Washington Felony Protection Order Violation Convictions Reduced to Misdemeanors

Pursuant to RCW 26.50.110(5), violation of certain Washington protection orders is a class C felony if the defendant has two or more prior convictions for violating specified types of protection orders. A defendant recently challenged his felony convictions, arguing the state failed to prove the validity of one of his prior convictions.

According to the appeals court’s unpublished opinion, the defendant entered a guilty plea to violating a protection order in 1992.  The county clerk’s office destroyed most of the related records since then.  In 2019, the only record left was a seven-page document titled “DOCKET.” This document contained clerk entries related to the prosecution of that case.

In 2019, the district court in another county entered a no-contact order prohibiting the defendant from contacting his girlfriend.  He was later charged with three counts of felony violation of a no-contact order based on alleged calls he made to her from jail.  He was charged with felonies based on the state’s allegations he had two previous convictions for violating an order.  If he did not have prior convictions, the alleged violations would just be misdemeanors instead of felonies.

The defendant moved to exclude evidence of the conviction in 1992.  He argued that the “DOCKET” did not show the constitutional validity of the plea and conviction. The entry stated, “RIGHTS GIVEN,” but the defendant argued it did not reflect what rights had been given.  It did not state whether he was informed of the right to remain silent, right to counsel, right to a jury trial, or the right to appeal.  There was no evidence of whether he was represented by counsel when he entered the plea or whether he waived the right to counsel. He argued the state could not show that the guilty plea was made knowingly, intelligently, and voluntarily.

The state argued that the docket entry was sufficient to establish the guilty plea was valid.

The trial court denied the defendant’s motion and admitted the docket into evidence at trial.

The jury found the defendant guilty as charged.  The jury also found he had at least two prior convictions for violation of a protection order.

The defendant appealed, arguing the docket entry failed to establish that the 1992 plea was valid. He also argued it should not have been admitted into evidence.  He further argued that even if it was properly admitted, it was not sufficient evidence of a prior conviction to support the current convictions being elevated to felonies.  He contended the state had to provide beyond a reasonable doubt that the prior conviction was valid, and the trial court had shifted the burden to him.

The state must prove essential elements of a crime beyond a reasonable doubt. Case law has held that prior convictions are an element of felony violations of a no-contact order pursuant to RCW 26.50.110(5).Washington courts have also held that invalid no-contact orders should not be allowed into evidence or used as a predicate conviction.

When a defendant raises a defense that a prior conviction was constitutionally invalid, the state must prove its constitutional validity beyond a reasonable doubt. To raise the defense, the defendant must make a colorable and fact-specific argument. Pursuant to case law, this is a fairly low burden that the defendant can meet by alleging the record does not expressly state that the plea court informed him of one or more of his rights.  The burden then shifts to the state.

A guilty plea is only valid if the defendant enters into it and waives his rights knowingly and voluntarily.  A court may not presume a defendant waived the right to counsel when the record does not reflect such a waiver.  Instead the record or other evidence must show that the defendant intelligently and understandingly rejected an offer of counsel.

The defendant argued he made a colorable and fact-specific argument because the docket entry did not contain sufficient information to show whether he had knowingly, intelligently, and voluntarily entered the guilty plea. The document did not even state whether he had been represented at the plea or whether he had waived the right to counsel. It also did not state what rights were provided to him.

The state argued the defendant did not aver that the trial court had deprived him of his rights at the time of his plea.  The state argued that the defendant’s position was based on just the possibility of a constitutional defect.

The appeals court considered previous case law and rejected the state’s argument that there must be affirmative evidence of a violation of the defendant’s rights for the defendant to meet the burden of a colorable and fact-specific argument.

The appeals court remanded for the appeals court to reduce the felony convictions to misdemeanors.

Conviction of a felony can have serious consequences beyond the sentence given.  If you are facing charges for violating a civil protection order and have previous convictions, an experienced Washington civil protection order attorney can fight to protect your rights.  At Blair & Kim, PLLC, we are experienced in civil protection orders and criminal defense.  Schedule your consultation by calling us at (206) 622-6562.


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