State of Washington v. Victor Alfonso Paniagua

• Court: Court of Appeals of Washington
• Decided: June 9, 2022
• Docket: 38274-5
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

FILED JUNE 9, 2022 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. 38274-5-III Respondent, ) ) v. ) ) PUBLISHED OPINION VICTOR ALFONSO PANIAGUA, ) ) Appellant. )

FEARING, J. — This appeal requires consideration of one of many consequences

attended to the Washington Supreme Court’s landmark decision in State v. Blake, 197

Wn.2d 170, 481 P.3d 521 (2021). The decision held Washington’s possession of a

controlled substance criminal statute unconstitutional. In turn, Washington courts have

removed, from offender scores, earlier convictions for possession of a controlled

substance. This appeal travels further down the path and asks whether a court should

remove, from the offender score, a former conviction for bail jumping when the offender

failed to appear at a scheduled hearing while on bail pending charges for possession of a

controlled substance. Based on decisional authority surrounding the law of escape and

bail jumping and the purposes behind the bail jumping proscription, we decline to reduce

the offender score. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38274-5-III State v. Paniagua

FACTS

In this appeal, Victor Paniagua only challenges his sentence for his 2018

convictions for murder and other crimes. The relevant facts begin, however, with earlier

convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful

possession of a controlled substance. In 2011, the State again convicted Paniagua with

possession of a controlled substance and the additional charge of bail jumping. The bail

jumping charge arose from Paniagua’s failure to appear at a November 9, 2011 omnibus

hearing on the 2011 possession charge.

In June 2018, law enforcement responded to the shooting death of Abel Contreras

at a Pasco residence. Police spotted Victor Paniagua, who they suspected fled from the

abode. Law enforcement spoke with two eyewitnesses, both of whom identified

Paniagua as the shooter. Following trial, a jury found Victor Paniagua guilty of second

degree murder, second degree assault, unlawful possession of a firearm, and witness

tampering. The jury further found that Paniagua committed second degree murder and

second degree assault with a firearm.

The trial court calculated Paniagua’s offender score at 8 for the murder and assault

charges and 7 for the unlawful firearm possession and witness tampering charges. The

offender score calculation included one point each for the 2007 and 2011 possession of a

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

controlled substance convictions and one point for the 2011 bail jumping conviction. The

court then sentenced Paniagua to 453 months’ total confinement.

PROCEDURE

After the issuance of State v. Blake, 197 Wn.2d 170 (2021), Victor Paniagua

requested resentencing. With his postsentencing request, Paniagua argued that, pursuant

to Blake, his two earlier convictions for unlawful possession of a controlled substance

and his previous conviction for bail jumping, predicated on one of the possession

charges, were void. Thus, the superior court should resentence him after reducing his

offender score by three points.

The State agreed to the exclusion of the convictions for possession of a controlled

substance from Victor Paniagua’s offender score. The State argued that the one point for

bail jumping should remain. The superior court agreed with the State and deducted only

two points from Paniagua’s offender score. The superior court resentenced Paniagua to

412 months’ total confinement.

LAW AND ANALYSIS

Victor Paniagua repeats his worthy argument on appeal. Resolution of the appeal

requires rereading of State v. Blake, examining Washington’s offender score statute,

consideration of the use of an unconstitutional conviction for the accused’s offender

score, assessment of the nature of a predicate crime, parsing of the bail jumping statute,

and a review of limited decisions addressing the validity of escape and bail jumping

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

convictions when the statute under which the offender was charged when jumping bail

was later declared unconstitutional.

We begin with State v. Blake, 197 Wn.2d 170 (2021). In 2021 and for many years

preforth, RCW 69.50.4013(1) declared: “It is unlawful for any person to possess a

controlled substance.” Based on a reading of the statute, the Washington Supreme Court

earlier ruled that the State need not prove any mens rea or mental state element to secure

a conviction for possession of a controlled substance. State v. Bradshaw, 152 Wn.2d

528, 534-35, 98 P.3d 1190 (2004). In State v. Blake, the Washington Supreme Court

overruled decades of precedent and held RCW 69.50.4013(1) to violate the due process

clause because the statute penalizes one for passive, innocent, or no conduct without

requiring the State to prove she had a guilty mind.

State v. Blake involved a direct challenge to Shannon Blake’s conviction for

possession of a controlled substance. The Supreme Court did not address the

ramifications of an earlier conviction for possession being added to an offender’s score

for purposes of sentencing for a later crime.

The Washington Supreme Court also did not address, in State v. Blake, the

retroactivity of its decision. Nevertheless, the State and other courts have operated on the

assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is

and has always been a legal nullity. State ex rel. Evans v. Brotherhood of Friends, 41

Wn.2d 133, 143, 247 P.2d 787 (1952). Blake represents a new substantive rule decided

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

on constitutional grounds such that it should operate retroactively. In re Personal

Restraint of Ali, 196 Wn.2d 220, 236, 474 P.3d 507 (2020); Teague v. Lane, 489 U.S.

288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

Victor Paniagua argued before the resentencing court and the State conceded the

argument that his 2007 and 2011 convictions for possession of a controlled substance

should be removed from his offender score based on State v. Blake. The superior court

agreed. But this decision by the superior court did not end Victor Paniagua’s challenge to

his offender score. Paniagua also wants to erase his 2011 conviction for bail jumping

because, at the time of his failure to appear, he faced charges for possession of a

controlled substance. According to Paniagua, since he should never have been charged in

2011 for possession of a controlled substance, he could not have been convicted of bail

jumping. Paniagua characterizes his bail jumping conviction as an unconstitutional

conviction. Paniagua repeats these arguments on appeal.

The State does not carry an affirmative burden of proving the constitutional

validity of a prior conviction before the State may exploit the conviction during

sentencing. State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719 (1986). Nevertheless, a

sentencing court may not consider in the score a prior conviction constitutionally invalid

on its face. State v. Ammons, 105 Wn.2d 175, 187-88 (1986). Constitutionally invalid on

its face means a conviction that without further elaboration evidences infirmities of a

constitutional magnitude. State v. Ammons, 105 Wn.2d 175, 188 (1986).

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Victor Paniagua cites State v. Ammons, 105 Wn.2d 175 (1986), in support of his

argument that his 2011 conviction for bail jumping cannot be included in his offender

score. Ammons addressed the use of an alleged unconstitutional plea to a crime in an

offender score. We do not deem Ammons helpful since the decision did not address our

underlying question of whether bail jumping requires a predicate crime or whether one

can be convicted of bail jumping when held for an unconstitutional crime. We must

address the validity of the bail jumping conviction before addressing whether to add any

conviction for bail jumping to the offender score.

We next decide whether the bail jumping conviction is invalid on its face. When a

defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its

face. In re Personal Restraint of Hinton, 152 Wn.2d 853, 857-58, 100 P.3d 801 (2004);

In re Personal Restraint of Thompson, 141 Wn.2d 712, 719, 10 P.3d 380 (2000); Jenkins

v. Bellingham Municipal Court, 95 Wn.2d 574, 627 P.2d 1316 (1981). The State did not

convict Victor Paniagua of a nonexistent crime when convicting him of bail jumping.

The crime remains in existence today. The conviction is not facially invalid.

Victor Paniagua impliedly, if not expressly, contends that charges under a

constitutionally valid statute serve as a predicate to a bail jumping conviction. In 2011,

the year of Victor Paniagua’s conviction, former RCW 9A.76.170 (2001), the bail

jumping statute, read in part:

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

(1) Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, and . . . fails to appear . . . as required is guilty of bail jumping. .... (3) Bail jumping is: .... (c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony.

Former RCW 9A.76.170 does not require that, to be guilty of the crime, the accused must

have later been found guilty of the pending charge at the time of release on bail, only that

he be under charges at the time of the failure to appear. Thus, a predicate crime does not

constitute an element of bail jumping.

State v. Downing, 122 Wn. App. 185, 93 P.3d 900 (2004), controls this appeal.

The superior court found Robert Downing guilty of bail jumping for his failure to appear

for arraignment on charges of unlawful issuance of bank checks (UIBC). The court

dismissed all three counts of UIBC, two on double jeopardy grounds and one on motion

by the State. The court denied Downing’s motion to dismiss the bail jumping charge,

however. On appeal, Downing argued that: (1) his bail jumping conviction was invalid,

because the trial court dismissed the underlying charges of UIBC; and (2) defense

counsel provided ineffective assistance by not moving to dismiss count I, one of the

UIBC charges, under the mandatory joinder rules.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

The Downing court first addressed Robert Downing’s ineffective assistance of

counsel argument and rejected the contention because joinder was not mandatory. This

court next considered Downing’s challenge to his bail jumping conviction. We wrote:

There is no serious dispute that the superior court had jurisdiction over the UIBC charges. Indeed, the fact that the court later dismissed the charges does not mean that it lacked jurisdiction to order Downing to appear and answer for those charges, even if his answer could have been that double jeopardy barred further prosecution. We have rejected Downing’s argument that Count I would have been dismissed under mandatory joinder but for his counsel’s failure to move to dismiss. But even if we were to find Downing’s prosecution on Count I invalid on other nonjurisdictional grounds, Downing’s argument still fails.

State v. Downing, 122 Wn. App. at 193.

In State v. Downing, we applied three elements of bail jumping (1) the accused

was held for, charged with, or convicted of a crime; (2) the accused possessed knowledge

of the requirement of a subsequent personal appearance; and (3) the accused failed to

appear as required. Robert Downing did not dispute the three elements of bail jumping.

Rather, he argued for an additional implied element: that the charge underlying the bail

jumping must be valid at the time the defendant failed to appear. We disagreed:

No Washington cases squarely address whether the charge underlying an allegation of bail jumping must be valid. But we find the issue sufficiently analogous to charges of escape. In such cases, our courts have rejected arguments that the invalidity of the underlying conviction is a defense to the crime of escape. In a prosecution for first degree escape, the State is not required to prove that a defendant was detained under a constitutionally valid conviction.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Victor Paniagua argues that the Downing court’s analysis of whether the charge

underlying a bail jumping conviction must be valid is dicta. According to Paniagua, the

Downing court conclusively decided the case when ruling that joinder was not mandatory

and any further discussion was unnecessary. We disagree. The joinder ruling did not

resolve the validity of the bail jumping conviction.

Victor Paniagua highlights that the Downing court addressed a bail jumping

conviction based on charges brought under a valid statute, but later dismissed. He

emphasizes that, contrary to Downing, the State convicted him of bail jumping while

facing charges brought pursuant to an unconstitutional statute. Still, he cites no decision

supporting the proposition that being convicted or held, under an unconstitutional

criminal statute, renders escaping from jail or bail jumping permissible. To the contrary,

under the universal rule, the unconstitutionality of a statute under which the defendant

was convicted or charged does not justify escape from imprisonment. Eaton v. State, 302

A.2d 588 (Me. 1973); State v. Lopez, 79 N.M. 235, 441 P.2d 764, 766 (1968); People ex

rel. Haines v. Hunt, 229 A.D. 419, 242 N.Y.S. 105 (1930); Kelley v. Meyers, 124 Or.

322, 263 P. 903 (1928); W.E. Shipley, Annotation, What Justifies Escape or Attempt To

Escape or Assistance in That Regard, 70 A.L.R.2d 1430 (1960). We find no decision

addressing bail jumping when facing charges under an unconstitutional statute.

Nevertheless, we discern no reason to distinguish between a charge for escape and one

for bail jumping.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

We agree with the State that the accused must submit to confinement until

discharged by due process of law. Kelley v. Meyers, 263 P. 903, 906 (Or. 1928); People

ex rel. Haines v. Hunt, 229 A.D. 419, 420-21 (1930). His or her remedy is to seek a

declaration of the unconstitutionality of the statute, not flee from justice. People ex rel.

Haines v. Hunt, 229 A.D. 419, 421 (1930). A purpose behind outlawing bail jumping is

to effectuate orderly administration of justice. State v. Henning, 2004 Wis. 89, 273 Wis.

2d 352, 681 N.W.2d 871, 881-82.

Victor Paniagua relies on our recent decision in State v. French, __ Wn. App. 2d

__, 508 P.3 1036 (2022). Jarvis French pled guilty to one count of possession of a

controlled substance with intent to manufacture or deliver. On appeal, the State argued

that the superior court erred by declining to add one point to the offender score as a result

of French committing his current offense while on community custody. Because the

sentence condition of community custody was imposed on French pursuant to a

constitutionally invalid conviction for possession of a controlled substance, this court

disagreed. This court followed the precedent of State v. Ammons, 105 Wn.2d 175 (1986),

which held that a prior conviction based on a constitutionally invalid statute may not be

considered when a sentencing court calculates an offender score.

We have already distinguished State v. Ammons. We also differentiate between

being on community custody for committing a constitutionally invalid crime and bail

jumping when held on such a crime. The same considerations of submitting to the

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

authority of the law, until held unconstitutional, rather than taking the law into one’s own

hand, do not apply to committing an additional crime while on community custody.

Finally, Victor Paniagua concedes that foreign decisions oppose his contention,

but he underscores that he does not seek to vacate his 2011 bail jumping conviction. He

only wishes to erase the conviction from his offender score. Paniagua promotes the

unfairness of counting the conviction in his score. No decision supports Paniagua’s

argument, however. To the contrary, RCW 9.94A.525(2)(c) requires this court to include

a class C felony conviction in the offender score unless circumstances not found here

exist. Paniagua’s remedy lies with the legislature, not the courts.

CONCLUSION

We affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for

bail jumping in his offender score and affirm his resentencing.

_________________________________ Fearing, J.

WE CONCUR:

______________________________ Lawrence-Berrey, A.C.J.

______________________________ Staab, J.