STATE v. BROUGHTON, 27009-9-II (Wash.App. 11-1-2002)

No. 27009-9-II.The Court of Appeals of Washington, Division Two.
Filed: November 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 001008289, Hon. Frederick W. Fleming, February 2, 2001, Judgment or order under review.

Counsel for Appellant(s), Stephanie C. Cunningham, Attorney At Law, # 552, 4603 N.E. University Villag, Seattle, WA 98105.

Counsel for Respondent(s), John M. Neeb, Pierce Co. Deputy Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.

J. DEAN MORGAN, J.

After a jury trial, Prenters Broughton III was convicted of first-degree robbery. The trial court found that he was a persistent offender and sentenced him to life without possibility of parole. Broughton contends on appeal that the State did not prove he has three `strikes.’ We affirm.

On February 14, 2000, Broughton robbed Artco Crafts in Tacoma, Washington.

The next day, the State charged him with first-degree robbery. On November 14, 2000, the jury found him guilty as charged.

At sentencing on February 2, 2001, the State alleged that Broughton had three `strikes’ and should be sentenced as a persistent offender. It relied on former RCW 9.94A.030(29), which provided that a person is a persistent offender if he or she:

(a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted[.]

Pursuant to this statute, the State alleged that Broughton had one `strike’ because, in 1976, he had been convicted in California on pleas of guilty to four robberies and a kidnapping; a second `strike’ because, in 1992, he had been convicted in Washington for another robbery; and a third `strike’ by virtue of his current conviction for robbery. Although Broughton did not dispute that his 1992 conviction and his current conviction were both `strikes,’ he did dispute, for at least two reasons, that his 1976 California convictions were a `strike.’

First, Broughton claimed that the State could not prove that he had validly waived his constitutional rights at the time of entering his guilty pleas in California, because he had not signed the plea documents `to indicate that he was advised of his rights[.]’[1] The State responded that it did not `have a burden of proving the constitutional validity of a prior conviction.’[2]

Second, Broughton claimed that the California documents were unreliable because they stated on the one hand that he had been convicted of first-degree robbery (robbery while armed with a deadly weapon), but on the other hand that he had been convicted of second-degree robbery (robbery while not armed with a deadly weapon). The State acknowledged the inconsistency but asserted it was immaterial; so long as the documents showed a conviction for robbery, the degree of the robbery made no difference to Broughton’s classification as a persistent offender.

Rejecting Broughton’s claims, the trial court concluded that the California convictions were a `strike.’ Accordingly, it imposed a sentence of life in prison without possibility of parole.

On appeal, Broughton assigns error to the trial court’s use of his 1976 California convictions as a `strike.’ To support this assignment, he reiterates the same two claims he made to the trial court.

Broughton’s first claim is that the trial court erred because the State did not prove that he knowingly and voluntarily waived his constitutional rights when, in 1976, he entered his California guilty pleas. Although a conviction may be used only if valid on its face,[3] this does not mean that a conviction may be used only if it affirmatively shows on its face that all of the defendant’s rights were observed. Rather, it means only that a conviction may not be used if it affirmatively shows on its face that the defendant’s rights were not observed.[4] Broughton’s 1976 California convictions do not affirmatively show that his rights were not observed. Accordingly, his first claim fails.[5]

Broughton’s second claim is that the California documents from 1976 are too unreliable to prove a `strike’ because they state on the one hand that he was convicted of first-degree robbery (robbery while armed with a deadly weapon), but on the other hand that he was convicted of second-degree robbery (robbery while not armed with a deadly weapon). He does not argue that the elements of California’s 1976 robbery statutes were not comparable to the elements of Washington’s 1976 robbery statutes.[6] Nor does he argue that his 1976 convictions washed out or for some other reason were not includable in his current offender score.

We agree that the California documents are defective in the way Broughton asserts. Like the trial court, however, we think the defect is immaterial.

The California documents clearly show that Broughton was convicted of at least second-degree robbery. Second-degree robbery is a most serious offense for purposes of the persistent offender law.[7] Nothing suggests that a second-degree robbery conviction would have washed out. We conclude that his 1976 California convictions for robbery were at least comparable to Washington’s second-degree robbery; that Washington’s second-degree robbery is a most serious offense; and thus that his California convictions for robbery were a `strike.’

Affirmed.

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.

WE CONCUR: HOUGHTON, J., HUNT, C.J.