 

### Contraryto the State' s assertions, the facts properly considered with respect to the 1985 convictions do not establish specific intent to steal. Under the 1985 plea deal, which contains an integration clause, Lar agreed only to " enter pleas of guilty to two counts alleging violations of 18 U. S. C.] sections 2113( a) and (d) ( Bank Robbery), as charged in the Information filed herein." Personal Restraint Petition at App' x C ( PRP). As discussed, the language ofthe 

### information largely tracks that ofthe statute and does not allege specific intentto steal. 

### The State effectively asks us to infer intentto steal from other admitted facts. This we cannot do. To impose a life sentence based on such an inference would violate the rule 

### articulated inApprendi v. NewJersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

### 2000) and Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct.2531, 159 L. Ed. 2d 403 (2004), that any fact otherthan that ofaprior conviction used to increase punishment must either be admitted bythe defendant or proved beyond a reasonable doubt. See Lavery, 154 Wn.2d at 256- 57. The Lavery court addressed the factual comparability prong as follows:



### Any attempt to examine the underlying facts ofa foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond 7No. 45365 - 7 -II

a reasonable doubt in the foreign conviction, proves problematic. Where the 

### statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable.

As in [State v. Ortega, 120 Wn.App. 165, 84 P. 3d 935 ( 2004)], Lavery had no motivation in the earlier conviction to pursue defenses that would have been available to him under Washington' s robbery statute but were unavailable in the federal prosecution. 

### Furthermore, Lavery neither admitted nor stipulated to facts which established specific intent in the federal prosecution, and specific intent was not proved beyond a reasonable doubt in the 1991 federal robbery conviction. 154 Wn.2d at 258. The court concluded that the federal bank robbery conviction at issue failed both prongs ofthe comparability test and could not count as a strike offense underthe POAA. Lavery, 154 Wn.2d at 258. The court thus granted Lavery' s PRP even though it was untimely and successive. Lavery, 154 Wn.2d at 253 -62. 

### Lavery is directly on point in our examination ofthe 1985 convictions and controls our decision on both the legal and factual prongs ofthe comparability analysis. Once Lar objected to 

### the comparability ofthe federal bank robbery convictions, the trial court should have considered Lavery in its ruling. We hold that the trial court erred in relying on the 1985 convictions to designate Lar a persistent offender under the POAA.

2. The 1997 Convictions 

### As relevant here, to qualify as apersistent offender,the POAA requires thatthe defendant has been convicted as an offender on at least two separate occasions, whether in this

state or elsewhere, of felonies that under the laws ofthis state would be considered most serious offenses and would be included in the offender score under RCW 

### 9.94A.525; provided that ofthe two or more previous convictions, at least one conviction must have occurred before the commission ofany ofthe other most serious offensesfor which the offender waspreviously convicted. RCW 9. 94A.030(37)( a)( ii) ( emphasis added). Since Lar was convicted of both 1997 charges in 

### the same proceeding, his conviction for one ofthe crimes would not have occurred before his commission ofthe other. Lar pled guiltyto and was sentenced forthe 1997 robbery charges in a 8No. 45365 - 7 -II 

### single proceeding. Therefore, his 1997 convictions, ifcomparable, would count as only one
strike offense. Thus, even ifwe accepted the State' s argument that Lar' s admissions under the 1997 plea 

### deal sufficiently establish intentto steal, he does not qualify as apersistent offender because, as we have already held,the other convictions relied on are not legally orfactually comparable to most serious offenses. We therefore decline to address the factual comparability ofthe 1997

convictions. 

### Because the State relied on only two prior occasions on which courts had convicted Lar, 

### Lavery controls the outcome here. The 1985 federal bank robbery convictions fail boththe legal and factual prongs ofthe comparability test. Lavery, 154 Wn.2d at 255 - 58; see also Thiefault, 

### 160 Wn.2d at 415. The trial courttherefore erred in relying on those convictions; and the 1997 

### convictions, even ifcomparable, do not alonejustify designating Lar apersistent offender. We 

### remand for resentencing, leaving itto the trial courtto decide in the first instance what effect, if 

### any, Lar's priorconvictions mayhave on his offender score.5 III. KIDNAPPING AND INCIDENTAL RESTRAINT Lar also asks us to reverse his kidnapping conviction, contending that entry of 

### convictions for both the attempted robbery charge and the kidnapping charge constitutes double 

### jeopardy. Specifically, Lar argues thatthe convictions merge because his restraint ofthe victim was merely incidental to the robbery attempt, with no independent purpose or effect. 

### Lar's argument relies on our opinion in State v. Berg, 177 Wn.App. 119, 138, 310 P.3d 866 (2013), reversed 

### by 181 Wn.2d at 857, 337 P. 3d 310 (2014), State v. Lindsay, 171 Wn.App.



### 5 Because we directly address Lar's challenge to his POAA sentence and grantthe relief requested, we decline to consider his ineffective assistance of counsel claim. 9No. 45365 - 7 -II 808, 843 -44, 288 P. 3d 641 ( 2012), rev' d in part on other grounds, 180 Wn.2d 423, 326 P. 3d 125 2014), and State v. Korum, 120 Wn. App. 686, 707, 86 P. 3d 166 ( 2004), rev' d in part on other grounds and aff'd in part, 157 Wn.2d 614, 620, 141 P. 3d 13 ( 2006). In an opinion filed after the 

### parties submitted theirbriefing in this case, however, our Supreme Court reversed our decision in Berg and explicitly rejected the relevant reasoning, specifying that "kidnapping and robbery

never merge." Berg, 181 Wn.2d at 872. Under our Supreme Court' s decision in Berg, Lar' s merger argument fails. We affirm his kidnapping conviction. IV. LEGAL FINANCIAL OBLIGATIONS 

### Finally, Lar challenges the sentencing court's imposition ofdiscretionary legal financial obligations (LFOs), 

### specifically thejail recoupment fee and the court appointed attorney fees. 

### Because we remand for resentencing, we decline to address the claim. We note onlythat, before imposing discretionary LFOs on remand, the sentencing court must consider Lar's abilityto pay consistently with our Supreme Court's recent holding that RCW 10.01. 160(3) requires the record to reflectthat the sentencingjudge made-an 

### individualized inquiry into the defendant' s current and future ability to pay before the court imposes LFOs. This inquiry also requires the courtto consider important factors, such as incarceration and a defendant' s other debts, including restitution, when determining a defendant' s ability to pay. State v. Blazina, No. 89028 -5, 89109 - 5, 2015 WL 1086552 at 1122 ( Wash. March 12, 2015). CONCLUSION The trial court imposed a life sentence at least in part based on convictions not 

### comparable to most serious offenses underWashington law. Under Lavery, 154 Wn.2d at 253- 62, Lar has thus demonstrated " a fundamental defect ofa nonconstitutional nature that inherently

resulted in a complete miscarriage ofjustice." Finstad, 177 Wn.2d at 506. We therefore grant

10No. 45365 -741



### Lar' s petition in part, reverse the POAA sentence, and remand for resentencing. We denythe petition in all other respects. 

### A majority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040, it is so ordered.

We concur: 

# e WOF WICK, J.

11 

# A.c.

# I