State v. Thompson

143 Wash. App. 861
CourtCourt of Appeals of Washington
DecidedApril 8, 2008
DocketNo. 34540-4-II
StatusPublished
Cited by12 cases

This text of 143 Wash. App. 861 (State v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thompson, 143 Wash. App. 861 (Wash. Ct. App. 2008).

Opinion

¶1 Brenton Thompson appeals his sentence following a remand for resentencing. A jury convicted Brenton Thompson of first degree murder and first degree assault in 2000. In a 2003 decision, this court remanded his assault conviction based on a faulty accomplice instruction. The next year, Thompson was again convicted on the assault charge, and he later filed a personal restraint petition (PRP) with this court, contesting his sentence. We granted his petition in part due to an incorrect offender score. Additionally, the order granting his petition in part permitted Thompson to present arguments and documents at resentencing regarding inclusion of prior convictions in the calculation of his offender score. Thompson unsuccessfully moved to exclude the convictions at resentencing. The [864]*864court resentenced Thompson, and he now appeals, claiming that the trial court (1) did not follow the law of the case and (2) improperly calculated his offender score by including two 1995 convictions that are facially constitutionally invalid. The trial court allowed Thompson to make his presentation consistent with the remand order and found that the 1995 convictions were not facially invalid. We affirm.

Penoyar, J.

[864]*864FACTS

¶2 The facts below are taken from State v. Thompson, noted at 117 Wn. App. 1085, 2003 Wash. App. LEXIS 1712.

¶3 In 1998, Thompson and an acquaintance attempted to steal a Cadillac from Calvin Labee, Jr., and Julie Maroni. When the couple exited the car, Thompson’s acquaintance chased after Labee, while Thompson chased Maroni. Labee was shot once and escaped. Maroni died of multiple gunshot wounds — she had been hit with a minimum of six bullets.

¶4 The jury convicted Thompson of first degree murder and first degree assault but acquitted him of second degree unlawful possession of a firearm. By special verdict, the jury found that Thompson or an accomplice was armed with a firearm during the commission of the murder and the assault.

¶5 Thompson appealed his convictions, assigning error to an accomplice liability instruction, the lack of sufficient evidence, and the absence of a unanimity instruction. In his pro se supplemental brief, Thompson further alleged that the trial court erred in excluding exculpatory hearsay evidence, the jury’s verdicts were inconsistent, and the trial court was biased against him. This court affirmed the murder conviction but reversed and remanded the assault conviction.

¶6 In 2004, Thompson was reconvicted on the assault charge. Again, the jury found that he was armed with a firearm during the commission of the assault. State v. Thompson, noted at 132 Wn. App. 1022, 2006 Wash. App. LEXIS 593, at *5.

[865]*865¶7 Thompson filed a PRP with this court, contesting the restraint imposed following his first degree murder and first degree assault convictions. This court granted the petition in part and denied it in part and remanded the case for resentencing.

¶8 Thompson then filed a motion to exclude his prior convictions at resentencing. In that motion, he argued again that his prior convictions were facially invalid. The resentencing court denied Thompson’s motion after hearing arguments from both parties; it then calculated his offender score at 3 and sentenced him to 604 months. This sentence included 361 months for the murder conviction, 123 months for the assault conviction, and 60 months for each of the deadly weapon enhancements, to be served consecutively. Additionally, the court ordered 24 months of community placement for both the murder and assault convictions. Thompson now appeals his resentencing.

ANALYSIS

I. Offender Score Calculation

¶9 Thompson argues that the resentencing court erred in calculating his offender score at three, claiming that his two 1995 convictions were constitutionally invalid on their face and therefore could not be used to calculate his offender score. Thompson asserts that the plea agreement for his two 1995 convictions incorrectly indicated 10-year maximum sentences for each. In fact, the correct maximum sentence for each crime was only five years — which was properly noted on the formal judgment and sentence form. Thompson contends that the discrepancy between forms renders his 1995 convictions constitutionally invalid on their face because his plea was not knowing; he alleges he was not properly informed of the correct maximum possible sentence before entering his plea.

¶10 Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW, a court examines a defendant’s prior convictions to determine his offender score. See RCW [866]*8669.94A.525. This offender score is then used in determining a defendant’s standard sentencing range. See RCW 9.94A-.530. The State has the burden of proving prior convictions used to calculate an offender score, but it is not responsible for proving the underlying constitutional validity of those convictions. RCW 9.94A.530(2); State v. Mendoza, 139 Wn. App. 693, 698-99, 162 P.3d 439 (2007); see also State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986). Indeed, “the constitutional validity of the prior convictions is generally not subject to challenge in sentencing proceedings.” State v. Jones, 110 Wn.2d 74, 77, 750 P.2d 620 (1988). Otherwise, sentencing proceedings for the current conviction would become an appellate forum for prior convictions: “[A] defendant has no right to contest a prior conviction at a subsequent sentencing. To allow an attack at that point would unduly and unjustifiably overburden the sentencing court. The defendant has available, more appropriate arenas for the determination of the constitutional validity of a prior conviction.” Ammons, 105 Wn.2d at 188. For this reason, “[i]n [Ammons], the Supreme Court severely restricted a defendant’s ability to mount a collateral attack on a prior conviction at a sentencing hearing.” State v. Bembry, 46 Wn. App. 288, 289, 730 P.2d 115 (1986) (citation omitted).

Ill An exception to this general rule exists where the prior conviction is “ [c] onstitutionally invalid on its face.” 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 defendant, and not the State, “bears the burden of establishing the unconstitutionality of his or her prior convictions at such a proceeding.” In re Pers. Restraint of Williams, 111 Wn.2d 353, 368, 759 P.2d 436 (1988).

f 12 To determine facial invalidity of a prior conviction, the sentencing court may review the judgment and sentence and any other document that qualifies as “the face of the conviction.” See State v. Gimarelli, 105 Wn. App. 370, [867]*867377

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Bluebook (online)
143 Wash. App. 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-washctapp-2008.