State of Washington v. Brian Clifford Allen , 425 P.3d 529 ( 2018 )

FILED
AUGUST 28, 2018
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. 35214-5-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
BRIAN CLIFFORD ALLEN, )
)
Appellant. )
PENNELL, J. — A charge of driving under the influence (DUI) can be elevated
from a misdemeanor to a felony based on a defendant’s prior conviction for vehicular
assault. But not all vehicular assault convictions are eligible for the enhancement.
Vehicular assault is an alternative means crime and only one of the three possible means
(vehicular assault while under the influence of intoxicating liquor or drugs) qualifies for
the enhancement.
No. 35214-5-III
State v. Allen
This case asks what procedure applies to deciding the eligibility of a vehicular
assault conviction for a DUI enhancement. Because determining the nature of a prior
conviction is a legal matter, not a factual one, we hold that this is a judicial decision, not a
jury question. The applicable inquiry involves reviewing court records related to the prior
conviction and assessing which of the alternative means to vehicular assault formed the
basis of the conviction. Where, as here, court records show a guilty plea to all three
alternative means of vehicular assault, the conviction qualifies. The felony enhancement
may therefore be imposed.
FACTS
In 2016, Brian Allen was charged with DUI. The State alleged Mr. Allen’s
offense was a felony, based on a prior conviction for vehicular assault while under the
influence. Mr. Allen’s DUI trial was bifurcated at his request. First, the jury was tasked
with deciding whether Mr. Allen had committed DUI. It determined he had. Second, the
jury was asked whether Mr. Allen had a qualifying predicate vehicular assault conviction.
To satisfy its burden on this issue, the State introduced not only court records from Mr.
Allen’s prior case but also witness testimony from a law enforcement officer as to what
Mr. Allen actually did and said at the time of his prior offense. The jury ultimately
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No. 35214-5-III
State v. Allen
decided Mr. Allen had a prior conviction for vehicular assault while under the influence
of alcohol.
Mr. Allen appeals the jury’s assessment of his prior conviction.
ANALYSIS
Under Washington law, a misdemeanor DUI crime can be elevated to a felony in
certain enumerated circumstances. 1 One such circumstance is when the defendant has
previously “been convicted of . . . [v]ehicular assault while under the influence of
intoxicating liquor or any drug, RCW 46.61.522(1)(b).” RCW 46.61.502(6)(b)(ii).
Washington law defines “vehicular assault” as follows:
A person is guilty of vehicular assault if he or she operates or drives any
vehicle:
(a) In a reckless manner and causes substantial bodily harm to
another; or
(b) While under the influence of intoxicating liquor or any drug, as
defined by RCW 46.61.502, and causes substantial bodily harm to another;
or
(c) With disregard for the safety of others and causes substantial
bodily harm to another.
RCW 46.61.522(1).
1
Unless an aggravator applies, DUI is a gross misdemeanor, punishable by up to
364 days’ imprisonment and/or a fine of not more than $5,000. RCW 46.61.502(5);
RCW 9A.20.021(2). If a statutory aggravator applies, DUI is elevated to a class B felony,
punishable by up to 10 years’ imprisonment and/or a fine of not more than $20,000.
RCW 46.61.502(6); RCW 9A.20.021(1)(b).
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No. 35214-5-III
State v. Allen
In 2005, Mr. Allen was convicted of vehicular assault in violation of RCW
46.61.522. The State relied on this prior offense to elevate Mr. Allen’s 2016 DUI to a
felony under RCW 46.61.502(6)(b)(ii). On appeal, Mr. Allen argues the State produced
insufficient evidence to elevate his offense because properly admissible evidence only
established a generic conviction for vehicular assault under RCW 46.61.522(1).
According to Mr. Allen, the State failed to present sufficient evidence that he was
convicted pursuant to RCW 46.61.522(1)(b) of vehicular assault while under the
influence.
Whether a prior vehicular assault conviction qualifies to elevate a DUI charge
from a misdemeanor to a felony involves issues of fact and law. Factually, the State must
prove the conviction exists and pertains to the defendant. But once this burden is
satisfied, the rest of the inquiry is purely legal. The nature of a prior conviction, and the
facts established thereby, are set at the time of a verdict or guilty plea. Descamps v.
United States, 570 U.S. 254, 269-70, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013); In re
Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837 (2005). They cannot be
altered or revisited at a subsequent evidentiary hearing or trial.
Our inquiry would be different had the penalty statute at issue in this case not been
limited in application to a prior “conviction.” For example, RCW 46.61.502(6)(a)
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No. 35214-5-III
State v. Allen
currently permits elevating a DUI from a misdemeanor to a felony based on three or more
“prior offenses.” The term “prior offense” is broader than a conviction. RCW
46.61.5055(14)(a). It includes (among other things) convictions accompanied by
additional aggravating facts. Id. Additional aggravating facts are matters that can be the
subject of a new fact finding proceeding. State v. Mullen, 186 Wn. App. 321, 334, 345
P.3d 26 (2015) (citing State v. Roswell, 165 Wn.2d 186, 194, 196 P.3d 705 (2008). But
when it comes to the core issue of what was established by a prior conviction, no
additional factual inquiry applies.
Because the nature of a prior conviction is a legal matter, it is something for the
court to decide, not a jury. See State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005).
We therefore owe no deference to the jury’s determination that Mr. Allen’s prior
conviction qualified for an enhancement. Instead, we review the matter de novo. State v.
Elmore, 155 Wn.2d 758, 768, 123 P.3d 72 (2005) (legal questions reviewed de novo). 2
The judicial inquiry into the legal nature of a prior conviction permits examination
of only a limited range of materials. A certified copy of a prior judgment can establish
2
Because the question of whether Mr. Allen’s prior conviction qualified for a DUI
felony enhancement is not a factual matter reserved for jury determination, we need not
address the evidentiary challenges Mr. Allen has raised regarding the State’s proof at
trial.
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No. 35214-5-III
State v. Allen
the existence of a prior conviction. State v. Olsen, 180 Wn.2d 468, 473, 325 P.3d 187(2014). But when it comes to the question of what facts were established by a prior
conviction, we may assess “only facts that were admitted, stipulated to, or proved beyond
a reasonable doubt” during the prior proceeding. Id. at 473-74.
The scope of the inquiry is further limited to those facts necessary to prove the
elements of the crime of conviction. Descamps, 570 U.S. at 269-70. This restriction is
particularly important in the context of a guilty plea. During a guilty plea proceeding, a
defendant may make a variety of admissions. However, only admissions truly necessary
to prove the elements of the offense can be considered as part of the nature of the
conviction. Superfluous admissions are not. Id. 3
Having identified the principles relevant to discerning the nature of a prior
conviction, we turn to Mr. Allen’s case. Vehicular assault is an alternative means crime
that can be proved in three distinct ways. RCW 46.61.522(1)(a)-(c); State v.
Roggenkamp, 153 Wn.2d 614, 626, 106 P.3d 196 (2005). Only one of the three
alternatives qualifies for the felony sentencing enhancement charged in Mr. Allen’s case:
3
Because determining the nature of a prior conviction implicates the United States
Constitution, our analysis of whether a prior offense qualifies for a sentencing
enhancement must comport with analogous precedents from the United States Supreme
Court, such as Descamps. Olsen, 180 Wn.2d at 474.
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No. 35214-5-III
State v. Allen
vehicular assault arising from driving under the influence, RCW 46.61.522(1)(b). Thus,
in order for Mr. Allen’s 2005 vehicular assault conviction to qualify for the felony
enhancement as charged, the record pertaining to that conviction must show that Mr.
Allen was convicted of vehicular assault by way of the specific means of driving under
the influence.
In support of its claim that Mr. Allen’s prior conviction qualified for a felony
enhancement, the State produced the information, the statement of defendant on plea of
guilty, the judgment and sentence, and testimony of the police officer who arrested Mr.
Allen in 2004. Of this evidence, the first three categories were fully appropriate. A
charging document, guilty plea statement, and judgment of conviction can all elucidate
the terms of a prior conviction. Descamps, 570 U.S. at 261-62; Shepard v. United States,
544 U.S. 13, 20-21, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). But a witness statement
is different. Testimony about what a defendant did or did not do at the time of the offense
conduct has no relevance to what was admitted or proved during a trial or guilty plea
proceeding. Descamps, 570 U.S. at 261. Accordingly, the State’s proof should not have
included law enforcement testimony.
Although some of the State’s evidence was inappropriate, the record as a whole
sufficiently established Mr. Allen’s guilty plea included an admission to all three
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No. 35214-5-III
State v. Allen
alternative means of vehicular assault. Both the 2004 information and Mr. Allen’s 2005
statement on plea of guilty included all three alternative means of vehicular assault.
Rather than being listed as disjunctive elements, the three means were listed in the
conjunctive. For example, Mr. Allen’s guilty plea statement listed the elements of his
offense as follows: “Operating a motor vehicle while under the influence of or affected
by intoxicating liquor and/or any drug, and in a reckless manner, and with disregard for
the safety of others, did cause substantial bodily harm to another.” Ex. 15 at 1. The
judgment and sentence confirmed Mr. Allen was convicted of vehicular assault in
violation of RCW 46.61.522(1) “as charged in the information.” Ex. 13 at 1-2. None of
the three means that formed the basis of the original charge and guilty plea statement
were eliminated from the final judgment.
Mr. Allen’s admission to all three alternative means of vehicular assault was not
superfluous. Because Mr. Allen was charged with committing all three alternative means
of vehicular assault, he did not have “a right to plead guilty to just one alternative means.”
State v. Bowerman, 115 Wn.2d 794, 799, 802 P.2d 116 (1990). Mr. Allen’s guilty plea
necessarily encompassed all three charged means of vehicular assault, including the
means necessary for a later DUI enhancement.
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No. 3 5214-5-III
State v. Allen
CONCLUSION
The records pertaining to Mr. Allen's 2005 conviction establish Mr. Allen was
convicted of all three means of vehicular assault, including vehicular assault while under
the influence of drugs or alcohol. As a result, the conviction qualified for a DUI felony
enhancement. Mr. Allen's judgment of conviction is therefore affirmed.
Pennell, J.
WE CONCUR:
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