                                                                                                                  r
                                                                                                                       FILED
                                                                                                              COURT OF APPEALS
                                                                                                                  DIVISION II
                                                                                                          2011i APR 29
                                                                                                                       IM 8: L5
      IN THE COURT OF APPEALS OF THE STATE OF WASHI                                                                        S    TON

                                                     DIVISION II

STATE OF WASHINGTON,                                                                 No. 44171 -3 - II


                                      Respondent,


         v.




SANDRA          JOAN         GATTEN,        aka     SANDY                    UNPUBLISHED OPINION
JOAN ABBASI, aka SANDY JOAN HEISER,
aka   SANDY        JOAN       KNAPP,         aka    SANDY
JOAN          LYBECK,         aka     SANDY           JOAN
GATTON,


                                      Appellant.




         LEE, J. —       Sandra Joan Gatten          pleaded   guilty to     second    degree    burglary.    On appeal,


Gatten challenges her offender score, arguing that ( 1) the trial court erred by including her prior

convictions for welfare fraud because they are constitutionally invalid on their face; and ( 2) the

trial court erred by including her conviction for first degree theft because it was previously found

to be the      same   criminal      conduct    as   her   welfare   fraud   convictions.    The trial court properly

included her welfare fraud convictions because Gatten did not meet her burden to show that they

are   constitutionally invalid       on    their face.    But, the State concedes that the trial court erred by

including      Gatten'   s   first degree theft       conviction,     and we         accept the    State' s   concession.


Accordingly, we remand for resentencing.

                                                            FACTS


         Gatten    pleaded      guilty to     one   count   of second       degree   burglary.    The State calculated


Gatten' s     offender score as      12.    The State'     s offender score     calculation   included 7      points   for 7
No. 44171 -3 -II



counts of welfare fraud and 1 point for first degree theft. The welfare fraud and first degree theft

convictions      all   resulted    from the       same   case.     Gatten disputed the State' s calculation of her


offender score.




          Gatten objected to including six of the seven counts of welfare fraud. She argued that the

welfare fraud statute provides for one unit of prosecution, and therefore, six of the counts


violated double jeopardy; thus, the judgment and sentence was constitutionally invalid on its

face.    At sentencing, the trial court rejected Gatten' s argument and stated that the judgment and

sentence on      the   welfare     fraud   convictions was not           constitutionally invalid   on   its face. The trial


court also found that the State failed to prove the existence of one of Gatten' s out of state

convictions.       The trial court calculated Gatten' s offender score as follows: 7 points for the

welfare fraud convictions, 1 point for the first degree theft conviction, and 1 point for a prior


drug conviction. The trial court sentenced Gatten to a prison -based alternative sentence based on

the   standard   sentencing        range    for   an offender score of       9.   Gatten appeals the calculation of her


offender score.



                                                         ANALYSIS


A. WELFARE FRAUD CONVICTIONS


          Gatten argues that the trial court erred by including her welfare fraud convictions in her

offender score         because the     convictions are      constitutionally invalid       on   their face.   She presents


two     arguments      to   support   her    claim.    First, she argues that the welfare fraud convictions are


constitutionally invalid on their face because her guilty plea does not indicate that she read, or

was read,    the   plea     form   prior   to accepting the      plea.    Second, she argues that the multiple welfare


fraud convictions violate double jeopardy because the welfare fraud statute provides for a single


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No. 44171 -3 - II



unit of prosecution.        Both of Gatten' s arguments fail and we affirm the trial court' s decision to

include all the welfare fraud convictions in Gatten' s offender score.


         As a general rule, the constitutional validity of prior convictions may not be challenged

during   sentencing.        State   v.   Jones, 110 Wn. 2d 74, 77, 750 P. 2d 620 ( 1988).                      As our Supreme


Court states in State v. Ammons, 105 Wn.2d 175, 188, 713 P. 2d 719, 718 P. 2d 796 ( 1986):

          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.

An exception to this general rule is where the prior conviction is constitutionally invalid on its

face. Ammons, 105 Wn. 2d                 at   187 -88. "      The defendant,      and not   the State, ` bears the burden of



establishing the unconstitutionality               of   his   or   her    prior convictions at such a   proceeding. "'   State


v. Thompson, 143 Wn. App. 861, 866, 181 P. 3d 858, review denied, 164 Wn.2d 1035 ( 2008)

 quoting In re Pers. Restraint of Williams, 111 Wn.2d 353, 368, 759 P. 2d 436 ( 1988)).

         When determining whether a prior conviction is invalid on its face, the trial court may

consider    the judgment          and     sentence       and       other   documents that qualify       as "   the face of the


conviction."      Thompson, 143 Wn. App. at 866 ( quoting State v. Gimarelli, 105 Wn. App. 370,

377, 20 P. 3d 430,       review     denied, 144 Wn.2d 1014 ( 2001)).                   When the defendant has entered a


guilty   plea,   the face   of   the   conviction       includes " documents signed as part of a plea agreement."


Thompson, 143 Wn. App. at 867 ( citing State v. Phillips, 94 Wn. App. 313, 317, 972 P. 2d 932

 1999); State     v.   Davis, 47 Wn.          App.   91, 94, 734 P. 2d 500 ( 1987);          State v. Bembry, 46 Wn. App.

288, 291, 730 P. 2d 115 ( 1986)).                The trial court must be able to make a clear determination of


the constitutional invalidity of the prior conviction based on the judgment and sentence and plea




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No. 44171 -3 - II



agreement      documents,           otherwise   the    prior    conviction     is   not   facially   invalid.   Ammons, 105


Wn.2d    at   188 -89.    Any time " the trial court would have to go behind" the face of the conviction,

the defendant has not met his or her burden to demonstrate the facial invalidity of prior

conviction.     Ammons, 105 Wn. 2d              at   189.   Even where a guilty plea could be unconstitutional, it

is not facially invalid unless the trial court can conclusively make such a determination based on

the face   of a    guilty     plea.   Thompson, 143 Wn. App. at 867 -68; see also Ammons, 105 Wn.2d at

189.


         Here, Gatten cannot meet her burden to demonstrate that her prior convictions were


invalid on their face. First, she argues that the plea agreement is constitutionally invalid because

the trial court did not complete the section of the plea form indicating that Gatten read the

document      or   that the document          was read      to her.    Although this may indicate that the plea was

constitutionally         invalid,     the trial court cannot conclusively determine that the plea was

constitutionally invalid            without   going behind the        plea   document. Therefore, Gatten has not met


her burden to prove that the welfare fraud convictions are constitutionally invalid on their face.

See Ammons, 105 Wn.2d at 189; Thompson, 143 Wn. App. at 867 -68.

         Gatten also cannot meet her burden to prove that her welfare fraud convictions violate

double   jeopardy. To determine whether the welfare fraud convictions violate double jeopardy,

the trial court would be required to determine the appropriate unit of prosecution for welfare


fraud and then apply the unit of prosecution to the facts underlying Gatten' s welfare fraud

convictions.       Such an analysis of prior convictions is clearly inappropriate for a trial court at a

subsequent      sentencing          hearing. Furthermore, such an analysis requires the trial court to go far

beyond the face          of   the   plea agreement and         judgment      and sentence.     See Ammons, 105 Wn.2d      at
No. 44171 -3 - 1I



187 -89.    Accordingly, Gatten has failed to meet her burden to show that her prior convictions for

welfare fraud are constitutionally invalid on their face due to a double jeopardy violation.

Accordingly, the trial court did not err by including Gatten' s welfare fraud convictions in her
offender score.



B. FIRST DEGREE THEFT CONVICTION


           Gatten also argues that the trial court erred by including her first degree theft conviction

in her offender score because the conviction had previously been found to be the same criminal

conduct as     her   welfare       fraud    convictions.     The State   concedes   that the trial   court erred.   RCW


9. 94A. 525( 5)(   a)(   i)   states   that "[ p] rior   offenses which were   found ....    to encompass the same


criminal conduct shall           be    counted as one offense."      Therefore, the State properly concedes error.

We remand for the trial court to strike the one point included in Gatten' s offender score based on

the first degree theft conviction and resentence Gatten.


           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




                              Maxa, J.




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