State v. Bembry
| Decision Date | 22 December 1986 |
| Docket Number | 16675-1-I,Nos. 16674-3-,s. 16674-3- |
| Citation | 730 P.2d 115,46 Wn.App. 288 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Charles Wayne BEMBRY, Appellant. |
Julie Kesler, Washington Appellate Defender, Seattle, for appellant Charles Wayne Bembry.
Sally Stanfield, Deputy Pros. Atty., Seattle, for respondent State.
Charles Wayne Bembry appeals following two convictions for first degree robbery. Bembry contends the trial court erroneously considered a prior Oregon conviction for purposes of sentencing. We affirm the trial court.
On October 5, 1984, Charles Wayne Bembry pled guilty to first degree robbery and to first degree robbery while armed with a deadly weapon for incidents occurring in July and September 1984. At the December 11, 1984, sentencing hearing, the State presented an exemplified copy of a September 1, 1978, Judgment and Probation Order indicating that Bembry had pled guilty to first degree burglary in Oregon. The defendant submitted a copy of the Order Entering Plea of Guilty from the Oregon conviction.
At the hearing, Bembry alleged that the Oregon conviction was constitutionally invalid and therefore could not be used as criminal history for sentencing. Bembry argued that the documents before the sentencing court regarding the Oregon guilty plea failed to show that he was informed of his right to remain silent, that he understood the elements of the charged crime, or that he understood the maximum sentence that could have been imposed. The trial court permitted Bembry to testify briefly that at the time of the Oregon guilty plea he had not been informed of his right to remain silent and did not know the elements of the charged crime.
The court rejected Bembry's contentions, finding that his "vague recollection" was insufficient to raise any doubts about the Oregon conviction for purposes of sentencing. On the basis of his criminal history, Bembry was given an offender score of 3 and sentenced to concurrent terms of 75 and 54 months on the two robbery charges. Appeals from both sentences have been consolidated.
On appeal Bembry contends that because the record of the Oregon conviction failed to show affirmatively on its face that he was informed of his right to remain silent, the conviction was facially invalid and could not be used for purposes of sentencing. Bembry asserts that this apparent invalidity was further bolstered by his testimony at the sentencing hearing.
Under the Sentencing Reform Act, the defendant's prior convictions are used to determine his or her offender score, which in turn is used to determine the applicable presumptive standard sentence range. See RCW 9.94A.330, .360, .370. In State v. Ammons, 105 Wash.2d 175, 713 P.2d 719 (1986) (as amended 718 P.2d 796 (1986)), the Supreme Court severely restricted a defendant's ability to mount a collateral attack on a prior conviction at a sentencing hearing. The Court reasoned that the sentencing proceeding could not be turned into an appellate forum:
The defendant has no right to contest a prior conviction at a subsequent sentencing. To allow an attack at that point would unduly and unjustifiably overburden the sentencing court. The defendant has available, more appropriate arenas for the determination of the constitutional validity of a prior conviction. The defendant must use established avenues of challenge provided for post-conviction relief. A defendant who is successful through these avenues can be resentenced without the unconstitutional conviction being considered.
Ammons, 105 Wash.2d at 188, 713 P.2d 719 (citing In re Bush, 26 Wash.App. 486, 616 P.2d 666 (1980), aff'd, 95 Wash.2d 551, 627 P.2d 953 (1981)). In order to use prior convictions for sentencing:
(1) the State must prove the existence of prior convictions only by a preponderance of the evidence; (2) the State need not prove the constitutional validity of prior guilty pleas, though a facially invalid plea cannot be used; and (3) once the State presents an order of judgment and sentence bearing the defendant's name, identity is sufficiently established unless the defendant declares under oath that he is not the person named.
State v. Binder, 106 Wash.2d 417, 419, 721 P.2d 967 (1986). Bembry does not allege that the State has not proved the existence of the Oregon conviction or that he is not the person named in the documents.
A conviction previously determined to have been unconstitutionally obtained or one that is constitutionally invalid on its face may not be used in a sentencing proceeding. Ammons, 105 Wash.2d at 187, 713 P.2d 719. "Constitutionally invalid on its face" means a conviction that "without further elaboration evidences infirmities of a constitutional magnitude." (Italics ours.) Ammons.
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State v. Floyd
...proceeding, the defendant's ability to challenge the validity of a prior conviction is “severely restricted.” State v. Bembry, 46 Wash.App. 288, 289, 730 P.2d 115 (1986). A sentencing court may not rely, however, on a conviction “constitutionally invalid on its face” to increase the punishm......
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State v. Gimarelli
...the defendant may not impeach the conviction by offering testimony that his or her rights were violated. State v. Bembry, 46 Wash.App. 288, 291-92, 730 P.2d 115 (1986). The conviction need not show that a defendant's rights were not violated; rather, for the conviction to be constitutionall......
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State v. Floyd
...proceeding, the defendant's ability to challenge the validity of a prior conviction is "severely restricted." State v. Bembry, 46 Wn. App. 288, 289, 730 P.2d 115 (1986). A sentencing court may not rely, however, on a conviction "constitutionally invalid on its face" to increase the punishme......
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State v. Thiefault, No. 53214-6-I (WA 8/1/2005)
...proceedings. Further, the document does not show on its face that constitutional safeguards were not provided. See State v. Bembry, 46 Wn. App. 288, 291, 730 P.2d 115 (1986).3 Thiefault's federal conviction is also not constitutionally invalid on its face. His plea agreement specifically st......