Opinion
No. 59069-3-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04207-3, Michael Haevey, J., entered October 23, 2006.
Affirmed by unpublished per curiam opinion.
Kenneth Brooks appeals his judgment and sentence for felony violation of a no contact order. He claims the State failed in its burden to prove the statutory authority for one of two predicate convictions for the current offense. He also claims the State failed to prove the constitutional validity of any of the predicate offenses for the current offense. Finally, he argues that the information in this case is constitutionally deficient because it does not allege that the threat here is a "true threat." He also asserts that the jury instructions are deficient because they did not define true threat.
We conclude that the State bore its burden to prove the admissibility of the evidence showing the statutory authority for the challenged predicate conviction for the current offense. Moreover, the totality of circumstances surrounding his prior pleas demonstrates the constitutional validity of the challenged convictions. The information for the current offense is constitutionally sufficient. Brooks is barred by the doctrine of invited error from challenging the jury instructions given. We affirm.
Brooks and his wife, Melissa, had an acrimonious dispute over custody of their two children. Melissa sought a temporary order of protection and ultimately a permanent no contact order that awarded her temporary custody. Following the hearing at which the no contact order was entered, Brooks, who was extremely upset, made numerous telephone calls threatening both Melissa and her mother. Shortly thereafter he drove to Melissa's mother's house. The police responded to a call and placed Brooks under arrest. Brooks tried to wrest free and kick the arresting officer when he was put into the patrol car.
The State charged Brooks with felony violation of a court order under RCW 26.50.110(1), (5), misdemeanor telephone harassment, resisting arrest, felony harassment, and third-degree assault. The felony violation of a contact order charge was based, in part, on the allegation that Brooks had previously been convicted of at least two prior violations of orders specified in the statute.
Brooks raised statutory and constitutional objections by motion in limine. The trial court ruled that the prior convictions qualified as predicate offenses under RCW 26.50.110(5). The trial court also ruled that Brooks failed to make a colorable fact-specific argument that his prior convictions were constitutionally invalid. A jury convicted him on all counts.
Brooks appeals.
PREDICATE CONVICTIONS
Brooks first argues that the evidence of prior convictions on which the State relies to elevate his current no contact order violation to a felony is inadmissible because it fails to show the prior orders were issued under one of the enumerated statutes. He also argues that the guilty pleas he entered in those prior convictions are unconstitutional.
We disagree.
Statutory Validity
Violation of a no contact order issued under certain statutes is a felony if the offender has at least two prior convictions for violating court orders issued under specified statutes. RCW 26.50.110(5) states:
A violation of a court order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.
(Emphasis added.)
Whether prior convictions qualify as predicate convictions under RCW 26.50.110(5) is a threshold question of law for the trial court. As part of its gate-keeping function, a court must determine the relevance or "applicability" of the prior convictions before allowing the jury to consider them. The relevance of the prior convictions to the crime charged depends on whether they qualify as predicate convictions under the statute. Only qualified prior convictions are admissible.
State v. Carmen, 118 Wn. App. 655, 663-64, 667, 77 P.3d 368 (2003).
State v. Gray, 134 Wn. App. 547, 549-50, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008, 158 P.3d 615 (2007).
Carmen, 118 Wn. App. at 664.
Id.
The validity of a court order and whether it is applicable to the crime charged is an issue of law that we review de novo.
Gray, 134 Wn. App. at 558.
We may affirm the lower court's ruling on any grounds adequately supported by the record.
State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Brooks properly concedes on appeal the adequacy of proof of his 1994 felony conviction to show that the order was issued under one of the enumerated statutes in RCW 26.50.110(5). This satisfies one of the two required predicate showings to elevate the current crime to a felony. Thus, the question is whether any of the other evidence satisfies the requirement for a second predicate conviction.
Brooks contends that the State failed to prove that two district court convictions in evidence demonstrate that the orders in those cases were issued under one of the enumerated statutes in RCW 26.50.110(5). Without citing authority, he argues that to prove statutory authority for the court orders, the State must either produce the orders at issue or prove a valid admission by Brooks that the orders were issued under one of the enumerated statutes. We disagree.
It appears from the record before us that the court files for the district court cases were destroyed. In lieu of copies from the court files, the State offered certified copies of the district court dockets of the prior cases.
Exhibit 2 (King County District Court docket for case number N00014923) shows that Brooks violated a protection order on April 2, 1994, resulting in a charge for violating former RCW 26.50.110. The version of that statute in effect in April 1994 made it a gross misdemeanor to violate a protective order granted under chapter 26.50 RCW. Former RCW 26.50.110 stated in pertinent part:
(1) Whenever an order for protection is granted under this chapter and the respondent or person to be restrained knows of the order, a violation . . . is a gross misdemeanor except as provided in subsections (4) and (5). . . .
(Emphasis added.)
Brooks' 1994 misdemeanor charge for violating former RCW 26.50.110 proves that he violated a protection order issued under RCW 26.50. The district court docket also shows that Brooks entered a plea of guilty on that misdemeanor charge and that the court accepted the plea and then entered judgment.
Exhibit 3 (King County District Court docket for case number N00036891) states that Brooks violated a no contact order on June 1, 1994. The State subsequently charged him with a violation of former RCW 10.99.040. He pled guilty to the charge. The district court accepted his plea and imposed judgment and sentence.
At the time of his 1994 violation, former RCW 10.99.040(4)(a) stated that
willful violation of a court order issued under subsection (2) or (3) of this section is a misdemeanor.
(Emphasis added.) Sections (2) and (3) authorized a court to issue a no contact order when a person arrested for a crime involving domestic violence is released from custody prior to arraignment or trial, or at arraignment. RCW 10.99.040(2), (3) (1994).
Thus, Brooks' misdemeanor conviction for violating former RCW 10.99.040 was a conviction for violating a no contact order issued under a statute enumerated in RCW 26.50.110(5).
In sum, either of these two exhibits proves the second predicate conviction required to elevate the current conviction to a felony violation. The State met its burden of proof.
Constitutional Validity
Brooks next argues that the pleas he entered in the same cases discussed above are constitutionally invalid because there is no showing that his plea of guilty was preceded by his knowledge that he had a right to testify in his own defense. We disagree.
A defendant may challenge the constitutional validity of the predicate convictions as a defense to a felony charge for violation of a no contact order.
Carmen, 118 Wn. App. at 667.
The defendant bears the initial burden of offering a "colorable, fact-specific argument" supporting the claim of error in the prior conviction. Having called attention to an invalid plea and raised the issue, the burden shifts to the State to prove beyond a reasonable doubt that the predicate conviction is constitutionally sound.
State v. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993).
Id.; State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980).
To be constitutionally valid, a guilty plea must be made intelligently, voluntarily, and with knowledge that certain rights are being waived. We look to the totality of the circumstances to determine whether the guilty plea meets constitutional requirements.
State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996).
Id.
The plea need not list every right being waived to be constitutionally valid, as long as the record establishes that the plea was made intelligently, voluntarily, and with knowledge of the consequences.
Wood v. Morris, 87 Wn.2d 501, 509, 554 P.2d 1032 (1976).
Whether a predicate conviction is constitutionally valid is a question of law that we review de novo.
Carmen, 118 Wn. App. at 663, 665.
Brooks produced a certified copy of his statement of defendant on plea of guilty for the 1994 superior court felony charge. Although his district court pleas had been destroyed, Brooks contends that the language of both district court pleas was substantially similar to the superior court plea. Thus, we address the validity of all three challenged pleas by examining the language of the superior court plea.
See CrRLJ 4.2(g) (1994).
On this record, we conclude that Brooks provided adequate evidence to support his claim and shift the burden to the State. We also conclude that the State carried its burden to prove that Brooks' pleas are constitutionally valid.
Brooks' 1994 felony plea form advised him:
I have been informed and fully understand that I have the following important rights, and I give them all up by pleading guilty:
. . . .
(b) The right to remain silent before and during trial, and the right to refuse to testify against myself;
. . . .
(d) The right at trial to have witnesses testify for me. . . .
. . . .
I make this plea freely and voluntarily.
Defendant's Exhibit 5 at 1-2, 6.
Brooks signed the form immediately below the paragraph stating,
My lawyer has explained to me, and we have fully discussed, all of the above paragraphs. I understand them all. I have been given a copy of this "Statement of Defendant on Plea of Guilty." I have no further questions to ask the judge.
Id. at 7.
Moreover, just above the signature of the judge, it reads:
I find the defendant's plea of guilty to be knowingly, intelligently and voluntarily made. Defendant understands the charges and the consequences of the plea. There is a factual basis for the plea. The defendant is guilty as charged.
Id.
Brooks argues that this language does not specify his right to testify on his own behalf. Although the plea document does not expressly advise Brooks that he could be among the witnesses he could call at trial, this conclusion is implicit in view of the language of this document and the circumstances of his plea.
Brooks' plea form informed him of his right to call witnesses to testify on his behalf. To understand and waive this explicitly listed right (as his signature indicates he did) Brooks must have known he could testify at trial because the right to call witnesses to testify in his favor logically includes the right to testify himself. Brooks offers no authority for the proposition that the right to testify on one's own behalf must be explicitly listed in a plea agreement in order to satisfy due process. We do not read Rock v. Arkansas to require it.
See Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) ("Logically included in the accused's right to call witnesses whose testimony is `material and favorable to his defense,' is a right to testify himself, should he decide it is in his favor to do so.").
The record also indicates that Brooks discussed the form fully with counsel before signing. To the extent that Brooks perceived any ambiguity in including himself among the witnesses he had the right to call at trial, it is difficult to believe that his lawyer failed to explain that he could testify on his own behalf.
Furthermore, the judge's signature evidences an independent determination that Brooks waived his rights knowingly, intelligently, and voluntarily. Thus, under the totality of the circumstances, we conclude that the State carried its burden to prove the constitutional validity of Brooks' prior convictions.
Brooks argues that a court cannot presume that a defendant has voluntarily waived his constitutional rights where the record is silent. But his argument fails because this record is not silent. It contains Brooks' signed plea form, evidence that he consulted counsel and fully understood his rights before waiving them, and a judge's independent determination the plea was voluntary.
See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (holding guilty plea unconstitutional where record contained no affirmative showing plea was intelligent and voluntary).
INFORMATION
Brooks contends that an essential element of both felony harassment and telephone harassment was omitted from the information. Specifically, he argues that the threat made was a "true threat" should have been included and its omission requires reversal and dismissal of the charges. We disagree.
A charging document is constitutionally sufficient "only if it includes all `essential elements' of the crime, regardless of whether they are statutory or nonstatutory." This court recently decided State v. Tellez, which held that whether a threat is a true threat is definitional and not an essential element of a crime. This court also held in Tellez that the essential element in the crime of telephone harassment is a threat, which must be defined as a true threat for the jury.
State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004) (citing State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995)).
141 Wn. App. 479, 170 P.3d 75 (2007).
Id. at 483-84.
Id.
Jury Instruction
Here, the trial court gave the jury Brooks' proposed instructions, which omitted an instruction defining the threat made in the crimes of harassment and telephone harassment as a true threat. Because Brooks proposed the jury instructions given, the doctrine of invited error bars him from claiming this jury instruction error on appeal.
See State v. Studd, 137 Wn.2d 533, 546-49, 973 P.2d 1049 (1999) (applying the doctrine of invited error strictly and holding that defendant is barred from claiming error on appeal where he proposed the WPIC instruction given, even when instruction is later determined to be clearly erroneous).
We affirm the judgment and sentence. For the Court: