(dissenting) — I dissent in part. I agree with the majority's conclusions regarding the "wash-out" of prior convictions and the inapplicability of ex post facto prohibitions. I cannot agree with its conclusion that proof of prior convictions by a Department of Licensing abstract meets the State's burden of proof under RCW 9.94A.110.
The Legislature has given the State the burden of proof on the issue of prior convictions because the State has the resources and records to obtain that information. While that task should not be made more burdensome than necessary, the majority's attempt to lighten the State's load has impermissible consequences for the defendant. The Department of Licensing is not infallible, nor are the municipal and district courts which handle most traffic offenses. It is entirely possible that an abstract of this kind might list offenses of which the defendant is not guilty, and to correct that record would be an expensive and time consuming process. If such an abstract is considered sufficient proof under RCW 9.94A.110, it falls to the defendant, pursuant to the majority opinion, to discover and prove that he is not the driver listed or that an offense has been ascribed to him which he did not commit. By permitting proof of prior convictions by a licensing abstract, the majority in effect shifts the burden of proof to the defendant. That is not only contrary to statute, it is unnecessary as a practiced matter. Given that the abstract lists the courts in which Williams appeared on each of the offenses listed, it is not too much to ask the State to obtain proper records of those convictions for use at sentencing.
I would hold that the State has not met its burden under RCW 9.94A.110 on those grounds alone, but there is an additional reason why the licensing abstract is not sufficient proof. It is constitutionally defective.
*370The majority misconstrues Williams' due process argument in a number of ways. It stresses the fact that the prior offenses are not an element of the crime charged, and that, under State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930, 107 S. Ct. 398 (1986), the State does not have the burden of proving the validity of those convictions. That is correct, as far as it goes. There is more to the Ammons holding, however.
We hold that the State does not have the affirmative burden of proving the constitutional validity of a prior conviction before it can be used in a sentencing proceeding. However, a prior conviction which has been previously determined to have been unconstitutionally obtained or which is constitutionally invalid on its face may not be considered. See In re Bush, [26 Wn. App. 486, 616 P.2d 666 (1980), aff'd, 95 Wn.2d 551, 627 P.2d 953 (1981)] at 497-98; United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967). Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.
(Italics mine.) Ammons, at 187-88. Williams argues that proof of a prior conviction by means of a Department of Licensing abstract is proof of a conviction which is invalid on its face. The majority, however, reasons as follows:
Rather, it is the defendant who bears the burden of establishing the unconstitutionality of his or her prior convictions at such a proceeding. . . . Unless the convictions are facially invalid, it is presumed that a defendant's silence when his or her convictions are introduced means that they are proper to use for sentencing purposes.
(Footnote omitted.) Majority, at 368. Because Williams argues facial invalidity, there is no issue of the burden of proof. The majority simply misses the point of Williams' argument and fails to address the dispositive issue of whether the convictions the State relied on were facially invalid.
*371Williams' facial invalidity argument rests on the very cases cited in Ammons to illustrate that concept. In Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967) the Supreme Court held that a record of conviction which is facially invalid cannot be used to establish recidivism and to justify a mandatory minimum sentence. One of the convictions offered as proof in Burgett did not state on its face whether the defendant was or was not represented by counsel. The Court wrote:
In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible, Carnley v. Cochran, [369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962)]. To permit a conviction obtained in violation of Gideon v. Wainwright [372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963)] to be used against a person either to support guilt or enhance punishment for another offense [see Greer v. Beto, 384 U.S. 269, 16 L. Ed. 2d 526, 86 S. Ct. 1477 (1966)] is to erode the principle of that case.
(Italics mine.) Burgett, at 114-15.
Burgett arguably is distinguishable from the present case because use of a prior conviction to raise an offender score under the SRA differs from its use in a recidivism prosecution; in the latter the prior conviction is an element of the crime. The Court's reference to enhancement of punishment in Burgett is properly dicta. However, the Court did extend the logic of Burgett to enhancement of punishment 5 years later in Tucker. There, the defendant was given the maximum sentence for armed bank robbery based in part on the trial court's inquiry into his prior convictions. Those convictions were invalid because they had been obtained in violation of the right to counsel. The Ninth Circuit remanded the case for resentencing because there was:
"a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed."
*372United States v. Tucker, 404 U.S. 443, 445-46, 30 L. Ed. 2d 592, 595, 92 S. Ct. 589 (1972). The Supreme Court held:
We agree with the Court of Appeals . . . For if the trial judge in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding.
Tucker, at 448. Tucker differed slightly from Burgett in that the prior convictions were conclusively shown to be invalid, so there was no need to apply Carnley's rule that waiver of counsel cannot be inferred from a silent record. Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962). However, the difference between Tucker and Burgett — that one concerns proof of an element of recidivism and the other enhancement of a sentence — has no bearing on the logic behind the Carnley rule. That rule is equally applicable in a case concerning proof of prior convictions as an element and a case, like this one, concerning proof for purposes of enhancement. Therefore, Carnley, Tucker and Burgett establish that where the State's proof of a prior conviction for purposes of sentence enhancement is silent on the subject of assistance of counsel, the proof is constitutionally deficient, because a court cannot infer a waiver of that right from a silent record.
Relying on Carnley, Burgett and Tucker, Division One of the Court of Appeals has held that records of a judgment and sentence which do not reflect representation by counsel or waiver do not meet the State's burden of proof under Ammons and RCW 9.94A.110. This is clearly correct. Proof which is constitutionally defective is no proof at all.
The majority evades State v. Marsh, 47 Wn. App. 291, 734 P.2d 545 (1987) by purporting to limit it:
In Marsh, the Court of Appeals held that when a judgment and sentence do not reflect representation by counsel or waiver, the conviction is facially invalid and cannot be used to establish a defendant's criminal history unless the State establishes by other documents the presence or waiver of counsel. To the extent that Marsh holds or *373suggests that the State must prove the constitutional validity of prior convictions at a sentencing hearing, it contravenes our previous holding in Ammons.
Majority, at 368. This confuses the burdens of proof on two different issues. Ammons holds that the State does not have the burden of proving the validity of the prior conviction. However, the State clearly does have the burden of proving the existence of the prior conviction. RCW 9.94A-.110. Marsh does not suggest at all that the State has the burden of proving validity, it holds that the State's burden of proving the existence of the prior conviction cannot be met by the use of constitutionally defective proof.
Proof which, on its face, does not indicate the assistance of counsel does not represent a valid conviction for purposes of sentence enhancement under Carnley, Burgett and Tucker. The Department of Licensing abstract offered by the State in this case does not indicate whether the defendant had the assistance of counsel. Therefore, while the State does not have the burden of proving the validity of Williams' prior convictions, the State fails even to carry its statutory burden of proving the existence of those convictions. To carry that burden, it was necessary for the State to introduce proof of those convictions which at least indicated the presence or justifiable absence of counsel.
Because the State has not met its burden of proof under RCW 9.94A.110, I would remand for sentencing on the basis of certified copies of the prior convictions. In re Bush, 95 Wn.2d 551, 627 P.2d 953 (1981).