r 

### FILED 

# COURTOFAPPEALS DIVISION II 2011i APR 29 

## IM 8: L5 IN THE COURT OF APPEALS OF THE 

### STATE OF WASHI S 

### TON DIVISION II STATE OF WASHINGTON, Respondent,

v. SANDRA JOAN GATTEN, aka SANDY JOAN ABBASI, aka SANDY JOAN HEISER, aka SANDY JOAN KNAPP, aka SANDY JOAN LYBECK, aka SANDY JOAN GATTON, Appellant. No. 44171 -3 -II

UNPUBLISHED OPINION

LEE, J. — Sandra Joan Gatten pleaded guilty to second degree 

### burglary. On appeal, 

### Gatten challenges her offender score, arguing that (1) the trial court erred by including her prior convictions forwelfare fraud because they are constitutionally invalid on theirface; and (2) the 

### trial court erred by including her conviction forfirstdegreetheftbecause itwas previouslyfound to be the same criminal conduct as her welfare fraud convictions. 

### The trial court properly 

### included herwelfare fraud convictions because Gatten did not meet her burden to showthatthey
are constitutionally invalid on their face. 

### But, the State concedes that the trial court erred by including Gatten' s first degree theft conviction, and we accept the State' s concession. 

### Accordingly,we remand for resentencing. FACTS

Gatten pleaded guilty to one count of second degree 

### burglary. The State calculated Gatten' s offender score as 12. The State' s offender score calculation included 7 points for 7No. 44171 -3 -II

counts ofwelfare fraud and 1 point for first degree theft. The welfare fraud and first degree theft convictions all resulted from the same case. Gatten disputed the State' s calculation of her offender score. 

### Gatten objectedto including six ofthe seven counts ofwelfare fraud. She arguedthatthe welfare fraud statute provides for one unit of prosecution, and therefore, six of the counts 

### violated double jeopardy; thus, thejudgment and sentence was constitutionally invalid on its face. 

### At sentencing,the trial court rejected Gatten's argument and stated that thejudgment and sentence on the welfare fraud convictions was not constitutionally invalid on its face. The trial court also found that the State failed to prove the existence of one of Gatten' s out of state convictions. The trial court calculated Gatten's offender score as follows: 7 points for the welfare fraud convictions, 1 point for the first degree theft conviction, and 1 point for a prior 

### drug conviction.The trial court sentenced Gattento aprison - based alternative sentence based on the standard sentencing range for an offender score of 9. Gatten appeals the calculation of her offender score. ANALYSIS A.WELFARE FRAUD CONVICTIONS 

### Gatten argues that the trial court erred by including her welfare fraud convictions in her offender score because the convictions are constitutionally invalid on their face. She presents two arguments to support her claim. First, she argues that the welfare fraud convictions are 

### constitutionally invalid on their face because her guilty plea does not indicate that she read, or
was read, the plea form prior to accepting the plea. Second, she argues that the multiple welfare 

### fraud convictions violate doublejeopardy because the welfare fraud statute provides for a single
2No. 44171 -3 -II
unit of prosecution. Both of Gatten's arguments fail and we affirm the trial court's decision to include all the welfare fraud convictions in Gatten' s offender score. 

### As a general rule, the constitutional validity ofprior convictions may not be challenged during sentencing. State v. Jones, 110 Wn.2d 74, 77, 750 P.2d 620 ( 1988). As our Supreme Court states in State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796 ( 1986):

A] defendant has no right to contest a prior conviction at a subsequent sentencing. 

### To allow an attack at that point would unduly and unjustifiably overburden the sentencing court. The defendant has available, more appropriate 

### arenas forthe determination ofthe constitutional validity ofaprior conviction. An exception to this general rule is where the prior conviction is constitutionally invalid on its face. Ammons, 105 Wn.2d at 187 -88. " The defendant, and not the State, ` bears the burden of establishing the unconstitutionality of his or her prior convictions at such a proceeding. "' State 

### v. Thompson, 143 Wn. App. 861, 866, 181 P.3d 858, review denied, 164 Wn.2d 1035 ( 2008) quoting In re Pers. RestraintofWilliams, 111 Wn.2d 353, 368, 759 P.2d 436 (1988)). When determining whether a prior conviction is invalid on its face, the trial court may consider the judgment and sentence and other documents that qualify as " the face of the conviction." 

### Thompson, 143 Wn. App. at 866 ( quoting State v. Gimarelli, 105 Wn. App. 370, 377, 20 P. 3d 430, review denied, 144 Wn.2d 1014 ( 2001)). When the defendant has entered a guilty plea, the face of the conviction includes " documents signed as part of a plea agreement." 

### Thompson, 143 Wn.App. at 867 (citing State v. Phillips, 94 Wn.App. 313, 317, 972 P.2d 932 1999); State v. Davis, 47 Wn.

### App. 91, 94, 734 P.2d 500 ( 1987); 

### State v. Bembry, 46 Wn.App. 288, 291, 730 P.2d 115 ( 1986)). The trial court must be able to make a clear determination of 

### the constitutional invalidity ofthe prior conviction based on thejudgment and sentence and plea

3No. 44171 -3 -II
agreement documents, otherwise the prior conviction is not 

### facially invalid. Ammons, 105 Wn.2d at 188 -89. 

### Anytime "thetrial courtwould have to go behind" the face ofthe conviction, the defendant has not met his or her burden to demonstrate the facial invalidity of prior conviction. Ammons, 105 Wn.2d at 189. 

### Even where a guilty plea could be unconstitutional, it 

### is notfacially invalid unless thetrial court can conclusivelymake such a determination based on the face of a guilty plea. 

### Thompson, 143 Wn.App. at 867 - 68; see also Ammons, 105 Wn.2d at 189. Here, Gatten cannot meet her burden to demonstrate that her prior convictions were 

### invalid on their face. First, she argues thatthe plea agreement is constitutionally invalid because 

### the trial court did not complete the section of the plea form indicating that Gatten read the document or that the document was read to her. 

### Although this may indicate that the plea was constitutionally invalid, 

### the trial court cannot conclusively determine that the plea was constitutionally invalid without going behind the plea document. Therefore, Gatten has not met 

### her burden to prove that the welfare fraud convictions are constitutionally invalid on their face. SeeAmmons, 105 Wn.2d at 189; Thompson, 143 Wn.App. at 867 -68. Gatten also cannot meet her burden to prove that her welfare fraud convictions violate double

### jeopardy. To determine whether the welfare fraud convictions violate doublejeopardy, the trial court would be required to determine the appropriate unit of prosecution for welfare 

### fraud and then apply the unit of prosecution to the facts underlying Gatten's welfare fraud convictions. 

### Such an analysis ofprior convictions is clearly inappropriate for atrial court at a subsequent sentencing 

### hearing. Furthermore, such an analysis requires the trial court to go far beyond the face of the plea agreement and judgment and sentence. See Ammons, 105 Wn.2d atNo. 44171 -3 -1I

187 - 89. 

## Accordingly,Gatten hasfailedto meetherburdento showthatherpriorconvictions for welfare fraud are constitutionally invalid on their face due to a double jeopardy violation. 

## Accordingly, the trial court did not err by including Gatten's welfare fraud convictions in her offender score. B. FIRST DEGREE THEFT CONVICTION 

### Gatten also argues that the trial court erred by including her first degree theft conviction in her offender score because the conviction had previously been found to be the same criminal conduct as her welfare fraud convictions. The State concedes that the trial court erred. RCW 9.94A.525( 5)( a)( i) states that "[ p]rior offenses which were found .... to encompass the same criminal conduct shall be counted as one offense." 

### Therefore, the State properly concedes error. We remand forthe trial courtto strike the one point included in Gatten's offender score based on the first degree theft conviction and resentence Gatten. 

## Amajorityofthepanel having determinedthatthisopinionwill notbeprinted inthe Washington Appellate Reports, but will be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Maxa, J.
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