                                                                         FILED
                                                                      MARCH 19, 2019
                                                                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. 35456-3-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
MAXWELL D. JONES,                             )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. — Maxwell Jones challenges the offender score used at sentencing,

contending three of his prior offenses were found to be constitutionally invalid by a

federal court. That is not the case. Because this appeal is not the proper action for

challenging the prior convictions, his remedy is a personal restraint petition (PRP). We

affirm the trial court.

                                          FACTS

       Mr. Jones was found guilty at a 2015 bench trial of first degree robbery.

Considering ten prior adult felony convictions, the trial court sentenced him with an

offender score of 9+. His standard range was 129-171 months in prison. The trial court

imposed a term of 171 months.
No. 35456-3-III
State v. Jones


       He appealed to this court, alleging error in the calculation of his offender score.

This court affirmed. State v. Jones, No. 34038-4-III (Wash. Ct. App. Apr. 27, 2017)

(unpublished) http://courts.wa.gov/opinions/pdf/340384.pdf.

       Jones then timely moved for relief from judgment in the trial court pursuant to

CrR 7.8, alleging that four of his prior convictions from 2003 were obtained in violation

of his right to counsel. In support of his allegation, he attached the judgment and

sentences from the three cases, as well as a memorandum opinion from the Ninth Circuit

United States Court of Appeals. The judgment and sentence forms were signed by Jones,

but not by a defense attorney.

       The Ninth Circuit opinion vacated a federal sentence being served by Jones,

explaining:

       At sentencing, the district court relied on three 2003 Washington state court
       convictions for which Jones had pled guilty pro se in calculating Jones’s
       base offense level and criminal history category. . . .
              In a prior, unrelated federal prosecution of Jones, the Government
       conceded that Jones’s uncounseled 2003 convictions were constitutionally
       invalid. . . . On remand, the district court may not use the three
       uncounseled 2003 state convictions to calculate Jones’s base offense level
       or criminal history category.

United States v. Jones, 653 Fed. Appx. 861, 862 (9th Cir. 2016).

       The trial court, however, rejected the CrR 7.8 motion, reasoning that Washington

precedent prohibited trial courts from considering the constitutionality of prior

convictions at sentencing. Any relief would have to come from a PRP.


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No. 35456-3-III
State v. Jones


       Mr. Jones timely appealed to this court. A panel considered his appeal without

hearing argument.

                                        ANALYSIS

       The sole issue presented by this appeal is whether the trial court erred by denying

the CrR 7.8 motion. The trial court correctly determined that it could not consider the

constitutionality of the prior convictions at the current sentencing.

       This court reviews a trial court’s CrR 7.8 ruling for abuse of discretion. State v.

Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       A felony sentence in Washington is dependent on two factors—the seriousness

level of the offense and the offender’s prior criminal convictions. RCW 9.94A.515;

RCW 9.94A.525. The intersection of the seriousness level and the offender score

provides the standard range. RCW 9.94A.510. Thus, a reduction in the offender score

typically results in a reduced sentence range.

       The governing authority on the issue of counting prior offenses, as recognized by

the trial judge, is State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719 (1986). There the

court recognized that the State did not have to establish the constitutional validity of prior

convictions used to establish a defendant’s offender score. Id. at 187. A defendant “has

no right to contest a prior conviction at a subsequent sentencing,” but, instead, must seek

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No. 35456-3-III
State v. Jones


to challenge the prior conviction by collateral attack. Id. at 188. If successful, the

defendant then may obtain resentencing. Id.

       Ammons recognized two exceptions—the trial court could not use a conviction

that (1) had previously been determined to have been unconstitutionally obtained, or (2)

which was constitutionally invalid on its face. Id. at 187-188. Here, Mr. Jones argues

that his challenged convictions fail both of the Ammons exceptions.

       He first contends that the Ninth Circuit ruling determined that the prior

convictions were unconstitutionally obtained. He overstates the extent of that ruling. In

his case, the United States Attorney had conceded that three of the prior convictions were

constitutionally invalid. Jones, 653 Fed. Appx. at 862. The Ninth Circuit accepted that

concession, but did not invalidate those prior convictions. Id. Those earlier cases were

not before the court.

       The first Ammons exception applies only if the prior conviction was invalidated.

State v. Jones, 110 Wn.2d 74, 78, 750 P.2d 620 (1988). Implicitly, the first Ammons

exception is based on the theory of collateral estoppel. Id. In order for collateral estoppel

to apply, “the party against whom the plea of collateral estoppel is asserted must have

been a party or in privity with a party to the prior litigation.” State v. Williams, 132

Wn.2d 248, 254, 937 P.2d 1052 (1997).

       State courts are required to accord full faith and credit to the judgment of a federal

court. Woodley v. Myers Capital Corp., 67 Wn. App. 328, 336, 835 P.2d 239 (1992).

                                              4
No. 35456-3-III
State v. Jones


“The federal constitution’s full faith and credit clause, U.S. Const. art. 4, § 1, may require

that a federal court’s prior judgment be given a preclusive effect in a subsequent state

action.” Id. If all the elements of collateral estoppel are present, a state court must give

preclusive effect to a federal court judgment. See Spahi v. Hughes-Nw., Inc., 107 Wn.

App. 763, 774-775, 27 P.3d 1233 (2001). Collateral estoppel does not apply “where the

issue is the role of prior state convictions in a federal sentencing scheme.” United States

v. Guthrie, 931 F.2d 564, 571 (9th Cir. 1991).

         For several reasons, collateral estoppel does not apply to the federal ruling. The

primary reason is that the 2003 convictions were not before the federal court; the issue

there was simply whether those convictions applied under the federal sentencing statutes

to the current case before the trial court. In addition, the State was not a party to the

federal prosecution, nor in privity with the United States. Thus, even if the federal ruling

had reached the issue of validity of the 2003 convictions, collateral estoppel would not

apply.

         Mr. Jones also argues that the prior offenses are invalid on their face because the

judgment forms indicate that he had no counsel. However, that fact does not establish

facial invalidity.

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

elaboration evidences infirmities of a constitutional magnitude.” Ammons, 105 Wn.2d at

188. “The face of the conviction includes any plea agreement.” State v. Gimarelli, 105

                                               5
No. 35456-3-III
State v. Jones


Wn. App. 370, 375, 20 P.3d 430 (2001). “The conviction need not show that a

defendant’s rights were not violated; rather, for the conviction to be constitutionally

invalid on its face, the conviction must affirmatively show that the defendant’s rights

were violated.” Id. Thus, a “conviction that is merely silent about whether a defendant’s

rights were protected is not facially invalid.” State v. Booker, 143 Wn. App. 138, 144,

176 P.3d 620 (2008).

       Both the state and federal constitutions guarantee the right to representation by

counsel and the right to represent one’s self. State v. Modica, 136 Wn. App. 434, 440-

441, 149 P.3d 446 (2006). A criminal defendant may waive his right to counsel and

proceed pro se. Id. at 441. Thus, the absence of an attorney’s name on the judgment and

sentence does not itself establish that a conviction is invalid on its face.

       Ultimately, Mr. Jones’s argument boils down to a contention that his waiver of

counsel in 2003 was invalid. However, he does not prove that contention merely by

showing that he was sentenced in the 2003 cases without an attorney. He will have to do

that via a PRP where the waiver colloquy is put before a court that can assess the validity

of the waiver of counsel.1




       1
         Although collateral attacks must be brought within one year of a judgment and
sentence becoming final, that limitation does not apply to judgments that are invalid on
their face. RCW 10.73.090; RCW 10.73.100(2).

                                               6
No. 35456-3-III
State v. Jones


       The trial court correctly held that Mr. Jones could not challenge the use of the

prior convictions at sentencing in this action.

       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:




       Lawr�nce-Berrey: .J�




       Pennell, J.




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