                                                                            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ROBERT RUSSELL ELLISON,                        )         UNPUBLISHED OPINION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

                                             22


                                                                                               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




                                            31
