State v. Gimarelli

• Decision Date: 23 March 2001
• Docket Number: No. 25223-6-II.,25223-6-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gary Gus GIMARELLI, Appellant.

20 P.3d 430

105 Wash.App. 370

STATE of Washington, Respondent, v. Gary Gus GIMARELLI, Appellant.

No. 25223-6-II.

Court of Appeals of Washington, Division 2.

March 23, 2001.

John A. Hays, Longview, Court Appointed, for Appellant.

Jeremy Richard Randolph, Lewis County Prosecuting Attorney, Chehalis, for Respondent.

HOUGHTON, P.J.

Gary Gimarelli appeals from his judgment and sentence of life in prison without parole under the "two-strikes" amendment to the Persistent Offender Accountability Act (POAA) for his conviction of attempted first degree child molestation. We affirm.

FACTS

On Christmas Eve 1998, Gimarelli entered the recreation room of the mobile home park where he lived. Gimarelli knew 11-year-old M.B. was sleeping there with her siblings. He went to M.B. and placed his hand on her stomach right below her navel. M.B. woke up and pushed Gimarelli away. A few minutes later, he began stroking her hair, and then slid his hand down the side of her body, across the side of her chest, to her hip. He then moved his hand over her navel to a point above her pubic region and pinched her. She again pushed him away, but a few minutes later he repeated this process. When she pushed him away a third time, she said she wanted her mother. Gimarelli asked where her mother was and learned that she was next door in her trailer. He then repeated the process a fourth time. Again M.B. pushed him away and asked for her mother. This time Gimarelli told her not to worry, it was okay, he would find her mother. He then left but did not go to her mother.

The State tried and convicted Gimarelli of attempted first degree child molestation based upon this incident. Gimarelli had a 1990 conviction of rape by forcible compulsion in Oregon in 1990, so the prosecutor sought a life sentence without the possibility of parole under the "two strikes" amendment to Washington's POAA. See RCW 9.94A.030(29)(b). At sentencing, over the prosecutor's objection, Gimarelli introduced the jury verdict form from his 1990 Oregon rape conviction that showed the jury had not been unanimous in its verdict.¹ Gimarelli argued that the conviction was invalid on its face so it could not be considered as a strike, and he argued that life in prison would be cruel and unusual punishment. The trial court found that because the Oregon conviction was constitutional under the Oregon and U.S. Constitutions, it could consider the conviction and sentenced Gimarelli to life in prison. Gimarelli appeals his sentence.

ANALYSIS

The Oregon conviction

Under the Sentencing Reform Act,² before the State may use a prior conviction to enhance a defendant's sentence, it must prove the existence of that conviction by a preponderance of the evidence. State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999). The best evidence of the conviction is the prior judgment and sentence. Ford, 137 Wash.2d at 480, 973 P.2d 452. But if the judgment and sentence is not available, the State may use comparable documents or transcripts from the prior trial to prove the existence of the conviction. Ford, 137 Wash.2d at 480, 973 P.2d 452. A plea agreement is a sufficient substitute document. See In re Thompson, 141 Wash.2d 712, 718, 10 P.3d 380 (2000).

The State need not prove the constitutionality of prior convictions before it may use those convictions as part of a defendant's criminal history. State v. Ammons, 105 Wash.2d 175, 187, 713 P.2d 719, 718 P.2d 796,cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). An exception to the rule is if another court has determined that the prior conviction was unconstitutional and thus could not be used for sentencing purposes, the State must prove the constitutionality of that conviction before it may use the conviction in the present case. State v. Burton, 92 Wash.App. 114, 117, 960 P.2d 480 (1998),review denied, 137 Wash.2d 1017, 978 P.2d 1100 (1999). Otherwise, as long as the conviction is constitutionally valid on its face, the State may use the conviction as part of the defendant's criminal history. Ammons, 105 Wash.2d at 187-88,713 P.2d 719.

For a conviction to be constitutionally invalid on its face, the conviction must show constitutional infirmities on its face, without further elaboration. Ammons, 105 Wash.2d at 188, 713 P.2d 719. The face of the conviction includes any plea agreement, but it excludes other items such as jury instructions. Thompson, 141 Wash.2d at 718, 10 P.3d 380 (citing Ammons, 105 Wash.2d at 189, 713 P.2d 719). Likewise, 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 constitutionally invalid on its face, the conviction must affirmatively show that the defendant's rights were violated. Ammons, 105 Wash.2d at 189, 713 P.2d 719.³ Thereason the defect must be apparent on the face of the conviction is because if a defendant were able to present evidence of defects in his or her prior convictions, it "would turn the sentencing proceeding into an appellate review of all prior convictions." Ammons, 105 Wash.2d at 188, 713 P.2d 719. The defendant must use established avenues of appeal to challenge those prior convictions. Ammons, 105 Wash.2d at 188, 713 P.2d 719.

The Face of the Conviction

The first issue before us is what is the "face of the conviction."

Ammons and Bembry provide examples of what does not qualify as the face of the conviction. In Ammons, the defendant offered the jury instructions and claimed that they denied him his constitutional rights. The court rejected this contention, stating, "The validity of that claim cannot be determined facially." Ammons, 105 Wash.2d at 189, 713 P.2d 719. In Bembry, the defendant testified at the hearing that he was never told the elements of the charge or informed of his right to remain silent before he pleaded guilty. The court "express[ed] ... no opinion as to the merits of Bembry's claims" but ruled that the conviction did not show on its face that such constitutional safeguards were not provided. Bembry, 46 Wash.App. at 291, 730 P.2d 115.

Here, the State argues that because the judgment and sentence is sufficient to prove the Oregon conviction, once it offered that document, Gimarelli could not submit additional documents to prove a constitutional infirmity. Gimarelli counters, and the trial court found,⁴ that the jury's verdict form is the most basic evidence of a conviction, and thus, he could rely upon it to show a constitutional infirmity.

The State's position is consistent with the purpose of not allowing a defendant to use a sentencing hearing to collaterally attack his or her prior convictions. See Ammons, 105 Wash.2d at 188, 713 P.2d 719. Moreover, in Ammons, the court refused to consider the jury instructions Ammons had submitted to prove his prior conviction was unconstitutional. Ammons, 105 Wash.2d at 189, 713 P.2d 719.

On the other hand, Gimarelli's argument also has merit in that verdict forms do seem to be the most basic evidence of a conviction.⁵ Moreover, the requirement is that the error appear on the face of the "conviction," not the face of the "judgment and sentence." See Ammons, 105 Wash.2d at 187-88, 713 P.2d 719.

Assuming, without deciding that the verdict form qualifies as the conviction, Gimarelli's argument still fails because the conviction is not repugnant to either the U.S. or Oregon Constitution—the only constitutions relevant when determining whether the sentencing court could consider Gimarelli's 1990 Oregon rape conviction.

The Constitutionality of the Oregon Conviction

Under the Full Faith and Credit Clause of the U.S. Constitution,⁶ a judgment from any other state is valid in Washington unless the foreign court lacked jurisdiction or the conviction is constitutionally invalid.⁷ State v. Berry, 141 Wash.2d 121, 127-28, 5 P.3d 658 (2000).

To be constitutionally invalid, the conviction must be invalid under either the U.S. Constitution or the constitution of the state where the conviction was entered. See State v. Morley, 134 Wash.2d 588, 619, 952 P.2d 167 (1998); State v. Johnston, 17 Wash. App. 486, 498, 564 P.2d 1159, review denied, 89 Wash.2d 1007 (1977). Cf. State v. Herzog, 48 Wash.App. 831, 834, 740 P.2d 380 (1987). It is of no consequence that the judgment could not be sustained here in Washington. Lee v. Ferryman, 88 Wash. App. 613, 620, 945 P.2d 1159 (1997) (citing Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365 (1928)), review denied, 135 Wash.2d 1006, 959 P.2d 125 (1998).

In Morley, the defendant challenged the prosecution's ability to use his court-martial conviction as a strike by alleging that the military did not provide various constitutional protections, including a requirement for a unanimous verdict. The Morley court first held that all foreign convictions do not have to be obtained under a procedural system identical to Washington's because it would be "absolutely unworkable" if sentencing courts had to compare every aspect of each foreign jurisdiction before counting the convictions in defendants' criminal histories. Morley, 134 Wash.2d at 596,952 P.2d 167. The court then noted that because Morley had requested a bench trial at his court-martial, it was irrelevant that the military did not require a unanimous verdict. Morley, 134 Wash.2d at 615,952 P.2d 167. Nevertheless, the court went on to hold that "[i]f a court-martial complies with federal constitutional protections, nothing prevents a sentencing court from counting the court [-] martial as a prior conviction for purposes of sentencing." Morley, 134 Wash.2d at 619,952 P.2d 167.

Similarly, in Johnston, the defendant challenged the sentencing court's ability to use a prior California conviction. The court rejected this contention because the defendant failed to cite any authority that proved the...