State v. Crawford

• Decision Date: 12 July 2005
• Docket Number: No. 30650-6-II.,30650-6-II.
• Citation: 115 P.3d 387,128 Wn. App. 376
• Parties: STATE of Washington, Respondent, v. Darnell Keeno CRAWFORD, Appellant.
• Court: Washington Supreme Court

115 P.3d 387

128 Wn. App. 376

STATE of Washington, Respondent, v. Darnell Keeno CRAWFORD, Appellant.

No. 30650-6-II.

Court of Appeals of Washington, Division Two.

July 12, 2005.

Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.

Leslie Orville Stomsvik, Attorney at Law, Tacoma, WA, for Appellant.

MORGAN, A.C.J.

¶ 1 Darnell Keeno Crawford appeals convictions for first degree robbery and second degree assault. The questions are (1) whether the State violated his constitutional right to due process by not giving him any notice before or during trial that he was facing incarceration for the remainder of his natural life, and (2) whether his counsel rendered ineffective assistance by not advising him before or during trial that he was facing incarceration for the remainder of his natural life. We reverse and remand.

¶ 2 In 1993, Crawford was convicted in Kentucky of a crime called sex abuse in the first degree.¹ In 1998, he was convicted in Washington of second degree robbery.² According to the later determination of the trial court in this case, each conviction was a "most serious offense" — in less formal terms, a "strike" — for purposes of Washington's Persistent Offender Accountability Act.³

¶ 3 On December 26, 2002, Crawford allegedly shoplifted an MP3 player from a Tacoma store. When pursued by store employees, he allegedly pointed a gun at them and a bystander. He was caught a few blocks away and charged with first-degree robbery⁴ and second-degree assault.⁵

¶ 4 Before trial, both the prosecutor and defense counsel knew about Crawford's previous Washington conviction for second degree robbery, as well as his previous Kentucky conviction for first degree sex abuse. Each realized that the Washington conviction was a "strike," but neither investigated the Kentucky conviction enough to know that it might be a "strike" also. Accordingly, neither the State nor defense counsel provided Crawford with any notice that he might be subject to a mandatory minimum sentence of life without the possibility of parole.

¶ 5 Before trial, the prosecutor offered to recommend a sentence at the low end of the standard range, in exchange for Crawford's pleading guilty as charged. Thinking that his standard range was 57-75 months, Crawford decided to reject the offer, not to initiate an offer himself, and to proceed to trial. His counsel concurred with those decisions, reasoning that Crawford would probably receive a standard range sentence, and that the difference between the low and high ends of the standard range "was not much inducement to plea[d] rather than take a chance at prevailing at trial."⁶

¶ 6 On April 16, 2003, a jury found Crawford guilty as charged. By May 15, 2003, the prosecutor and defense counsel had realized that Crawford might have two prior "strikes," and defense counsel notified him for the first time that he might be subject to a mandatory minimum sentence of life without parole. Crawford filed a motion for new counsel, which was granted, and also a post-trial motion for dismissal or new trial.

¶ 7 The trial court took evidence on the motion for dismissal or new trial. Crawford testified that he had not known until May 15, 2003, that he was facing a mandatory sentence of life without parole, and that if he had known earlier, he would have accepted the prosecutor's offer to recommend 57 months. Crawford's trial counsel testified that she had known of the Kentucky conviction before trial; that she had not realized until after trial that it might be a "strike"; and thus that she had not informed Crawford until "[a]pproximately three weeks after the verdict was rendered" that he might be facing a mandatory minimum sentence of life without parole.⁷ The trial prosecutor testified by declaration that although she had known of the Kentucky conviction before trial, she had not known it was a "strike" when she offered to recommend 57 months, and that she had first realized it was a "strike" after Crawford had been convicted. A "mitigation specialist" for the public defender office testified that she had successfully mitigated all twelve third-strike cases in which she had participated, and that she would have prepared a mitigation package for Crawford if anyone had realized during plea bargaining that he was facing mandatory life without parole.

¶ 8 After hearing this evidence, the trial court denied the motion. It stated:

Well, let me tell you, our system provides a remedy here for Mr. Crawford. First of all, he's had a trial, he's had his rights of appeal, finding of guilty by a jury, and that's all preserved, obviously, because he hasn't even been sentenced yet. So the question of the fairness of his trial is going to be reviewed and that can include this.

I think it's the responsibility of the appellate court to look at this issue and maybe finally provide us some case law with reference to his denial of due process because of the three strikes Kentucky matter that he was unaware of. And I'm not going to repeat what I've already said as far as his criminal history and the discretion of the State to file whatever charges and what affect filing a mitigation would have. And inherent in all this also is the effective assistance of counsel. All those things are preserved.

But I'm going to deny the motion to dismiss. I'm going to deny the motion for a new trial.[⁸] The court then imposed a mandatory minimum sentence of life in prison without parole.

¶ 9 We address two questions. First, was Crawford denied procedural due process because he was not given any notice before or during trial that he was facing incarceration for the remainder of his natural life? Second, did Crawford's counsel render ineffective assistance because she did not advise him before or during trial that he was facing incarceration for the remainder of his natural life?

I.

¶ 10 The first question is whether a defendant receives due process if he or she is sentenced to a mandatory minimum term of life without parole without any notice, before or during trial, that such a sentence is even possible. The answer is no.

¶ 11 In State v. Thorne,⁹ the Washington Supreme Court held that a person may constitutionally be sentenced to a mandatory minimum of life without parole, even though he has not been charged with being a persistent offender.¹⁰ The court reasoned that "no `charging document' is required. . . because no crime is being charged; rather, a sentence is being imposed."¹¹ But given that Thorne had received "early actual notice" of the State's intent to treat him as a persistent offender,¹² the court reserved for another day whether due process permits a trial court to treat a person as a persistent offender, and impose a mandatory minimum term of life without parole, when the person lacks any notice until after trial. The court commented:

In this case, the Defendant was informed early in the process that sentencing under the Persistent Offender Accountability Act would be sought by the State. . . . We specifically approve of the State giving the accused early notice of the sentence provided by the Persistent Offender Accountability Act when a defendant is accused of committing a third most serious offense. Although formal charging is not constitutionally mandated because the Act involves sentencing and not filing of a criminal charge, we nonetheless find early notice of the potential sentence to be appropriate. There may be cases in which the failure to give any notice would have constitutional implications. However, since there was early actual notice in the case before us, we decline to speculate on any possible prejudice to future defendants who lacked notice of the State's intent to prove the defendant was a persistent offender.[¹³]

¶ 12 The italicized language includes this case. It is fundamentally unfair for the State not to notify a person before trial that he may be subject to a mandatory sentence of life without parole. The person needs to know that such a sentence is possible when deciding how intensively to investigate, when deciding how intensively to plea bargain, and when deciding whether trial or plea is the better alternative. Indeed, it "shocks the conscience"¹⁴ to put a person on trial for the remainder of his natural life without giving him any notice of that fact. Concluding that Crawford was denied procedural due process, we vacate and remand for further proceedings.

II.

¶ 13 To show ineffective assistance, a defendant must show deficient performance and resulting prejudice.¹⁵ Performance is deficient if, taking all the facts and circumstances into account, it falls below an objective standard of reasonableness.¹⁶ It is prejudicial if it creates a reasonable probability that but for counsel's errors, the proceeding would have had a different outcome.¹⁷

¶ 14 Division Three applied these concepts in In re McCready.¹⁸ McCready was originally charged with first degree assault, so faced an enhanced standard range of 162-196 months and an enhanced mandatory minimum term of 120 months. He was not advised by the State or defense counsel that he was subject to the mandatory minimum term. The State offered to reduce from first to second degree assault and to recommend an enhanced standard range of 42-48 months, apparently without any mandatory minimum term.¹⁹ Unaware of the mandatory minimum term for the first degree offense, McCready rejected the State's offer, went to trial, and was convicted. He became aware of the mandatory minimum term when, at sentencing, it was imposed on him. He then brought a personal restraint petition in which he alleged that his attorney had performed deficiently by not informing him of the mandatory minimum term, and that the deficiency was prejudicial because, if he had been properly informed, he would have accepted the State's offered plea bargain.²⁰ Division Three ruled that his attorney had performed deficiently by not informing him of...