Washington Appellate Project case details

Court of Appeals Division I

State of Washington

Opinion Information Sheet

Docket Number: 64126-3

Title of Case: State Of Washington, Respondent V. Donald H. Cochrane, Appellant

File Date: 01/10/2011

SOURCE OF APPEAL

----------------

Appeal from King County Superior Court

Docket No: 09-1-00664-1

Judgment or order under review

Date filed: 09/08/2009

Judge signing: Honorable Catherine D Shaffer

JUDGES

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Authored by Ann Schindler

Concurring: Mary Kay Becker

Linda Lau

COUNSEL OF RECORD

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Counsel for Appellant(s)

Washington Appellate Project

Attorney at Law

1511 Third Avenue

Suite 701

Seattle, WA, 98101

Vanessa Mi-jo Lee

Attorney at Law

1511 3rd Ave Ste 701

Seattle, WA, 98101-3647

Counsel for Respondent(s)

Prosecuting Atty King County

King Co Pros/App Unit Supervisor

W554 King County Courthouse

516 Third Avenue

Seattle, WA, 98104

Ann Marie Summers

King County Prosecutor's Office

516 3rd Ave Ste W554

Seattle, WA, 98104-2362

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

State of Washington, ) No. 64126-3-I

)

Respondent, )

v. ) ORDER GRANTING MOTION

) TO PUBLISH

Donald H. Cochrane, )

)

Appellant. )

________________________________)

The respondent State of Washington filed a motion to publish the opinion filed

on January 10, 2011 in the above case. A majority of the panel has determined that

the motion should be granted;

Now, therefore, it is hereby

ORDERED that respondent's motion to publish the opinion is granted.

DATED this ____ day of __________________, 2011.

FOR THE COURT:

No. 64126-3-I/2

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

State of Washington, ) No. 64126-3-I

)

Respondent, ) DIVISION ONE

v. )

)

Donald H. Cochrane, ) UNPUBLISHED OPINION

)

Appellant. )

________________________________) FILED: January 10, 2011

Schindler, J. -- Under RCW 46.61.502(6), driving under the influence (DUI) is

elevated from a gross misdemeanor to a felony if the defendant has "four or more prior

offenses within ten years as defined in RCW 46.61.5055." In State v. Chambers, 157

Wn. App. 465, 237 P.3d 352 (2010), we held that while the fact that a person has four

prior DUI offenses is an essential element of the crime of felony DUI under RCW

46.61.502(6), the question of whether a prior offense meets the statutory definition

under RCW 46.61.5055 is a threshold question of law to be decided by the court.

Donald Cochrane seeks reversal of his felony DUI conviction arguing the

information was constitutionally inadequate, two of the prior DUI convictions do not

meet the statutory definition, and insufficient evidence supports the conviction for

felony DUI. The State concedes that because the information did not allege the

essential statutory element that Cochrane has four prior DUI offenses "within ten

No. 64126-3-I/3

years," Cochrane is entitled to dismissal, but argues the remedy is dismissal without

prejudice. The State also asserts that by failing to object below, Cochrane waived his

right to challenge the validity of the two prior convictions and sufficient evidence

supports the felony DUI conviction. We accept the State's concession, and hold that

under State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), Cochrane is entitled

to dismissal without prejudice to the right of the State to recharge and retry him. We

also conclude Cochrane waived his right to challenge two of his prior DUI convictions

for the first time on appeal, but in any event, the record supports his conviction for

felony DUI.

FACTS

On January 9, 2009, a Seattle police officer observed a driver nearly hit a

parked car and swerve over the center line three different times. When the officer

attempted to pull the car over, the driver sped away at a high rate of speed. The driver,

Donald Cochrane, was eventually stopped and arrested for DUI. The blood test

showed Cochrane had a blood/alcohol concentration of 0.25, well in excess of the 0.08

limit.

The State charged Cochrane with felony DUI, count I, and failure to obey a

police officer, count II. As to the charge of felony DUI, the State alleged:

That the defendant DONALD HARER COCHRANE in King County,

Washington, on or about January 9, 2009, drove a vehicle within this

state and while driving had an amount of alcohol in his body sufficient to

cause a measurement of his blood to register 0.08 percent or more by

weight of alcohol within two hours after driving, as shown by analysis of

the person's blood; while under the influence of or affected by intoxicating

liquor or any drug; while under the combined influence of or affected by

intoxicating liquor and any drug; having at least four prior offenses, as

defined under RCW 46.61.5055(13)(a);

No. 64126-3-I/4

Contrary to RCW 46.61.502 and 46.61.5055, and against the

peace and dignity of the State of Washington.

Cochrane waived his right to a jury trial. The State presented the testimony of

the arresting officers, the police in-car video, and expert testimony regarding the

toxicology analysis. The State also introduced certified copies of court dockets to

prove that Cochrane had four prior DUI convictions within ten years: (1) a February 21,

2001 conviction in King County District Court for a May 30, 1999 DUI, listing RCW

46.61.502 as the basis for the conviction, (2) a February 20, 2001 conviction in Seattle

Municipal Court for "physical control while intoxicated" on November 24, 1999, listing

Seattle Municipal Code (SMC) 11.56.020(B) as the basis for the conviction, (3) a July

12, 2000 conviction in Everett Municipal Court for a DUI arrest on June 15, 2000, listing

RCW 46.61.502 as the basis for the conviction, and (4) an April 13, 2006 conviction in

Seattle Municipal Court for a DUI arrest on May 11, 2002, listing SMC 11.56.020 as the

basis for the conviction. In addition, the State introduced a "Stipulation on Prior Record

and Offender Score" that Cochrane entered into as part of a plea agreement in April

2008. In the stipulation, Cochrane agrees his prior criminal history is correct and that

he is "the person named in the convictions." The stipulation lists a number of prior

convictions including the four prior DUI convictions introduced into evidence at trial.

The defense objected to admission of the court dockets for the four prior DUI

convictions on hearsay grounds and in violation of his right to confrontation under

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The

court overruled the objections, and admitted the certified copies of the court dockets as

No. 64126-3-I/5

business records and as self-authenticating documents. The court also notes:

The dockets are simply evidence of a conviction, as a judgment and

sentence is evidence of a conviction, and that's all purposes the court is

taking it for is proof that, in fact, the defendant has prior convictions for

qualifying offenses.

During closing argument, defense counsel argued for the first time that the

information did not contain the essential statutory elements for felony DUI, and the

charges should be dismissed. Defense counsel asserted that the information did not

include the mandatory statutory language of "within ten years," and did not specify the

dates for the four prior DUI convictions. Defense counsel also argued that the

information cited the wrong section of the statute defining a prior offense.1

The court denied Cochrane's motion to dismiss the charges. The court ruled

that whether the four prior convictions occurred "within ten years" and the dates of the

prior convictions are not essential elements of the crime of felony DUI that the State

must allege in the information. The court also ruled that the incorrect citation to the

statute defining a prior offense was a scrivener's error and did not prejudice Cochrane.

Because Cochrane "had been convicted of four prior DUI or Physical Control

crimes within ten years," the court found Cochrane guilty of felony DUI.2 Cochrane

appeals his felony DUI conviction.3

ANALYSIS

Cochrane argues he is entitled to dismissal of the felony DUI conviction because

the information did not allege that the four prior DUI convictions occurred "within ten

1 As amended, prior subsection 13 defining "prior offense" is renumbered as subsection 14. Laws of

2008, ch. 282, § 14.

2 The court imposed a concurrent standard range sentence of 60 months.

3 The court also found Cochrane guilty of failing to obey a police officer. Cochrane did not appeal that

conviction.

No. 64126-3-I/6

years," and the information did not specifically identify the four prior convictions.

The State concedes that alleging the four prior DUI convictions occurred within

ten years is an essential statutory element that the State must allege and prove beyond

a reasonable doubt. But the State argues that specifically identifying the four prior DUI

convictions is not an essential element of the crime that it must allege in the

information.

The accused in a criminal case must be informed of the nature and cause of the

accusation against him, and cannot be tried for an offense for which he has not been

charged. U.S. Const. amend. VI; Wash. Const. art. I § 22; Vangerpen, 125 Wn.2d at

787. A charging document is constitutionally adequate only if all the essential elements

of a crime are included in the charging document. Vangerpen, 125 Wn.2d at 787.

Because Cochrane argued the information was constitutionally inadequate

before the verdict, we must strictly construe the language in the information. State v.

Johnson, 119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992).

The State concedes that the information omitted an essential element of the

crime as defined by the legislature in RCW 46.61.502(6) by failing to allege that the

four prior DUI offenses occurred "within ten years." We accept the State's concession.

Under RCW 46.61.502(6), a gross misdemeanor DUI is elevated to a felony if

the defendant has four prior DUI convictions within ten years. RCW 46.61.502(6)

provides,

in pertinent part:

It is a class C felony punishable under chapter 9.94A RCW, or chapter

13.40 RCW if the person is a juvenile, if: (a) The person has four or more

prior offenses within ten years as defined in RCW 46.61.5055.

No. 64126-3-I/7

RCW 46.61.5055(14)(c) addresses the meaning of "within ten years" under

RCW 46.61.502. RCW 46.61.5055(14)(c) states, "[T]he arrest for a prior offense

occurred within ten years of the arrest for the current offense."

RCW 46.61.5055(14) also defines "prior offense" for purposes of a prior DUI

offense under RCW 46.61.502(6). RCW 46.61.5055(14)(a) lists the statutory violations

that meet the definition of prior offense. RCW 46.61.5055(14)(a) provides, in pertinent

part:

For purposes of this section and RCW 46.61.502 [DUI] and 46.61.504

[physical control of vehicle under the influence]:

(a) A "prior offense" means any of the following:

(i) A conviction for a violation of RCW 46.61.502 or an equivalent

local ordinance;

(ii) A conviction for a violation of RCW 46.61.504 or an equivalent

local ordinance.

Cochrane contends that the specifics of the four prior convictions are also an

essential element that the State must allege in the information. We disagree.

The legislature defines the elements of a crime. State v. Williams, 162 Wn.2d

177, 183, 170 P.3d 30 (2007). The statutory definition of felony DUI does not require

the State to allege the specific details of the prior DUI offenses as an essential element

of the crime. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). While the

existence of the four prior DUI offenses as defined by the statute is an essential

element of the crime that must be proved beyond a reasonable doubt, providing the

specific details of each of these offenses is not an essential statutory element that must

be alleged in the information. RCW 46.61.502(6); Chambers, 157 Wn. App. at 477.4

4 Cochrane also argues that the information was constitutionally inadequate because it cited the

wrong section of the statute to define what prior offenses qualify. Error in a numerical statutory citation is

No. 64126-3-I/8

Cochrane asserts that because the information omitted the essential element of

"within ten years," the remedy is to reverse and direct the trial court to enter judgment

for a misdemeanor DUI. The State contends the remedy is dismissal without prejudice.

Vangerpen controls the question of whether dismissal of the felony DUI charges

against

not reversible unless it prejudiced the accused. Vangerpen, 125 Wn.2d at 787-88, 790 ("Convictions

based on charging documents which contain only technical defects . . . usually need not be reversed.").

Further, Cochrane does not claim prejudice from the incorrect citation.

No. 64126-3-I/9

Cochrane is with or without prejudice.

In Vangerpen, the State charged the defendant with attempted murder in the first

degree, but inadvertently omitted the statutory element of premeditation. Vangerpen,

125 Wn.2d at 784-85. After the State rested, the defense made a motion to dismiss for

lack of evidence of premeditation. The trial court denied the motion, finding there was

sufficient evidence of premeditation. Vangerpen, 125 Wn.2d at 785. The defense then

moved to dismiss because the information did not allege premeditation. The trial court

denied the motion and allowed the State to amend. The jury found the defendant guilty

of attempted murder in the first degree. Vangerpen, 125 Wn.2d at 785-86.

The Washington Supreme Court reversed the conviction because the charging

document was constitutionally inadequate. The court held that "[w]hen a conviction is

reversed due to an insufficient charging document, the result is a dismissal of charges

without prejudice to the right of the State to recharge and retry" the defendant.

Vangerpen, 125 Wn.2d at 791. "[T]he remedy for an insufficient [information] is

reversal

and dismissal of charges without prejudice to the State's ability to refile charges."

Vangerpen, 125 Wn.2d at 792-93; see State v. Nonog, 169 Wn.2d, 220, 226 n.3, 237

P.3d 250 (2010); State v. Quismundo, 164 Wn.2d 499, 503-04, 192 P.3d 342 (2008).5

Here, as in Vangerpen, we conclude that the remedy is dismissal without prejudice to

the right of the State to recharge and retry Cochrane.

Cochrane also argues that insufficient evidence supports his conviction of felony

5 Cochrane cites to State v. Sanders, 65 Wn. App. 28, 827 P.2d 354 (1992). But the Washington

Supreme Court in Vangerpen specifically rejected the applicability of Sanders in determining that the proper

remedy for a deficient information is reversal and remand to enter a verdict for the lesser charge. Vangerpen,

125 Wn.2d at 792.

No. 64126-3-I/10

DUI because the State did not prove beyond a reasonable doubt that the four prior DUI

convictions meet the definition under RCW 46.61.5055(14)(a). Cochrane concedes

that two of his prior DUI convictions meet the definition under RCW 46.61.5055(14)(a).

For the first time on appeal, Cochrane argues that the State did not prove that the two

other prior Seattle Municipal Court DUI convictions meet the definition under RCW

46.61.5055(14)(a).

In Chambers, we held that the question of whether a prior conviction qualifies as

a predicate offense is a threshold question of law for the court, and not an essential

element of the crime of felony DUI. Chambers, 157 Wn. App. at 479. Accordingly,

whether a violation of a local ordinance is comparable or equivalent to a DUI offense

under RCW Chapter 46.61 is a threshold question of law, and not an essential element

that the State must prove at trial. Chambers, 157 Wn. App. at 479.6

Below, Cochrane did not claim that the two prior Seattle Municipal Court

convictions do not meet the statutory definition of a prior offense. Cochrane objected to

admissibility of the certified copies of the dockets for the prior DUI convictions on

hearsay and confrontation grounds. And when the trial court clarified that the dockets

were being admitted for proof of whether "the defendant has prior convictions for

qualifying offenses," Cochrane did not object or argue that the two Seattle Municipal

Court convictions do not meet the statutory definition. We conclude Cochrane waived

his right to object to the admissibility of the dockets establishing those convictions for

the first time on appeal. See State v. Gray, 134 Wn. App. 547, 557-58, 138 P.3d 1123

6 While Cochrane's stipulation to his criminal history establishes the existence of the four prior

convictions, it does not establish that those convictions meet the definition of RCW 46.61.5055(14)(a).

No. 64126-3-I/11

(2006) (holding that the defendant waived his objection to the admissibility of the

Seattle Municipal Court judgment and sentence by failing to timely object on specific

grounds). Nonetheless, the record supports the conclusion that the two prior Seattle

Municipal Court DUI convictions qualify under RCW 46.61.5055(14)(a) as "an

equivalent local ordinance."

The court docket for the February 20, 2001 conviction in Seattle Municipal Court

for physical control while intoxicated, lists SMC 11.56.020(B) as the statutory basis for

the conviction. The language of SMC 11.56.020(B) ("Physical Control") is virtually

identical to RCW 46.61.504, the physical control statute. The court docket for the April

13, 2006 conviction in Seattle Municipal Court lists SMC 11.56.020 as the statutory

basis for the conviction of "driving while intoxicated." The language of SMC

11.56.020(A) ("Driving While Intoxicated") is also virtually identical to the language of

the DUI statute, RCW 46.61.502.

The trial court found that the State proved beyond a reasonable doubt the

existence of the four prior DUI convictions within ten years. The court expressly found

that "[o]n the date of this crime, the defendant had been convicted of four prior DUI or

Physical Control crimes within ten years." The court dockets establish the date of

arrest, the date of conviction, and the statutory basis for the conviction. The dockets

also support the conclusion that all four prior DUI offenses occurred within ten years of

his arrest for the current offense for felony DUI. RCW 46.61.5055(14)(c).7 The record

supports Cochrane's conviction for felony DUI.

7 While the stipulation admitted into evidence establishes the existence of the four prior DUI offenses,

the trial court found the court dockets establish that Cochrane's four prior DUI convictions met the statutory

definition, "the defendant has prior convictions for qualifying offenses."

No. 64126-3-I/12

We reverse Cochrane's conviction for felony DUI, but without prejudice to the

State's right to recharge and retry him for felony DUI.

WE CONCUR: