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The State must prove a defendant's criminal history by a preponderance of the evidence. A trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.
Defendant robbed the 84-year-old victim and then demanded that the victim take him to a tavern. At sentencing, the State provided a statement of the prosecuting attorney that included a list of what the prosecutor believed was defendant's criminal history. Defendant did not object to the prosecutor's list. At sentencing, the State did not produce certified copies of any judgment or sentence showing defendant's alleged criminal history and failed to provide a reason for that omission. Also, the State relied solely on the argumentative statement of the prosecuting attorney concerning defendant's criminal history. No presentence report was submitted by the Washington Department of Corrections and the prosecutor's statement did not constitute a presentence report under Wash. Rev. Code § 9.94A.500. The trial court sentenced defendant to concurrent terms of 84 months for second degree robbery and 60 months for unlawful imprisonment. On defendant’s appeal, the appellate court affirmed defendant’s convictions, but remanded the case to the trial court for recalculation of his sentence.
Could the sentence for defendant, who has been found guilty of crimes, be properly founded on his criminal history that was unproven?
The State failed to prove defendant's criminal history by a preponderance of the evidence or that defendant waived any challenge to the criminal history. Therefore, the trial court lacked the statutory authority to calculate defendant's offender score based on convictions the State failed to prove.