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        IN CLERKS OFFICE
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         CHCF JUSTICE


                                                             SUSAN L. CARLSON
                                                           SUPREME COURT CLERK




       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




    STATE OF WASHINGTON,
                                                   No. 93995-1
                           Respondent,

          V.                                       En Banc


    CHRISTOPHER JOHN BLAIR,

                           Petitioner.
                                                   Filed           JUL 2 6 2018


          JOHNSON,J.—In this case we are asked to decide(1) whether a sentencing

    court may go behind the judgment and sentence and engage in statutory

    interpretation to determine the facial validity of a prior conviction for current

    sentencing purposes and (2) whether a snowmobile is a "motor vehicle" for

    purposes of ROW 9A.56.065. We conclude that the defendant must allege a

    constitutional defect on the face of a prior conviction to challenge that conviction's

    validity for purposes of offender score calculation in an otherwise unrelated

    proceeding. The trial court declined Blair's invitation to engage in statutory
State V. Blair (Christopher John), No. 93995-1




construction here and counted two prior convictions for taking a motor vehicle.

The Court of Appeals agreed with the trial court, and we affirm.'

                            Facts and Procedural History


       The State charged Christopher Blair in Spokane County Superior Court with

one count of theft of a motor vehicle, a Ford truck, that Blair purportedly stole on

or about October 28, 2011. Pursuant to that charge, he entered a drug court

personal recovery program. Blair was terminated from the program on September

8, 2015. According to the record, Blair has five prior felony convictions in

Washington, including second degree theft, second degree burglary, possession of

a stolen vehicle, and two counts of theft of a motor vehicle at issue here. At

sentencing, Blair argued for a "downward departure [from] the standard range"

sought by the State and requested an exceptional sentence. Clerk's Papers(CP)at

40; see Verbatim Report ofProceedings(VRP)at 25. Blair argued that although he

had pleaded guilty to two counts oftheft of a motor vehicle, both of those vehicles

were snowmobiles, and therefore not "motor vehicles" for purposes of RCW

9A.56.065. Blair asserted that his plea to the two counts was facially invalid.




      'Because we affirm the Court of Appeals on procedural grounds, we do not reach the
second issue presented.
State V. Blair (Christopher John), No. 93995-1




       In his briefing to the sentencing court, Blair requested to be "sentenced as if

those were not motor vehicle convictions, which would result in a standard range

of 17-22 months." CP at 40. At the sentencing hearing, Blair asserted that the

correct standard sentencing range should be "22 to 29 months," based on an

offender score of"seven." VRP at 28.


       The State argued that Blair's offender score should be "nine" and the

standard range should be "43 to 57 months." VRP at 24. The State opposed Blair's

request for an exceptional sentence, arguing that for the sentencing court to

"review another superior court judge's decision and be an appellate review court

for that" would be inappropriate. VRP at 28; see CP at 58-61. The sentencing

judge agreed with the State, reasoning as follows:

       What I'm being asked to do today is not just look at the documents
       that were filed at the time ofthe plea and sentencing but to actually
       make a determination that one of the elements alleged is missing, that
       it was not in fact a motor vehicle.
              I think that goes way beyond whether you could get that from
       just looking at the documents themselves on their face. And I think it
       may be an excellent argument for a restraint petition or some other
       venue, but I don't think it supports my going forward with an
       exceptional sentence today.

VRP at 31. At the sentencing hearing, the State announced that Blair requested to

be sentenced under the drug offender sentencing alternative(DOSA)and that the

State "[was] in agreement with that." VRP at 31. The calculation was based on
State V. Blair (Christopher John), No. 93995-1




"[h]alf the midpoint of a standard range on [Blair's] charge." VRP at 31. The court

accepted the recommendation and sentenced Blair to 25 months in custody and 25

months of community custody.

       The Court of Appeals in an unpublished opinion affirmed. It noted that Blair

challenged his offender score calculation seeking an exceptional sentence, and that

"[vjiewed as an unsuccessful exceptional sentence request, Mr. Blair's appeal

would necessarily fail." State v. Blair, No. 33911-4-III, slip op. at 3(Wash. Ct.

App. Dec. 1, 2016)(unpublished),

http://www.courts.wa.gov/opinions/pdf/339114_unp.pdf. The Court of Appeals

nevertheless relied on the "common law 'sentencing error' exception to RAP

2.5(a)" to reach Blair's facial invalidity claim. Blair, slip op. at 3. It then rejected

Blair's facial invalidity argument, reasoning that "whether[RCW 9A.56.065]

applies to snowmobiles would require more than a simple look at the judgment and

sentence and associated documents" and would instead require the sentencing

court to engage in "construing a statute." Blair, slip op. at 5. The Court of Appeals

did not reach the issue of whether snowmobiles were motor vehicles for purposes

of RCW 9A.56.065.
State V. Blair (Christopher John), No. 93995-1




                                          Analysis


       Generally, the length of a criminal sentence imposed by a superior court is

not subject to appellate review if the punishment falls within the correct standard

sentencing range. RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65

P.3d 1214(2003). And "[a]n appellate court will reverse a sentencing court's

decision only if it finds a clear abuse of discretion or misapplication of the law."

State V. Porter, 133 Wn.2d 177, 181, 942 P.2d 974(1997); accord State v. Aldana

Graciano, 176 Wn.2d 531, 537, 295 P.3d 219(2013). It is error for the sentencing

court to refuse '"categorically to impose an exceptional sentence below the

standard range under any circumstances'" or to "operate[] under the 'mistaken

belief that it did not have the discretion to impose a mitigated exceptional sentence

for which [a defendant] may have been eligible.'" State v. McFarland, 189 Wn.2d

47, 56, 399 P.3d 1106(2017)(second alteration in original)(quoting State v.

Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104(1997);In re Pers.

Restraint ofMulholland, 161 Wn.2d 322, 333, 166 P.3d 611 (2007)).

       Blair sought an exceptional sentence under RCW 9.94A.535(1). At the

sentencing hearing, Blair appeared to agree with the State's calculation ofthe

offender score as nine and the standard range as 43 to 57 months. Yet, Blair also

argued that "the way [Blair's convictions are] counted is not correct and . .. the
State V. Blair (Christopher John), No. 93995-1




correct range would be 22 to 29 months." VRP at 28 (emphasis added). The Court

of Appeals concluded that RAP 2.5 generally precluded Blair from challenging the

offender score calculation. It reasoned, however, that because Blair at one point

explicitly challenged the correctness ofthe offender score calculation and the

standard range calculation,"the common law 'sentencing error' exception" to RAP

2.5(a) applied, citing State v. Blazina, 182 Wn.2d 827, 344 P.3d 680(2015), and

State V. Ford, 137 Wn.2d 472, 973 P.2d 452(1999). Blair, slip op. at 3.

       Unlike the Court of Appeals, neither the State nor Blair addresses this issue

in their briefing to us.^ Blair's briefing in the trial court^ as well as his arguments at

sentencing indicate that he raised the issue of facial invalidity of his two prior theft

of a motor vehicle(TMV)convictions for purposes of the offender score

calculation and that the strictures of RAP 2.5(a) are therefore not directly

applicable. Unlike Blazina, where the defendant never objected to the sentencing

condition, and Ford, where the defendant never objected to the classification of his

prior offenses as felonies, Blair objected at sentencing to the use of the two prior



       ^ While it is unclear from the briefing he filed with this court, Blair's argument appears to
be that half the midpoint of a standard range that Blair sought to he used to calculate his
requested DOSA sentence would have resulted in a 12 and Va months sentence. See ROW
9.94A.662.


       ^ See CP at 39(Pefr's Sentencing Br.(arguing that "[t]he plea to the snowmobile
charges, as motor vehicles, is invalid on its face")).
State V. Blair (Christopher John), No. 93995-1



convictions at issue on the grounds of facial invalidity. Blair's facial invalidity

argument is therefore properly before this court.

       As we have previously stated, "It is well settled that the State is not required

to prove the constitutional validity of prior convictions used to calculate a

defendant's offender score on a current conviction." State v. Irish, 173 Wn.2d 787,

789, 272 P.3d 207(2012)(citing 6*^/6 v. Ammons, 105 Wn.2d 175, 187-88, 713

P.2d 719, 718 P.2d 796 (1986)). The concept of facial invalidity has been most

thoroughly examined in In re Personal Restraint ofCoats In Coats, we said that

"we have found errors rendering a judgment [facially] invalid under RCW

10.73.090 only where a court has in fact exceeded its statutory authority in entering

the judgment or sentence." Coats, 173 Wn.2d at 135 (emphasis added). That

includes collateral attacks on convictions for nonexistent crimes. In re Pers.


Restraint ofHinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004).

       Blair argues that the facial invalidity standard should be the same standard

applied to personal restraint petitions (PRPs), and that we should conclude that the

sentencing court may look at "related law and documents associated with plea

agreements" and engage in "some degree of statutory interpretation." Suppl. Br. of

Pet'r at 9, 11. Conversely, the State argues that where we are reviewing a challenge


         173 Wn.2d 123, 267 P.3d 324(2011).
State V. Blair (Christopher John), No. 93995-1




to a prior conviction at sentencing, Ammons and Irish should control and facial

constitutional invalidity must be alleged. Suppl. Br. of Resp't at 7, 11. The State

argues that for a sentencing court to engage in statutory interpretation at the

sentencing hearing would unduly burden that court and result in minitrials focused

on the prior criminal history, undercut the finality of long-settled judgments, and

impede consistency in how prior convictions are treated. The Court of Appeals

similarly reasoned that the question of whether the TMV statute "applies to

snowmobiles would require more than a simple look at the judgment and sentence

and associated documents" and would "require construing a statute," contrary to

Ammons. Blair, slip op. at 5.

       Whereas in Irish and in Ammons the challenge was to the constitutional

validity of the prior sentences, here, Blair challenges his two prior convictions as

convictions for "non-existent crimes." Suppl. Br. of Pet'r at 2. At oral argument

before this court, counsel for petitioner analogized Blair's charges to being charged

with possession of a controlled substance, arguing that if the controlled substance

at issue were a bottle of Aquafma water, a charge with a nonexistent crime would

result. Wash. Supreme Court oral argument. State v. Blair, No. 93995-1 (May 8,

2018), at 39 min., 5 sec., video recording by TVW,Washington State's Public

Affairs Network, http://www.tvw.org. But the flawed nature of this analogy is
State V. Blair (Christopher John), No. 93995-1




quite apparent from the fact that the act of possession in and of itself is not

criminal; the same cannot be said of theft. The issue, therefore, is not whether Blair

was previously charged with and convicted of a nonexistent crime, but rather

whether RCW 9A.56.065^ applies, or whether Blair should have been charged with

and convicted of theft under a different statute.


       Blair relies on cases dealing with PRPs, primarily Hinton, Coats, and In re

Personal Restraint of Thompson.^ This line of cases is inappropriate given the

procedural nature ofthe claim here. In regard to Hinton, we have explicitly stated

that "[t]he facial invalidity we noted [there] is relevant only to the one year statute

of limitation for personal restraint petitions but does not control determination of

any other issues." State v. Hall, 162 Wn.2d 901, 908, 177 P.3d 680(2008)

(footnote omitted). In Coats, we prefaced our discussion of facial invalidity by

stating that "[ajmong the peculiar characteristics of personal restraint petitions is

the fact that they may be, and usually are, considered first by appellate courts, not

by trial courts." Coats, 173 Wn.2d at 132. And in Thompson, the issue we

addressed was whether "pursuant to RCW 10.73.090 the judgment and sentence




       ^ The statute, unhelpfully, reads, in relevant part,"A person is guilty of theft of a motor
vehicle if he or she commits theft of a motor vehicle." RCW 9A.56.065(1).

       ^ 141 Wn.2d 712, 10 P.3d 380 (2000).
State V. Blair (Christopher John), No. 93995-1



was valid on its face." Thompson, 141 Wn.2d at 718. In //i re Personal Restraint of

Stoudmire, examined by both Coats and Thompson, we also said that "[ajlthough

this eourt has not discussed what 'validity on its face' means in terms of the time

limit in RCW 10.73.090, it has spoken in [Ammons], to what it means for a prior

eonviction to be constitutionally invalid on its face in a sentencing proceeding,"

thereby drawing a clear proeedural distinction. 141 Wn.2d 342, 353, 5 P.3d 1240

(2000).

       The State argues, and we agree, that this distinction requires a defendant

challenging the use of a prior conviction at sentencing to show constitutional facial

invalidity, as Ammons and Irish would suggest. In a collateral attack, on the other

hand, faeial invalidity may be statutory, eonstitutional, or jurisdictional. See Coats,

173 Wn.2d at 135-42(diseussing what makes a sentenee invalid and the meaning

offacial invalidity separately). Irish and Ammons support our reasoning here. In

Irish, we stated that

       a criminal defendant generally has no right to contest the validity of a
       previous eonviction in connection with a current sentencing. Ammons,
       105 Wn.2d at 188. Requiring the State to make such a showing, or
       allowing the defendant to assert such a challenge, would turn the
       current sentencing proceeding into an appellate review of all ofthe
       defendant's prior convictions. Id. Consequently, a defendant seeking
       to challenge the validity of a prior conviction must exhaust established
       postconviction avenues of relief, sueh as a personal restraint petition.



                                                 10
State V. Blair (Christopher John), No. 93995-1




Irish, 173 Wn.2d at 789-90. We have also expressed our concern about creating

minitrials over prior convictions in State v. Wiley, 124 Wn.2d 679, 686, 880 P.2d

983 (1994), State v. Jordan, 180 Wn.2d 456, 466, 325 P.3d 181 (2014), and

Ammons, 105 Wn.2d at 187-88. InAmmons, we stated that

       a prior conviction which has been previously determined to have been
       unconstitutionally obtained or which is constitutionally invalid on its
      face may not be considered. Constitutionally invalid on its face means
       a conviction which withoutfurther elaboration evidences infirmities
       of a constitutional magnitude.
              To require the State to prove the constitutional validity of prior
       convictions before they could be used would turn the sentencing
       proceeding into an appellate review of all prior convictions. The
       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 187-88 (emphasis added).

       We further note that for purposes of determining the validity by a sentencing

court of a prior conviction, that court is generally limited to looking at the face of

the documents that were filed at the time of the plea and sentencing.^ It is true that

in Coats we said that "we have not limited our review to the four comers ofthe


judgment and sentence," and that "we have considered only documents that reveal



     'Here, Blair has not provided any plea statement forms but only the information filed in
conjunction with the snowmobile charges and the corresponding felony judgment and sentence.


                                                 11
State V. Blair (Christopher John), No. 93995-1




some fact that shows the judgment and sentence is invalid on its face because of

legal error." Coats, 173 Wn.2d at 138-39(emphasis added). But we have never

held that the same considerations that apply when deciding a PRP apply when a

sentencing court is presented with a challenge to a prior conviction, as is evident

from the language in Stoudmire, quoted supra.

       Blair argues that "as a matter of common sense, some degree of statutory

interpretation is always necessary to determine whether charged conduct

constitutes a crime.      Suppl. Br. of Pet'r at 11. While this makes some sense, the

effect of accepting this approach would be to open up sentencing procedures to

allow collateral attacks on facially valid prior convictions, a result our cases have

rejected. The issue of whether theft of snowmobiles involves theft of motor

vehicles under the statute does not raise a constitutional issue, and there is nothing

constitutionally invalid about a conviction for theft of a motor vehicle as RCW

9A.56.065(1) provides.




       ^ For this proposition, Blair cites to Thompson, where this court, and not the sentencing
court, considered the date the statutory offense in question was enacted.


                                                 12
State V. Blair (Christopher John), No. 93995-1




                                        Conclusion


       We affirm.




WE CONCUR:




                                                 13
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)




                                     No. 93995-1




       GORDON McCLOUD, J. (concurring)—Sentencing reform came to

Washington in 1981 with the adoption ofthe Sentencing Reform Act of 1981(SRA),

chapter 9.94A ROW. Its presumptive sentences and statutory guidelines for

departures from those sentences were designed to make sentencing more predictable,

clear, and uniform—and hence more fair—across the state.

       This court upheld the SRA against a variety of constitutional challenges a few

years later in State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P,2d 796

(1986). One of the constitutional challenges considered was the fact that the

legislature did not place the burden on the State to prove the constitutional validity

of prior convictions used in the sentencing calculation. This court rejected that

challenge; we held that "the State does not have the affirmative burden of proving

the constitutional validity of a prior conviction before it can be used in a sentencing

proceeding." Ammons, 105 Wn.2d at 187-88.
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)


       But we didn't stop there. We continued by saying that since prior convictions

play such an important role in determining current sentences based on the SRA's

guidelines, there were certainly ways to test the validity of those prior

convictions. First, we held that "a prior conviction which has been previously

determined to have been unconstitutionally obtained" cannot be used to enhance a

current sentence. Id. (citing In re Pers. Restraint ofBush, 26 Wn. App. 486, 497-

98, 616 P.2d 666 (1980), aff'd, 95 Wn.2d 551, 627 P.2d 953 (1981); United States

V. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972); Burgett v. Texas,

389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967)). Next, we held that a prior

conviction "which is constitutionally invalid on its face may not be considered" in

determining a current sentence. Id. Finally, we concluded by explaining,

"Constitutionally invalid on its face means a conviction which without further

elaboration evidences infirmities of a constitutional magnitude." Id. at 188.

       Thus, under Ammons, sentencing courts clearly retain the power and the duty

to determine whether a prior conviction is "invalid on its face" and, hence,"may not

be considered."/(c/. at 187-88.


       I acknowledge ihaX Ammons focused on constitutional invalidity. But that was

because that was the only challenge that was presented there.
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)


       The majority, however, takes this happenstance of the particular challenge

that was raised in Ammons, and the Ammons discussion about how to raise such

constitutional challenges, as a decision to preclude any other types of

challenges. Majority at 10 ("The state argues, and we agree, that this distinction

requires a defendant challenging the use of a prior conviction at sentencing to show

constitutional facial invalidity, as Ammons and Irish^^^ would suggest."). This is

incorrect. The majority's decision to take challenges to the statutory invalidity of a

prior conviction out of the trial court's hands not only lacks support in Ammons', it

is completely unprecedented. And it creates a ridiculous anomaly: under the

majority's approach, the criminal defendant has the right to raise facial challenges

to his or her prior convictions on statutory and jurisdictional grounds in a

postconviction personal restraint petition, but not at the prejudgment sentencing

itself. Id. ("In a collateral attack, on the other hand, facial invalidity may be

statutory, constitutional, or jurisdictional."(citing/« rePers. Restraint ofCoats, 173

Wn.2d 123, 135-42, 267 P.3d 324 (2011))).

       The majority also takes another unprecedented and ill-advised step in

supposed reliance on Ammons. The majority holds that trial courts cannot engage in

"'statutory interpretation'"(majority at 12(quoting Suppl. Br. ofPet'r at 11)) when



       1 State V. Irish, 173 Wn.2d 787, 272 P.3d 207(2012).
                                           3
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)


presented with challenges that are clear from the face of the appropriate documents

at sentencing.

       This misreads Ammons and betrays a lack of trust in the ability of trial court

judges to conduct statutory analysis. Actually, under Ammons, sentencing courts

retained the power to make decisions about the validity or invalidity of prior

convictions when presented with the proper documents—^no matter how difficult it

might be to engage in such constitutional analysis. Ammons,105 Wn.2d at 190. And

since that time, we have clearly ruled that the proper documents to consider when

determining the validity or invalidity of a conviction on its "face" include—at least

in the most restrictive personal restraint petition (PRP) context—^not just the

judgment but also the information, the statement of defendant on plea of guilty, and

certain other regularly filed materials. Coats, 173 Wn.2d at 139-40. The majority

now asserts that not even these documents can be considered at the sentencing itself.

       Ammons was designed to simplify things at sentencing. It allowed criminal

defendants to challenge the validity of prior convictions used to enhance the current

sentence at the sentencing itself, where the defendant was represented by a lawyer,

using the "face" ofthe prior conviction documents.
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)


       The majority's decision, in contrast, is anything but simple. It directs trial

court judges, at sentencing, to determine constitutional validity but not "statutory , .

. or jurisdictional" validity of prior convictions. It directs those judges to consider

only one of the documents that a PRP judge can consider in determining the facial

validity of a prior conviction but not any ofthe other documents that our PRP cases

hold are admissible and relevant to the facial validity question. And it directs the

criminal defendant who is not able to follow these confusing advisements at

sentencing, with the benefit of counsel, to file his or her challenge in a PRP. PRPs,

of course, occur later in the process, take time, and are proceedings at which the

criminal defendant generally lacks counsel.

       This is not the simplicity that Ammons promised. This is a complex disaster

that most criminal defendants will not be able to navigate on their own. Our case

law and common sense compel the conclusion that the sentencing court must be able

to consider sentencing challenges that are clear from the face of prior conviction

documents, including those involving statutory or constitutional analysis, at

sentencing. Sentencing is the time when the criminal defendant—no matter how

rich or poor—^has the benefit of counsel, and the matter can be resolved

expeditiously in a single proceeding.
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)


       In this case, however, the defendant did not provide the trial court (or this

court) with sufficient documents to support his claim. He argues that he has two

prior convictions for "theft of a motor vehicle" that were used against him at

sentencing, that the statutory phrase "motor vehicle" does not include snowmobiles,

and that two of his prior convictions were for theft of snowmobiles. But he has not

provided sufficient documents to show that the prior convictions were based on theft

of snowmobiles. As the Court of Appeals aptly observed,"Although Mr. Blair has

submitted the information filed against him in the 2011 TMV [theft of a motor

vehicle, RCW 9A.56.065] cases, he has not provided a plea statement form, so we

do not know what facts were established in that proceeding." State v. Blair, No.

33911-4-III, slip op. at 5 (Wash. Ct. App. Dec. 1, 2016) (unpublished),

http://www.courts.wa.gov/opinions/pdf/339114_unp.pdf.

       I therefore respectfully concur.
State V. Blair (Christopher John), No. 93995-1
(Gordon McCloud, J., concurring)




                                           7
