FILED JUNE 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33215-2-111 Appellant, ) ) V, ) ) ROBERT RUSSELL ELLISON, ) UNPUBLISHED OPINION ) Respondent. )
FEARING, C.J. -Robert Ellison pied guilty to sexual crimes committed at the
earliest age of eleven. Neither a capacity hearing nor a finding of capacity to commit a
crime preceded the conviction for the crimes. We address a question raised in other
contexts but nonetheless a novel issue in our setting: whether Ellison's convictions can
serve as predicate crimes for the crime of failure to register as a sex offender, despite the
lack of a capacity hearing or finding? The trial court answered in the negative and
dismissed the charge of failing to register. Because of the critical importance of
conducting a capacity hearing before adjudging a child guilty of a crime and because of No. 33215-2-111 State v. Ellison
due process concerns over convicting one incapable of committing a crime, we agree
with the trial court. We affirm dismissal of the charge of felony failing to register. This
affirmation does not relieve Ellison from the obligation to register.
FACTS
Robert Ellison was born on July 1, 1982. Between July 1, 1993 and May 25,
1995, Ellison allegedly raped two boys each who were eight years old. Ellison denies
uttering any threats or using force on the victims. Ellison and the two boys lived in the
same foster home. We lack precise dates for the alleged rapes, but the sexual contact
may have occurred on many occasions.
On June 22, 1995, the State of Washington charged Robert Ellison with two
counts of rape of a child in the first degree with the crimes occurring between July 1,
1993 and May 25, 1995. Ellison was eleven years old at the beginning of the charging
period. On August 3, 1995, Robert Ellison, at age thirteen, pled guilty to two counts of
first degree child rape.
The record does not show that the juvenile court, during the 1995 prosecution,
performed a capacity hearing or made a determination of Robert Ellison's understanding
of the wrongfulness of the criminal acts. The juvenile court found Ellison guilty and
sentenced him to forty-two to fifty-six weeks in confinement and to register as a sex
offender. In the statement of juvenile on plea of guilty, Ellison wrote that the crimes
occurred "on or about between [sic] July 1, 1993 and May 25, 1995." Clerk's Papers
2 No. 33215-2-III State v. Ellison
(CP) at 28. The court entered no finding that Ellison engaged in a continuing course of
criminal conduct.
On December 17, 1999, the State of Washington charged Robert Ellison with
another crime, felony communication with a minor for immoral purposes on October 21,
1999. Ellison, at age seventeen, kissed an eleven-year-old girl and fondled her buttocks.
The 1999 information alleged that Ellison had been previously convicted of felony rape
of a child in the first degree. The previous felony rape convictions were critical to
convicting Ellison of felony communication with a minor. Without a prior felony
conviction, the State could convict Ellison only of gross misdemeanor communication
with a minor. Ellison pled guilty to the felony charge of communication on December
23, 1999.
A state statute required that Robert Ellison register as a sex offender as a result of
any of the three convictions. He thereafter repeatedly violated this requirement. The
State of Washington serially convicted Robert Ellison for failure to register as a sex
offender on November 6, 2001, May 22, 2002, July 11, 2003, February 18, 2005, October
2, 2007, January 20, 2009, and January 11, 2011. Also, on January 11, 2011, Ellison was
convicted of escape from community custody. The latter convictions landed Ellison at
the Airway Heights Corrections Center.
On September 29, 2013, the Airway Heights Corrections Center released Robert
Ellison into community custody. Upon his release, Ellison listed his address as 327 1/2
3 No. 33215-2-111 State v. Ellison
W. Second Street, Spokane. The next day, Ellison visited his community custody
supervisor, Ginger Burk. The Department of Corrections then placed a global positioning
system (GPS) monitor on Ellison's person. Despite several attempts in the following
week to contact Ellison at the Second Street address and other locations, Burk could not
thereafter locate Ellison. The GPS signal failed. Ellison failed to register his new
address with the county sheriff within the required three days of release from
incarceration.
PROCEDURE
The State of Washington charged Robert Ellison with felony failure to register as a
sex offender in violation ofRCW 9A.44.132 and escape from community custody in
violation ofRCW 72.09.310. Ellison pied guilty to the escape from community custody
charge.
Failure to register can also constitute a gross misdemeanor, but the State has
elected not to charge Ellison with a gross misdemeanor. This election bears importance
to this appeal and complicates, if not confuses, our analysis. To sustain a prosecution for
felony failure to register as a sex offender, the State must show a predicate felony led to
the requirement of registration.
Robert Ellison moved to dismiss the felony failure to register as a sex offender
charge. He argued that he had no duty to register as a sex offender because his 1995
convictions were void predicate sex offenses since a finding of his capacity to commit the
4 I No. 33215-2-111 State v. Ellison
crimes did not precede the convictions. He further argued that his 1999 conviction could
not serve as the predicate crime for felony failure to register because the State relied on
his 1995 felony convictions to convict him in 1999 for felony communication with a
mmor. The trial court agreed and dismissed the charge. The State appeals.
LAW AND ANALYSIS
The State of Washington assigns error to the trial court's dismissal of the felony
failure to register as a sex offender charge. A trial court may grant pretrial dismissal of a
criminal charge under CrR 8.3(c) for insufficient evidence when no reasonable trier of
fact could find beyond a reasonable doubt the essential elements of the crime. State v.
Knapstad, 107 Wn.2d 346, 349, 729 P.2d 48 (1986). The trial court must decide, viewing
facts in the light most favorable to the State, whether the facts establish a prima facie case
of guilt. Knapstad, 107 Wn.2d at 357; State v. Groom, 133 Wn.2d 679,684,947 P.2d
240 (1997). We conduct a de novo review of a trial court's decision to dismiss and again
view the facts and inferences in the light most favorable to the State. State v. Newcomb,
160 Wn. App. 184, 188-89, 246 P.3d 1286 (2011).
The parties on appeal do not dispute the important facts. The appeal poses only
questions oflaw.
Child Capacity Hearing
The trial court's dismissal of the charge of felony failure to register as a sex
offender must be reversed if either the 1995 convictions for felony first degree child rape
5 No. 33215-2-111 State v. Ellison
or the 1999 felony conviction for communication with a minor for immoral purposes
suffice as predicate crimes for failure to register. We first address the validity of the
1995 convictions. Their legitimacy requires a discussion of a child's capacity to commit
a crime and the repercussions of a court's failure to determine a young child's capacity to
commit a crime before a conviction. Assuming we conclude the 1995 convictions to be
erroneous, we later decide the ramifications of the defects in those convictions for
purposes of the current charge of failure to register as a sex offender.
The State balks to the use of the term "invalidate" in the context of the propriety of
the 1995 and 1999 convictions. The State notes that Robert Ellison does not attack any
of the three convictions by direct appeal or by a personal restraint petition. Ellison
instead limits his attack on the convictions to exploitation of the convictions as predicate
crimes for purpose of the felony charge of failure to register as a sex offender.
Regardless of the outcome of this appeal, the three convictions remain effective unless or
until Ellison later seeks to vacate the judgments of conviction. While we recognize the
State's concern with loose use of the word "invalidate," we will often use such word or
related terms, but only in connection with determining whether the convictions are valid
as predicate crimes for felony failure to register as a sex offender. Case law also employs
such terminology.
Robert Ellison was age eleven and twelve during the charging period for rape of a
mmor. The State believes that Ellison engaged in more than two acts of rape, but the
6 No. 33215-2-III State v. Ellison
State only alleged two acts, and the court convicted Ellison of only two acts. We do not
know the dates of the two rapes, for which the court convicted Ellison. To give Robert
Ellison the benefit of the doubt, we assume that all acts occurred when Ellison was age
eleven. Thus, we assume that the trial court should have conducted, but failed to
conduct, an infant capacity hearing before any of the two convictions. When nothing in
the trial court record suggests a capacity hearing, we may presume the proceeding did not
take place. State v. Golden, 112 Wn. App. 68, 80, 47 P.3d 587 (2002).
RCW 9A.04.050 declares in part:
Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.
The statute codifies "the infancy defense." State v. Ramer, 151 Wn.2d 106, 114, 86 P.3d
132 (2004). The infancy defense shields from the criminal justice system those
individuals of tender years who are less capable than adults of appreciating the
wrongfulness of their behavior. State v. Ramer, 151 Wn.2d at 114; State v. Q.D., 102
Wn.2d 19, 23, 685 P.2d 557 (1984).
Sound reason lies behind excusing children from criminal culpability. The United
States Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d
1 (2005) addressed the issue of capital punishment for one under the age of eighteen, but
the Court's comments apply to prosecuting and punishing any minor. The Roper Court
7 No. 33215-2-III State v. Ellison
recognized that scientific and sociological studies confirm that children have an
underdeveloped sense of responsibility that often results in impetuous and ill-considered
actions and decisions. Roper, 543 U.S. at 569. Therefore, behavior of children is not as
morally reprehensible as criminal behavior of adults. State v. Ninham, 2009 WI App 64,
316 Wis. 2d 776, 781, 767 N.W.2d 326, aff'd, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d
451. In addition, according to Roper, children are more vulnerable or susceptible to
. negative influences and peer pressure. Roper, 543 U.S. at 569. The Court also
recognized that the character of a child is not as well formed as an adult and there is a
greater possibility that a minor's character deficiencies will be reformed. Roper, 543
U.S. at 570. We add that no state would allow an eleven-year-old to contract, work for
hire, drive a car, vote, drink alcohol, serve on a jury, marry, or join the military.
Under Washington law, in order to overcome the presumption of incapacity of one
under the age of twelve, the State must provide clear and convincing evidence that the
child had sufficient capacity to understand the act and to know that it was wrong. State v.
J.P.S., 135 Wn.2d 34, 38, 954 P.2d 894 (1998); State v. Q.D., 102 Wn.2d at 26. A
capacity determination is fact-specific and must be in reference to the specific act
charged. State v. J.P.S., 135 Wn.2d at 37. The focus is on whether the child appreciated
the quality of his or her acts at the time the act was committed, rather than whether the
child understood the legal consequences ofthe act. State v. T.E.H., 91 Wn. App. 908,
913, 960 P.2d 441 (1998).
8 No. 33215-2-111 State v. Ellison
Washington courts consider seven factors when determining capacity: (1) the
nature of the crime, (2) the child's age and maturity, (3) whether the child evidenced a
desire for secrecy, (4) whether the child told the victim, if any, not to tell, (5) prior
conduct similar to that charged, (6) any consequences that attached to that prior conduct,
and (7) whether the child had made an acknowledgment that the behavior is wrong and
could lead to detention. State v. Ramer, 151 Wn.2d at 114-15; State v. JP.S., 135 Wn.2d
at 38-39. When the State charges a juvenile with a sex crime, the State carries a greater
burden of proving capacity and must present a higher degree of proof that the child
understood the illegality of the act. State v. JP.S., 135 Wn.2d at 38. The court
determines capacity as of the date of the crime, not the date of the capacity hearing. State
v. JP.S., 135 Wn.2d at 37-38; State v. K.R.L., 67 Wn. App. 721, 725, 840 P.2d 210
(1992).
In Washington, a determination of capacity is required to confer general
jurisdiction to punish any child eight to eleven years of age for a crime. State v. Golden,
112 Wn. App. at 77 (2002). When a capacity or competency determination is required by
the statute creating jurisdiction, the failure to comply does not deprive the court of
jurisdiction over the subject matter or the person. State v. Gilman, 105 Wn. App. 366,
369, 19 P.3d 1116 (2001). Failure to conduct a hearing, however, deprives the court of
the authority to act. State v. Golden, 112 Wn. App. at 77 (2002). Until the juvenile
conducts a capacity hearing, the court lacks authority to do anything but dismiss the
9 No. 33215-2-III State v. Ellison
charge. State v. Golden, 112 Wn. App. at 77. In State v. Golden, this court affirmed the
juvenile court's grant of the defendant's motion to withdraw a guilty plea because of the
absence of a record of a capacity hearing preceding the plea.
Although the statute creating a presumption of incapacity became effective in
1975, an amendment to JuCr 7.6, adopted in 1997, first expressly required a juvenile
court to conduct a capacity hearing. Compare JuCr 7.6 (1997) with JuCr 7.6 (1998).
Thus, the 1995 juvenile court was not required by court rule to hold a separate capacity
hearing. We still hold the 1995 conviction invalid. RCW 9A.04.050 was in effect in
1995, and the 1995 court entered no finding of capacity to rebut the presumption of
incapacity. Courts conducted some form of hearing to determine juvenile capacity even
before the 1997 rule amendment. State v. Q.D., l 02 Wn.2d 19 (1984 ), State v. Golden,
112 Wn. App. 68 (2002), and State v. K.R.L., 67 Wn. App. 721 (1992), all involve
juvenile convictions before the amendment to JuCr 7 .6.
The State emphasizes that it charged Robert Ellison with crimes occurring
between July 1, 1993 and May 25, 1995. Robert Ellison reached the age of twelve by the
end of the charging period. The State, therefore, argues that we should consider Ellison
to be age twelve for purposes of the charges of rape of a child. We reject this argument
because the State provided no proof, either during the 1995 prosecution or in this later
prosecution, of any misconduct after the age of eleven. The State forwards no decision
directly on point supporting the argument.
10 No. 33215-2-111 State v. Ellison
In support of its argument, the State cites In re Personal Restraint of Crabtree,
141 Wn.2d 577,585, 9 P.3d 814 (2000), wherein the court allowed application of a new
statute to acts performed both before and after the effectiveness of the new statute. The
defendant conceded that some of his misconduct occurred after the effectiveness of the
statute. We do not consider Crabtree relevant, since our appeal does not concern the
application of a new statute. In the plea statement, Robert Ellison wrote that the crimes
occurred "on or about between [sic]" July 1, 1993 and May 25, 1995. CP at 28. The
awkward language written by Ellison presages a lack of understanding. Ellison did not
expressly state that a crime occurred after he turned twelve on July 1, 1994. The trial
court made no finding of the dates of the crimes. The trial court did not rule that Ellison
engaged in a continuous course of conduct. Since all of the misconduct could have
occurred at age eleven, the State should have conducted a capacity hearing, shown some
of the conduct occurred at age twelve, or amended the information to contain a charging
period only after Ellison reached age twelve.
Failure to Register as a Sex Offender
We move to the question of what effect the lack of a capacity hearing, during the
1995 prosecution, poses to the recent felony charge for failing to register as a sex
offender. We first outline the law of registration.
Under RCW 9A.44.132:
A person commits the crime of failure to register as a sex offender if
11 No. 33215-2-111 State v. Ellison
the person has a duty to register under RCW 9A.44.130 for a felony sex offense and knowingly fails to comply with any of the requirements of RCW 9A.44.130.
Under RCW 9A.44.130(l)(a), any person residing in this state
who has been found to have committed or has been convicted of any sex offense ... shall register with the county sheriff for the county of the person's residence.
(Emphasis added.) Conviction for a sex offense in Washington is an essential element of
the crime of failure to register as a sex offender. See State v. Werneth, 147 Wn. App.
549, 555, 197 P.3d 1195 (2008); State v. Taylor, 162 Wn. App. 791,796,259 P.3d 289
(2011).
Robert Ellison's 1995 rape of a child meets the sex offense element of the failure
to register as a sex offender charge. Rape of child in the first degree is a class A felony in
violation ofRCW 9A.44.073. As a felony in violation of chapter 9A.44 RCW, a rape of
a child conviction is a "sex offense" mandating an offender's registration under RCW
9A.44.130. RCW 9.94A.030(46)(a)(i); RCW 9A.44.128(10)(a); RCW 9A.44.132.
Use of 1995 Convictions as Predicate Crimes for Failure to Register
We previously concluded that the 1995 trial court erroneously convicted Robert
Ellison because of the lack of a child capacity hearing. Still we recognize the convictions
have never been vacated. On record, Robert Ellison still stands "convicted" of sex
crimes. RCW 9A.44.130(l)(a) demands registration of anyone "found to have committed
or has been convicted of any sex offense." Robert Ellison does not directly or collaterally
12 No. 33215-2-III State v. Ellison
attack the convictions in this proceeding. The State contends that Ellison must first
vacate the convictions before avoiding the obligation to register as a sex offender.
The State of Washington also contends that it need only show facial validity of the
1995 convictions, and it fulfills this showing. Under the State's argument, any failure to
conduct a capacity hearing is unimportant. The State also contends that, to attack the
validity of the underlying sexual offense, the accused must show constitutional invalidity
and Ellison does not challenge his 1995 conviction on constitutional grounds. Robert
Ellison maintains that the trial court correctly dismissed the charge because the State
could not prove beyond a reasonable doubt that his prior sex offense convictions were
valid.
Conviction of an earlier crime is sometimes an element of a later or second crime.
Some examples include the former habitual criminal offense, RCW 9.92.090, possession
of a firearm by one convicted of a serious crime, RCW 9.41.040, escape, RCW
9A.76.l 10, felony violation of a no-contact order, RCW 26.50.110(5), and Robert
Ellison's charge of failure to register as a sex offender, RCW 9A.44.132. The length of a
sentence or degree of punishment may also depend on one or more convictions of earlier
crimes. Finally, a previous conviction of a crime may be used to impeach an accused
testifying on his own behalf. In all these instances, the court must determine under what,
if any, circumstances the accused may attack the validity of the earlier conviction in order
to preclude its use in the current prosecution. The success of the attack can depend on the
13 No. 33215-2-111 State v. Ellison
nature of the pending or second charges and the nature of the alleged invalidity of the
first conviction.
No Washington case addresses the narrow issue of whether one charged with
failure to register as a sex offender may successfully attack the validity of the underlying
sex offense. Therefore, we review analogous Washington cases in chronological order in
order to divine principles and rationales to apply in our unique setting. We intersperse
United States Supreme Court decisions that also discuss the State's use of prior
convictions in a second criminal prosecution.
In Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), the
Supreme Court held that the State of Texas could not use four prior convictions to
prosecute a defendant under the Texas recidivism statute. The records of the earlier
convictions established that James Burgett lacked assistance of counsel contrary to the
Supreme Court's recent decision in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9
L. Ed. 2d 799 ( 1963 ). Despite Burgett failing to directly or collaterally attack the earlier
convictions, the Supreme Court characterized the convictions as "constitutionality
infirm" and "void." 389 U.S. at 114-15. The Court reasoned:
To permit a conviction obtained in violation of Gideon v. Wainwright [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)] to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.
14 No. 33215-2-111 State v. Ellison
Burgett, 389 U.S. at 115 (internal citations omitted).
In Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972), the
nation's high Court held that use for impeachment purposes of prior convictions, which
are void for failure to afford defendant his right to counsel, deprives a criminal defendant
of due process of law when the use of such prior convictions might influence the outcome
of the case. The earlier conviction was not an element of the crime charged, nor did the
government use the earlier conviction to increase punishment. The government sought
use of the conviction to support guilt. The high Court ruled that the rationale behind
Burgett v. Texas inevitably led to a prohibition of use of the earlier conviction for
impeachment. The absence of counsel impaired the reliability of such convictions just as
much when used to impeach as when used as direct proof of guilt. The State's use of the
prior conviction caused Otis Loper to suffer anew from his unconstitutional deprivation.
In United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972),
the Supreme Court remanded the case for resentencing. The trial judge, when imposing a
sentence for bank robbery, explicitly considered three previous felony convictions. Two
of the convictions were constitutionally invalid, having been obtained in violation of the
right to counsel. The Supreme Court suspected that the bank robbery sentence might
have been different if the sentencing judge had known that at least two of the previous
convictions had been unconstitutionally obtained. The Court reasoned that to allow use
of a constitutionally invalid conviction in sentencing would erode the teachings of
15 No. 33215-2-111 State v. Ellison
Gideon and Burgett.
In State v. Paul, 8 Wn. App. 666, 508 P.2d 1033 (1973), this court recognized the
rule that the use of prior convictions for the purpose of impeachment or enhancement of
punishment shall not be allowed unless it appears on the record that the defendant was
afforded counsel at the prior hearing or made a valid waiver of counsel. We refused to
apply the rule, however, because the defendant, during his direct examination, testified to
the earlier convictions.
In State v. Murray, 86 Wn.2d 165, 543 P.2d 332 (1975), the prosecution used John
Murray's prior conviction for grand larceny for the purpose of impeaching him when he
testified on his own behalf in the trial on charges of second degree assault. After the
conviction for second degree assault, the conviction for larceny was overturned on Fourth
Amendment grounds. On appeal of the assault charges, Murray argued that use of a
conviction later overturned was error. The State Supreme Court noted that Loper v. Beto
precluded use of a prior conviction, obtained in violation of the Sixth Amendment's right
to counsel, for impeachment purposes. The court refused to apply the holding of Loper
to proscribe the use of a prior conviction for impeachment purposes when the
constitutional invalidity was under the Fourth Amendment. The court reasoned that, on
the one hand, the right to counsel goes to the integrity of the fact-finding process. A
conviction in violation of the Sixth Amendment right renders the conviction inherently
unreliable. On the other hand, the Fourth Amendment seeks deterrence of illegal and
16 !j
No. 33215-2-111 State v. Ellison
improper police conduct and not the preservation of reliability in the fact-finding process.
Evidence seized in violation of the proscription against unreasonable searches and
seizures loses no probative value. The suppressed evidence would enhance the reliability
of any verdict.
In State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980), our State
Supreme Court addressed the circumstances under which an accused may challenge the
validity of an earlier conviction, and, on a challenge, which party holds the burden of
proving the validity or invalidity of the earli_er conviction. Holsworth was an appeal of
seven trial court decisions involving whether the accused was a habitual offender. Each
accused claimed the State could not rely on convictions of prior offenses on the ground
that the prior court never advised him of the nature of the offense or the nature and
consequences of pleading guilty before he pled guilty. After the respective guilty pleas,
the United States Supreme Court decided Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969), in which the Court held that the pleading defendant must
be apprised of the nature of the offense and the consequences of pleading guilty, in order
for the plea to be accepted as knowing, intelligent, and voluntary.
In State v. Holsworth, the accused were not challenging the pre-Boykin conviction
itself, so as to set aside the conviction, but only its use in the habitual criminal
proceeding. The State underscored that the Washington high court refused to apply
Boykin retroactively and thus the court should not allow the defendant to challenge the
17 No. 33215-2-III State v. Ellison
guilty plea retroactively in a later prosecution. The state high court asked: (1) whether
the defendant may attack the use of the earlier convictions, and (2), if so, who carries the
burden of proving the validity or invalidity of the guilty plea and prior conviction based
on the plea. The court held that the defendant in a habitual criminal proceeding can
attack the use of convictions based on pre-Boykin guilty pleas and the State has the
burden of proving that the prior conviction was based on a useable guilty plea. The court
reasoned that the attack in the habitual criminal proceeding was neither collateral nor
retroactive. The defendant instead challenged the present use of an infirm plea in a
present criminal proceeding. The prior convictions were elements of the habitual
criminal statute that the State must prove beyond a reasonable doubt.
In State v. Holsworth, the State sought to distinguish the United States Supreme
Court's Gideon/Burgett analysis. The State claimed the defendant's right to an intelligent
plea of guilty under Boykin paled compared to the right to counsel under Gideon. The
State highlighted that the right to counsel is expressly enumerated in the United States
Constitution. Our State Supreme Court rejected this distinction and considered the
Boykin right to be constitutionally based in the due process clause. The court repeated
the Burgett rationale that use of an earlier infirm conviction renewed the deprivation of
the defendant's constitutional rights.
In Lewis v. United States, 445 U.S. 55, 100 S. Ct. 915, 63 L. Ed. 2d 198 (1980),
the United States Supreme Court refused to follow Burgett v. Texas and held that, under
18 No. 33215-2-111 State v. Ellison
the federal firearms statute, the predicate felony conviction need not be constitutionally
valid. The federal statute prohibited a "convicted" person from possessing a gun. 18
U.S.C. app. § 1202(a)(l) (repealed 1986). The earlier conviction of George Lewis was
also flawed because of the lack of counsel. The court concluded that Congress' failure to
modify the word "convicted" meant that one could not possess a firearm regardless of the
invalidity of the conviction. The Supreme Court failed to observe, nonetheless, that
nearly, if not all, statutes creating a crime based on a predicate crime do not qualify the
term "convicted." A cynical reviewer might conclude that the refusal to follow Burgett
was the result of a change in the composition of the Court, not a reasoned distinction.
Three months after the State Supreme Court's decision in State v. Holsworth, the
same court decided State v. Swindell, 93 Wn.2d 192,197,607 P.2d 852 (1980). The
State charged Jimmie Swindell with the crime of possession of a pistol by one previously
convicted of a crime of violence. Swindell objected to use of the prior conviction
because the prosecutor, outside the presence of Swindell's counsel's, threatened to
increase charges if Swindell did not plead to the present charge. In the prosecution for
possession of a pistol, the State did not dispute Swindell' s allegation of prosecutorial
misconduct, but argued Swindell could not challenge the validity of the earlier conviction
of a violent crime.
In State v. Swindell, the Supreme Court again noted that the defendant did not
attempt to annul the previous judgment of guilt, but sought to foreclose the prior
19 No. 33215-2-III State v. Ellison
conviction's present exploitation to establish an essential element of the crime. The court
followed Holsworth and held that Jimmie Swindell could challenge the use of a
constitutionality invalid guilty plea. In tum, the State needed to prove beyond a
reasonable doubt the constitutional validity of the earlier conviction.
In State v. Thompson, 95 Wn.2d 888, 632 P.2d 50 (1981), overruled on other
grounds by State v. Calegar, 133 Wn.2d 718, 947 P.2d 235 (1997), the state high court
ruled that the State of Washington need not prove the validity of an earlier manslaughter
conviction before impeaching the defendant with the crime. Mack Thompson argued the
trial court committed error when allowing the impeachment since he pled guilty to the
earlier crime without a full understanding of the charges against him and the consequence
of his guilty plea. He relied on Boykin v. Alabama. The Supreme Court noted that
Thompson was represented by counsel during the plea.
The Washington Supreme Court, in State v. Thompson, observed that no court had
adopted the rule that convictions resulting from pleas in violation of Boykin could not be
employed by the prosecution for impeachment purposes. Courts had only ruled that
convictions without the benefit of counsel could not be used for impeachment. The State
Supreme Court agreed that, in State v. Holsworth, it recognized that, for purposes of
introducing evidence of a prior conviction in a habitual criminal proceeding, there was no
cognizable difference between excluding evidence ofa prior conviction based on an
invalid plea and excluding evidence of a prior conviction obtained without benefit of
20 No. 33215-2-III State v. Ellison
counsel. The court nonetheless distinguished Holsworth, because Holsworth concerned
the use of an invalid plea in a present criminal sentencing procedure to prove an element
of the crime and therefore needed proof by the State beyond a reasonable doubt.
Thompson instead involved the force of the earlier guilty plea on a collateral matter, the
credibility of the witness. Thus, the use of a conviction based on an allegedly invalid
guilty plea did not impinge any constitutional right.
The Thompson court reasoned that the United States Supreme Court decision in
Loper v. Beto did not compel a different result, since Loper was an extreme case wherein
the State asked in damaging detail about four previous felony convictions occurring as far
back as sixteen years prior to the trial. The Thompson court misread Loper, however,
since Loper did not limit its holding to extreme cases. The court limited its holding to
cases where use of the prior conviction for impeachment may have influenced the
prosecution's outcome.
In State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984), the Evergreen State
Supreme Court returned to requiring the State to show proof of a legitimate underlying
conviction. The court ruled that the statute prohibiting possession of firearms by one
convicted of a crime of violence requires a constitutionally usable predicate conviction.
Since Johnie Lee Gore's underlying burglary conviction was later reversed on appeal for
insufficient evidence, his conviction for a firearms violation was reversed.
In State v. Gore, the Court of Appeals had affirmed the conviction of Johnie Lee
21 No. 33215-2-111 State v. Ellison
Gore, while relying on the United States Supreme Court decision in United States v.
Lewis. Remember that Lewis held that, under the federal firearm possession statute, the
government need not show a constitutionally valid underlying conviction. The State
Supreme Court found the United States Supreme Court's reasoning in Lewis
unpersuasive and affirmed its decision in State v. Swindell. RCW 9 .41.040 prohibited
persons "convicted" of a crime of violence from possessing a firearm. The court
observed that the language of the statute could prohibit possession of a firearm by anyone
"convicted" of a crime, regardless of the validity of the crime. In the alternative, the
statute could demand that any conviction be constitutionally valid. Because of two
possible constructions of the statute, the rule of lenity demanded the court to construe the
statute against the State and in favor of Johnie Lee Gore. The court determined that use
of a constitutionally invalid conviction in a subsequent prosecution to be a denial of due
process. Later in the opinion, the court did not qualify the invalid conviction with the
modifier "constitutionally." Instead the court concluded:
We therefore agree with petitioner that his conviction for violating RCW 9.41.040, being predicated on an invalid conviction, must be reversed.
State v. Gore, l O1 Wn.2d at 488 ( emphasis added).
In State v. Gonzales, 103 Wn.2d 564, 693 P.2d 119 (1985), the state high court
held that, in a prosecution for escape, the State is not required to prove the defendant had
been detained pursuant to a constitutionally valid conviction. The court distinguished
l No. 33215-2-111 State v. Ellison
Swindell and Gore on the ground that Jimmie Swindell's and Johnie Lee Gore's prior
convictions were used to prove guilt in a "status-type crime." State v. Gonzales, 103
Wn.2d at 567. The court also noted that the statute involved in Gore and Swindell
forbade exercise of a constitutionally protected right to bear arms. The escape statute did
not impinge on a constitutionally protected right. The court observed that the vast
majority of jurisdictions refused defendants, charged with escape, to challenge the
legality of their confinement at the time of escape. The court failed to note that freedom
from incarceration, except on constitutionally valid convictions, is also a constitutional
right.
In State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796 (1986),
defendants challenged the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA)
on various constitutional grounds. They argued that, under the due process clause, the
SRA should require the State to prove a prior conviction is constitutionally valid beyond
a reasonable doubt before including the conviction in the offender score. In its review of
the due process contention, the court noted:
In only two situations has this court held that the State, before using a prior conviction, had to affirmatively show its constitutional validity: (1) a proceeding to establish a status of habitual criminal or habitual traffic offender, and (2) a proceeding to establish the crime of felon in possession of a firearm.
23 No. 33215-2-111 State v. Ellison
Ammons, 105 Wn.2d at 187 (internal citations omitted). The court also noted that it
refused to apply such a requirement in other situations, including use of a prior
conviction for impeachment and use of a prior conviction to establish a minimum term.
In State v. Summers, 120 Wn.2d 801, 846 P.2d 490 (1993), the State charged the
defendant with unlawful possession of a firearm because he had a previous felony
conviction for second degree manslaughter. During the manslaughter trial, the trial court
improperly refused to offer Arthur Summers' proposed self-defense instruction.
Summers challenged his possession of a firearm charge by calling into question the
validity of his manslaughter conviction, but the trial court rejected his argument and
convicted him. On review, the Supreme Court found Swindell and Gore factually
distinguishable. Despite the differences, the court sided with Summers. The court held
that the State failed to prove beyond a reasonable doubt, as an element of the unlawful
possession of a firearm charge, that there existed a constitutionally valid conviction for a
crime of violence.
Two foreign decisions support the State's argument. Our sister state, California,
held that the registration requirement of the California Sex Offender Registration Act
applies based on the fact of conviction, even if the conviction is later determined to have
been invalid. In re Watford, 186 Cal. App. 4th 684, 112 Cal. Rptr. 3d 522 (2010). The
California court chose to follow the United States Supreme Court's analysis in Lewis v.
United States, 445 U.S. 55 (1980). According to the Watford court, since the relevant
24 No. 33215-2-111 State v. Ellison
statute did not expressly exclude invalid convictions, one must register regardless of the
validity of the underlying conviction. Of course, the Washington Supreme Court rejected
this reasoning in State v. Gore, 101 Wn.2d 481 ( 1984 ).
The New Jersey appellate court, in State v. G.L., 420 N.J. Super. 158, 19 A.3d
1017 (App. Div. 2011), followed the reasoning in In re Watford and held that the
defendant was not entitled to vacate convictions for failing to register as a sex offender,
even though the underlying juvenile delinquency adjudication for sexual assault had been
vacated. The New Jersey court emphasized that sex offenders pose a continuing threat to
society. The New Jersey court also relied on the United States Supreme Court's decision
in Lewis v. United States.
Having reviewed relevant reported cases, we must now determine what decisions
and rationales to follow. In the end, we find reasons favoring Robert Ellison more
persuasive.
In all decisions, in which the court held the State must prove the validity of the
predicate conviction beyond a reasonable doubt and in which the court dismissed the
second prosecution, the accused presented some evidence of constitutional baselessness
of the first conviction. Robert Ellison does not challenge the constitutional infirmness of
his 1995 convictions for child rape. He challenges the convictions on statutory grounds.
The 1995 juvenile court failed to find him capable of committing a crime and thereby
disobeyed RCW 9A.04.050.
25 No. 33215-2-111 State v. Ellison
Robert Ellison's omission of a constitutional challenge to the predicate crimes,
based on decisional law, strongly favors the State's request for reversal of the trial court's
dismissal of the charge of failure to register as a sex offender. Nevertheless, we note that
no decision expressly rules that the accused may challenge the predicate crime solely on
constitutional grounds. We question the importance of the difference between a
constitutionally infirm predicate conviction and an illegitimate conviction of an eleven
year old, who was not found capable of committing a crime and was presumably
incapable.
Although we find no decision that holds a child has a constitutional right not to be
found guilty of a crime unless shown to be capable of guilt, we likewise find no decision
that holds to the contrary. In a related context, the United States Supreme Court has
repeatedly and consistently recognized that the criminal trial of an incompetent defendant
violates due process. Ryan v. Gonzales,_ U.S._, 133 S. Ct. 696, 703, 184 L. Ed. 2d
528 (2013); Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373, 134 L. Ed. 2d 498
(1996); Medina v. California, 505 U.S. 437,453, 112 S. Ct. 2572, 120 L. Ed. 2d 353
(1992). More on point, an individual who lacks the required intent cannot, under due
process principles, be convicted of a criminal offense. Finger v. State, 117 Nev. 548,
567, 27 P.3d 66 (2001). In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910), the
Washington Supreme Court declared unconstitutional a Washington statute that provided
that insanity was not a defense to a crime and specifically prohibited the introduction of
26 No. 33215-2-111 State v. Ellison
any evidence on the issue of legal insanity. An insane person cannot form the intent to
commit a crime. The reason for a capacity hearing is to determine if the child can form
the requisite intent to commit a crime.
In State v. Gonzales, the Washington Supreme Court refused to allow a challenge
to the prior offense establishing first degree escape. The court distinguished State v.
Swindell and State v. Gore on the ground that possession of a gun after a serious crime
constituted a "status-type" crime. Gonzales, 103 Wn.2d at 567. The possession of a
firearm is unlawful because of the status of the accused being a felon. Failure to register
as a sex offender is a quintessential status crime. The accused must register solely
because of his status as a convicted sex offender. This factor weighs heavily in favor of
Robert Ellison.
The requirement that the State must prove beyond a reasonable doubt the predicate
conviction in a prosecution for possessing a firearm is purportedly based, in part, on the
constitutional right to bear arms. At the same time, one deserves a constitutional right,
absent a compelling reason, not to register with the government and have one's address
published to the public. Each individual is guaranteed a significant measure of privacy
free from governmental invasion, or intrusion by others, and an equally significant right
of liberty. Coe v. Sex Offender Registry Bd., 442 Mass. 250, 812 N.E.2d 913,921 (2004)
(addressing Massachusetts due process clause). Sex offender registration requirements
implicate constitutionally protected liberty and privacy interests. John Doe v. Sex
27 No. 33215-2-111 State v. Ellison
Offender Registry Bd., 470 Mass. 102, 18 N.E.3d 1081, 1085 (2014). An individual's
expectation of privacy as to his residential information is subject to strict scrutiny
analysis, which means the government must show that the law is narrowly tailored to
serve a compelling interest. State v. Brooks, 2012 MT 263, 367 Mont. 59, 289 P.3d 105,
108. Compulsory registration statutes implicate the constitutional right to privacy.
People v. Hove, 7 Cal. App. 4th 1003, 1006, 9 Cal. Rptr. 2d 295 (1992) (applying the
California Constitution). For this reason, one should possess the capacity to commit a
sex crime, before the government demands he register. We do not equate registration of
sex offender statutes to the Nazi Germany Jewish registration laws or apartheid South
Africa's pass laws, but absent a compelling reason, a registration law echoes these former
wrongs.
Our Supreme Court, in State v. Murray, 86 Wn.2d 165 (1975), distinguished
between an illegitimate conviction on Fourth Amendment grounds from an invalid
conviction on Sixth Amendment grounds. The right to counsel impacted the integrity of
the fact-finding process. In other words, the constitutional violation inhered in the
finding of guilt. The failure to determine if a child possesses the capacity to commit a
crime likewise effects the finding of guilt. The capacity of the child goes to the essence
of guilt. A prior conviction should not be used unless we know the child could be guilty.
In State v. Gore, the Supreme Court addressed a statute that prohibited persons
"convicted" of a crime of violence from possessing a firearm. The court observed that
28 No. 33215-2-III State v. Ellison
the language of the statute could prohibit possession of a firearm by anyone "convicted"
of a crime, regardless of the validity of the crime. In the alternative, the statute could
demand that any conviction be constitutionally valid. Because of two possible
constructions, the rule of lenity demanded the court to construe the statute against the
State and in favor of Johnie Lee Gore.
The same rule oflenity should favor Robert Ellison. Under RCW 9A.44.132 and
RCW 9A.44.130(l)(a), only one "found to have committed" or "convicted of any sex
offense" is guilty of failure to register as a sex offender. Lenity requires construing the
statute to demand a legitimate finding of guilt or an unimpeachable conviction.
We reject our sister states' rulings in In re Watford, 186 Cal. App. 4th 684 (2010)
and State v. G.L., 420 NJ. Super. 158 (App. Div. 2011). The California court and New
Jersey courts principally based their decisions on the United States Supreme Court's
analysis in Lewis v. United States, 445 U.S. 55 (1980). Our high court has rejected this
analysis.
Use of 1999 Conviction as Predicate Crime for Felony Failure to Register
We agree with Robert Ellison that, on discrediting the 1995 felony convictions for
child rape, we must also disregard, for purposes of this prosecution, the 1999 conviction
for felony communication with a minor. No law directly addresses this unique and
abstruse question. Nevertheless, by crediting the 1995 convictions to support the 1999
charge, we would compound the 1995 error when the trial court failed to find Robert
29 No. 33215-2-111 State v. Ellison
Ellison competent to commit a crime. Burgett v. Texas, 389 U.S. 109 (1967), Loper v.
Beto, 405 U.S. 473 (1972), United States v. Tucker, 404 U.S. 443 (1972), State v.
Holsworth, 93 Wn.2d 148 (1980), State v. Swindell, 93 Wn.2d 192 (1980), State v. Gore,
101 Wn.2d 481 (1984), and State v. Summers, 120 Wn.2d 801 (1993) teach us not to
multiply the effects of an infirm judgment.
To repeat from our opening pages, the State charged Robert Ellison only with
felony failure to register as a sex offender. Even with our invalidation of the 1995
childhood rape convictions, the State may charge Robert Ellison with gross misdemeanor
failure to register. The refutation of the 1995 convictions does not necessarily annul the
1999 conviction for communication with a minor. The discrediting of the 1995
convictions may instead reduce the 1999 conviction from felony communication with a
minor for an immoral purpose to a gross misdemeanor communication with a minor.
RCW 9.68A.090. In tum, Robert Ellison might be found guilty of gross misdemeanor
failure to register as a sex offender. RCW 9A.44.132(2). The State holds a charging
prerogative and so we limit the appeal to the question of whether the State can sustain a
charge of felony failure to register as a sex offender against Robert Ellison.
CONCLUSION
We hold the 199 5 felony convictions and the 1999 felony conviction of Robert
Ellison cannot be used as predicate crimes to support the charge of felony failure to
register as a sex offender because of the 1995 juvenile court's failure to find Ellison
30 No. 33215-2-111 State v. Ellison
competent to commit a crime. We affirm the trial court's dismissal of the charge against
Ellison.
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:
j