State v. Braithwaite

• Decision Date: 23 May 1983
• Docket Number: No. 11894-3-I,11894-3-I
• Citation: 34 Wn.App. 715,667 P.2d 82
• Parties: STATE of Washington, Respondent, v. Roger Leask BRAITHWAITE, Appellant.
• Court: Washington Court of Appeals

Page 715

34 Wn.App. 715

667 P.2d 82

STATE of Washington, Respondent, v. Roger Leask BRAITHWAITE, Appellant.

No. 11894-3-I.

Court of Appeals of Washington Division 1.

May 23, 1983.

Rehearing Denied May 24, 1983.

John G. Ziegler, Walla Walla, Raymond Thoenig, Washington Appellate Defender Ass'n, Seattle (Court-appointed), for appellant.

Norman Maleng, King County Pros. Atty., J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

ANDERSEN, Chief Judge.

FACTS OF CASE

The defendant, Roger Leask Braithwaite, appeals the judgment and sentence entered on a jury verdict finding him guilty of two counts of robbery (RCW 9.75.010) while armed with a deadly weapon (RCW 9.95.040) which was a firearm (RCW 9.41.025).

The defendant and accomplices robbed the Royal Fork Restaurant in Seattle and, 4 days later, robbed the Latitude 47 Restaurant, also in Seattle.

The defendant was apprehended, charged and his case tried to a jury. A verdict finding him guilty of both counts of robbery was returned on March 23, 1976, along with a special verdict finding that he was armed with a deadly weapon, namely a firearm, during each robbery.

The defendant had previously been convicted of two robberies in Pierce County on December 28, 1970. After his arrest for the Seattle robberies, his parole on the Pierce County charges was suspended. Then after the guilty verdicts were returned against him on the Seattle robbery charges, his parole was revoked. Based on that revocation, he was sent to the Washington State Penitentiary in early 1977 and the Board of Prison Terms and Paroles set a substantial minimum term (apparently 15 years) on the Tacoma robbery convictions.

Before the defendant was sent to the state penitentiary on the parole revocation, he was charged by the King County Prosecuting Attorney with being a habitual criminal. RCW 9.92.090. It is the established law of this State that when a habitual criminal proceeding is filed following a guilty verdict on a criminal charge, the defendant cannot be sentenced on the criminal charge until the habitual criminal proceeding has been concluded. This is because if the defendant is determined to be a habitual criminal, that status is used to enhance the penalty for the underlying crime at the time sentence is pronounced and the judgment entered. State v. King, 18 Wash.2d 747, 750, 140 P.2d 283 (1943); State v. Keith, 86 Wash.2d 358, 361, 544 P.2d 747 (1976).

In connection with the habitual criminal proceeding, the defendant stipulated in writing that he had been convicted of the two Tacoma robberies referred to above, that he had also been convicted of one count of burglary in the second degree and one count of forgery in the first degree in Pierce County on November 28, 1961 and that he had been convicted of one count of burglary in the second degree in Cowlitz County on January 9, 1964. All of these offenses were felonies.

At the habitual criminal bench trial on August 30, 1976, the trial court concluded that the Cowlitz County conviction could not be considered a conviction because as to it there was no adequate waiver of counsel and the guilty plea was otherwise defective. This has not been contested by the State. At that trial, the trial court also concluded as a matter of law that the two November 28, 1961 Pierce County convictions for burglary and forgery could not be considered prior convictions within the meaning of the habitual criminal statute because the defendant had been given a suspended sentence thereon. This latter conclusion was strenuously contested by the State and when, as a consequence of that ruling, the trial court dismissed the habitual criminal proceeding, the State sought discretionary review in this court.

We granted discretionary review. We heard the case and on November 28, 1977 filed our opinion wherein we decided that the trial court erred when it concluded that the November 28, 1961 Pierce County burglary and forgery convictions could not be considered because sentence thereon had been suspended. We also decided therein that the habitual criminal statute does not inflict double punishment for the same offense, nor place a defendant twice in jeopardy. We thereupon reversed the trial court's dismissal of the habitual criminal proceeding and remanded the case to the trial court for reinstatement of it. State v. Braithwaite, 18 Wash.App. 767, 572 P.2d 725 (1977).

The defendant, in turn, then sought and obtained review of our decision by the State Supreme Court. Following a hearing in that court, the Supreme Court on October 4, 1979 filed its opinion. The Supreme Court also held that a conviction followed by a suspended sentence does constitute a "previous conviction" for purposes of the habitual criminal statute, and that the defendant would not be placed in double jeopardy by reinstatement of the habitual criminal proceeding. The decision of this court was affirmed and the Supreme Court remanded the case back to the trial court for further proceedings. State v. Braithwaite, 92 Wash.2d 624, 600 P.2d 1260 (1979).

The habitual criminal proceeding against the defendant ultimately came to an end when the King County Prosecuting Attorney requested that it be dismissed; and the same was done with a number of other similar pending proceedings against other defendants following the State Supreme Court's landmark decision in State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980). See State v. Sauve, 33 Wash.App. 181, 182, 652 P.2d 967 (1982); State v. McKenzie, 31 Wash.App. 450, 453, 642 P.2d 760 (1981). Holsworth "effected an abrupt change in the law with respect to procedures in habitual criminal proceedings. The burden upon the prosecutor was significantly increased as a result of that opinion." State v. Williams, 98 Wash.2d 428, 432, 656 P.2d 477 (1982).

Judgment and sentence on the two Seattle robbery convictions was subsequently entered on August 3, 1981 and this appeal followed therefrom.

Two issues are determinative of this appeal.

ISSUES

ISSUE ONE. Did the delay in sentencing the defendant on his Seattle robbery convictions warrant dismissal of those charges against him?

ISSUE TWO. Did the trial court's failure to sua sponte instruct the jury at the Seattle robbery trial that the State had to prove the special firearm and deadly weapon allegations beyond a reasonable doubt require that the portions of the judgment and sentence relating thereto be stricken?

DECISION

CONCLUSION. We answer the questions posed by the foregoing issues in the negative and affirm the defendant's Seattle robbery convictions from which he appeals.

The defendant seeks dismissal of his Seattle robbery convictions herein on the basis of the approximately 5 year and 4 month delay between the guilty verdicts on the Seattle robbery charges and entry of the judgment and sentence thereon.

Neither the Supreme Court of the United States nor the Supreme Court of this State have held that speedy sentencing is encompassed by either U.S. Const. amend. 6 or Washington State Const. art. 1, § 22. See State v. Edwards, 93 Wash.2d 162, 167 n. 2, 606 P.2d 1224 (1980). Division II of this Court has, however, held that there is no constitutional speedy sentencing right, State v. Lammert, 14 Wash.App. 137, 142, 540 P.2d 466 (1975). Accord, Erbe v. State, 25 Md.App. 375, 336 A.2d 129, 132-36 (1975), aff'd, 276 Md. 541, 350 A.2d 640 (1976); State v. Johnson, 363 So.2d 458, 460 (La.1978); State v. Drake, 259 N.W.2d 862, 864-66 (Iowa 1977). In ruling as it did, the Lammert court cited the test of Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) that "[t]he delay must not be purposeful or oppressive."

Many courts, ourselves included, seem to have dealt with this issue by assuming arguendo that the speedy trial rule is applicable to sentencing, then have discussed it in speedy trial terms and have gone on to find no violation. See State v. Sterling, 23 Wash.App. 171, 596 P.2d 1082 (1979).

In Sterling, a delay of sentencing case, we also quoted Pollard 's "purposeful or oppressive" delay of trial test and went on to hold as follows:

Thus, once the guilt of a defendant has been determined, it is appropriate to apply a standard of reasonableness to the timeliness of sentencing rather than the standards that have evolved under the speedy trial rule. The convicted defendant may be anxious, but it is no longer an anxiety resulting from public accusation, but apprehension of punishment. See Brooks v. United States, [423 F.2d 1149], 1152-53 [ (8th Cir.), cert. denied, 400 U.S. 872, 27 L.Ed.2d 111, 91 S.Ct. 109 (1970) ]; United States v. James, 459 F.2d 443, 444 (5th Cir.), cert. denied, 409 U.S. 872, 34 L.Ed.2d 123, 93 S.Ct. 202 (1972).

The defendant asserts that his rights were violated. We hold that the delay in the sentencing of the defendant was not a violation of his right to a speedy trial, but we will examine his claim as if it were. Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] adopted a balancing test to evaluate whether the right of a defendant has been violated wherein the conduct of both the prosecution and the defendant are weighed. As therein stated: "[L]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" are but "some factors which courts should assess." Barker v. Wingo, supra at 530, 92 S.Ct. at 2192.

(Footnote omitted.) Sterling, at 175-76, 596 P.2d 1082.

Applying the foregoing balancing test to the case before us, we then turn to the first factor, "length of delay". Attached hereto as Appendix A, for convenience of reference, is a "time line" showing the dates of pertinent events beginning with the defendant's two Seattle robberies and going through his release on early parole. ¹

The period of approximately 5 years and 4 months between verdict and sentence is undoubtedly lengthy, but whether that delay was unreasonable, purposeful or oppressive in turn...