State v. Hickok

• Decision Date: 28 January 1985
• Docket Number: No. 13798-1-I,13798-1-I
• Parties: STATE of Washington, Respondent, v. Kevin Charles HICKOK, Appellant.
• Court: Washington Court of Appeals

Page 664

39 Wn.App. 664

695 P.2d 136

STATE of Washington, Respondent, v. Kevin Charles HICKOK, Appellant.

No. 13798-1-I.

Court of Appeals of Washington Division 1.

Jan. 28, 1985.

Dori Jones, Washington Appellate Defender Assn., Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., David W. Merrell, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

Kevin Charles Hickok appeals the superior court judgment finding him guilty of willful failure to return to a work release facility in violation of RCW 72.65.070. He challenges the use in such prosecution of his prior conviction based upon a guilty plea whose constitutional validity was not determined before the nonjury trial. We affirm.

The defendant was placed on probation after pleading guilty to first-degree theft in 1979. When his probation was subsequently revoked, he was placed in the Madison Inn Work Release Facility where on March 17, 1983 he was given a temporary pass to apply for a job. He never returned to the facility and was later arrested in California and returned to Washington.

The defendant's pretrial motion to determine the validity of his prior guilty plea was denied. The basis for the trial court's denial was that RCW 72.65.070, which deems a prisoner willfully failing to return to a work release facility to be an escapee, does not require the State to prove the validity of a guilty plea when it is challenged by the defendant prior to trial. The defendant was found guilty of violating RCW 72.65.070 and sentenced accordingly.

The issue is whether in a prosecution for willful failure to return to a work release facility in violation of RCW 72.65.070, the constitutional validity of the guilty plea on which the prior conviction was based must be established when challenged by the defendant. The sub-issues are (1) whether a prior felony conviction is an element of the offense of willful failure to return to a work release facility; and (2) if so, whether when challenged by the defendant, a prior conviction based upon a guilty plea must be proven to be constitutionally valid before it can be used in the subsequent prosecution for willful failure to return to a work release facility.

Where a prior conviction based upon a guilty plea is an element of the crime charged in a subsequent prosecution, in certain cases the prior conviction's constitutionality may be challenged to attack the subsequent prosecution. See, e.g., State v. Holsworth, 93 Wash.2d 148, 160, 607 P.2d 845 (1980).

A prior criminal conviction has been held to be an element of the habitual criminal status, State v. Kelly, 52 Wash.2d 676, 678, 328 P.2d 362 (1958); of firearm possession by a felon, In re Pettus v. Cranor, 41 Wash.2d 567, 568, 250 P.2d 542 (1952), cert. denied, 345 U.S. 967, 73 S.Ct. 954, 97 L.Ed. 1385 (1953); and of first-degree escape, State v. Brown, 29 Wash.App. 1, 5, 627 P.2d 142, review denied, 96 Wash.2d 1012 (1981).

The Washington habitual criminal statute states that every person convicted in this state of any crime set forth therein, who "shall previously have been convicted" of a felony or twice convicted of certain crimes, shall be adjudged to be a habitual criminal. RCW 9.92.090. The former firearms statute ¹ proscribed the ownership or possession of a firearm by a person previously "convicted ... of a crime of violence." RCW 9.41.040. The first-degree escape statute applies to the escape from custody or a detention facility of a person "detained pursuant to a conviction of a felony or an equivalent juvenile offense." RCW 9A.76.110(1).

The willful failure to return to a work release facility statute states in part:

Any prisoner approved for placement under a work release plan who wilfully fails to return to the designated place of confinement at the time specified shall be deemed an escapee and fugitive from justice, and upon conviction shall be guilty of a felony and sentenced in accordance with the terms of chapter 9.31 RCW.

(Footnote omitted.) RCW 72.65.070. Thus being a "prisoner" is an element of the offense. Further, a "prisoner" is defined in RCW 72.65.010(4) as a person "convicted of a felony and sentenced by the superior court to a term of confinement and treatment in a state correctional institution."

The State argues that it need only prove the defendant's status as a prisoner, i.e., the common definition of a "prisoner" as a "person held under arrest or in prison," Webster's Third New International Dictionary 1804 (1976). However, legislative definitions generally control in construing statutes in which they appear. Seattle v. Shepherd, 93 Wash.2d 861, 866, 613 P.2d 1158 (1980). Further, statutory definitions are integral to the statutory scheme and of the highest value in determining legislative intent. State v. Taylor, 30 Wash.App. 89, 95, 632 P.2d 892 (1981). Thus here rather than its common definition, the statutory definition of a prisoner as one convicted of a felony controls. By comparison with the language of the habitual criminal, former firearm, and first-degree escape statutes, the language of RCW 72.65.070, incorporating RCW 72.65.010(4), requires proof of a prior felony conviction as an element of the offense of willful failure to return to a work release facility.

The next question is whether the State must prove the constitutional validity of a prior conviction based upon a guilty plea that is challenged by the defendant to sustain a conviction for willful failure to return to a work release facility. In a habitual criminal proceeding, Holsworth, supra 93 Wash.2d at 160, 607 P.2d 845, and in a prosecution under the former firearms statute, State v. Swindell, 93 Wash.2d 192, 197, 607 P.2d 852 (1980) the Washington Supreme Court has held that the State must prove the constitutional validity of a challenged underlying guilty plea beyond a reasonable doubt. ² The Holsworth court, supra 93 Wash.2d at 155-57, 607 P.2d 845, stated that a defendant's due process rights are violated anew if a constitutionally defective guilty plea under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is used in a habitual criminal proceeding.

A disagreement exists within the Washington Court of Appeals as to the necessity for a prior conviction based upon a guilty plea to be constitutionally valid in order for it to be used in a first-degree escape prosecution. Division 1 has held that in a first-degree escape prosecution, the State has the burden to prove beyond a reasonable doubt a challenged prior guilty plea's validity before trial. ³ Brown, supra 29 Wash.App. at 3-5, 627 P.2d 142; accord, State v. Thompson, 35 Wash.App. 766, 772, 669 P.2d 1270 (1983). The Brown court based its holding on Holsworth, supra, and Swindell, supra; the Thompson court cited Brown as authority.

Division 3, however, has held that in a first-degree escape prosecution, even where the defendant challenged the constitutional validity of the guilty pleas upon which his prior convictions were based, the convictions were valid to prove an element of the offense as long as they had not been set aside. Thus although vulnerable to a collateral attack, the prior convictions based upon guilty pleas could be used in a first-degree escape prosecution. State v. Gonzales, 37 Wash.App. 251, 253-54, 680 P.2d 63, review granted, 101 Wash.2d 1020 (1984). ⁴ The Gonzales court noted that this approach appeared to be the majority rule. Gonzales, 37 Wash.App. at 254, 680 P.2d 63. In reaching its decision the Gonzales court relied upon Judge Scholfield's dissenting opinion in State v. Thompson, supra 35 Wash.App. at 774, 669 P.2d 1270. ⁵

Based upon the Holsworth and Swindell line of cases, the defendant argues that because RCW 72.65 defines a prisoner as one convicted of a felony, in the prosecution of a prisoner for willfully failing to return to a work release facility, the State must prove beyond a reasonable doubt the validity of the guilty plea underlying the felony conviction. RCW 72.65.070, the willful failure to return to a work release facility statute, has not been interpreted in the context of a challenge to the use of a prior conviction based upon an allegedly invalid guilty plea. Thus no court has previously confronted the question as to whether the word "convicted" in the definition of "prisoner," RCW 72.65.010(4), which is incorporated into RCW 72.65.070, refers to a proven constitutionally valid conviction based upon a guilty plea or any conviction based upon a guilty plea, though vulnerable to a collateral attack.

First, an element of the offense that the State must prove beyond a reasonable doubt is merely a prior conviction, not the constitutional validity of the conviction. See State v. Kelly, supra; In re Pettus v. Cranor, supra; Brown, supra 29 Wash.App. at 6, 627 P.2d 142. Under Holsworth, supra 93 Wash.2d at 160, 607 P.2d 845, and Swindell, supra 93 Wash.2d at 197, 607 P.2d 852, it is only after the defendant has raised the issue that the State has the burden of proving an underlying guilty plea's constitutional validity beyond a reasonable doubt in order to use the prior conviction in the subsequent prosecution. ⁶ Moreover, Holsworth, supra, and Swindell, supra, dealt with a challenge to the present use of a prior conviction in a subsequent prosecution, not a collateral attack on the prior conviction to invalidate the earlier conviction. Holsworth, supra 93 Wash.2d at 152, 159-60, 607 P.2d 845; Swindell, supra 93 Wash.2d at 196, 607 P.2d 852.

Prior invalid convictions cannot be used to enhance punishment for another offense. See, e.g., Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967); Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir.1972); Murgia v. United States, 448 F.2d 1275, 1276 (9th Cir.1971). The use of a prior unconstitutional conviction in such a subsequent prosecution "renews" the original constitutional violation. Burgett, supra; Holsworth, supra 93 Wash.2d at...