State Of Washington v. Gwen Lynn Ardrey ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON IN)
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THE STATE OF WASHINGTON, ) No. 740351-1
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Respondent, )
) DIVISION ONE
v. )
)
GWEN LYNN ARDREY )
AKA GWEN LYNN GUTIERREZ, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: November 28, 2016
)
MANN, J. — Gwen Lynn Ardrey appeals the imposition of a mandatory 24-month
enhancement to her sentence for vehicular homicide after the trial court found she had
committed a prior offense pursuant to ROW 46.61.520(2) and ROW 46.61.5055. Ardrey
asserts that her prior conviction for reckless driving, reduced from a DUI after
successfully completing a Stipulated Order of Continuance (SOC), was not proven by a
preponderance of the evidence and is unconstitutional. The State presented sufficient
evidence to prove by a preponderance of the evidence that Ardrey had a prior
conviction. The trial court's finding that Ardrey committed a prior offense was supported
by substantial evidence. Similarly, the trial court did not err in concluding that the
No. 740351-1/2
defendant did not establish that the prior offense was unconstitutional "on its face." We
affirm.
FACTS
Gwen Lynn Ardrey was charged by information in King County Superior Court
with vehicular homicide (Driving Under the Influence), alleged to have occurred on or
about June 8, 2014. Ardrey pleaded guilty as charged on April 22, 2015.
During sentencing, the State offered that Ardrey was previously convicted of
reckless driving, reduced from a 2008 charge of driving under the influence (DUI), in
2010 in Pacific Municipal Court after a diversionary two-year SOC. The prior conviction
triggered imposition of a mandatory 24-month enhancement to Ardrey's offender score
at sentencing for vehicular homicide. To prove the existence of the conviction, the State
presented two certified documents: Ardrey's state driver's licensing record and the
Pacific Municipal Court docket for Ardrey's case. Ardrey also provided a transcript from
a hearing from October 2008 at which Ardrey and the City of Pacific entered into SOC.
The driving record showed a "conviction" for reckless driving in 2010 in Pacific
Municipal Court stemming from a 2008 violation. The driving record indicated that the
reckless driving conviction was "reduced," and that Ardrey had refused a breath or
blood test in 2008.
The Pacific Municipal Court docket lists the court events between Ardrey's DUI
arrest and her eventual conviction for reckless driving. On July 3, 2008, Ardrey was
booked into the King County Correctional Facility then released subject to several
conditions, including that she not possess or consume drugs or alcohol. On July 16,
2008, Ardrey and her attorney appeared at an arraignment hearing before Judge
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Rochon. Ardrey pleaded not guilty to the DUI charge. On October 1, 2008, Ardrey and
her attorney appeared before Judge Rochon to sign a SOC stating that if Ardrey abides
by certain conditions, the DUI charge would be amended to reckless driving. On
October 1, 2010, the municipal court found that Ardrey had complied with the conditions
set and Judge Rochon amended the charge to reckless driving and entered a
"finding/judgment of guilty" for the reckless driving charge. The docket also listed
Ardrey's attorney. The docket does not indicate whether Ardrey or her attorney were
present at the time of the final judgment. A handwritten notation on the docket stated
that the case records were "destroyed" in 2013.1
Ardrey stipulated in her plea agreement that she had a prior reckless driving
charge that was amended from a DUI in Pacific Municipal Court. However, Ardrey filed
a motion to exclude the reckless-driving conviction from the sentencing calculation
contending that (1) the "State cannot establish that the charge was actually reduced to a
conviction" because "none of the court documents survive," including the "SOC
agreement" and the "stipulated facts;" and (2) the conviction was constitutionally invalid
because Ardrey was not present for the stipulated facts trial and there was no record of
her waiving her right to be present when the court entered the judgment and sentence
on the SOC.2
On September 10, 2015, the sentencing court imposed a low-end standard range
sentence of 78 months for the vehicular homicide plus the mandatory 24-month
1 Clerk's Papers (CP) at 83.
2 CP at 36-37.
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enhancement based on the court's finding of a prior alcohol-related reckless driving
conviction, for a total of 102 months in prison. Ardrey timely appealed.
ANALYSIS
If a defendant is convicted of vehicular homicide under RCW 46.61.520(1)(a), the
defendant shall receive a two-year sentence enhancement for any prior offense as
described in RCW 46.61.5055. RCW 46.61.520(2). A conviction for reckless driving,
when amended from DUI, qualifies as a prior offense for this enhancement. RCW
46.61.5055(14)(a)(xii).
The existence of a prior conviction is a question of fact. In re Pers. Restraint of
Adolph, 170 Wash. 2d 556, 566-67, 243 P.3d 540, 546 (2010). The State must prove the
existence of a prior conviction by a preponderance of the evidence. State v. Rivers, 130
Wash. App. 689, 697, 128 P.3d 608 (2005) (citing State v. Lopez, 147 Wash. 2d 515, 159, 55
P.3d 609 (2002). The factual question of whether the prior conviction exists and is a
conviction of the defendant is reviewed for substantial evidence. State v. McCorkle, 88
Wash. App. 485, 492-93, 945 P.2d 736 (1997). "Substantial evidence exists where there
is a sufficient quantity of evidence in the record to persuade a fair-minded rational
person of the truth of the finding." State v. Finch, 137 Wash. 2d 792, 856, 957 P.2d 967
(1999).
Ardrey first contends that the State failed to meet its burden of proving that a
prior conviction for reckless driving exists. The State's burden of establishing the
conviction's existence by a preponderance of the evidence "is 'not overly difficult to
meet' and may be satisfied by evidence that bears some 'minimum indicia of reliability."
Adolph, 170 Wash. 2d at 568-69 (quoting State v. Ford, 137 Wash. 2d 472, 480, 973 P.2d 452
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(1999)). While a certified copy of the judgment and sentence would be the best means
of proving a prior conviction, "other comparable documents of record or transcripts of
prior proceedings' are admissible to establish criminal history." Adolph, 170 Wash. 2d at
568-69 (quoting Ford, 137 Wash. 2d at 480).
The State provided a copy of Ardrey's department of licensing (DOL) record. For
a driving related crime to become a part of a DOL driving record the court must forward
an abstract containing identifying information of the party, the nature of the offense, and
the judgment of each record of conviction from that court, including DUI convictions, to
the director of licensing in Olympia. Adolph, 170 Wash. 2d at 569 (citing RCW
46.52.101(1)-(3)). "The director then compiles a case record on every motor vehicle
driver licensed under the laws of this state . . . showing all the convictions and findings
of traffic infractions certified by the courts." Adolph, 170 Wash. 2d at 569. Ardrey's DOL
record lists a reckless driving conviction that was "reduced," and indicated that in 2008
Ardrey had refused a breath or blood test.
The State also provided the Pacific Municipal Court docket for Ardrey's case.
This docket lists specific dates and schedules relating to Ardrey's case and states that
on October 1, 2010, the court found that Ardrey had complied with the conditions set
and entered a "finding/judgment of guilty" for the reckless driving charge.
The Washington Supreme Court found that a "DOL driving record abstract and a
[District and Municipal Court Information System] criminal history are. . . comparable to
a certified judgment and sentence because they are official government records, based
on information obtained directly from the courts, and can be created or modified only by
government personnel following procedures established by statute or court rule."
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Adolph, 170 Wash. 2d at 570. Similar in Adolph, the documents provided in this case are
reliable and independent government records that show that Ardrey was convicted of
reckless driving, reduced from a DUI. There was no challenge to the authenticity or
admissibility of these records. Therefore, the State provided the minimum indicium of
reliability necessary to meet its burden.
Ardrey next contends that the prior conviction for reckless driving is
unconstitutional "on its face." The State does not have the affirmative burden of proving
the constitutional validity of a prior conviction before it can be used in a sentencing
proceeding. State v. Ammons, 105 Wash. 2d 175, 187-88, 713 P.2d 719 (1986).
However, "a prior conviction which has been previously determined to have been
unconstitutionally obtained or which is constitutionally invalid on its face may not be
considered." Ammons, 105 Wash. 2d at 187-88. A prior conviction is constitutionally
invalid "on its face" when the conviction "without further elaboration evidences infirmities
of a constitutional magnitude." Ammons, 105 Wash. 2d at 187-88. The trial court must be
able to make this determination without having to go beyond the verdict, sentence, and
judgment. Ammons, 105 Wash. 2d at 189.
"It is well settled that the State is not required to prove the constitutional validity
of prior convictions used to calculate a defendant's offender score on a current
conviction." State v. Irish, 173 Wash. 2d 787, 789, 272 P.3d 207 (2012) (citing Ammons,
105 Wash. 2d at 187-88). The defendant has no right to contest a prior conviction at a
subsequent sentencing. Ammons, 105 Wash. 2d at 188. Instead, "Rlhe defendant must
use established avenues of challenge provided for post-conviction relief. A defendant
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who is successful through these avenues can be resentenced without the
unconstitutional conviction being considered." Ammons, 105 Wash. 2d at 188.
Ardrey contends that because the docket does not indicate that she and her
attorney were present at the sentencing, the conviction is unconstitutional "on its face"
as there is no evidence that was present or she waived her right to be present for the
final judgment. In Ammons, two defendants challenged the use of their prior guilty plea
convictions because the pleas themselves did not reflect that constitutional safeguards
were provided. The court found that the defendants "may have a valid argument that
[their] prior conviction was unconstitutional. However, such a determination cannot be
made from the face of the guilty plea form." Ammons, 105 Wash. 2d at 189. While the
plea form did not state that the defendants were informed of their rights, there was also
no indication that they were not. "[A]bsent such an affirmative showing, [the defendant]
'must pursue the usual channels for relief." State v. Thompson, 143 Wash. App. 861,
867, 181 P.3d 858 (2008) (quoting Ammons, 105 Wash. 2d at 189).
In this case, the evidence used to demonstrate Ardrey's conviction does not
show on its face that Ardrey's constitutional rights were violated. The docket does not
indicate whether Ardrey was or was not present for the final judgment and sentencing.
Consequently the trial court would be required to look to additional evidence to find that
she had not been present at the judgment and sentencing. The trial court would then
need to look to additional evidence to determine if, in the SOC, Ardrey had waived her
constitutional right to be present at trial or had agreed to have the court enter a verdict
for the lesser charge at the end of the two years. State v. Herron, 183 Wash. 2d 737, 743,
356 P.3d 709, 712 (2015) (A defendant can knowingly, voluntarily, and intelligently
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waive their constitutional rights). Because the trial court could not determine the
constitutionality of the prior conviction from the face of the evidence, the sentencing
proceeding was not the proper place for the defendant's challenge. If Ardrey seeks to
challenge the validity of the 2010 conviction, her recourse is to challenge that
conviction. Allowing Ardrey to challenge the 2010 conviction in connection with her
current sentencing is contrary to Ammons.
Appellate Costs
This court has discretion to deny an award of appellate costs if the State
substantially prevails on appeal. ROW 10.73.160(1); State v. Sinclair, 192 Wash. App.
380, 393, 367 P.3d 612 (2016), review denied, 185 Wash. 2d 1034, 377 P.3d 733 (2016);
ROW 10.73.160(1); RAP 14.2. Ardrey requests that we exercise our discretion to deny
appellate costs. The trial court judge in this case granted an order of indigency on
appeal. RAP 15. Once the trial court grants an order of indigency, this court will
respect the presumption of continued indigency throughout review "unless we are
shown good cause not to do so."3 Sinclair, 192 Wash. App. at 393. At this time, there is
no trial court order finding that Ardrey's financial condition has improved or is likely to
improve. On the contrary, the trial court recently imposed $12,092.96 in restitution.
After considering the factors addressed in Sinclair, and Ardrey's current financial
situation, we determine that no appellate costs should be awarded to the State.
3 RAP 15.2(f): "The appellate court will give a party the benefits of an order of indigency
throughout the review unless the trial court finds the party's financial condition has improved to the extent
that the party is no longer indigent."
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Affirmed.
WE CONCUR:
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