State v. Thompson

Scholfield, J.

(dissenting)—I do not agree that the reasoning originally adopted in State v. Holsworth, 93 Wn.2d 148 , 607 P.2d 845 (1980); accord, State v. Chervenell, 99 Wn.2d 309 , 662 P.2d 836 (1983), and extended beyond *773 habitual criminal prosecutions in State v. Swindell, 93 Wn.2d 192 , 607 P.2d 852 (1980) and State v. Brown, 29 Wn. App. 1 , 627 P.2d 142 (1981), is applicable to prosecutions for first degree escape. I would affirm Thompson's conviction.

Chervenell and Holsworth involve habitual criminal proceedings under RCW 9.92.090. In habitual criminal prosecutions, the prior convictions relied upon by the State to prove habitual criminal status are the gravamen of the case. The purpose of the habitual criminal statute is to enhance sentencing of those guilty of repetitive criminal offenses. Because the statute has no purpose to serve where a prior conviction relied upon is not valid, it is reasonable and consistent with the statutory purpose to require the State to prove the validity of challenged prior convictions.

State v. Swindell, supra, can also be distinguished. This court recently held that the State was not required to prove the constitutional validity of the underlying conviction to support a charge of felon in possession of a firearm under RCW 9.41.040. State v. Gore, 35 Wn. App. 62 , 665 P.2d 428 (1983). Gore relies upon the reasoning of Lewis v. United States, 445 U.S. 55 , 63 L. Ed. 2d 198 , 100 S. Ct. 915 (1980), in which the Supreme Court held that a prior conviction which was clearly subject to collateral attack on constitutional grounds could nevertheless be used as a prior conviction necessary to a prosecution for possession of a firearm in violation of provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202(a)(1) (1976). This reasoning supports, by analogy, my conclusion that the constitutional invalidity of the underlying conviction is immaterial in a prosecution for first degree escape.

An examination of § 1202(a)(1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a court of the United States or of a State ... of a felony." No modifier is present, and nothing suggests any restriction on the scope of the term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]." *774 United States v. Culbert, 435 U. S. 371, 373 [, 55 L. Ed. 2d 349 , 98 S. Ct. 1112, 1113 ] (1978); see United States v. Naftalin, 441 U. S. 768, 772 [, 60 L. Ed. 2d 624 , 99 S. Ct. 2077, 2081 ] (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury.

(Footnote omitted.) Lewis v. United States, supra at 60-61.

In State v. Brown, supra, this court concluded that Holsworth and Swindell required a holding in a first degree escape case that if the underlying conviction is challenged, the State must prove its validity beyond a reasonable doubt. Brown , however, follows Holsworth and Swindell without discussion of the basic difference between habitual criminal statutes and felon-in-possession statutes.

The crime of escape in the first degree is clearly distinguishable in its nature and purpose from habitual criminal proceedings. The gravamen of the crime of escape is a defendant's defiance of lawful custodial authority and deliberate violation of a judgment directing his or her confinement. The orderly and rational administration of the criminal justice system requires that the judgment be treated as a valid conviction until a court with jurisdiction rules otherwise.

The escape statute, RCW 9A.76.110, requires only that the escape occur while defendant is being detained "pursuant to a conviction of a felony". Thompson was being detained "pursuant to a conviction of a felony" whether or not the conviction is subject to attack. The language of the statute contains no suggestion of a legislative intent that the conviction could not be used in a prosecution for first degree escape if it was vulnerable to collateral attack. Because of the clear distinction between the habitual criminal statute and the statute defining escape in the first degree, there is no basis for holding that Chervenell and Holsworth require reversal of Thompson's conviction of *775 escape in the first degree.

For the foregoing reasons, I respectfully dissent and would affirm Thompson's conviction for first degree escape.

Reconsideration denied November 1, 1983.