State v. O'Connell, 23563-7-III.

Decision Date06 February 2007
Docket NumberNo. 25340-6-III.,No. 23563-7-III.,23563-7-III.,25340-6-III.
Citation137 Wn. App. 81,152 P.3d 349
PartiesSTATE of Washington, Respondent, v. Elmer Lawrence O'CONNELL II, Appellant. In re the Matter of the Personal Restraint Petition of Elmer Lawrence O'Connell II, Petitioner.
CourtWashington Court of Appeals

Janet G. Gemberling, Gemberling & Dooris PS, Spokane, WA, for Appellant(s).

Kevin Michael Korsmo, Spokane, WA, for Respondent(s).

SCHULTHEIS, J.

¶ 1 Any person who has been convicted three times for "most serious offense" felonies is a persistent offender subject to a life sentence without the possibility of parole. Former RCW 9.94A.030(29) (1999); former RCW 9.94A.120(4) (2000). Elmer O'Connell II was convicted in 2001 of first degree robbery, a most serious offense. Former RCW 9.94A.030(25)(a); former RCW 9A.56.200 (1975). The sentencing court found that Mr. O'Connell had been convicted previously of two most serious offenses, one in March 1993 and another in August 1994. On the basis of this criminal history, he was sentenced to life without possibility of parole.

¶ 2 Mr. O'Connell appeals, contending the trial court violated his Sixth Amendment right to a jury trial by basing his sentence on the court's findings as to the dates of his prior offenses. Pro se and in his consolidated personal restraint petition, Mr. O'Connell argues that the court's jury instruction on voluntary intoxication was not supported by the evidence and that he had ineffective assistance of counsel. Because we find that he acknowledged the facts of his two prior offenses, that he proposed the jury instruction he now challenges, and that he had effective assistance of counsel, we affirm and dismiss the petition.

FACTS

¶ 3 Late one night in April 2001, Mr. O'Connell assaulted a woman acquaintance, pushed her out of her car, and drove off in her car with her purse. Relevant to these facts, he was later arrested and charged with first degree robbery and attempt to elude.1 RCW 9A.56.190; RCW 46.61.024.

¶ 4 At trial, defense counsel argued that Mr. O'Connell did not have the ability to form the intent to commit first degree robbery on the night of the incident because he had been very intoxicated and had been abusing methamphetamine and crack cocaine for several days. The victim testified that Mr. O'Connell had appeared very agitated that night and made frequent, prolonged trips to the bathroom (suggesting drug use), but she did not think he appeared intoxicated. The defense offered the testimony of Dr. Scott Mabee, a psychologist, who stated that Mr. O'Connell was likely intoxicated at the time of the incident, due to his high level of drug dependency and his low level of mental functioning. Noting that Mr. O'Connell reported daily drug use for the past three years, Dr. Mabee opined that Mr. O'Connell had diminished mental processes due to substance intoxication.

¶ 5 The jury found Mr. O'Connell guilty as charged. He was sentenced for these convictions as well as for the second degree robbery and related eluding convictions from another trial. See note 1. Because first degree robbery is a most serious offense (former RCW 9.94A.030(25)(a); former RCW 9A.56.200), and because he had been convicted on two previous occasions of most serious offenses, the trial court imposed a life sentence without the possibility of early release.

¶ 6 Mr. O'Connell appealed his judgment and sentence to this court, which reversed the counts for second degree robbery and the related charge of eluding. State v. O'Connell, noted at 116 Wash.App. 1010, 2003 WL 1018348 (2003). In June 2003, the sentencing court mistakenly resentenced Mr. O'Connell using an offender score that included the eluding conviction that was related to the dismissed second degree robbery conviction. On November 5, 2004, he was resentenced to life without the possibility of release. He filed an appeal of this judgment and sentence three days later. His personal restraint petition was filed on July 5, 2006.

DETERMINING DATES OF PRIOR OFFENSES

¶ 7 In this, his third appeal of his judgment and sentence, Mr. O'Connell challenges the trial court's imposition of a life sentence without possibility of release under the Persistent Offender Accountability Act (POAA), enacted by Laws of 1994, chapter 1, sections 1-3. We review the trial court's calculation of the offender score and sentence under the POAA de novo. State v. Rivers, 130 Wash.App. 689, 699, 128 P.3d 608 (2005), review denied, 158 Wash.2d 1008, 143 P.3d 829 (2006).

¶ 8 Finding that 50 percent of the criminals convicted in Washington were repeat offenders, the legislature enacted the POAA to improve public safety by placing the most dangerous repeat offenders in prison. Former RCW 9.94A.392 (1994). To that end, the POAA mandates the sentencing of three-time offenders of "most serious" crimes to prison for life without the possibility of parole. Former RCW 9.94A.392(2). "Most serious offenses" are defined in part as class A felonies and selected additional felonies. Former RCW 9.94A.030(25). Relevant to this case, a persistent offender is an offender who has been convicted of a most serious offense felony and who had been convicted on at least two separate occasions of most serious offenses. Former RCW 9.94A.030(29)(a)(i), (ii). Of these 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)(a)(ii).

¶ 9 Mr. O'Connell contends the trial court violated his Sixth Amendment right to a jury trial by determining that one of his prior most serious offense convictions occurred before the commission of another most serious offense. Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), he contends the dates of these prior offenses and convictions are questions of fact that had to be determined by a jury before he could be sentenced under the POAA. Apprendi established that any fact—other than the fact of a prior conviction—that increases a criminal penalty beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. Mr. O'Connell contends it is not the fact of a prior conviction that is at issue here, but the dates of those prior offenses. Because those dates were not found by a jury beyond a reasonable doubt, he asserts, they violate the rule in Apprendi and its progeny.

¶ 10 The State urges this court to dismiss the appeal, asserting that this issue could have been, but was not, raised in an earlier appeal after Apprendi was decided. Blakely, however, clarified that the statutory maximum under Apprendi is the maximum a court may impose "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). Because Blakely had not been decided before Mr. O'Connell's first two appeals, an appeal on this basis was not available then. Although this court generally will not address issues raised for the first time on appeal, an exception is made for alleged manifest errors affecting a constitutional right. RAP 2.5(a). A Blakely error implicates the Sixth Amendment right to a jury trial and is not harmless. Hughes, 154 Wash.2d at 148, 110 P.3d 192. Accordingly, it is properly considered for the first time on appeal.

¶ 11 In this case, however, Mr. O'Connell's Blakely issue is without merit. He contends the dates of his prior most serious crimes and convictions related to those crimes are issues of fact used to increase his penalty beyond the statutory maximum, and therefore are facts that must be found by a jury beyond a reasonable doubt. His argument fails for two reasons.

¶ 12 First, there is some precedent for the conclusion that a POAA life sentence is neither an exceptional nor an enhanced sentence. In State v. Ball, 127 Wash.App. 956, 957, 959-60, 113 P.3d 520 (2005), review denied, 156 Wash.2d 1018, 132 P.3d 734 (2006), Division Two of this court held that Blakely did not apply to a sentence under the POAA because the statute does not pertain to departures from the sentencing guidelines and does not increase the penalty for the current offense. Instead, the POAA is itself a sentencing statute, designed to address recidivism. Id. at 960, 113 P.3d 520. As Ball notes, the Washington Supreme Court has not extended the rule in Apprendi to recidivism statutes, citing State v. Wheeler, 145 Wash.2d 116, 124, 34 P.3d 799 (2001). Ball, 127 Wash.App. at 960, 113 P.3d 520. Wheeler, 145 Wash.2d at 120, 34 P.3d 799, held that the POAA is constitutional and that convictions used to impose a POAA sentence need not be charged in the information, submitted to a jury, or proved beyond a reasonable doubt. Ball, 127 Wash.App. at 960, 113 P.3d 520.

¶ 13 Second, at a hearing to impose a POAA sentence, the trial court employs a preponderance of the evidence standard to the offender's prior offenses and convictions. Id. at 957, 113 P.3d 520; see also In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 876, 123 P.3d 456 (2005) (the State bears the burden of proving with a preponderance of the evidence the existence of prior convictions). As with any determination of an offender's criminal history, the sentencing court is entitled to rely on a stipulation or acknowledgment of facts and information related to prior convictions. Cadwallader, 155 Wash.2d at 873-74, 877, 123 P.3d 456; former RCW 9.94A.370(2) (1999). "Acknowledgement includes not objecting to information included in presentence reports." Cadwallader, 155 Wash.2d at 874, 123 P.3d 456; see also former RCW...

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