State v. Crawford, 77532-0.

• Citation: 147 P.3d 1288,159 Wn.2d 86
• Decision Date: 07 December 2006
• Docket Number: No. 77532-0.,77532-0.
• Parties: STATE of Washington, Petitioner, v. Darnell Keeno CRAWFORD, Respondent.
• Court: United States State Supreme Court of Washington

147 P.3d 1288

159 Wn.2d 86

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

No. 77532-0.

Supreme Court of Washington, En Banc.

Argued June 6, 2006.

Decided December 7, 2006.

COPYRIGHT MATERIAL OMITTED

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Petitioner.

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

Darnell Keeno Crawford, Walla Walla, WA, pro se.

FAIRHURST, J.

¶ 1 Respondent Darnell Keeno Crawford was convicted of first degree robbery¹ and second degree assault² after stealing an MPEG³-1 Audio Layer 3(MP3) player from a Tacoma Best Buy store and showing a handgun to the store employees who pursued him into the parking lot. Taking into account Crawford's prior criminal convictions, the Pierce County Superior Court sentenced him to a life sentence without the possibility of parole under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. Before the Court of Appeals, Crawford raised two issues related to pretrial notice. First, Crawford contended that due process requires the State to provide pretrial notice that the defendant faces a mandatory life sentence. Second, Crawford alleged that his attorney provided ineffective assistance of counsel by failing to examine his prior out-of-state conviction and advise him that, if convicted, he faced a life sentence.

¶ 2 In a published opinion, Division Two of the Court of Appeals vacated the judgment of the trial court, holding that Crawford was denied procedural due process and the effective assistance of counsel. State v. Crawford, 128 Wash.App. 376, 115 P.3d 387 (2005). We find that Crawford was not denied due process or effective assistance of counsel and reverse the Court of Appeals.

I. FACTS

¶ 3 Initiative 593, the POAA, commonly known as the "three strikes law" was adopted by voters in 1993. State v. Manussier, 129 Wash.2d 652, 659, 921 P.2d 473 (1996) (citing State of Washington Voters Pamphlet, General Election 4 (Nov. 2, 1993)). Under the POAA, trial courts are required to sentence "persistent offenders" to life in prison without possibility of parole. RCW 9.94A.570.⁴ A "persistent offender" is an offender who has been convicted of any felony considered a "most serious offense" under former RCW 9.94A.030(28) (2002) and who has twice previously been convicted of such offenses or equivalent offenses in other states. Former RCW 9.94A.030(32)(a)(i), (ii) (2002).

¶ 4 On December 26, 2002, a Best Buy employee noticed an MP3 box missing from a display and saw what appeared to be an outline of the box in Crawford's jacket.⁵ The employee relayed his suspicions to a store manager, who approached Crawford and asked him to stop as he walked toward the exit. Crawford continued walking and, as he exited the store, an electronic sensor activated an alarm. The manager and another employee pursued Crawford into the parking lot, repeatedly asking him to drop the merchandise. Crawford continued walking. At one point he pulled out a gun and showed it to the individuals who were following him. Crawford then got into a waiting car and left the scene. He was later apprehended by Tacoma police. The State charged Crawford with first degree robbery and second degree assault.

¶ 5 Crawford has an extensive criminal history, including a 1998 Washington conviction for second degree robbery⁶ in Pierce County, and a 1993 Kentucky conviction for first degree sex abuse.⁷ While the prosecutor and the defense were aware of Crawford's prior Pierce County convictions and realized that the second degree robbery conviction qualified as a strike offense, neither was aware of the Kentucky conviction.

¶ 6 The State calculated Crawford's offender score as a five for each count and, at a January 2003 pretrial conference, provided the defense with a criminal history compilation reflecting only Crawford's Pierce County convictions. At that time the State offered to recommend a sentence at the low end of the standard range, 57 to 75 months, in exchange for Crawford's guilty plea.⁸ By February 2003, the State learned of Crawford's Kentucky criminal history and provided the defense with a new criminal history compilation.

¶ 7 Even after learning of Crawford's Kentucky history, neither party investigated the conviction. The parties did not engage in further plea negotiations. Thus Crawford continued to believe his standard range to be 57 to 75 months. Under this assumption, Crawford and his attorney decided to proceed to trial. Following a jury trial, Crawford was found guilty of first degree robbery and second degree assault.

¶ 8 By May 15, 2003, several weeks after trial, the prosecutor thoroughly reviewed Crawford's Kentucky sex abuse conviction and determined it to be a strike offense, the equivalent to the Washington crime of child molestation in the first degree.⁹ The prosecutor notified Crawford's attorney that, including the Kentucky conviction, Crawford in fact had two prior strikes against him, making him subject to a mandatory minimum sentence under the POAA.

¶ 9 Crawford retained new counsel and filed a posttrial motion for dismissal or alternately for a new trial. At the posttrial hearing on the motion to dismiss, Crawford testified that had he known before trial that he faced a potential life sentence, he would have accepted the prosecutor's offer.¹⁰ Verbatim Report of Proceedings (July 18, 2003) (VRP) at 277. Crawford's trial attorney testified that she had not investigated Crawford's Kentucky conviction because she assumed it had been a misdemeanor. Id. at 302. She made this assumption because, in her experience, prosecutors in Pierce County typically provided "persistent offender notices" prior to trial in three strikes cases, an action which had not been taken here. Id. at 299.

¶ 10 Finally, while no mitigation evidence had been presented by the defense either before or at trial, at the posttrial hearing the defense called a mitigation specialist who testified that she would have put together a mitigation package for Crawford had she been notified that he faced a third strike. Id. at 294-95. She further stated that she had put together 12 mitigation packages in cases involving a potential third strike, all of which had been accepted by the prosecutor. Id. at 291.

¶ 11 The trial court denied Crawford's motion to dismiss and imposed a mandatory minimum sentence of life in prison without possibility of parole. In a published opinion, the Court of Appeals vacated the judgment of the trial court, finding that Crawford was denied procedural due process and denied the effective assistance of counsel. Crawford, 128 Wash.App. at 385, 115 P.3d 387. Judge J. Robin Hunt partially dissented, arguing that Crawford's conviction should be reversed solely on the ineffective assistance of counsel claim. Id. (Hunt, J., dissenting in part). The State appealed to this court, contending that due process does not require pretrial notice of the possibility of a life sentence under the POAA and that Crawford was not denied effective assistance of counsel.

II. ISSUES

A. Whether procedural due process requires that a criminal defendant receive pretrial notice of a possible life sentence under the POAA.

B. Whether Crawford was denied effective assistance of counsel when his attorney failed to examine his prior out-of-state conviction and advise him that, if convicted, he faced a life sentence.

III. ANALYSIS

A. Procedural due process does not require that a criminal defendant receive pretrial notice of a possible life sentence under the POAA.

¶ 12 The right to procedural due process is guaranteed under the Washington Constitution article I, section 3¹¹ and the United States Constitution amendments V¹² and XIV, section 1.¹³ The Washington Constitution provides the same scope of protection as the United States Constitution. Manussier, 129 Wash.2d at 679, 921 P.2d 473.

¶ 13 We have found that the POAA is "a sentencing statute and not a statute defining the elements of a crime." State v. Thorne, 129 Wash.2d 736, 779, 921 P.2d 514 (1996) (emphasis added). As a sentencing statute, the POAA allows, but does not mandate, notification to offenders who have been convicted of a "most serious offense." Id. at 779, 921 P.2d 514 (citing former RCW 9.94A.393 (1994), recodified as RCW 9.94A.561¹⁴ (Laws of 2001, ch. 10, § 6)). The legislature has the authority to set such sentencing procedures. Id. at 778, 921 P.2d 514 (citing State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986)). We will not mandate greater procedural protections than those required by statute unless those requirements violate a constitutional guaranty. Thorne, 129 Wash.2d at 778, 921 P.2d 514. Thus, we will not require pretrial notice of possible sentencing under the POAA unless the lack of notice allowed under the statute violates the defendant's right to procedural due process.

¶ 14 The State argues that the Court of Appeals decision below conflicts with United States Supreme Court precedent and our previous decisions regarding the POAA. In concluding that Crawford was denied due process, the Court of Appeals relied on Thorne where we found due process did not require that a formal charge be filed in order to sentence a defendant as a persistent offender. 129 Wash.2d at 779, 921 P.2d 514. But because there was actual notice given to the defendant in Thorne, we left open the possibility of "cases in which the failure to give notice would have constitutional implications." Id. at 781, 921 P.2d 514. Relying on our dicta in Thorne, the Court of Appeals found Crawford to be such a case, noting that "[i]t 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 . . . whether trial or plea is the better alternative." Crawford, 128 Wash.App. at 383, 115 P.3d 387. In reaching its...