                                                                      FILED
                                                                  DECEMBER 1, 2016
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33911-4-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
CHRISTOPHER JOHN BLAIR,                      )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )
                                             )
RA WNE LEE CLINGER                           )
                                             )
                    Defendant.               )

      KORSMO,    J. - Christopher Blair challenges the use of two prior convictions in

calculating his offender score, arguing that they are facially invalid. We disagree with

that argument and affirm.

                                         FACTS

      Mr. Blair was charged with taking a motor vehicle (TMV) resulting from the theft

of a truck from a dealership lot in 2011. He entered into a drug court program, but

absconded from treatment, was terminated from the program, and then was convicted of

the TMV charge at a stipulated bench trial after he was recaptured in 2015. The matter

then proceeded to sentencing.

      Although the parties agreed in writing that defendant's prior convictions existed

and counted in the offender score calculation, the defense made inconsistent arguments
No. 33911-4-III
State v. Blair


concerning the offender score. The defense did agree that the prior offenses counted at

least 7 points, and also agreed with the State's calculation that the offender score was 9. 1

The defense, nonetheless, argued that two prior 2011 TMV convictions, which all parties

agreed were to be treated as same criminal conduct with each other and an accompanying

second degree burglary conviction, were facially invalid because the stolen vehicles had

been snowmobiles. On that basis, the defense sought an exceptional sentence that would

fall within the range for an offender score of7 (17-22 months). The defense did not ask

the court to find that the offender score actually was 7 or argue that the range of 17-22

months applied to this sentencing.

       The court declined to impose an exceptional sentence. It also declined to address

the facial validity argument, concluding that the defense was asking it to not just look at

the prior TMV plea documents, but to make a legal determination that one of the

elements of those offenses was missing. However, the court did accede to the joint

request of the parties that a drug offender sentencing alternative (DOSA) be imposed and

ordered a DOSA sentence of 25 months.

      Mr. Blair then appealed to this court.




       1
         The difference between the two calculations turned on whether the 2011 TMV
convictions were valid or not. Because prior TMV convictions count as three points
when sentencing a current TMV conviction, one of the TMV counts would add three
points to the offender score, while the burglary count would add only one point.

                                               2
No. 33911-4-111
State v. Blair


                                        ANALYSIS

       The sole issue presented by this appeal is a contention that the two prior 2011

TMV convictions for stealing snowmobiles were facially invalid, requiring that Mr. Blair

be resentenced with an offender score of 7. We agree with the trial court that those

convictions were not, on their face, invalid.

       This case sits in an extremely peculiar procedural posture. Mr. Blair agreed with

and did not directly challenge the offender score calculation, but instead sought an

exceptional sentence based on an alleged error in calculating the offender score. A trial

court's denial of an exceptional sentence cannot be challenged on appeal unless the trial

court failed to follow a mandatory process. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d

1042 (1993). Viewed as an unsuccessful exceptional sentence request, Mr. Blair's appeal

would necessarily fail. Similarly, his counsel expressly argued the two offenses were

facially invalid, acknowledged that would result in an offender score of 7 with a range of

17-22 months, but did not ask for sentencing within that range for that reason, even

though that is the request he is making now. In light of the strictures of RAP 2.5, which

acknowledges that arguments not presented to the trial court generally will not be

considered on appeal, it is arguable that the defense has waived this argument. Against

that stricture is the common law "sentencing error" exception to RAP 2.5(a) recognized

in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), and State v. Ford, 137 Wn.2d




                                                3
No. 33911-4-III
State v. Blair


472, 973 P.2d 452 (1999). While the contours of that exception are rather vague, it might

apply to this circumstance.

       In light of the fact that the defendant made the specific argument to the trial court

that he makes here, albeit in the form of requesting an exceptional sentence, we conclude

that we can consider the argument in this appeal. Nonetheless, we conclude that his

claim does not establish facial invalidity.

       The seminal case upholding the Sentencing Reform Act and its use of prior

convictions to establish sentencing ranges is State v. Ammons, 105 Wn.2d 175, 713 P.2d

719, 718 P .2d 796 ( 1986). The Ammons court expressly declared that the State had no

affirmative burden of proving that prior convictions were constitutionally valid. Id. at

187. "However, 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." Id. at 187-188. The court then elaborated on the meaning of"invalid on its

face" by addressing challenges presented by the defendants. 2 One defendant challenged a

prior guilty plea by arguing that the plea statement form suffered from various

deficiencies. The court determined that the validity of the issues could not be made from

the face of the guilty plea form. Id. at 189 . Another defendant challenged jury



       2
         The court has also had to determine the meaning of a judgment "valid on its
face" in the context of interpreting RCW 10.73.090(1). E.g., In re Pers. Restraint of
Stoudmire, 141 Wn.2d 342, 353-354, 5 P.3d 1240 (2000).

                                              4
No. 33911-4-III
State v. Blair


instructions used in a prior trial. The court again declared that the claim "cannot be

determined facially" because it would require the trial court "to go behind the verdict and

sentence and judgment to make such a determination." Id.

       Ammons indicates that documents associated with a guilty plea can be considered

in determining facial validity. Although Mr. Blair has submitted the information filed

against him in the 2011 TMV cases, he has not provided a plea statement form, so we do

not know what facts were established in that proceeding. Assuming, however, that the

guilty plea was to the offense as charged in that information and that Mr. Blair was

convicted of TMV for taking two snowmobiles, he still has not established that those

convictions are invalid on their face.

       As the trial court observed, whether the TMV statute applies to snowmobiles

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

documents. It would require construing a statute; no prior case law has been cited to us

suggesting that the statute does or does not apply to snowmobiles. 3 The prior conviction

does not, "on its face," display constitutional infirmity. Determining whether the




       3  A recent decision from this court holds that the TMV statute does not apply to
riding lawn mowers, even though they fall within the definition of "motor vehicle" used
in this state. State v. Barnes, No. 33811-8-III (Wash. Ct. App. Oct. 6, 2016),
http://www.courts.wa.gov/opinions/pdf/338118_pub.pdf. We do not opine whether or
not a snowmobile would be similarly treated since the issue is not actually presented in
this action.

                                             5
No. 33911-4-III
State v. Blair


conviction is constitutionally invalid would require a more significant "elaboration" than

permitted by Ammons.

       Appellant did not establish that his two prior TMV convictions were invalid on

their face.

       Affirmed.

       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:



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