                                                                           FILED 

                                                                         MAY 21,2015 

                                                                  In the Office of the Clerk of Cou rt 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31485-5-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ALFREDO BRICE INOCENCIO,                      )         PUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -Alfredo Inocencio appeals the results ofaresentencing,

arguing that the trial court erroneously included points in his offender score for two

convictions as a juvenile in adult court that he claims are invalid. Citing State v. Saenz,

175 Wn.2d 167,283 P.3d 1094 (2012), he argues that the State cannot demonstrate that

his waiver of a decline hearing resulting in those convictions as an adult was knowing

and voluntary. He also relies on Saenz to argue that the court's order transferring

jurisdiction of those charges to adult court contained inadequate findings.

       Saenz involved the distinguishable context of a court imposing a sentence on a

persistent offender of total confinement for life without the possibility of release. When

requesting such a sentence, the State must prove a defendant's prior status as an
No. 31485-5-III
State v. Inocencio


"offender," a statutorily defined term that implicates proof of the prior sentencing court's

jurisdiction over a juvenile. Where only an offender score is at issue, as in this case, the

State has the different burden of proving the defendant's criminal history by a

preponderance of the evidence-a burden that can be met without proving a prior

sentencing court's jurisdiction.

       Saenz does not apply. Because the allegedly invalid convictions have not

previously been determined to have been unconstitutionally obtained and are not

constitutionally invalid on their face, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Alfredo Inocencio was convicted in 2009 of two counts of first degree assault.

This court affirmed his judgment and sentence on appeal. See State v. Inocencio,

Commissioner's Ruling, No. 28691-6-III (Wash. Ct. App., May 25, 2011). In response to

a timely petition for review, however, we remanded the matter to the superior court for

resentencing after the State agreed that errors had been made in calculating the offender

scores for the two ·convictions. See In re: Alfredo Jose Inocencio, Agreed Order

Transferring Personal Restraint Petition to Superior Court for Resentencing and

Dismissing Petition, No. 30908-8-III (Wash. ct. App., December 4,2012).

       Before the resentencing hearing, Mr. Inocencio filed a motion to strike two prior

convictions from his offender score for the reason that "the defendant was 16 years of age

at the time of the convictions and had not been properly declined by the Juvenile Court

                                              2

No. 31485-5-111
State v. Inocencio


prior to the entry of the conviction in Adult Court." Clerk's Papers (CP) at 33. This

requested adjustment to his offender score was distinct from, and in addition to, the error

that resulted in the order requiring resentencing. According to Mr. Inocencio, striking of

two convictions entered in 2005, when he was a juvenile, was required by the

Washington Supreme Court's decision in Saenz.

                                  The Juvenile Convictions

       Mr. Inocencio's two convictions at issue were the result of a 2005 plea agreement.

He had initially been charged with first degree robbery, unlawful possession of a firearm,

and possession of a stolen firearm; the first degree robbery charge resulted in automatic

declination from the juvenile division to adult criminal court. RCW 13.04.030(1)(e)(v).

The State and Mr. Inocencio reached an agreement under which the State would file an

amended information in adult court reducing the first two charges to first and second

degree theft and dropping the third charge. In exchange, Mr. Inocencio agreed to enter a

plea of guilty to the two theft charges. It was a condition of the State's agreement that

the convictions be entered in adult criminal court. Since the reduced charges fell within

the jurisdiction of the juvenile court, Mr. Inocencio agreed to waive a decline hearing and

submit to the jurisdiction of the adult court.

       At the hearing on Mr. Inocencio's guilty plea, the lawyers explained their

agreement and the sentencing judge engaged in some discussion with Mr. Inocencio

about the fact that by submitting to the jurisdiction of the adult court, any further crimes

                                                 3

No. 31485-5-II1
State v. Inocencio


he committed as a juvenile would automatically fall within the jurisdiction of the adult

court. Mr. Inocencio indicated that he understood.

       The trial court that accepted the plea and waiver of a decline hearing entered

findings of fact and conclusions of law that stated, in relevant part:

                                                   III.

              Inocencio knowingly, intelligently and voluntarily waives his right
       to a declination hearing in the Juvenile Division under RCW 13.40.110(1).
       Inocencio understands that entry of this order will subject him to Adult
       Division jurisdiction for any and all subsequent criminal offenses, because
       he will no longer meet the definition of "juvenile" under RCW Title 13 as
       interpreted by State v. Oreiro, 73 Wn. App. 868 [871 P.2d 666] (1994).

                                                   IV.

               The State and Inocencio request the Juvenile Division to decline
       jurisdiction and the Adult Division to retain jurisdiction. This agreed
       jurisdictional status is a material component of the plea agreement into
       which Inocencio has entered with the State.

                                                   V.

              In light of the facts, reports and opinions submitted, the best interests
       ofInocencio and the community would be served by declination of Juvenile
       Division jurisdiction over the amended charges of First Degree Theft and
       Second Degree Theft (and any and all subsequent charges) pursuant to
       RCW 13.40.110(2) and the criteria set forth in Kent v. United States, 383
       U.S. 541 [86 S. Ct. 1045] (1966) and State v. Holland, 98 Wn.2d 507 [656
       P.2d 1056] (1983).

CP at 42-43. On the basis of the findings, the court ordered that the juvenile division of

the superior court declined jurisdiction over Mr. Inocencio and that the adult division of

the court retained jurisdiction.

                                              4

No. 31485-5-III
State v. Inocencio


                                  2013 Resentencing Hearing

       At the 2013 resentencing hearing, a new sentencing judge heard argument of Mr.

Inocencio's motion to strike the two 2005 theft convictions from his offender score. Mr.

Inocencio argued that in order for a conviction entered when he was less than 18 years

old to count toward his offender score, Saenz required the State to demonstrate that the

case had properly been under adult criminal court jurisdiction. Because he had waived

juvenile court jurisdiction, he argued that Saenz required the State to demonstrate an

express waiver, intelligently made, after having been fully informed of the rights being

waived. See Saenz, 175 Wn.2d at 176. He also argued that before transferring the case to

adult court, the juvenile court must have entered a finding that transfer to adult court was

in the best interest of Mr. Inocencio or the pUblic. See id. at 180. He argued that in the

case of his 2005 theft convictions, there was no showing of an informed intelligent

waiver and that the court's "best interest" finding was conclusory.

       The sentencing court refused to strike the 2005 theft convictions and included

them in arriving at a corrected offender score. In announcing its sentencing decision, the

court observed that in the case of Mr. Inocencio's 2005 sentencing (unlike in Saenz) the

court had entered a written finding that the best interest of Mr. Inocencio and the

community would be served by declination ofjuvenile court jurisdiction.

       Mr. Inocencio appeals the court's refusal to strike the 2005 convictions in

calculating his offender score.

                                             5

No. 31485-5-III
State v. Inocencio


                                         ANALYSIS

       RCW 9.94A.525 provides that a defendant's offender score "is the sum of points

accrued under this section rounded down to the nearest whole number." First and second

degree theft are class Band C felonies, respectively. RCW 9A.56.030(2); RCW

9A.56.040(2). Unless they have washed out, class Band C felonies count toward the

offender score under RCW 9.94A.525(2)(g), which "applies to both adult and juvenile

prior convictions."

       Nonetheless, in Saenz and in State v. Knippling, 166 Wn.2d 93,206 P.3d 332

(2009)-both involving sentences imposed under the Persistent Offender Accountability

Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, also

known as the "three strikes law"-our Supreme Court held that the State fails to meet its

burden of proving that a defendant "has ... been convicted as an offender" of a "strike"

as required by RCW 9.94A.030(37) w~en it offers evidence ofa conviction at a time

when the defendant was less than 18 years old without demonstrating that he or she was

properly before the adult criminal court. At issue is whether the reasoning of the two

decisions extends to the facts of this case.

                     The Supreme Court Decisions in Knippling and Saenz

       In Knippling, the State asked in 2005 that Tucero Knippling be sentenced to life

imprisonment without parole as a persistent offender, relying in part on his conviction of

a most serious offense in 1999. The 1999 judgment and sentence indicated on its face

                                               6

No. 31485-5-III
State v. Inocencio


that Mr. Knippling had been 16 years of age at the time of the conviction. As in Mr.

Inocencio's case, the record indicated that Mr. Knippling had originally been charged in

1999 with first degree robbery over which the adult criminal court had automatic

jurisdiction, but that the parties had reached a plea agreement under which the charge was

reduced to second degree robbery, a crime within the exclusive jurisdiction of the

juvenile court. Once the information was amended, "the superior court no longer had

jurisdiction because of Knippling' s status as a juvenile," and "a declination hearing was

required in order to transfer the case back to superior court." Id. at 101.

       Nothing in the record before the court asked to sentence Mr. Knippling as a

persistent offender in 2005 indicated that the juvenile court declined jurisdiction in 1999.

The supreme court granted review on the issue of whether Mr. Knippling's 1999

conviction, "evidenced solely by a judgment and sentence that indicated that Knippling

was a juvenile and that did not contain an explanation of why the superior court had

jurisdiction over Knippling, counts as a strike under the POAA." Id. at 98.

       Critical to the Supreme Court's decision in Knippling was the requirement ofthe

POAA that a persistent offender be convicted three separate times as an "offender,"

which is defined at RCW 9.94A.030(34) as "[a] person who has committed a felony

established by state law and is eighteen years of age or older," or

       is less than eighteen years of age but whose case is under superior court
       jurisdiction under RCW 13.04.030 or has been transferred by the
       appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.

                                              7

No. 31485-5-111
State v. Inocencio



166 Wn.2d at 99. By failing to prove that the juvenile court had declined its otherwise

exclusive jurisdiction over Mr. Knippling, the court held that the State failed to meet its

burden of showing that Mr. Knippling had been convicted as an "offender" in 1999. Id.

at 102.

          Three years later, in Saenz, the Supreme Court similarly held that the State failed

to prove that Jorge Saenz's conviction of felony assault while a juvenile operated as a

strike-but in Saenz, the record revealed the reason for the transfer ofjurisdiction to

superior court. In offering evidence of Mr. Saenz's 2001 guilty plea to assault at age 15

as one of the required strikes, the State included evidence that Mr. Saenz agreed to the

transfer of his case to adult court in exchange for the dropping of some of the charges

against him. Despite his explicit waiver ofa decline hearing in 2001, Mr. Saenz argued

when being sentenced for the third strike that he had not knowingly and intelligently

waived the decline hearing or juvenile court jurisdiction in 2001, and that the juvenile

court did not enter findings that decliningjuveniIe jurisdiction was in his best interest or

that of the public. Saenz, 175 Wn.2d at 171.

          The Supreme Court's decision in Saenz discussed the fundamental difference

between adult courts, which are wholly punitive, and juvenile courts, which continue to

be somewhat rehabilitative, and concluded that moving a case from juvenile court to

adult court "is 'a critically important action determining vitally important statutory rights


                                                8

No. 31485-5-III
State v. Inocencio


of the juvenile.'" Id. at 174 (quoting Kent v. United States, 383 U.S. 541, 556, 86 S. Ct.

1045,16 L. Ed. 2d 84 (1966)). Citing and expanding on Knippling, the court then held

that compliance with the statutory requirements for declining jurisdiction were important

in Mr. Saenz's case because "a juvenile's conviction in adult court can be used as a

strike under the POAA only if the State shows that [the] transfer ... was proper." Id. at

175.

       Pointing out that RCW 13.40.140(9) requires that a waiver of any right in juvenile

court must be an "express waiver intelligently made by the juvenile after the juvenile has

been fully informed of the right being waived," the Saenz court concluded that despite

Mr. Saenz's lawyer's representation to the court that she had at least two conversations

with her client about the waiver,

       [t]he record does not indicate what was discussed in those extrajudicial
       conversations, whether Saenz was "intelligently" waiving his rights, or
       whether he had been "fully informed of the right being waived" as required
       by RCW 13.40.140(9).

175 Wn.2d at 177. As in Knippling, the court in Saenz concluded that because juvenile

court jurisdiction had not been effectively waived or declined, the juvenile convictions

could not be counted as strikes under the POAA.

       Mr. Saenz also challenged the failure of the sentencing court to enter a written

finding required by former RCW 13.40.110(2) (1997), recodified as RCW 13.40.110(3),

that "declination would be in the best interest of the juvenile or the public." The statute



                                              9

No. 31485-5-III
State v. Inocencio


requires that the finding "shall be supported by relevant facts and opinions produced at

the hearing." Former RCW 13.40.1 10(3) (1997), recodified as RCW 13.40.110(4). The

Saenz court agreed that these requirements are mandatory and that a judge must

independently and conscientiously make this "best interest" determination even where the

parties waive the decline hearing and stipulate to transfer to adult court. Saenz, 175

Wn.2d at 180. "If the judge is unable to enter findings without a hearing, the judge

should order a hearing." Id.

       Mr. Inocencio argues that under Knippling and Saenz the State failed to prove that

the exclusive jurisdiction of the juvenile court over the theft charges against him in 2005

was effectively waived or declined before jurisdiction was transferred to adult court,

which convicted him based on his plea. He also argues that the juvenile court's findings

were conclusory and insufficient under Saenz. For both reasons, he argues, the juvenile

convictions cannot count toward his offender score.

              Persistent Offender Sentencing Versus Other SRA Sentencing

       Knippling and Saenz both deal with the State's burden of proving that a conviction

of a crime that it offers as a prior strike under the POAA was properly before the adult

court if (1) the conviction was for a crime over which the juvenile court would ordinarily

have exclusive jurisdiction, and (2) the offender was then less than 18 years old at the

time of the conviction. Such proof is necessary before the sentencing court may rely on a




                                             10 

No. 31485-5-III
State v. Inocencio


third strike to impose the onerous persistent offender sentence of total confinement for

life without the possibility of release.

       This case presents the much more common and almost always less consequential

scenario of using a juvenile conviction entered by an adult court as a point in calculating

an offender score.

       The linchpin to Knippling's conclusion that the State must show that a conviction

as a juvenile offered as a strike under the POAA was properly under adult court

jurisdiction is the definition of "offender" provided by RCW 9.94A.030. The POAA was

the result of the 1993 passage of Initiative 593, which posed the question whether

criminals convicted of "most serious offenses" on three occasions should be sentenced to

life in prison without parole. See State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514

(1996). The initiative defined the terms "persistent offender" and "offender." LAWS OF

1994, ch. 1, § 3; codified as former RCW 9.94A.030(23), (25) (1994). "Persistent

offender" was defined to mean an "offender" who had been convicted in Washington of a

felony considered a most serious offense and who had previously been convicted as an

"offender" at least twice before of felonies that would be considered most serious

offenses under Washington law. As earlier noted, "offender" was defined to include both

adult felons and

       [a] person who has committed a felony established by state law ... and is
       less than eighteen years of age but whose case is under superior court


                                             11 

No. 31485-5-III
State v. Inocencio


       jurisdiction under RCW 13.04.030 or has been transferred by the
       appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.

166 Wn.2d at 99.

       While it is true that the term "offender" is used throughout the SRA, and that the

SRA contemplates that persons convicted will all fall within the definition of "offender,"

that does not mean that every time a defendant challenges his prior status as an offender it

will have to be proved by the State. Mr. Inocencio has not drawn our attention to any

provision requiring that the State prove at the time of sentencing that a defendant was an

"offender" at the time of each conviction that counts toward his or her offender score.

Saenz does not apply. Instead, the SRA imposes a different and well-settled requirement

that, at the time of sentencing, the State prove only a defendant's "criminal history."

       "The offender score measures a defendant's criminal history." State v. Ford, 137

Wn.2d 472, 479, 973 P .2d 452 (1999). '" Criminal history' means the list of a

defendant's prior convictions and juvenile adjudications, whether in this state, in federal

court, or elsewhere." RCW 9.94A.030(l1). RCW 9.94A.500(1), dealing with the

conduct of sentencing hearings, states in part:

              A criminal history summary relating to the defendant from the
       prosecuting authority or from a state, federal, or foreign governmental
       agency shall be prima facie evidence of the existence and validity of the
       convictions listed therein. If the court is satisfied by a preponderance of the
       evidence that the defendant has a criminal history, the court shall specify
       the convictions it has found to exist.




                                             12
No. 3 I 485-5-III
State v. Inocencio


       The burden of establishing criminal history by a preponderance of the evidence,

for purposes of determining the offender score at sentencing, lies with the prosecution. In

re Goodwin, 146 Wn.2d 861, 868 n.3, 50 PJd 618 (2002). "The best evidence of a prior

conviction is a certified copy ofthe judgment." State v. Priest, 147 Wn. App. 662, 668,

196 PJd 763 (2008) (citing Ford, 137 Wn.2d at 480).

       A separate line of cases establishes that for offender score purposes, it is the

criminal defendant who bears the burden of demonstrating the invalidity of a prior

conviction, and the cases impose strict limits on the defendant's ability to raise such a

challenge in a sentencing hearing. The leading case is State v. Ammons, 105 Wn.2d 175,

188, 713 P.2d 719 (1986), in which our Supreme Court held that a defendant "has no

right to contest a prior conviction at a subsequent sentencing. To allow an attack at that

point would unduly and unjustifiably overburden the sentencing court." Id. Even where

a defendant's challenge is of constitutional magnitude,

       The defendant has available, more appropriate arenas for the determination
       of the constitutional validity of a prior conviction. The defendant must use
       established avenues of challenge provided for post-conviction relief.

Id.

       Ammons recognized only two instances in which a defendant can raise the

invalidity of a prior conviction offered at sentencing as counting toward his offender

score: "a prior conviction which has been previously determined to have been

unconstitutionally obtained or which is constitutionally invalid on its face." Id. at 187­

                                             13 

No.31485-5-II1
State v. Inocencio


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

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

       The different treatment of prior convictions as a juvenile in persistent offender

sentencing and offender score calculation was recognized in State v. allens, 89 Wn. App.

437,443-44, 949 P.2d 407 (1998). The court recognized in allens that because the

POAA's definition of "offender" refers only to Washington's statute permitting transfers

ofjuvenile court proceedings to adult criminal courts, an offender who was convicted of

a most serious offense in another state's adult court before age 18 could not be an

"offender," with the result that his or her conviction as a juvenile could not count as a

strike. Notably, however, allens observed that such an offense "would be counted in [the

defendant's] offender score for sentencing purposes, even though not usable to establish

persistent offender status." Id. at 444; cf State v. Jones, 110 Wn.2d 74, 78-80, 750 P.2d

620 (1988) (a conviction may be included in the offender score even if it was

successfully challenged in a prior habitual criminal proceeding; collateral estoppel does

not apply because the State has the burden of proving the validity of prior convictions in

habitual criminal proceedings but not SRA sentencing proceedings).

       At Mr. Inocencio's resentencing, he did not demonstrate that his two 2005 theft

convictions had been previously determined to have been unconstitutionally obtained nor




                                             14 

No. 31485-5-111
State v. Inocencio


did he demonstrate that they were constitutionally invalid on their face. They were

therefore properly included in his offender score.

       Affirmed.




WE CONCUR: 




Brown, J.



Fearmg, .1.




                                             15 

