                                                                                                                    I° 4 "   EO
                                                                                                           COURT D           A'Prr' F'= LS
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT '''                                                                 S I QN if

                                                 DIVISION II `                                                                AN 11:    4
                                                                                                          ST/                 SHIN
                                                                                                          BY
 STATE OF WASHINGTON,
                                                                                   No. 43179 -3 -I1
                                      Respondent,


           v.

                                                                           PUBLISHED OPINION
LORENZO WEBB,


                                      Appellant.


       MELNICK, J. —         Lorenzo Webb appeals his second degree assault conviction and persistent


offender    sentence.    He argues that his right to a public trial was violated when the attorneys


conducted       peremptory   challenges    on   paper.    He also argues that the trial court erred when it


considered his two previous assault convictions at sentencing because the 1982 conviction is not

comparable to a most serious offense and his 1992 conviction is facially constitutionally invalid.

We hold that the trial court erred when it considered Webb' s prior convictions because the 1982

assault does not qualify as a most serious offense under the persistent offender statute and because

the 1992 assault conviction was based on an . expired statute and therefore is facially

constitutionally invalid.      Finally, no     violation of   Webb'   s public   trial   right occurred.        We affirm


Webb' s second degree assault conviction, reverse his persistent offender sentence, and remand for


resentencing.

                                                         FACTS


       The State        charged    Webb   with second     degree   assault after   he    attacked   his   girlfriend.        At


trial, counsel conducted voir dire in open court. After voir dire, the trial court stated,


                   At this tune, the attorneys are going to exercise their peremptory challenges
        which are the challenges they have by law for which they don' t have to give a
        reason.     They do   it   on paper.   They pass   a sheet of paper   back   and    forth. While this
43179 -3 - II



          happens,     you are    free to   stand   up   and stretch        if   you want.   You can have a quiet
          conversation with your neighbor....                  They will pass that back and forth, and we
          should get the jury selected this afternoon.

Report     of   Proceedings ( RP) ( June 1 &             2, 2011)      at   64.     The record indicates a pause in the


proceedings.        Counsel    exercised    their peremptory          challenges.     The    court   then said, "   We have the


jury    selected   for this   case."   RP ( June 1 &     2, 2011) at 64.


          The jury found Webb guilty of second degree assault, domestic violence. The State argued

that Webb, a persistent offender, should be sentenced to a term of total confinement for life without

the possibility      of release.       The State asserted that Webb' s two previous second degree assault

convictions from 1982 and 1992 were comparable to most serious offenses under RCW

9. 94A.030( 32)( b) and ( u). 1 Webb argued that ( 1) he was not a persistent offender because his prior

assaults were not comparable to most serious offenses and ( 2) his 1992 assault was facially

constitutionally invalid because the plea listed the wrong version of the statute.

           The trial court ruled that Webb' s 1982 and 1992 assault convictions were both comparable

to   a most serious offense, second          degree      assault.     It also found that Webb' s 1992 conviction was


not    facially    constitutionally invalid.      Accordingly, it sentenced Webb as a persistent offender to

total    confinement     for life      without   the possibility       of release.      Webb appeals his judgment and


sentence.




1
     Former RCW 9. 94A. 030 ( 2010)              was     in   effect   at   the time    of   Webb'    s   current   assault.   The
legislature has amended RCW 9. 94A.030 since, but the amendments do not affect our analysis.
Accordingly, we cite to the current version of the statute.


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43179 -3 - II



                                                     ANALYSIS


I.       PUBLIC TRIAL RIGHT


         Webb first argues that his right to a public trial was violated because counsel conducted


peremptory challenges on paper. This contention fails. In State v. Dunn, 180 Wn. App. 570, 321

P. 3d 1283 ( 2014),   we previously decided a similar issue. In Dunn, we held that the trial court did

not violate a defendant' s right to a public trial when the attorneys exercised peremptory challenges

at a side   bar. 180 Wn. App.        at ,    321 P. 3d at 1285; see also State v. Love, 176 Wn. App. 911,

309 P. 3d 1209 ( 2013) ( peremptory         challenges at sidebar).      Following Dunn' s rationale, we hold

that the trial court did not violate Webb' s public trial right.


II.      PERSISTENT OFFENDER


         Webb next argues that the trial court erred when it found him to be a persistent offender.

He asserts that his 1982 assault conviction is not comparable to a most serious offense and that his

1992 conviction is constitutionally invalid on its face. We agree with both arguments.

         A.       1992 Conviction —No         Comparability

         Under RCW 9. 94A.570, a persistent offender shall be sentenced to life in prison without

the possibility of release. A persistent offender is one who has been convicted of a most serious

offense and     has two   prior    felonies that   are also most serious offenses.    RCW 9. 94A.030( 37)( a).


Second degree       assault   is   a most serious offense.       RCW 9. 94A.030( 32)( b).     Felonies committed


before December 2, 1993, are classified as most serious offenses if they are comparable to a most

 serious offense.    RCW 9. 94A.030( 32)( u). We review de novo a trial court' s decision to consider


 a prior conviction a most serious offense          for   persistent offender purposes.     State v. Thiefault, 160


 Wn.2d 409, 414, 158 P. 3d 580 ( 2007).




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43179 -3 -II



           To determine whether crimes are comparable, the court first looks at the elements of the

crime. State          v.   Failey,    165 Wn.2d 673, 677, 201 P. 3d 328 ( 2009);                  State v. Morley, 134 Wn.2d

588, 605 -06, 952 P. 2d 167 ( 1998).                  If the elements of the prior conviction are comparable to the


elements of a most serious offense on their face, the prior conviction is considered a most serious

           2
offense.       Morley, 134 Wn.2d at 606. If the elements are different or ifthe former statute is broader

than the current statute, the court may then look at the defendant' s conduct, as evidenced by the

information, to determine whether it would have violated the comparable most serious offense


statute. Morley, 134 Wn.2d at 606 ( quoting State v. Mutch, 87 Wn. App. 433, 437, 942 P2d 1018

 1997)).       In making this factual comparison, the sentencing court may rely on facts in the former

record     only if they           are admitted, stipulated       to,   or proved       beyond   a reasonable   doubt.    Thiefault,


160 Wn.2d          at      415.     The State bears the burden of establishing the comparability of a prior

conviction. State v. Thomas, 135 Wn. App. 474, 488, 144 P.3d 1178 ( 2006).
           The trial court found that Webb' s 1982 assault conviction was comparable to the current3


version of second                degree   assault, a most serious offense.             Under the current statute, the elements


are that a person is guilty of second degree assault if he " intentionally assaults another and thereby

                                             bodily harm."        RCW 9A. 36. 021( 1)(        a) ( emphasis added).      In 1982, a
recklessly inflicts          substantial




person was        guilty         of second   degree   assault    if he "   knowingly     inflict[ edJ   grievous   bodily harm"   on




2 At oral argument, the State argued it only needed to show that the elements were " substantially
similar."        Wash. Court of Appeals oral argument, State v. Webb, No. 43179 -3 -II (June 26, 2014),
at   9   min.,   32    sec.-     9min., 36   sec. ( on   file   with   the   court).    But the State has not shown how the
elements are substantially similar if grievous bodily harm encompasses a broader range of injury
than substantial bodily harm.

3 The legislature has amended RCW 9A.36. 021 since 2010, the date of Webb' s current offense.
LAws OF 2011               ch.   166, § 1.   But this change does not affect our analysis. Accordingly, we cite to
the current version.


                                                                       4
43179 -3 - II



another.    Former RCW 9A.36. 020( 1)( b) ( 1979) (            emphasis added).         Webb argues that the elements


differ as to both the mental state required and the type of harm that ensued.

           We begin      our analysis    by   comparing the terms "         substantial   bodily   harm," as used in the


current version, and " grievous          bodily    harm,"    as used      in the 1982   version. "    Substantial bodily

harm"      means bodily injury that involves temporary but substantial disfigurement, causes a

temporary but substantial loss of the function of any body part or organ, or causes a fracture of any

body   part.    RCW 9A.04. 110( 4)( b). " Grievous           bodily       harm," on the other hand, means " a hurt or


injury calculated to interfere with the health or comfort of the person injured; it need not

necessarily be an injury of a permanent character. By `grievous' is meant atrocious, aggravating,

harmful,    painful,     hard to bear,   serious   in   nature."   State v. Salinas, 87 Wn.2d 112, 121, 549 P. 2d


712 ( 1976).


            Grievous      bodily harm" is broader         than "   substantial    bodily harm."      As an example, an


injury that resulted only in pain and discomfort would be considered grievous but not substantial.

Webb could have been convicted of assault in 1982 based on an injury involving only pain, but he

could not be convicted of assault under the current statute for an injury involving only pain. The

1982 assault statute is broader than the current second degree assault statute. The type of harm

required     for   a   conviction    under    the two     statutes   is   not   comparable.    Because we reach this


conclusion, we need not decide whether the same mens rea is required to violate each version of

the statute.



           Because the statutes are not legally comparable, we proceed to the second prong of the test

and examine the convictions for factual comparability. The only facts contained in the record are

contained in the 1982 amended information. This charging document merely recites the elements

of   the   second      degree   assault statute.   There is insufficient proof to determine whether Webb' s



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43179 -3 - II



conduct would have violated the current second degree assault statute. See Morley, 134 Wn.2d at

606.


         The 1982 conviction is not legally or factually comparable to a most serious offense.

Therefore, the trial court erred when it sentenced Webb as a persistent offender.


         B.          1992 Conviction —Facial         Constitutional Invalidity

         Next, Webb argues that the trial court erred when it considered his 1992 conviction because

it is unconstitutional on its face. We agree.


         The State is not required to prove the constitutional validity of prior convictions before

they   can    be   used at   sentencing.    State v. Ammons, 105 Wn.2d 175, 188, 713 P. 2d 719 ( 1986).


Generally, the defendant has no right to contest prior convictions at a subsequent sentencing

because there are more appropriate methods for contesting the validity of prior convictions.

Ammons, 105 Wn.2d at 188.


          But a prior conviction that is unconstitutionally invalid on its face may not be considered

at   sentencing. Ammons, 105 Wn.2d             at   187 -88. " On its face" includes the judgment and sentence


and documents signed as part of a plea bargain. State v. Thompson, 143 Wn. App. 861, 866 -67,

181 P. 3d 858 ( 2008).          A conviction is facially invalid if constitutional invalidities are evident

without further elaboration.4 Ammons, 105 Wn.2d at 188.

          In 1992,. a person committed second degree assault if he intentionally assaulted another

and    thereby recklessly inflicted        substantial   bodily   harm. Former RCW 9A.36. 021( 1)(   a) (   1988).




a However, in In re Personal Restraint of Thompson, 141 Wn.2d 712, 719, 10 P. 3d 380 ( 2000),
the court held that the defendant' s judgment and sentence was facially invalid where the State
charged him with a crime that did not exist when the alleged events occurred. This invalidity only
became evident by looking at outside sources, i.e., the undisputed statutory history. We adopt the
same approach in this case.


                                                             6
43179 -3 - II



The information for Webb'                s    1992     conviction cites           former RCW 9A. 36. 020( 1)( b) ( 1979),        which




expired      July   1 , 1987. It    states     that Webb " on         or about      the 21st   day   of   April, 1992, ...   knowingly

inflict[ ed]                            harm        upon [ K.R.], a    human        being,                       to -wit: a knife."   Ex.
                 grievous   bodily                                                           with a weapon,




3B. His judgment            and sentence also cites            former RCW 9A.36. 020( 1)( b).                 Thus, the State charged


Webb and the court sentenced him under an expired version of the second degree assault statute.

             This invalidity is clear from the face of the judgment. It states the date of the crime, April

21, 1992, but cites to and specifies the elements of a statute, former RCW 9A.36. 020, repealed in

1987. LAws          OF    1986,   ch.   257, § 9, § 12.


             Additionally,    the    conviction         and   sentence       is   unconstitutional. "'      Due process requires that


a   guilty   plea   be   knowing,       voluntary,      and   intelligent. '         State v. Easterlin, 159 Wn.2d 203, 212 -13,


149 P. 3d 366 ( 2006) (           quoting In re Pers. Restraint ofHews, 108 Wn.2d 579, 590, 741 P.2d 983

    1987)). "`    A plea is not voluntary in the constitutional sense unless the defendant has adequate

notice and        understanding         of    the    charges       against   him. '      Easterlin, 159 Wn.2d at 213 ( quoting

Hews, 108 Wn.2d at 590).


             Here, Webb did not have adequate notice and understanding of the charges against him

because the State charged and the court sentenced him for a crime that did not exist when the

alleged events           occurred.      See Thompson, 141 Wn.2d at 719, 722 ( holding that a judgment and

sentence was constitutionally invalid on its face when the defendant was charged with a crime that

did    not yet exist).      The assault statute in effect in 1992, when Webb committed the acts, required


different elements than the 1979 statute that the State erroneously charged Webb under and for

which      he    was sentenced.          Second degree assault in 1992 required infliction of substantial bodily

harm,     while     the   statute   listed in the information                required    only   grievous      bodily   harm.   Compare


 former RCW 9A.36. 021( 1)(                  a) (   1988)   with   former RCW 9A.36. 020( 1)( b) ( 1979). As we discussed




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43179 -3 -II




in the preceding section, grievous and substantial bodily harm encompass different types of

injuries. Accordingly, Webb has shown that his 1992 sentence is facially constitutionally invalid.

The trial court erred by considering it.

        Finally, Webb argues that his persistent offender sentence violates his due process and

equal protection rights.   Because   we are   reversing his   sentence, we   do   not reach   this issue.   We


affirm Webb' s assault conviction, reverse his persistent offender sentence, and remand for

resentencing.




We concur:




        Maxa,




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