State v. Wheeler , 145 Wash. 2d 116 ( 2001 )

Chambers, J.

We must decide whether, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), prior convictions used to prove a defendant is a persistent offender must be charged in the information, submitted to a jury, and proved beyond a reasonable doubt. Unless and until the federal courts extend Apprendi to require such a result, we hold these additional protections are not required under the United States Constitution or by the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.

FACTS

Petitioners John Wheeler and Kinnick Sanford were separately convicted of second degree robbery and sentenced to life imprisonment without the possibility of parole under the POAA.

State v. Wheeler

John Wheeler was charged with two counts of robbery in the second degree, a class B felony. "Wheeler faced a maximum sentence of 10 years for each count. RCW 9A.20.021.¹ On April 7, 1999, Wheeler filed a motion requesting formal notice, a jury trial, and proof beyond a reasonable doubt in the event he was convicted and faced sentencing pursuant to the POAA. This motion was denied. The jury found Wheeler guilty as charged.

Subsequently, the State filed a persistent offender memorandum and presentence statement outlining Wheeler’s current and prior offenses. At a separate sentencing hearing, the trial court determined the State had proved by preponderance of the evidence that Wheeler had two prior “most serious offenses,” under former RCW 9.94A.030(25) (1999)² and therefore was a persistent offender. "Wheeler was sentenced to life imprisonment without possibility of parole under former RCW 9.94A.030(29) (1999)³ and former RCW 9.94A.120(4) (1997).⁴ "Wheeler’s motion for an order declaring that the sentencing constituted cruel and unusual punishment was denied. The Court of Appeals affirmed, finding we had previously rejected the constitutional arguments raised by Wheeler. State v. Wheeler, 101 Wn. App. 1022 (2000).

Wheeler argues under Apprendi he is entitled to formal notice, a jury trial, and a determination beyond a reasonable doubt that he is a persistent offender.

State v. Sanford

Kinnick Sanford was found guilty of second degree robbery, a class B felony, and of first degree escape. The statutory maximum sentence for class B felonies is 10 years’ imprisonment. RCW 9A.20.021(l)(b). Sanford had previously been convicted of assault with a firearm in California, equivalent to a charge of assault with a deadly weapon in the state of Washington, and of attempted first degree murder and first degree robbery. However, the information did not allege that Sanford had been previously found guilty of “most serious offenses.”

Following trial, the State alleged Sanford had prior convictions for “most serious offenses” under the POAA. The State filed a persistent offender memorandum describing current and prior convictions. The sentencing court found the State had proved, by a preponderance of the evidence, the existence of two prior convictions and imposed a sentence of life without possibility of parole. This was affirmed by the Court of Appeals. State v. Sanford, 101 Wn. App. 1044 (2000).

Sanford challenges his sentence on the grounds it exceeds the statutory maximum and the State failed to plead and prove the prior convictions to a jury beyond a reasonable doubt.

ANALYSIS

The POAA requires trial courts to sentence “persistent offenders” to life imprisonment without the possibility of parole. RCW 9.94A.120. A “persistent offender” is one who has two previous convictions for a “most serious offense” as defined by former RCW 9.94A.030(25) (1999).⁵ Any persistent offender will be sentenced to life without parole, “notwithstanding the maximum sentence under any other law.” Former RCW 9.94A.120(4) (1997).

We have previously upheld the POAA as constitutional. See State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996) (rejecting challenges based on substantive and procedural due process), cert. denied, 520 U.S. 1201 (1997); State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996) (rejecting challenges based on the prohibition of cruel and unusual punishment found in the state and federal constitutions); State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996) (rejecting challenges based on bill of attainder, cruel and unusual punishment, separation of powers, and equal protection). These companion cases hold that the prior convictions used to prove that a defendant is a persistent offender need not be charged in the information, submitted to the jury, or proved beyond a reasonable doubt. Manussier, 129 Wn.2d at 682; Rivers, 129 Wn.2d at 712; Thorne, 129 Wn.2d at 779-84.

Generally, the State must prove every element of an offense charged beyond a reasonable doubt. Thorne, 129 Wn.2d at 783 (citing State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995)). However, traditional factors considered by a judge in determining the appropriate sentence, such as prior criminal history, are not elements of the crime. In Thorne, this court concluded that the POAA is a sentencing statute codified as part of the SRA and does not define the “elements” of the status of being a habitual criminal. Id. at 779. Therefore, the prior convictions that result in a sentence of life imprisonment without the possibility of parole need not be pleaded in the information. All that is required by the constitution and the statute is a sentencing hearing where the trial judge decides by a preponderance of the evidence whether the prior convictions exist. RCW 9.94A.110; Thorne, 129 Wn.2d at 782.

Federal Cases

In Thorne, Manussier, and Rivers, this Court based its state procedural due process analysis in part on the similarity of state and federal standards, a similarity unsettled by Apprendi and its progeny. This change in federal case law requires us to revisit the issue of procedural due process raised by the POAA. When this Court originally upheld enhanced statutory sentences under the POAA, our holdings were consistent with federal due process jurisprudence. Manussier, 129 Wn.2d at 681-83. However, federal jurisprudence may be developing in the direction of finding a due process violation where the facts underlying a sentence enhancement are not proved beyond a reasonable doubt to a jury. Three cases demonstrate this development.

First, the United States Supreme Court explicitly held that prior criminal history need not be proved beyond a reasonable doubt to a jury. Recently, that Court analyzed a federal statute punishing illegal reentry after deportation following an aggravated felony conviction. Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In a 5-4 decision, the Court held that the fact of the prior conviction constituted a sentence enhancement rather than an element of the crime of being a persistent offender.

Subsequently, the Court redefined certain sentence enhancements as elements of a crime to be proved beyond a reasonable doubt to a jury. Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). The Court determined that such factors as “serious bodily injury” and “death resulting,” which increase punishment under the car-jacking statute, were elements to be proved rather than sentencing enhancements. The Court based its conclusion on: (1) the amount of the penalty increase caused by the disputed factor; (2) the interdependence of the principal paragraph and the penalty subparagraphs; and (3) the fact that serious bodily injury has traditionally been treated by both Congress and state legislatures as a defining element of aggravated robbery. The question of whether recidivism might be defined as an element of a persistent offender determination under the three-part test was not before the Court.

Finally, the Court found that New Jersey’s “hate crime” law was unconstitutional because it provided for a mandatory increase in the sentence beyond the statutory maximum if the trial judge determined, by a preponderance of the evidence, that the defendant acted with certain prohibited motivations. Apprendi, 530 U.S. 466. The Court held:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v. United States]: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must bé established by proof beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490 (emphasis added) (quoting Jones, 526 U.S. at 252-53).

The Court did not overturn Almendarez-Torres, though it arguably left the question open:

Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, [Petitioner] does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.

Apprendi, 530 U.S. at 489-90 (footnote omitted). Thus, the Court suggested that Almendarez-Torres might have been incorrectly decided, but explicitly declined to reach the issue. Instead, it confined its decision to factors other than recidivism.

The phrase “[o]ther than the fact of a prior conviction” may, in isolation, be read to establish as a matter of law that prior convictions need not be charged and proved to the jury. However, given the Court’s explicit determination that it did not reach the issue of recidivism, the issue is undecided. When and if Almendarez-Torres is revisited, the Court may decide the fact of prior convictions, like the fact a death resulted, must be charged and proved like an element of the crime. Justice Thomas clearly signaled he was rethinking his vote in Almendarez-Torres. In his Apprendi concurrence, Justice Thomas (who provided the fifth vote in Apprendi) wrote he now believes that the fact of a prior conviction is an element under a recidivism statute, and not merely a sentence enhancement. He concluded Almendarez-Torres treated recidivism differently because of concern that juries would be prejudiced if informed of prior convictions. But this concern “does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction.” Apprendi, 530 U.S. at 521 (Thomas, J., concurring). Therefore, Justice Thomas seems to be in agreement with Justice Scalia (who dissented in Almendarez-Torres but was part of the majority in Apprendi) that prior convictions are an element that must be proved beyond, a reasonable doubt to a jury. Without Justice Thomas’s vote, the holding in Almendarez-Torres would have been different.

No court has yet extended Apprendi to hold that sentence enhancements based on the fact of a prior conviction are unconstitutional. See, e.g., United States v. Mack, 229 F.3d 226 (3d Cir. 2000) (upholding enhanced sentence for recidivism). We therefore adhere to our previous holding that such enhancements do not pose a due process problem under the United States Constitution.

Washington State Constitution

Rivers, Thorne and Manussier rejected a challenge to the POAA based on analysis of the Washington State Constitution. Should this Court revisit the issue, the state constitution provides the most fruitful approach. Petitioners Wheeler and Sanford have failed to provide a state constitutional analysis. Sanford only briefly mentions the “fundamental principles” provision of the Washington State Constitution. Therefore, even if this Court were inclined to revisit its earlier decisions, these Petitioners do not argue or brief the issues critical to the task.

CONCLUSION

Apprendi did not overrule Almendarez-Torres, and no other case has extended Apprendi to hold that the federal constitution requires recidivism be pleaded and proved to a jury beyond a reasonable doubt. This Court has already addressed these specific issues in Thorne, Manussier, and Rivers and we decline to overrule these cases. We therefore hold that Washington State’s POAA is not procedurally defective for the reasons claimed by Petitioners Wheeler and Sanford, and we affirm the Court of Appeals in both cases.

Alexander, C.J., and Smith, Johnson, Ireland, Bridge, and Owens, JJ., concur.

1 A class B felony is punishable “by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine.” RCW 9A.20.021(l)(b).

2 Robbery in the second degree is a most serious offense. Former RCW 9.94A.030(25) (1999). Former RCW 9.94A.030(25) (1999) was formerly RCW 9.94A.030(23) (1997). The amendments are not relevant to our purposes, and for the sake of brevity we will refer to RCW 9.94A.030(25).

3 Under former RCW 9.94A.030(29) (1999), a “[plersistent offender” is an offender who:

(a)(i) Has been convicted in this state of any felony considered a most serious offense; and

(ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted!.] Former RCW 9.94A.030(29) (1999) was formerly RCW 9.94A.030(27) (1997). The amendments are not relevant to our purposes.

4 Former RCW 9.94A.120(4) (1997) provides in relevant part, “[a] persistent offender shall he sentenced to a term of total confinement for life without the possibility of parole . .. notwithstanding the maximum sentence under any other law.”

5 A “most serious offense” consists of any of the following: (a) a class A felony; (b) a class B felony with a finding of sexual motivation as defined by statute; (c) any felony with a deadly weapon finding; and (d) 19 other named offenses, including second degree robbery. Former RCW 9.94A.030(25)(a)-(v)(ii) (1999).