In re Personal Restraint of Lavery

• Decision Date: 05 May 2005
• Docket Number: No. 75340-7.,75340-7.
• Citation: 111 P.3d 837,154 Wash.2d 249
• Parties: In re PERSONAL RESTRAINT OF Leonard B. LAVERY, Petitioner.
• Court: Washington Supreme Court

111 P.3d 837

154 Wash.2d 249

In re PERSONAL RESTRAINT OF Leonard B. LAVERY, Petitioner.

No. 75340-7.

Supreme Court of Washington, En Banc.

Argued November 9, 2004.

Decided May 5, 2005.

Suzanne Lee Elliott, Seattle, for Petitioner/Appellant.

Catherine Marie McDowall, Ann Marie Summers, King County Prosecutor's Office, Seattle, for Appellee/Respondent.

Sheryl Gordon McCloud, James Elliot Lobsenz, Carney Badley Spellman, Rita Joan Griffith, Seattle, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).

CHAMBERS, J.

¶ 1 Leonard B. Lavery was convicted of second degree robbery in 1998 and sentenced to life in prison under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120 (1998). At issue is whether Lavery's 1991 federal bank robbery conviction was a "strike" under the POAA. We conclude that it was not and that Lavery's Personal Restraint Petition (PRP) is not barred either as untimely or successive.

STATEMENT OF THE CASE

¶ 2 On July 20, 1998, Lavery was convicted for the May 1998 robbery of a Texaco convenience store in Woodinville, Washington. At sentencing, the State asserted that he was a persistent offender subject to life in prison under the POAA. The State argued that Lavery's 1991 federal bank robbery conviction was comparable to the crime of second degree robbery in Washington, a "strike" offense under the POAA. Under the POAA, an out of state conviction may not be used as a strike unless the State proves by a preponderance of the evidence that the conviction would be a strike offense under the POAA. State v. Ford, 137 Wash.2d 472, 479-80, 973 P.2d 452 (1999). To determine whether a prior out of state or federal conviction is comparable to a Washington conviction, the sentencing court must compare the out of state or federal offense with the potentially comparable Washington offenses.

¶ 3 At sentencing, Lavery argued that his federal bank robbery conviction was not comparable to Washington's second degree robbery, a strike offense under the POAA, because robbery in Washington, unlike under federal law, requires a specific intent to steal. Believing that the Court of Appeals decision in State v. Mutch, 87 Wash.App. 433, 942 P.2d 1018 (1997), controlled, the sentencing court found that Lavery's bank robbery conviction constituted a strike offense and sentenced him as a persistent offender to life in prison without the possibility of parole. Lavery appealed.

¶ 4 At the Court of Appeals, Lavery again argued that the federal conviction under 18 U.S.C. § 2113 was not a strike under Washington law. The court affirmed Lavery's conviction and sentence in an unpublished opinion, holding that under the POAA, as interpreted in Mutch, federal bank robbery and robbery under Washington law are legally comparable. State v. Lavery, 100 Wash.App. 1068, 2000 WL 703790.

¶ 5 Lavery unsuccessfully filed a Petition for Review in this court, which was dismissed on October 31, 2000. State v. Lavery, 142 Wash.2d 1005, 11 P.3d 827 (2000). Lavery then filed a PRP in the Court of Appeals, which was dismissed on February 14, 2002.

¶ 6 Lavery's position at sentencing, on direct appeal, and in his first PRP was vindicated when, on February 19, 2004, the Court of Appeals issued its opinion in State v. Freeburg, 120 Wash.App. 192, 84 P.3d 292, review denied 152 Wash.2d 1022, 101 P.3d 108 (2004). In Freeburg, the Court of Appeals held that on the basis of two recent cases, State v. Bunting, 115 Wash.App. 135, 61 P.3d 375 (2003) and Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000), federal bank robbery is not legally comparable to the crime of robbery in Washington. In April 2004, Lavery filed this second PRP directly in this court, claiming that the Freeburg decision represented a "significant change in the law." We accepted review and now vacate his sentence.

DISCUSSION

¶ 7 Given recent developments in the law, the State concedes "that the record as it currently exists is insufficient to demonstrate the comparability of [Lavery's] federal conviction." State's Resp. to Pers. Restraint Pet. at 12. The State also conceded at oral argument in Freeburg that "federal bank robbery is not comparable to the crime of robbery in Washington." Freeburg, 120 Wash.App. at 199 n. 16, 84 P.3d 292. The State argues, however, that while the sentences are not comparable on their faces, a sentencing court acts properly if it looks to the record of the prior conviction to determine if defendant's conduct would have constituted a strike offense as defined in a Washington criminal statute. Under this approach, a sentencing court may be required to make findings of fact that need not have been found to convict the defendant in the prior conviction.

¶ 8 Lavery argues that the POAA is unconstitutional to the extent that it permits a sentencing judge to make findings about the underlying facts of a prior conviction based on a preponderance of the evidence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

. He notes that the maximum sentence for second degree robbery is 84 months and if additional facts will change his punishment to life in prison without the possibility of parole, a finder of fact must determine those facts beyond a reasonable doubt. Id.

IS FEDERAL BANK ROBBERY A "STRIKE" OFFENSE?

¶ 9 We first address whether Lavery's federal conviction was properly included as a strike offense under the POAA. An offender who has been convicted of two strike offenses must be sentenced to life without parole upon conviction for a third such offense. Former RCW 9.94A.120(4)(1998). Second degree robbery is a strike offense for purposes of the POAA. Former RCW 9.94A.030(23)(o)(1998). Foreign eign convictions count as strikes if they are comparable to a Washington strike offense. Former RCW 9.94A.030(23)(u)(1998). Defendants with equivalent prior convictions are to be treated the same way, regardless of where their convictions occurred. State v. Villegas, 72 Wash.App. 34, 38-39, 863 P.2d 560 (1993).

¶ 10 In determining whether foreign convictions are comparable to Washington strike offenses, we have devised a two part test for comparability. State v. Morley, 134 Wash.2d 588, 952 P.2d 167 (1998). In Morley, we determined that for the purposes of determining the comparability of crimes, the court must first compare the elements of the crimes. Morley, 134 Wash.2d at 605-06, 952 P.2d 167. In cases in which the elements of the Washington crime and the foreign crime are not substantially similar, we have held that the sentencing court may look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute. Morley, 134 Wash.2d at 606, 952 P.2d 167. However, "[w]hile it may be necessary to look into the record of a foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not have been sufficiently proven in the trial." Id.

LEGAL COMPARABILITY

¶ 11 To determine if a foreign crime is comparable to a Washington offense, the sentencing court must first look to the elements of the crime. Morley, 134 Wash.2d at 605-06, 952 P.2d 167. More specifically, the elements of the out of state crime must be compared to the elements of a Washington criminal statute in effect when the foreign crime was committed. Id. at 606, 952 P.2d 167. If the elements of the foreign conviction are comparable to the elements of a Washington strike offense on their face, the foreign crime counts toward the offender score as if it were the comparable Washington offense. Id.

¶ 12 The crime of federal bank robbery is a general intent crime. Carter, 530 U.S. 255, 120 S.Ct. 2159, 147 L.Ed.2d 203. The crime of second degree robbery in Washington, however, requires specific intent to steal as an essential, nonstatutory element. See State v. Kjorsvik, 117 Wash.2d 93, 98, 812 P.2d 86 (1991)

("our settled case law is clear that `intent to steal' is an essential element of the crime of robbery.") (citing State v. Hicks, 102 Wash.2d 182, 184, 683 P.2d 186 (1984)). Its definition is therefore narrower than the federal crime's definition. Thus, a person could be convicted of federal bank robbery without having been guilty of second degree robbery in Washington. Among the defenses that have been recognized by Washington courts in robbery cases which may not be available to a general intent crime are (1) intoxication, see State v. Boyd, 21 Wash.App. 465, 586 P.2d 878 (1978); (2) diminished capacity, see State v. Thamert, 45 Wash.App. 143, 723 P.2d 1204 (1986); (3) duress, see State v. Davis, 27 Wash.App. 498, 618 P.2d 1034 (1980); (4) insanity, see State v. Tyler, 77 Wash.2d 726, 466 P.2d 120 (1970),

vacated in part on other grounds, 408 U.S. 937, 92 S.Ct. 2865, 33 L.Ed.2d 756 (1972); and (5) claim of right, see Hicks, 102 Wash.2d 182,

683 P.2d 186. Because the elements of federal bank robbery and robbery under Washington's criminal statutes are not substantially similar, we conclude that federal bank robbery and second degree robbery in Washington are not legally comparable.

FACTUAL COMPARABILITY

¶ 13 In Apprendi, the United States Supreme Court held that except for a prior conviction, a "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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Life without possibility of parole is a penalty beyond the statutory maximum for the crime of second degree robbery.

¶ 14 In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt. See State v. Smith, 150 Wash.2d 135, 141-43, 75 P.3d...