State of Washington v. Christopher John Blair ( 2016 )

FILED
DECEMBER 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33911-4-111
Respondent, )
)
v. )
)
CHRISTOPHER JOHN BLAIR, ) UNPUBLISHED OPINION
)
Appellant. )
)
RA WNE LEE CLINGER )
)
Defendant. )
KORSMO, J. - Christopher Blair challenges the use of two prior convictions in
calculating his offender score, arguing that they are facially invalid. We disagree with
that argument and affirm.
FACTS
Mr. Blair was charged with taking a motor vehicle (TMV) resulting from the theft
of a truck from a dealership lot in 2011. He entered into a drug court program, but
absconded from treatment, was terminated from the program, and then was convicted of
the TMV charge at a stipulated bench trial after he was recaptured in 2015. The matter
then proceeded to sentencing.
Although the parties agreed in writing that defendant's prior convictions existed
and counted in the offender score calculation, the defense made inconsistent arguments
No. 33911-4-III
State v. Blair
concerning the offender score. The defense did agree that the prior offenses counted at
least 7 points, and also agreed with the State's calculation that the offender score was 9. 1
The defense, nonetheless, argued that two prior 2011 TMV convictions, which all parties
agreed were to be treated as same criminal conduct with each other and an accompanying
second degree burglary conviction, were facially invalid because the stolen vehicles had
been snowmobiles. On that basis, the defense sought an exceptional sentence that would
fall within the range for an offender score of7 (17-22 months). The defense did not ask
the court to find that the offender score actually was 7 or argue that the range of 17-22
months applied to this sentencing.
The court declined to impose an exceptional sentence. It also declined to address
the facial validity argument, concluding that the defense was asking it to not just look at
the prior TMV plea documents, but to make a legal determination that one of the
elements of those offenses was missing. However, the court did accede to the joint
request of the parties that a drug offender sentencing alternative (DOSA) be imposed and
ordered a DOSA sentence of 25 months.
Mr. Blair then appealed to this court.
1
The difference between the two calculations turned on whether the 2011 TMV
convictions were valid or not. Because prior TMV convictions count as three points
when sentencing a current TMV conviction, one of the TMV counts would add three
points to the offender score, while the burglary count would add only one point.
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No. 33911-4-111
State v. Blair
ANALYSIS
The sole issue presented by this appeal is a contention that the two prior 2011
TMV convictions for stealing snowmobiles were facially invalid, requiring that Mr. Blair
be resentenced with an offender score of 7. We agree with the trial court that those
convictions were not, on their face, invalid.
This case sits in an extremely peculiar procedural posture. Mr. Blair agreed with
and did not directly challenge the offender score calculation, but instead sought an
exceptional sentence based on an alleged error in calculating the offender score. A trial
court's denial of an exceptional sentence cannot be challenged on appeal unless the trial
court failed to follow a mandatory process. State v. Mail, 121 Wash. 2d 707, 712, 854 P.2d
1042 (1993). Viewed as an unsuccessful exceptional sentence request, Mr. Blair's appeal
would necessarily fail. Similarly, his counsel expressly argued the two offenses were
facially invalid, acknowledged that would result in an offender score of 7 with a range of
17-22 months, but did not ask for sentencing within that range for that reason, even
though that is the request he is making now. In light of the strictures of RAP 2.5, which
acknowledges that arguments not presented to the trial court generally will not be
considered on appeal, it is arguable that the defense has waived this argument. Against
that stricture is the common law "sentencing error" exception to RAP 2.5(a) recognized
in State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015), and State v. Ford, 137 Wash. 2d
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State v. Blair
472, 973 P.2d 452 (1999). While the contours of that exception are rather vague, it might
apply to this circumstance.
In light of the fact that the defendant made the specific argument to the trial court
that he makes here, albeit in the form of requesting an exceptional sentence, we conclude
that we can consider the argument in this appeal. Nonetheless, we conclude that his
claim does not establish facial invalidity.
The seminal case upholding the Sentencing Reform Act and its use of prior
convictions to establish sentencing ranges is State v. Ammons, 105 Wash. 2d 175, 713 P.2d
719, 718 P .2d 796 ( 1986). The Ammons court expressly declared that the State had no
affirmative burden of proving that prior convictions were constitutionally valid. Id. at
187. "However, a prior conviction which has been previously determined to have been
unconstitutionally obtained or which is constitutionally invalid on its face may not be
considered." Id. at 187-188. The court then elaborated on the meaning of"invalid on its
face" by addressing challenges presented by the defendants. 2 One defendant challenged a
prior guilty plea by arguing that the plea statement form suffered from various
deficiencies. The court determined that the validity of the issues could not be made from
the face of the guilty plea form. Id. at 189 . Another defendant challenged jury
2
The court has also had to determine the meaning of a judgment "valid on its
face" in the context of interpreting RCW 10.73.090(1). E.g., In re Pers. Restraint of
Stoudmire, 141 Wash. 2d 342, 353-354, 5 P.3d 1240 (2000).
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State v. Blair
instructions used in a prior trial. The court again declared that the claim "cannot be
determined facially" because it would require the trial court "to go behind the verdict and
sentence and judgment to make such a determination." Id.
Ammons indicates that documents associated with a guilty plea can be considered
in determining facial validity. Although Mr. Blair has submitted the information filed
against him in the 2011 TMV cases, he has not provided a plea statement form, so we do
not know what facts were established in that proceeding. Assuming, however, that the
guilty plea was to the offense as charged in that information and that Mr. Blair was
convicted of TMV for taking two snowmobiles, he still has not established that those
convictions are invalid on their face.
As the trial court observed, whether the TMV statute applies to snowmobiles
would require more than a simple look at the judgment and sentence and associated
documents. It would require construing a statute; no prior case law has been cited to us
suggesting that the statute does or does not apply to snowmobiles. 3 The prior conviction
does not, "on its face," display constitutional infirmity. Determining whether the
3 A recent decision from this court holds that the TMV statute does not apply to
riding lawn mowers, even though they fall within the definition of "motor vehicle" used
in this state. State v. Barnes, No. 33811-8-III (Wash. Ct. App. Oct. 6, 2016),
http://www.courts.wa.gov/opinions/pdf/338118_pub.pdf. We do not opine whether or
not a snowmobile would be similarly treated since the issue is not actually presented in
this action.
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No. 33911-4-III
State v. Blair
conviction is constitutionally invalid would require a more significant "elaboration" than
permitted by Ammons.
Appellant did not establish that his two prior TMV convictions were invalid on
their face.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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