      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



                                                                                 C3
STATE OF WASHINGTON,
                                                No. 73111-4-1
                    Respondent,
                                                DIVISION ONE                      oo
      v.



BAZEN S. KASSAHUN,                              UNPUBLISHED OPINION
                                                                                  o

                    Appellant.                  FILED: June 13, 2016

      Spearman, J. — Bazen Kassahun was convicted of felony driving under

the influence (DUI) under RCW 46.61.502 because he had four prior convictions

for DUI within the previous ten years. He appeals, arguing that his prior

convictions were invalid and could not be used to elevate the charge to a felony.

He argues that these convictions were unconstitutional because, prior to the

entry of the judgments, he was not informed that (1) felony penalty provisions

would apply to his fifth conviction, and (2) a felony conviction may have

immigration consequences. We find no error and affirm.

                                      FACTS

       On February 20, 2014, Bazen Kassahun was driving northbound on First

Avenue South in Normandy Park, Washington, when he was observed by Officer

Shawn Hayes. Kassahun had crossed over the yellow centerline and was driving

north in the southbound lane, traveling 70 miles per hour (mph) in a 45 mph
No. 73111-4-1/2


zone. Hayes made a U-turn and pursued the vehicle, watching it swerve back

into the northbound lane and finally stop in the 1800 block of First Avenue South.

      Hayes approached the vehicle and spoke with the driver, later identified as

Kassahun. Kassahun verbally gave the officer one name and presented him with

an identification card with a different name. Hayes smelled the odor of intoxicants

on Kassahun and could see a glass full of liquid in the car, along with a white

substance in a baggie. Hayes ordered Kassahun to exit the vehicle after he

refused to show his hands. After a struggle, Kassahun was forcibly removed from

the vehicle and ordered to the ground.

      After Kassahun was secured, Officer Hayes saw several off-white colored

rocks on the rear floorboard that he recognized as crack cocaine. He also saw an

EBT card on the seat belonging to a Bazen Kassahun. When Kassahun admitted

his identity, it was discovered that his driving status had been revoked and that
he had both felony and misdemeanor warrants out for his arrest. A criminal

history report showed that Kassahun had four prior convictions for DUI and a fifth
DUI arrest in 2013.

       Kassahun was arrested and charged with felony DUI, unlawful possession

of a firearm in the first degree; violation of the uniform controlled substances act;

driving while license suspended/revoked in the first degree; violation of ignition
interlock; making a false or misleading statement to a public servant; and
resisting arrest. The DUI was charged as a felony under RCW 46.61.502(6)
because the State alleged that Kassahun's four prior DUI convictions had
occurred within the past ten years. Two ofthe convictions were the result of guilty
No. 73111-4-1/3


pleas, while the other two arose from deferred prosecutions that were later

revoked.

       Kassahun moved to dismiss the felony DUI charge, arguing that the prior

convictions were unconstitutional because he was not advised of the possibility

that a subsequent DUI allegation could be charged as a felony or of the potential

immigration consequences if he was convicted of a felony DUI. The trial court

denied his motion to dismiss.

       Kassahun pled guilty to all charges except for the felony DUI; he entered

into a stipulation to facts and waiver of jury trial in order to preserve his challenge

for appellate review. The trial court found him guilty of felony DUI and sentenced

him to standard range concurrent sentences of 60 months for the DUI and for

unlawful possession of a firearm. Kassahun also received concurrent sentences

for the other offenses. Kassahun appeals.

                                    DISCUSSION

       Kassahun argues that his felony DUI charge should have been dismissed

because his prior convictions were unconstitutional. He argues that the

convictions are invalid because he was never advised of either the enhanced

penalty provisions of RCW 46.61.5055 or the potential immigration

consequences of a criminal conviction.

       RCW 46.61.502(6) provides, in pertinent part, that "[i]t is a class C felony

punishable under chapter 9.94A RCW ... if: (a) The person has four or more prior
offenses within ten years as defined in RCW 46.61.5055           "A prior conviction
that has been determined to be unconstitutional may not be used in subsequent
No. 73111-4-1/4


proceedings. State v. Carmen. 118 Wn. App. 655, 666, 77 P.3d 368 (2003). Due

process requires that a defendant be fully advised of the consequences of a

guilty plea. State v. Ward. 123 Wn.2d 488, 512, 869 P.2d 1062 (1994). A guilty

plea must be knowingly, voluntarily, and intelligently made. Id.

      Two of the DUI convictions of which Kassahun complains were the result

of guilty pleas he entered in 2006. But as the State points out, the felony DUI

statute was not enacted until over a year later in May 2007 and did not go into

effect until July 1, 2007. See Laws of 2006, ch. 73 § 1. A plea is voluntary ifthe

defendant was sufficiently informed of the direct consequences of the plea that

existed at the time of the plea. State v. Lamb. 175Wn.2d 121, 129, 285 P.3d 27

(2012) (no constitutional right to be informed of loss of the right to possess a

firearm when it was not a consequence at the time of the plea). Because the

felony DUI statute had yet to be enacted when Kassahun pleaded guilty, there

was no duty to advise him of its potential consequences.

       Kassahun also argues that these prior convictions were unconstitutional

because he was not advised of the potential immigration consequences. Br. of

Appellant at 8-9. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010), the United States Supreme Court recognized that

deportation is "intimately related to the criminal process," and that advice about
deportation consequences falls within the ambit of the Sixth Amendment right to
counsel. Padilla at 356. If the applicable immigration law "is truly clear" that an

offense is deportable, a defendant must be advised that pleading guilty to that

charge would lead to deportation. State v. Sandoval. 171 Wn.2d 163, 170, 249
No. 73111-4-1/5


P.3d 1015 (2011). If the law is not "succinct and straightforward," counsel must

provide a general warning that "pending criminal charges may carry a risk of

adverse immigration consequences." kL

       Each of Kassahun's pleas contained the following statement, required by

RCW 10.40.200, which reads:


       If I am not a citizen of the United States, a plea of guilty to an
       offense punishable as a crime under state law is grounds for
       deportation, exclusion from admission to the United States, or
       denial of naturalization pursuant to the laws of the United States.

Clerk's Papers (CP) at 157; 168. By signing the plea forms, Kassahun indicated

that he understood all of the written provisions and that he had discussed them

with his attorney. But in his brief Kassahun fails to acknowledge having received

the written immigration warning.1 Furthermore, he admitted below that he was

aware that DUI convictions are gross misdemeanors and are not removable

offenses. We conclude the argument is without merit.

       Kassahun's other two DUI convictions arose from deferred prosecutions

he entered in July 2007. When he did so Kassahun waived his right to trial by
jury and agreed that if the deferrals were revoked, the trial court would determine
his guilt based upon the police reports. In a later proceeding, the deferred
prosecutions were revoked and Kassahun was found guilty of the two charges
following bench trials based on the facts set forth in the police reports. Kassahun



       1And while it is true that under Sandoval. 171 Wn.2d at 173, RCW 10.40.200 does not
excuse defense counsel from warning clients of the specific risk of immigration consequences,
Kassahun does not claim that his lawyer provided ineffective assistance, nor does he offer any
basis for concluding that the notice he did receive was inadequate.
No. 73111-4-1/6


does not dispute that he waived his right to a jury trial on these charges or that

he stipulated to the facts upon which the court relied to find him guilty. Because

Kassahun did not plead guilty to the charges but instead had a trial, the State is

not required to prove his knowledge of the consequences of the convictions.

State v. Johnson. 104 Wn.2d 338, 340-344, 705 P.2d 773 (1985).

       Kassahun has failed to show that his four prior DUI convictions are

constitutionally invalid. His appeal is denied.



       Affirmed.




                                                    NyK^/^^O*
WE CONCUR:



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