State v. Mullen

324 ¶1 Johanson, C.J. Patrick Joseph Mullen appeals his jury convictions for felony driving under the influence (DUI) and second degree driving while license suspended or revoked (DWLS). Mullen argues that the trial court violated his due process rights when it declined to give his proposed jury instruction requiring the State to prove beyond a reasonable doubt that alcohol or drugs were involved in his prior conviction for reckless driving. In the published portion of this opinion, we agree with Mullen. Mullen’s remaining arguments are addressed in the unpublished portion of this opinion. We reverse Mullen’s felony DUI conviction, remand to the trial court to enter a misdemeanor DUI conviction, and affirm his second degree DWLS conviction. FACTS ¶ 2 In March 2013, State Trooper Cliff Roberts arrested Mullen after he observed Mullen’s erratic driving and suspected that he was under the influence. The State charged Mullen with felony DUI1 — based in part on a prior 2008 conviction for reckless driving2 — and with second degree DWLS.3 ¶ 3 Mullen filed a motion to exclude the 2008 reckless driving conviction as a qualifying prior offense for felony DUI because there was no proof beyond a reasonable doubt that alcohol or drugs were involved in the 2008 offense. The trial court denied this motion. 325 ¶ 4 Mullen proposed the following jury instruction, defining a “prior offense” for felony DUI: A “prior offense” means any of the following: (1) A conviction for a violation of RCW 46.61.502 (Driving Under the Influence) or an equivalent local ordinance; (2) A conviction for a violation of RCW 46.61.504 (Physical Control) or an equivalent local ordinance; (3) A conviction for a violation of RCW 46.61.5249 (Negligent Driving in the First Degree), RCW 46.61.500 (Reckless Driving), or RCW 9A.36.050 (Reckless Endangerment) or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 (Driving Under the Influence) or RCW 46.61.504 (Physical Control) and the State has proven beyond a reasonable doubt that the prior incident was alcohol or drug related. Clerk’s Papers (CP) at 77 (emphasis added). The trial court declined to give his proposed instruction. ¶ 5 The jury convicted Mullen of felony DUI and second degree DWLS. Mullen appeals both convictions. ANALYSIS ¶ 6 This case presents an issue of first impression: whether the State must prove beyond a reasonable doubt that a prior conviction for reckless driving involved alcohol or drugs in order to use that conviction as a prior offense to elevate a misdemeanor DUI to a felony. Mullen argues that after our Supreme Court’s decision in City of Walla Walla v. Greene, 154 Wn.2d 722, 116 P.3d 1008 (2005), cert. denied, 546 U.S. 1174 (2006), the involvement of alcohol or drugs in a prior conviction for reckless driving is an essential element when the State seeks to use that conviction to elevate misdemeanor DUI to a felony. Because it is an essential element, Mullen argues that due process requires it be proved beyond a reasonable doubt and to a jury and that the trial court violated his due process rights when it refused to give his proposed jury instruction. The State argues that 326 whether alcohol or drugs were involved in the prior conviction is a threshold legal question for the trial court to decide. We agree with Mullen. A. Threshold Issues: Invited Error and Waiver 1. Invited Error ¶ 7 The State argues that invited error applies because Mullen’s “Motion to Exclude Prior Offense” created the circumstance in which the trial court determined, as a matter of law, whether the reckless driving conviction qualified as a prior offense. We disagree. ¶ 8 “[I]nvited error doctrine is a strict rule that precludes a criminal defendant from seeking appellate review of an error he helped create, even when the alleged error involves constitutional rights.” State v. Carson, 179 Wn. App. 961, 973, 320 P.3d 185, review granted, 181 Wn.2d 1001 (2014). ¶ 9 The State argues that Mullen invited error here because he improperly framed the issue in his motion as a request for the court to determine whether his reckless driving should be excluded as a prior offense. But the State misunderstands Mullen’s motion. Mullen’s motion requested a finding that in light of Greene and as a matter of law, the State could not prove beyond a reasonable doubt that drugs and alcohol were involved in the prior conviction. Mullen did not ask the court to determine a solely legal question; instead, he asked it to consider the facts that the State intended to establish and to find that the State could not prove an essential element beyond a reasonable doubt. We, therefore, reject the State’s invited error argument. 2. Waiver ¶ 10 The State next argues that Mullen waived his right to argue for the first time on appeal that a jury should determine whether alcohol or drugs were involved in the prior offense because he did not move for reconsideration of the trial court’s denial of his motion to exclude. We disagree. 327 ¶ 11 We generally decline to review claims that are raised for the first time on appeal. RAP 2.5(a). We will, however, review an argument for the first time if it concerns a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). An error affecting a constitutional right is manifest if the appellant can show actual prejudice. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). ¶ 12 We disagree that Mullen waived his due process argument by failing to move for reconsideration for three reasons. First, Mullen’s motion to exclude anticipated a question of fact for jury determination. CP at 7 (“There remains an unproven question of fact as to whether the prior incident involved alcohol or drugs.”). Second, the State points us to no case law to support the proposition that preserving this argument for appeal required a motion for reconsideration. And third, Mullen preserved this argument when he proposed a jury instruction that required proof “beyond a reasonable doubt that the prior incident was alcohol or drug related.” CP at 77. It was squarely within the trial court’s authority to give Mullen’s proposed jury instruction, and it declined. During discussion about jury instructions, Mullen stated, I just want to formally object. I don’t think that the State’s proffered instruction of a prior offense is a correct statement of the law. It would violate due process, In re Winship[, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)], allowing him to potentially be found guilty for an offense that was not proven beyond a reasonable doubt to be a qualifying offense. Report of Proceedings (June 14, 2013) at 106. Mullen did not waive his due process argument. ¶ 13 Because the State’s invited error argument fails and the proposed jury instruction preserved Mullen’s argument for appeal, we continue to the merits of Mullen’s argument. 328 B. Whether a Prior Conviction Involved Alcohol or Drugs Is an Essential Element of Felony DUI ¶ 14 Mullen argues that after Greene, the involvement of alcohol or drugs in the prior conviction is an essential element of felony DUI that must be proved beyond a reasonable doubt and to a jury. The State argues that whether the reckless driving conviction qualifies as a prior offense is a threshold legal question for the trial court to decide. We agree with Mullen that the State must prove beyond a reasonable doubt that his prior reckless driving conviction involved alcohol or drugs in order to elevate the misdemeanor DUI to a felony DUI. 1. Standard of Review and Relevant Law ¶ 15 The Sixth Amendment to the United States Constitution guarantees a criminal defendant’s right to have elements determined by a jury. Alleyne v. United States,__ U.S._, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013); State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008); State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). Due process requires the State to prove each essential element of a crime beyond a reasonable doubt. U.S. Const. amend. XIV; Wash. Const, art. I, § 22; In re Winship, 397 U.S. at 364; Oster, 147 Wn.2d at 146. Whether an issue presents a question of law or fact and, thus, whether the trial court has the authority to decide it is a question of law that we review de novo. State v. Chambers, 157 Wn. App. 465, 474, 237 P.3d 352 (2010), review denied, 170 Wn.2d 1031 (2011); State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005). Therefore, in order to determine whether a fact must be found by a jury beyond a reasonable doubt, this court must first determine whether the fact is an “element” of the offense charged. Alleyne, 133 S. Ct. at 2158. ¶ 16 A person is guilty of felony DUI if he (1) “drives a vehicle within this state,” (2) has “within two hours after 329 driving, an alcohol concentration of 0.08 or higher,” and (3) “has four or more prior offenses within ten years as defined in RCW 46.61.5055.” RCW 46.61.502(l)(a), (6)(a). Reckless driving may qualify as a prior offense “if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 [DUI].” RCW 46.61.5055(14)(a)(x). “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” RCW 46.61.500(1). ¶ 17 In Greene, our Supreme Court held that “due process is satisfied for the purposes of this mandatory enhancement if the prior conviction exists and the [State] can establish that intoxicating liquor or drugs were involved in that prior offense.” 154 Wn.2d at 728 (footnote omitted) (applied to a prior conviction for first degree negligent driving). Therefore, the issue here is whether the involvement of alcohol or drugs is an essential element of a felony DUI or a threshold legal question for the trial court to determine. We hold that because the legislature’s intent was to charge defendants who are guilty of prior alcohol- or drug-related offenses with felony DUI, the involvement of alcohol or drugs in prior convictions is an essential element that must be proved to a jury where it was not an essential element of the prior conviction itself. 2. Discussion a. What Is an Essential Element of a Crime f 18 The United States Supreme Court has recently decided several cases that provide guidance in determining what facts are essential elements that must be proved to a jury. In Alleyne, the Supreme Court held that whether the defendant had brandished his weapon was a fact and must be tried to a jury because “[b]ut for a finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing, the penalty becomes seven years to life.” 133 S. Ct. at 2160. Although unlike Alleyne this case does not 330 involve sentencing, the issue is similar where but for a finding that the reckless driving conviction involved alcohol or drugs, the penalty is 1 year for a misdemeanor DUI, and with a finding that alcohol or drugs were involved, Mullen’s standard range sentence is 22 to 29 months for a felony DUI. Mullen’s case is even stronger than Alleyne because without a finding that alcohol or drugs were involved in his reckless driving conviction, Mullen is guilty of an entirely different offense, misdemeanor DUI. ¶ 19 Applying the same principle to upward deviations in sentencing in Blakely v. Washington, 542 U.S. 296, 303-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Supreme Court held that when a defendant is sentenced to more than the statutory maximum standard range, he is entitled to a jury determination of any facts that justified the upward deviation. The Court held that the defendant was entitled to a jury determination of any factor that could increase his standard range sentence. Blakely, 542 U.S. at 303-04. Although Blakely involved an upward deviation from the standard sentencing range and Mullen received a standard range sentence, Alleyne’s and Blakely’s reasoning is relevant to Mullen because it supports a requirement that facts that justify an increased penalty be tried to a jury. ¶ 20 In Washington, similar reasoning has been applied to offenses that rely on past convictions to elevate a crime from a misdemeanor to a felony. See, e.g., Roswell, 165 Wn.2d at 192-93; Oster, 147 Wn.2d at 145-47. Although neither Oster nor Roswell is directly on point, their reasoning is persuasive. In Oster, the defendant was charged with felony violation of a domestic violence no-contact order. 147 Wn.2d at 143. The charge was elevated to a felony because he had two or more prior convictions for violating a no-contact order. Oster, 147 Wn.2d at 143-44. Our Supreme Court held that “[a]s set forth in the statute, the prior convictions function as an element of the felony violation of a no contact order.” Oster, 147 Wn.2d at 146. Because the trial court properly instructed the jury on finding prior 331 convictions beyond a reasonable doubt, however, our Supreme Court affirmed Oster’s felony conviction. Oster, 147 Wn.2d at 145-47. ¶ 21 Similarly, in Roswell, the defendant was charged with communication with a minor for immoral purposes, a gross misdemeanor that would be elevated to a felony if he had been previously convicted of a felony sexual offense. 165 Wn.2d at 190. Our Supreme Court stated, “For example, here, if Roswell had had no prior felony sex offense convictions, he could not have been charged or convicted of felony communication with a minor for immoral purposes.” Roswell, 165 Wn.2d at 192. Although it was not the central issue in that case, the court held that Roswell’s prior convictions were elements of the felony charge because he could never be convicted of a felony absent the prior convictions. Roswell, 165 Wn.2d at 194. As in Oster, the mere existence of the prior convictions was sufficient to elevate the current offense to a felony. ¶ 22 Although helpful, neither Oster nor Roswell is precisely on point because in those cases the mere existence of the prior conviction was sufficient to elevate the offense to a felony. Here, Mullen argues that the mere existence of the prior reckless driving conviction is insufficient to elevate the current DUI to a felony DUI because the involvement of alcohol or drugs is not an essential element of reckless driving. See Greene, 154 Wn.2d at 727-28. Mullen argues that Greene interpreted the legislature’s intent in defining which past convictions could serve as “prior offenses” to elevate a misdemeanor DUI to a felony. His position is that, post-Greene, the State must prove beyond a reasonable doubt that his prior reckless driving conviction was alcohol or drug related in order to elevate the misdemeanor DUI to felony DUI. b. City of Walla Walla v. Greene ¶ 23 It is undisputed that the existence of Mullen’s prior conviction for reckless driving must be proved to a jury 332 beyond a reasonable doubt. The State asserts that Greene stands for the proposition that unlike the existence of the prior conviction itself, involvement of drugs and alcohol is a threshold question of law that the trial court had the authority to decide. Mullen asserts, however, that Greene establishes the involvement of alcohol or drugs as part of the definition of a prior offense, that it is an element of the crime, and that it must be found by a jury beyond a reasonable doubt. We agree with Mullen because, after Greene, unless alcohol or drugs were involved in his reckless driving conviction, Mullen could not have been charged with felony DUI and, therefore, it is an essential element of the offense of felony DUI. ¶ 24 In Greene, the State charged the defendant with misdemeanor DUI but she pleaded guilty to first degree negligent driving, an offense that requires proof of driving under the influence of alcohol or drugs.4 154 Wn.2d at 724. She was later convicted of an additional DUI, and the city sought to use the negligent driving conviction as a prior offense because it was originally charged as a DUI. Greene, 154 Wn.2d at 724-25. She successfully argued to the trial court that under State v. Shaffer, 113 Wn. App. 812, 55 P.3d 668 (2002), overruled by Greene, 154 Wn.2d 722, the sentence enhancement violated due process because it was based on an unproven prior offense. Greene, 154 Wn.2d at 725. The city of Walla Walla appealed. ¶ 25 Our Supreme Court reversed the trial court and overruled Shaffer. Greene, 154 Wn.2d at 725. In rejecting Shaffer, the Supreme Court held that the statute requires the State to establish that a prior driving conviction involved use of intoxicating liquor or drugs. Thus, due process is satisfied for the purposes of this mandatory enhancement if the prior conviction exists and the prosecution 333 can establish that intoxicating liquor or drugs were involved in that prior offense. Greene, 154 Wn.2d at 727-28 (footnote omitted). Because the legislature intended only to impose enhanced penalties on those who repeatedly commit alcohol- or drug-related driving offenses, the definition of a “prior offense,” as interpreted by Greene, requires the State to prove both that the prior conviction exists and that it was alcohol or drug related. See 154 Wn.2d at 728. Since the parties agree that due process requires the State to prove the existence of the prior conviction beyond a reasonable doubt, it is logical, based on the language of Greene, to apply that same standard to the requirement that the State “establish that intoxicating liquor or drugs were involved.” 154 Wn.2d at 728. ¶ 26 Because involvement of alcohol or drugs is an essential element of first degree negligent driving, the State in Greene needed to prove only the existence of the prior offense. 154 Wn.2d at 728. But because the involvement of alcohol or drugs was not an essential element in Mullen’s prior reckless driving conviction, Mullen argues that the State must prove both the existence of the prior offense and the fact of alcohol or drug involvement. c. Application ¶ 27 Because Mullen’s reckless driving conviction was originally charged as a DUI, it may be a qualifying prior offense to elevate misdemeanor DUI to a felony. RCW 46.61.5055(14)(a)(x). But a person is guilty of reckless driving when he “drives any vehicle in willful or wanton disregard for the safety of persons or property.” RCW 46.61.500(1). Therefore, a person may be guilty of reckless driving even if he is not engaged in an activity that involves alcohol or drugs. In contrast, a person is guilty of first degree negligent driving, the prior offense at issue in Greene, when “he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to 334 endanger any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug.” RCW 46.61.5249(l)(a). A person may not be guilty of first degree negligent driving unless he is under the influence of alcohol or drugs. ¶ 28 As in Greene, the State must prove that Mullen’s reckless driving conviction involved alcohol or drugs in order to satisfy his due process rights. See 154 Wn.2d at 728. The difference in Mullen’s case is that the State cannot prove that alcohol or drugs were involved merely by virtue of his conviction for reckless driving. The Greene court was clear when it held that the legislature intended only for prior offenses that involved alcohol or drugs to be used to support a felony DUI conviction. See 154 Wn.2d at 727. In Mullen’s case, however, the trial court ignored this legislative intent. Instead, Mullen’s reckless driving conviction was used to elevate misdemeanor DUI to a felony without a determination beyond a reasonable doubt that alcohol or drugs were involved. Because Mullen could not be charged with felony DUI unless his prior conviction involved alcohol or drugs, it is an essential element that must be proved to a jury beyond a reasonable doubt. Roswell, 165 Wn.2d at 194. d. The State’s Arguments ¶ 29 We now turn to the State’s arguments to the contrary. The State argues that the statute and Greene require it only to produce the docket sheet confirming that Mullen was originally charged with a DUI and that he pleaded guilty to reckless driving. The State also argues that the docket and the entry in the docket for “Motion to Suppress BAC”5 are sufficient evidence for the trial court to determine that the prior offense was alcohol or drug related under its reading of Greene. We disagree. 335 ¶ 30 This argument is misplaced for three reasons. First, it ignores the Greene court’s reasoning in overruling Shaffer. The court overruled Shaffer because it disagreed that the felony DUI statute required the State to prove the underlying DUI. Greene, 154 Wn.2d at 727. The court held that the legislature sought to apply felony DUI only to those defendants who were convicted of multiple alcohol- or drug-related offenses. Greene, 154 Wn.2d at 727-28. The way to accomplish this is to prove that alcohol or drugs were involved in the prior offense and does not require the State to reprove the offense. ¶ 31 Second, the State’s argument is misguided because if the Greene court sought merely to require the State to prove that (1) the prior conviction existed and (2) the prior conviction was originally charged as a DUI, the Greene court could have relied solely on the language of the statute. See RCW 46.61.5055(14)(a)(x). Instead Greene states that due process requires the State to “establish” that alcohol or drugs were involved. 154 Wn.2d at 728. ¶ 32 Finally, the State’s argument ignores the fact that the defendant in Greene pleaded guilty to first degree negligent driving and that alcohol or drugs are an essential element of that offense. RCW 46.61.5249; see also 154 Wn.2d at 728. This is an important difference from Mullen’s case because Greene was convicted beyond a reasonable doubt of an alcohol- or drug-related offense. Mullen, in contrast, pleaded guilty to a non-alcohol- or non-drug-related prior offense, reckless driving, which the State now seeks to use to convict him of a more serious alcohol- or drug-related offense. ¶ 33 The State also relies on Chambers. But we distinguish Chambers from this case because in Chambers the defendant argued that a California DUI conviction was not “equivalent” to a Washington DUI conviction and, thus, should not qualify as a prior offense. 157 Wn. App. at 474-77. 336 ¶ 34 In Chambers, Division One of this court held that while it is for the jury to decide whether the prior offenses happened, whether two statutes were equivalent is a “threshold question of law” and not a question of fact for the jury. 157 Wn. App. at 477. It is well settled that whether two similar statutes are legally comparable is for the trial court to determine and, in part, requires the court to decide whether the elements of the offenses at issue are “substantially similar.” See, e.g., State v. Farnsworth, 133 Wn. App. 1, 17-18, 130 P.3d 389 (2006), modified on remand, 2007 WL 1223669, 2007 Wash. App. LEXIS 455; In re Pers. Restraint ofLavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005); State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). Whether alcohol or drugs were involved in Mullen’s prior offense is distinguishable from a comparison between the elements of a California and Washington DUI. Here, we are not comparing elements of two offenses but, instead, determining whether a fact that is used to elevate a crime from a misdemeanor to a felony, thereby increasing the penalty, is an essential element of the felony crime. This is a factual determination more like the existence of a prior offense and not a legal question. Therefore, Chambers is inapplicable.6 C. Conclusion ¶ 35 In sum, in order to elevate a misdemeanor DUI to a felony DUI, the State must prove the existence of the prior conviction beyond a reasonable doubt, and to satisfy due process, it must also establish that alcohol or drugs were involved in that prior conviction. Where the involvement of 337 alcohol or drugs is not an essential element of the qualifying prior offense, like in reckless driving, the State has the burden to establish that alcohol or drugs were involved because the legislature intended only for alcohol- or drug-related convictions to be used to elevate misdemeanor DUI to a felony. See Greene, 154 Wn.2d at 728. 136 Because we hold that the involvement of alcohol or drugs in the prior offense is an essential element of felony DUI, due process requires that it be tried to a jury and proved beyond a reasonable doubt. Accordingly, we conclude that the trial court violated Mullen’s due process rights when it declined to give the jury Mullen’s proposed instruction. We, therefore, reverse Mullen’s conviction for felony DUI and remand to the trial court for entry of a misdemeanor DUI conviction. ¶ 37 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered. Bjorgen, J., concurs. Footnotes [1] RCW 46.61.502(6)(a). [2] Former RCW 46.61.500 (1990). [3] RCW 46.20.342(l)(b). [4] “A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug.” RCW 46.61.5249(l)(a) (emphasis added). [5] “BAC” refers to a test for blood alcohol content. In this case, this was a breath test. [6] The State and the dissent also rely on State v. Chandler, 158 Wn. App. 1, 6-8, 240 P.3d 159 (2010), where we held that if the judgment and sentence are not available, the docket sheets are sufficient to prove the existence of the conviction. This case is not relevant. Mullen does not argue that the docket sheets are insufficient to prove the existence of the conviction. He argues only that the docket sheets here are insufficient to prove the prior offense was alcohol or drug related as a matter of law. We agree with Mullen that the docket sheet is sufficient to prove the existence of a prior conviction but is insufficient to prove the conviction was alcohol or drug related.