Opinion
No. 34790-3-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01457-1, Russell W. Hartman, J., entered April 28, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Michael Wayne Glenn appeals his sentence on three counts of vehicular assault and one count of bail jumping, arguing that his offender scores were incorrect. The primary issue in this case is whether the trial court erred by considering three misdemeanor offenses that interrupted the five-year wash-out period for two class C felony offenses when the State's proof of the misdemeanor offenses was silent as to whether Glenn was represented by counsel or whether he waived his right to counsel in the misdemeanor proceedings. The State is entitled to rely on the proof of a defendant's prior conviction at sentencing until the prior conviction is corrected or vacated or unless the conviction is facially invalid. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). Here, Glenn's prior misdemeanor convictions were facially valid, he did not attempt to challenge their validity prior to sentencing, and his argument that the trial court had to presume constitutional invalidity because the State's proof did not affirmatively demonstrate constitutional validity has no merit.
Had Glenn successfully challenged the validity of the prior convictions prior to his sentencing on the current offenses, either by direct appeal or through a personal restraint petition, the trial court would not have been able to consider these prior convictions at sentencing. We note that although Glenn could not challenge these facially valid convictions at sentencing, he may still attempt to challenge their validity in a personal restraint petition. If successful, he may petition for resentencing on the current convictions.
Glenn also challenges his convictions and the related restitution order in a Statement of Additional Grounds for Review (SAG). Glenn's SAG issues have no merit. Accordingly, we affirm.
RAP 10.10.
FACTS
A jury convicted Glenn of three counts of vehicular assault and one count of bail jumping. At sentencing, the State argued that Glenn's three 1992 class C second degree theft convictions, which he was sentenced for in 1994, did not wash out of his offender score under RCW 9.94A.525(2), because Glenn had been convicted of two misdemeanor offenses in 1996, and one misdemeanor offense in 2001, and was, therefore, not conviction-free for the required five-year period.
The information alleged he committed these offenses on or about August 19, 2003.
The information alleged he committed this offense on or about September 13, 2005.
RCW 9.94A.525(2) provides in part:
Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including fulltime residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
The legislature amended RCW 9.94A.525 in 2006, Laws of 2006, ch. 128 § 6, but none of the amendments changed this portion of the statute.
The three misdemeanor offenses were (1) a 1996 second degree driving while license suspended conviction; (2) a 1996 negligent driving conviction; and (3) a 2001 possession of marijuana conviction. Glenn's criminal history shows that he was not convicted of any felony offenses between 1994 and his current convictions.
To prove the misdemeanor convictions, the State submitted certified court dockets from the misdemeanor cases. The State did not present the judgment and sentences from the misdemeanor convictions because they were no longer available.
In his opening brief, Glenn argued that the State failed to prove the misdemeanor offenses because the dockets the State submitted were not certified. The State subsequently submitted copies of the certifications that were on the back of the dockets, and Glenn abandoned this argument.
These dockets did not affirmatively show that Glenn was represented by counsel or that he waived his right to counsel. The docket for the 2001 marijuana charge did, however, note who represented the State at each stage of the proceedings.
Glenn asserted that because the dockets were silent as to whether he was represented by counsel or whether he waived his right to counsel, the misdemeanor convictions were constitutionally "invalid on their face" and, therefore, did not interrupt the five-year wash-out period. In addition, he submitted a declaration stating that he was not represented by counsel and did not waive his right to counsel in the misdemeanor proceedings.
He did, however, acknowledge that if the State properly proved the misdemeanor convictions, the three second degree theft convictions should be included in his offender score.
Holding that the misdemeanor convictions were facially valid and that it was not the trial court's role to engage in a "collateral inquiry" regarding the validity of the misdemeanor offenses, the trial court included Glenn's three 1994 theft convictions in his offender scores and imposed standard range sentences. Glenn appeals.
DISCUSSION
Validity of Misdemeanor Convictions
The primary issue on appeal is whether the trial court erred by considering Glenn's three misdemeanor convictions to calculate his offender score. Relying on Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), and State v. Marsh, 47 Wn. App. 291, 294, 734 P.2d 545 (1987), overruled by In re Personal Restraint of Williams, 111 Wn.2d 353, 368, 759 P.2d 436 (1988), Glenn contends, as he did below, that the trial court should not have considered these convictions because the dockets did not affirmatively show that he was represented by counsel or that he waived his right to counsel, making these convictions constitutionally invalid on their face. We review offender score calculations de novo. State v. McCraw, 127 Wn.2d 281, 289, 898 P.2d 838 (1995) (citing State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994)).
When establishing a defendant's offender score, "the State does not have the affirmative burden of proving the constitutional validity of a prior conviction before it can be used in a sentencing proceeding." Ammons, 105 Wn.2d at 187. But the sentencing court cannot consider a prior conviction that is constitutionally invalid on its face. Ammons, 105 Wn.2d at 187-88.
The sentencing court also cannot consider a prior conviction that another court has previously found invalid. Ammons, 105 Wn.2d at 187-88. There is nothing in the record showing that another court had previously determined that any of the three misdemeanor convictions at issue were invalid.
A conviction is constitutionally invalid on its face if it evidences infirmities of a constitutional magnitude without further elaboration. Ammons, 105 Wn.2d at 188. "The conviction need not show that a defendant's rights were not violated; rather, for the conviction to be constitutionally invalid on its face, the conviction must affirmatively show that the defendant's rights were violated." State v. Gimarelli, 105 Wn. App. 370, 375, 20 P.3d 430, (citing Ammons, 105 Wn.2d at 189), review denied, 144 Wn.2d 1014 (2001) (emphasis added). Additionally, a "defendant may not impeach the conviction by offering testimony that his or her rights were violated." Gimarelli, 105 Wn. App. at 375 (citing State v. Bembry, 46 Wn. App. 288, 291-92, 730 P.2d 115 (1986)). The requirement that the alleged defect be apparent on the face of the conviction is necessary to avoid turning sentencing proceedings into appellate review of all prior convictions. Gimarelli, 105 Wn. App. at 375 (citing Ammons, 105 Wn.2d at 188).
Here, although the dockets do not affirmatively show that Glenn was represented by counsel or that he waived his right to counsel, they also do not affirmatively show that he was not represented or that he did not waive his right to counsel. Thus, the dockets do not evidence the constitutional invalidity on their face. Furthermore, Glenn's assertion at sentencing that he was not afforded his right to counsel or waived his right to counsel cannot create facial invalidity. See Gimarelli, 105 Wn. App. at 375 (citing Bembry, 46 Wn. App. at 291-92). Accordingly, on their face, the misdemeanor convictions were constitutionally valid and the trial court properly considered them when calculating Glenn's offender scores.
We note that the docket for the 2001 marijuana charge arguably showed Glenn was not represented by counsel because it notes counsel for the State but does not mention Glenn's counsel. The docket is, however, silent as to whether Glenn waived his right to counsel at that proceeding.
Glenn, however, asserts that Burgett and Marsh establish he was not required to affirmatively show he was unrepresented or did not waive his right to counsel. But his reliance on these cases is misplaced.
Glenn also cites to Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962), and State v. Phillips, 94 Wn. App. 313, 974 P.2d 1245 (1999). He asserts that Carnley establishes that "[w]here denial of counsel is alleged, presuming waiver from a silent record is impermissible." Reply Br. of Appellant at 7. But in Carnley, the defendant was challenging the convictions themselves, not the use of a prior conviction to calculate the proper sentence on a later offense.
Glenn further asserts that in Phillips, Division Three of this court concluded that the State could not use a defendant's prior diversion agreements to enhance his sentence because the face of the agreements did not show that the defendant had waived his right to counsel. But, as Glenn himself notes, we rejected Phillips to the extent it required that the proof of the prior conviction had to affirmatively establish the defendant was afforded his right to counsel. Gimarelli, 105 Wn. App. at 375, n. 3 (citing Williams, 111 Wn.2d at 368; Ammons, 105 Wn.2d at 189).
Glenn also argues that the misdemeanor dockets violated CrRLJ 7.3. CrRLJ 7.3 requires that "[a] judgment of conviction shall set forth whether the defendant was represented by a lawyer or waived representation by a lawyer, the plea, the verdict or findings, and the adjudication and sentence." (Emphasis added.) The dockets, however, are not judgments, so CrRLJ 7.3 does not apply.
In Burgett, the United States Supreme Court addressed whether a jury in a habitual criminal proceeding could consider a prior conviction obtained before Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), established the constitutional right to counsel. 389 U.S. at 111-12, 114-15. The Court determined that because there was no affirmative evidence that Burgett had been represented or that he had waived his right to counsel, the jury could not consider the prior conviction and reversed the conviction. Burgett, 389 U.S. at 114-15. But in a habitual criminal proceeding, the State has the burden of proving the prior conviction beyond a reasonable doubt once the defendant places the validity of the conviction at issue; accordingly, it is the State's burden to prove the prior conviction was constitutionally valid and a presumption that the defendant was not properly represented or that he did not waive his right to counsel is proper in that context. State v. Holsworth, 93 Wn.2d 148, 160, 607 P.2d 845 (1980). Here, in contrast, the prior misdemeanor convictions were relevant to Glenn's offender score, they were not elements of the substantive offenses or evidence in a habitual criminal proceeding, and it was, therefore, Glenn's burden to establish the convictions were constitutionally invalid on their face. Ammons, 105 Wn.2d at 187; see also Williams, 111 Wn.2d at 367 (emphasizing that "the [Sentencing Reform Act (SRA)] recognizes and relies upon the fundamental distinction between the more rigid procedural protections necessary in using a prior conviction to prove an element of a crime or of habitual criminal status on the one hand, and in using a prior conviction to help determine a presumptive standard sentence range on the other.").
Additionally, Burgett had been convicted of the prior offense before a defendant's right to counsel was established in Gideon; it was, therefore, appropriate to presume that a lack of reference to counsel or waiver of counsel demonstrated he had not been represented by counsel or waived his right to counsel. See United States v. Cline, 362 F.3d 343, 351 (6th Cir. 2004) (noting that when Burgett was convicted of the prior conviction, "state criminal defendants' federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess," and emphasizing that after Burgett, Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992), "reaffirmed the application of a presumption of regularity to state court proceedings, even as to the waiver of counsel"). Here, however, the convictions at issue occurred decades after Gideon established a defendant's right to counsel, so such a presumption makes less sense as Glenn could have easily challenged the misdemeanor convictions on this basis at an earlier time.
In his reply brief, Glenn cites to In re Disciplinary Proceeding Against Michels, 150 Wn.2d 159, 75 P.3d 950 (2003), cert. denied, 540 U.S. 1112 (2004), claiming that this case demonstrates the presumption from Burgett should still apply because judges still do not properly advise defendants of their right to representation in misdemeanor cases. But Michels establishes only that a single part-time judge frequently failed to ensure that defendants were advised of their right to counsel or that they properly waived this right. 150 Wn.2d at 164-65. This is not sufficient to show that the right to counsel is commonly ignored in misdemeanor cases.
Glenn's reliance on Marsh is also misplaced. Our Supreme Court overruled Marsh in Williams, rejecting the Marsh analysis "[t]o the extent that [it] holds or suggests that the State must prove constitutional validity of prior convictions at a sentencing hearing." 111 Wn.2d at 368. See also Gimarelli, 105 Wn. App. at 375 n. 3 (discussing Williams's rejection of Marsh).
Specifically, the Williams court stated:
We emphasize our holding in [ Ammons, 105 Wn.2d at 188], that a sentencing proceeding under the SRA is not to be turned into an appellate review of all of a defendant's prior convictions. The fact that the SRA structures the use of prior convictions at a sentencing does not mean that prior convictions are elements of the offense for which the defendant is being sentenced; they are not. As we also made clear in Ammons, the SRA recognizes and relies upon the fundamental distinction between the more rigid procedural protections necessary in using a prior conviction to prove an element of a crime or of habitual criminal status on the one hand, and in using a prior conviction to help determine a presumptive standard sentence range on the other. [ Ammons, 105 Wn.2d at 187; State v. Jones, 110 Wn.2d 74, 77-79, 750 P.2d 620 (1988); D. Boerner, Sentencing in Washington § 6.11, at 6-19 to 6-20 (1985). See Holsworth, 93 Wn.2d at 159 (State must prove constitutional validity of prior conviction in habitual criminal proceeding); State v. Swindell, 93 Wn.2d 192, 197, 607 P.2d 852 (1980) (State must prove constitutional validity of prior conviction in proceeding to establish crime of felon in possession of firearm).]
Because of this distinction, we disagree with the Court of Appeals analysis in [ Marsh, 47 Wn. App. 291], cited in defendant's brief. In Marsh, the Court of Appeals held that when a judgment and sentence do not reflect representation by counsel or waiver, the conviction is facially invalid and cannot be used to establish a defendant's criminal history unless the State establishes by other documents the presence or waiver of counsel. To the extent that Marsh holds or suggests that the State must prove the constitutional validity of prior convictions at a sentencing hearing, it contravenes our previous holding in Ammons. The constitutional validity of prior convictions need not be affirmatively proved by the State at an SRA sentencing proceeding. Rather, it is the defendant who bears the burden of establishing the unconstitutionality of his or her prior convictions at such a proceeding. [ State v. Vahey, 49 Wn. App. 767, 777, 746 P.2d 327 (1987), review denied, 110 Wn.2d 1013 (1988); State v. Davis, 47 Wn. App. 91, 94, 734 P.2d 500, review denied, 108 Wn.2d 1029 (1987)].
Williams, 111 Wn.2d at 367-68.
Accordingly, we hold that the trial court properly considered the misdemeanor offenses and used the proper offender scores at sentencing. SAG Issues
A. Bail Jumping Conviction
In his SAG, Glenn appears to argue that the evidence was insufficient to support the bail jumping conviction because (1) he had been released on personal recognizance rather than on bail; (2) he missed only one court date out of eighteen; and (3) when he appeared to quash the bench warrant he was informed there was no bench warrant and that the case had been continued. He also appears to argue that the trial court improperly prevented him from presenting evidence to support his uncontrollable circumstances defense.
We have reviewed the evidence and find it sufficient to support the jury's verdict on the bail jumping charge. Furthermore, the fact the trial court released Glenn on personal recognizance rather on bail is irrelevant because the bail jumping statute, RCW 9A.76.170(1), applies to those "released by court order" as well as those "admitted to bail." Additionally, it is irrelevant to the charge that Glenn missed only one court date or that there was apparently no bench warrant issued when he failed to appear.
As to whether the trial court properly excluded the evidence Glenn wanted to present in support of his uncontrollable circumstances defense, the record shows that the trial court properly excluded this evidence because Glenn established only that he missed the court date due to work obligations and not due to any personal emergency that prevented him from appearing.
RCW 9A.76.170(2) provides:
It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.
RCW 9A.76.010(4) provides:
"Uncontrollable circumstances" means an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
In his offer of proof, Glenn presented evidence that he missed the court date because he was supervising others at a construction site as they pumped water from a water retention pond to avoid it overflowing and potentially subjecting his employer to a $10,000 a day fine.
B. Vehicular Assault Convictions and Restitution
Glenn next appears to argue that the State should not have charged him with the vehicular assaults because the other drivers were not wearing their seatbelts and they did not have licenses or insurance. This argument is clearly without merit. There is nothing in the record showing that the victims of the vehicular assaults were not wearing their seatbelts and whether the driver of the other vehicle was licensed or insured is irrelevant to the vehicular assault charges. State v. Hursh, 77 Wn. App. 242, 890 P.2d 1066 (1995).
Finally, Glenn appears to challenge the restitution order, apparently because the most seriously injured victim did not testify at trial. The sentencing court is not required to rely on trial testimony to establish the amount of restitution, see RCW 9.94A.753(1); accordingly, this argument has no merit.
Finding no error, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., VAN DEREN, A.C.J., concur.