(concurring in the result) — This court has consistently construed the word "conviction" used in criminal statutes to mean a valid, constitutional conviction. The majority's departure from prior precedent is wholly inexplicable and unnecessary. I would require the State to prove the constitutional validity of the prior conviction in the crime of first degree escape. Because I agree with the trial court that the defendant's two prior burglary convictions were valid, I concur only in the result reached by the majority.
Earlier this year a unanimous court held that convictions in the felon in possession of firearms statutes require a constitutionally valid conviction. State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984). RCW 9.41.040 forbids a person who has been convicted of a crime of violence from possessing a pistol. We recognized that two alternative meanings of "convicted" may be read in the statute: (1) any outstanding felony conviction may serve as the predicate for the crime, or (2) only a constitutionally valid conviction may suffice. Following the rule of lenity, we were required to construe the statute strictly in favor of the defendant, and held constitutionally valid convictions must be shown.
A prior felony conviction, which elevates escape from custody to first degree escape rather than second degree escape, is also subject to the same two alternative readings. The majority has offered no reasoning why the rule of lenity ought not be followed here as well.
*569In State v. Swindell, 93 Wn.2d 192, 607 P.2d 852 (1980), also involving the felon in possession statute, we required the State to prove the constitutional validity of the underlying prior felony conviction beyond a reasonable doubt. There we reasoned that the present use of a prior conviction was an element of the crime. The prosecution for first degree escape likewise contains the element of a prior conviction of a felony. That the prior conviction is an element of the crime is amply illustrated by the difference between first and second degree escape. Second degree escape does not require that custody be pursuant to a felony conviction.
We have also required that prior convictions be constitutionally valid convictions when used in habitual criminal proceedings. State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980). There we stated that the challenge to the use of a prior conviction was neither collateral nor retroactive, but rather a challenge "to the present use of an invalid plea in a present criminal sentencing process." Holsworth, at 154. Here, too, the defendant is challenging the present use of his prior conviction.
The majority's attempts to distinguish the present situation from those in Gore, Swindell, and Holsworth escape my comprehension. The majority says that the Holsworth habitual criminal proceedings are not analogous. While I concede that habitual criminal proceedings and criminal trials are different, the issues in both settings are identical. The issue is whether a reference in a criminal statute to a prior conviction requires the conviction to be a constitutionally valid one. In Swindell the challenge to the prior conviction also arose in the criminal trial, as here. There we stated: "Defendant's challenge is thus indistinguishable from State v. Holsworth." (Citation omitted.) Swindell, at 196.
The distinction made by the majority to evade the precedent in Gore and Swindell is particularly lacking in merit. The courts in Swindell and Gore did not resort to any sort of weighing of the right to bear arms to support their conclusions. If there is a collateral constitutional issue *570at all, it is the right to liberty absent a constitutionally valid conviction of a crime. Whether a crime impinges on a constitutional right is irrelevant to the issue of whether the State has met its burden of proving each element of a crime.
Subsequent to our decision in Swindell, the Legislature amended RCW 9.41.040, Laws of 1983, ch. 232, § 2, to clarify what constitutes a "conviction" for purposes of the crime of illegal possession of a short firearm or pistol. RCW 9.41.040(3) provides, "a person has been 'convicted' at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings ..." The Legislature has not amended the judicial interpretation of "conviction" in regard to the crime of first degree escape. As I earlier stated, the Legislature has drawn a distinction between first and second degree escape; that distinction principally being the conviction of a felony. See RCW 9A.76.110 and RCW 9A.76.120.
The majority has offered no explanation of why the court should depart from the rule of lenity nor put forth a plausible distinction from the prior precedent of Gore, Swin-dell, and Holsworth. I am unable to conceive of a valid distinction and thus disagree with the rationale employed by the majority.
Pearson, J., concurs with Williams, C.J.
Reconsideration denied March 11, 1985.