Petition of Williams

• Court: Washington Supreme Court
• Writing for the Court: ANDERSEN; PEARSON; DORE
• Citation: Petition of Williams, 759 P.2d 436, 111 Wn.2d 353 (Wash. 1988)
• Decision Date: 15 July 1988
• Docket Number: No. 53803-4
• Parties: In the Matter of the Personal Restraint Petition of Allen Ray WILLIAMS, Petitioner.

Page 353

111 Wn.2d 353

759 P.2d 436

In the Matter of the Personal Restraint Petition of Allen Ray WILLIAMS, Petitioner.

No. 53803-4.

Supreme Court of Washington En Banc.

July 15, 1988.

Allen Ray Williams, Steilacoom, pro se.

Preston, Thorgrimson, Ellis & Holman, Scott J. Engelhard, Washington Appellate Defender Ass'n, Seattle, for petitioner.

John W. Ladenburg, Pierce County Prosecutor, Kathleen Proctor, Christine Quinn-Brintnall, Deputy County Prosecutors, Tacoma, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

The personal restraint petition of Allen Ray Williams (defendant) raises a number of issues relating to the use of prior convictions in sentencing a defendant under the Sentencing Reform Act of 1981 (SRA). ¹

On July 20, 1985, the defendant, who had a long history of driving infractions, drove a truck into another vehicle and caused the death of the other driver. The defendant had been drinking and had a blood alcohol reading in excess of .100 at the time.

On February 5, 1986 the defendant pleaded guilty to the crime of vehicular homicide (RCW 46.61.520). Four driving while under the influence convictions were listed on the defendant's Statement on Plea of Guilty which he signed at that time.

On March 28, 1986 the sentencing hearing was held. Three additional driving offenses were added to the criminal history section of the judgment and sentence form. Thereupon judgment was pronounced and the sentence entered. The defendant received a 77-month sentence, which he is now serving.

The defendant did not appeal but later filed this personal restraint petition in the Court of Appeals. By his petition, he challenged the constitutionality of his conviction and alleged that as a consequence of its unconstitutionality he is being unlawfully deprived of his liberty. The Chief Judge of Division II of the Court of Appeals dismissed the petition. By order dated December 2, 1987, we granted discretionary review.

Four issues are presented.

ISSUES

ISSUE ONE. Were the three prior driving offenses added to the defendant's "criminal history" by the sentencing court at the sentencing hearing, and used to calculate his offender score, improperly used because they had been "washed out" under the SRA's 5-year "wash-out" statute?

ISSUE TWO. Was the use of defendant's pre-SRA convictions to determine his offender score under the SRA a violation of the ex post facto prohibitions of our federal and state constitutions?

ISSUE THREE. With reference to the defendant's four prior convictions of driving while under the influence, which he admitted to in his statement on plea of guilty to the vehicular homicide charge, and which were also used by the sentencing court in calculating his offender score under the SRA, did the defendant in his personal restraint petition make a threshold showing of prima facie constitutional error sufficient to justify collateral attack on those convictions?

ISSUE FOUR. Was the defendant denied his due process rights at the SRA sentencing hearing?

DECISION

ISSUE ONE.

CONCLUSION. It appears from the face of the abstract of the defendant's driving record used at his sentencing that three of his prior traffic offenses (which were brought in at the time of the hearing and used in determining his offender's score and hence the presumptive standard sentence range) were improperly used because they had previously been "washed out" under the terms of the "wash out" statute then in effect.

The beginning point in any sentencing under the SRA is the offense for which the defendant is convicted. ² And the defendant's plea of guilty to that offense was, of course, a confession of guilt, the result of which is equivalent to conviction; by pleading guilty, he acknowledged full responsibility for the legal consequences of his guilt. ³ His guilty plea had the same effect as a verdict of guilty. ⁴

Under the SRA, other than the offense for which a defendant is convicted, the major determinative of the defendant's presumptive sentence is the "offender score"; ⁵ and that in turn is based on the defendant's "criminal history". ⁶

Prior to enactment of the SRA, sentencing judges were permitted to consider just about any information concerning the defendant's criminality that they chose to, and this was true whether it had resulted in a conviction or not. ⁷ The Sentencing Guidelines Commission, however, was of the view that it was inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove. ⁸ Accordingly, the Commission's proposed solution, which was adopted by the Legislature when it enacted the SRA, was to provide that a defendant's offender score would be determined by the offenses for which the defendant was convicted and by the defendant's "criminal history" as that term is defined in the SRA. ⁹

In all cases other than vehicular homicide cases, it appears that only felony convictions are considered in determining the offender score. ¹⁰ It seemed logical to the Sentencing Guidelines Commission and to the Legislature, however, that in vehicular homicide cases such as this one, prior convictions of specified traffic offenses deemed "serious traffic offenses" ¹¹ were a more logical measure of prior culpability than felonies unrelated to operating motor vehicles. ¹² Since many serious traffic offenses are misdemeanors rather than felonies, certain vehicular misdemeanor convictions, as well as vehicular felony convictions, are considered in vehicular homicide case sentencings. ¹³

At the time the defendant pleaded guilty to the crime of vehicular homicide in this case, in his Statement of Defendant on Plea of Guilty (which both he and his former attorney signed), ¹⁴ he acknowledged four convictions of driving while under the influence. In that statement, the defendant also acknowledged:

I fully understand that if criminal history in addition to that listed [above] is discovered, both the standard range and the Prosecuting Attorney's recommendation may increase. Even so, I fully understand that my plea of guilty to this charge is binding upon me if accepted by the court, and I cannot change my mind if additional criminal history is discovered and the standard range and Prosecuting Attorney's recommendation increases ... ¹⁵

At the subsequent sentencing hearing, the sentencing court also had before it what was apparently a certified copy of a Department of Licensing abstract of the defendant's driving record. The abstract listed numerous driving offenses other than the four driving while under the influence offenses which the defendant had admitted to at the time of his guilty plea. In determining the defendant's criminal convictions to be used in computing the defendant's offender score, the sentencing court found as a fact that the defendant had also committed three earlier "serious traffic offenses". ¹⁶ It then listed all seven of these convictions under "criminal history" on the face of the judgment and sentence, as required. ¹⁷ The addition of these three additional prior convictions increased both the defendant's offender score and his presumptive standard sentence range under the SRA.

At the time the defendant pleaded guilty, his standard presumptive sentence range had been computed at 36-48 months and the Prosecuting Attorney had agreed to recommend a 42-month sentence. After factoring in the three additional serious traffic offenses at the sentencing hearing, however, the offender score increased and the presumptive standard sentence range also increased--to 67-89 months. The abbreviated record before us does not reflect whether the prosecuting attorney changed sentencing recommendations. In any event, the court sentenced the defendant to serve 77 months, a term of confinement which exceeded the earlier computed presumptive standard sentencing range but which was within that range as recomputed.

On the sentencing date, the SRA "wash-out" statute read as follows:

Class A prior felony convictions are always included in the offender score. Class B prior felony convictions are not included if the offender has spent ten years in the community and has not been convicted of any felonies since the last date of release from confinement pursuant to a felony conviction (including full-time residential treatment), if any, or entry of judgment and sentence. Class C prior felony convictions and serious traffic convictions as defined in RCW 9.94A.330 are not included if the offender has spent five years in the community and has not been convicted of any felonies since the last date of release from confinement pursuant to a felony conviction (including full-time residential treatment), if any, or entry of judgment and sentence. This subsection applies to both adult and juvenile prior convictions.

(Italics ours.) See former RCW 9.94A.360(12); Laws of 1984, ch. 209, § 19(12), p. 1071.

The three additional serious traffic convictions added to the defendant's "criminal history" by the sentencing judge at the sentencing hearing should not have been considered in determining the offender score. The abstract of the defendant's driving record, which the sentencing court had before it at the sentencing hearing, shows that the defendant had a felony-free driving record for the 5 years prior to the date he committed the crime of vehicular homicide. There is no claim that the defendant has any other felony record. Thus, the sentencing court should not have considered the three traffic convictions which occurred before the felony-free 5-year period.

After the defendant was sentenced, the Legislature changed the "wash out" statute to require that not only must a defendant be free from felony convictions for 5 years, but a defendant in a vehicular homicide case must also be free from serious traffic offense convictions for 5 years or the prior convictions will not wash out. ¹⁸ This change, however, did not...