State Of Washington v. Bazen Seifu Kassahun ( 2016 )

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BAZEN S. KASSAHUN, UNPUBLISHED OPINION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
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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his identity, it was discovered that his driving status had been revoked and that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
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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
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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.
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WE CONCUR:
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