STATE v. GLENN, 140 Wn. App. 1014 (2007)

No. 34790-3-II.The Court of Appeals of Washington, Division Two.
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Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.

QUINN-BRINTNALL, 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, [1] 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.

Glenn also challenges his convictions and the related restitution order in a Statement of Additional Grounds for Review[2] (SAG). Glenn’s SAG issues have no merit. Accordingly, we affirm.

FACTS
A jury convicted Glenn of three counts of vehicular assault[3] and one count of bail jumping.[4] 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), [5]
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.[6]

To prove the misdemeanor convictions, the State submitted certified court dockets from the misdemeanor cases.[7] The State did not present the judgment and sentences from the misdemeanor convictions because they were no longer available.

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.[8] 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.

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), an 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.[9] Ammons, 105 Wn.2d at 187-88.

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.[10]
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.

Glenn, however, asserts that Burgett an Marsh[11] establish he was not required to affirmatively show he was unrepresented or did not waive his right to counsel.[12] But his reliance on these cases is misplaced.

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 i 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 afte 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.[13]

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.”[14] 111 Wn.2d at 368. See also Gimarelli, 105 Wn. App. at 375 n. 3 (discussing Williams‘s rejection o Marsh).

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, [15] 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[16]
and not due to any personal emergency that prevented him from appearing.

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.

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