State v. Thiefault, No. 53214-6-I (WA 8/1/2005)

• Decision Date: 01 August 2005
• Docket Number: No. 53214-6-I,53214-6-I
• Court: Washington Supreme Court
• Parties: STATE OF WASHINGTON Respondent, v. GAYLON LEE THIEFAULT, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON Respondent, v. GAYLON LEE THIEFAULT, Appellant.

No. 53214-6-I

Court of Appeals of Washington, Division One.

Filed: August 1, 2005

Appeal from Superior Court of Snohomish County. Docket No: 01-1-00167-6. Judgment or order under review. Date filed: 10/01/2003. Judge signing: Hon. Ronald X Castleberry.

Counsel for Appellant/Cross-Respondent, Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.

Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Gaylo Thiefault — Doc #933111 (Appearing Pro Se), Clallam Bay Corrections Center, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.

Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.

APPELWICK, J.

Gaylon Thiefault contests the life sentence he received under the Persistent Offender Accountability Act (POAA). After his conviction for attempted second degree rape, the sentencing court determined that Thiefault's prior Montana attempted robbery conviction and prior federal aggravated sexual assault conviction were comparable to Washington `strike' crimes and that the convictions counted as `strikes' for the purposes of the POAA. Thiefault's counsel did not object to the comparability analysis. Thiefault claims that his prior convictions were facially invalid because they did not indicate representation by and presence of counsel. Thiefault also claims that his attorney provided ineffective assistance because he waived objection to the court's finding that the prior convictions were comparable. We remand for correction of two scrivener's errors and affirm on all other claims.

FACTS

Gaylon Thiefault was convicted of indecent liberties with forcible compulsion and attempted second degree rape. At sentencing, the State noted that Thiefault had a prior Montana attempted robbery conviction and a prior federal aggravated sexual assault conviction. The State asked the court to compare those prior convictions with Washington crimes and find that they were `strikes.' The State asked that the court classify Thiefault as a persistent offender under both the two-strikes law and the three-strikes law, and sentence him to life imprisonment. Thiefault's counsel waived objection to this classification, stating that she did not believe the court had any discretion as to the sentence.

The sentencing court found that Thiefault's prior Montana conviction was comparable to the Washington offense of attempted second degree robbery. The court also found that the federal conviction was comparable to the Washington offense of second degree rape. The court found that Thiefault was a persistent offender under both the two-strikes law and the three-strikes law, and sentenced him to life in prison without the possibility of parole.

Thiefault appealed to this court on several grounds. State v. Thiefault, noted at 116 Wn. App. 1059, 2003 WL 21001019 (2003). He claimed that his convictions for indecent liberties and attempted second degree rape violated double jeopardy. Thiefault, 2003 WL 21001019 at *1. He also claimed that his federal conviction could not be counted under the two-strikes law. Thiefault, 2003 WL 21001019 at *4. We agreed with Thiefault on both counts,¹ dismissed the indecent liberties conviction, and remanded for re-sentencing. Thiefault, 2003 WL 21001019 at *3-*4.

At re-sentencing, Thiefault was represented by a different attorney, who waived objection to the comparability of the prior offenses because he understood the issue had already been determined. Instead, Thiefault's attorney contested the facial validity of the prior convictions. The court rejected this argument. The court incorporated its comparability findings from the prior sentencing hearing and found Thiefault to be a persistent offender. Thiefault was sentenced to life in prison with no possibility of parole under the three-strikes law. Thiefault appeals.

ANALYSIS

I. Facial Validity of Thiefault's Prior Convictions

Thiefault asserts that the documentation offered to prove his prior two convictions indicates neither the presence of his attorney nor Thiefault's waiver of counsel. Thus, Thiefault claims, his prior convictions are facially invalid, and his life sentence under the Persistent Offender Accountability Act (POAA) must be reversed.²

The State does not have the burden to prove the constitutional validity of a prior conviction before it can be used in sentencing. State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986). But a prior conviction that is constitutionally invalid on its face may not be considered. Ammons, 105 Wn.2d at 187-88. `Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.' Ammons, 105 Wn.2d at 188. The conviction must affirmatively show that the defendant's rights were violated. State v. Gimarelli, 105 Wn. App. 370, 375, 20 P.3d 430 (2001).

Thiefault's Montana attempted robbery conviction is not constitutionally invalid on its face. The judgment from that conviction contains the following relevant passages:

The Defendant was arraigned on the 14th day of March, 1984 . . . .

The Defendant was thereafter represented by Charles H. Recht and on the 14th day of March, 1984, entered a plea of guilty to the above criminal charge.

The Defendant appeared on the 5th day of April, 1984, and was asked if he had any legal cause to show why sentence and judgment of the Court should not be imposed at that time, and the Defendant replied in the negative.

The court then imposed its judgment and sentence. Thiefault argues that because the document does not state that defense counsel appeared at sentencing, only that Thiefault did, the conviction is facially invalid. However, the judgment states that Thiefault was `thereafter' represented by counsel. The implication of this statement is that counsel represented Thiefault at all of the following crucial points in the 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 states that he is represented by his attorney, Michael Nance. The judgment lists Michael Nance as Thiefault's attorney. Although Thiefault concedes that the plea agreement shows he was represented, he argues that the judgment fails to show his counsel was present. However, the judgment does not indicate on its face that Thiefault's counsel was not present. Indeed, the fact that Michael Nance represented Thiefault for the plea agreement and that Nance's name is listed on the judgment indicates Nance was present at the crucial stages in the proceedings. Thiefault has not shown that his prior convictions were facially invalid.

To support his argument, Thiefault cites the cases of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), and State v. Marsh, 47 Wn. App. 291, 734 P.2d 545 (1987). Thiefault claims that these two cases establish that convictions that fail to show representation and presence of counsel are facially invalid.

Burgett is distinguishable. The State had introduced two versions of the same prior conviction. One stated that the defendant had appeared `in proper person and without Counsel,' and one stated that the defendant had appeared `in proper person.' Burgett, 389 U.S. at 112. The trial court excluded the first version of the conviction, but allowed the second version. Burgett, 389 U.S. at 112-13. The Court held: `the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible.' Burgett, 389 U.S. at 114-15. In Burgett, evidence affirmatively indicated that counsel had not been present; here, both the Montana and federal conviction documents imply that counsel was present, and there is no affirmative evidence to contradict this implication. Thus, Burgett is factually distinguishable.

Marsh is similarly distinguishable. The judgments and sentences offered to establish the defendant's prior convictions `indicated neither the presence of an attorney representing Marsh nor his waiver of counsel.' Marsh, 47 Wn. App. at 292. The court cited Burgett and found that, because the convictions did not reflect representation or waiver, they were deficient on their face. Marsh, 47 Wn. App. at 294. But the convictions at issue here do indicate that Thiefault was represented by counsel, as Thiefault's attorney was named on both judgments. Thus, Thiefault has not shown that his prior convictions are facially invalid.

II. Due Process Challenge

Thiefault argues that both the United States and Washington Constitutions require that the prosecution prove to a jury beyond a reasonable doubt that he is a persistent offender. Because he was found to be a persistent offender only by a preponderance of the evidence and through a judicial hearing, Thiefault claims his rights were violated. Specifically, Thiefault argues that both federal and Washington cases require that any fact that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt.

`Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes redeciding the same legal issues in a subsequent appeal.' Folsom v. County of...