State v. Cruz
| Decision Date | 22 June 1998 |
| Docket Number | No. 35906-1,35906-1 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Sabas Espenoza CRUZ, Appellant. |
Eric Nielsen, Eric Broman, Nielsen, Broman & Assoc. Pllc., Nancy Talner, Seattle, for Appellant.
Seth Fine, Snohomish County Pros. Office, Everett, for Respondent.
Sabas Cruz appeals from his sentence of life without the possibility of parole under the Persistent Offender Accountability Act (POAA), contending that the act was invalidly enacted and is unconstitutional because it violates the doctrine of separation of powers and the guarantee of a republican form of government. He also argues the act violates due process because it does not require the court to find his prior convictions beyond a reasonable doubt and violates equal protection because it includes attempted crimes as "most serious offenses." He further asserts the act was invalid as applied to him because his 1975 rape conviction washed out under former RCW 9.94A.360(2), and his guilty plea to that charge was unconstitutional. Finally, he contends his sentence is cruel and unusual because it is grossly disproportionate to his crime.
We reject his challenges to the POAA and hold that an attempted crime, while less serious than the same crime when it is completed, is not a separate category of crimes. Including attempts as "strikes" thus does not violate equal protection. We also hold that, by changing the wash-out provisions of the Sentencing Reform Act (SRA), the Legislature may revive a conviction that had washed out for sentencing purposes under an earlier version of the statute without violating the prohibition against ex post facto laws. Accordingly, we affirm the sentence.
Sabas Cruz was charged by amended information with one count of first degree rape of a six-year-old child. He waived jury and agreed to a stipulated trial. After reviewing the police reports and affidavit of probable cause, the trial court found Cruz guilty.
At sentencing, the State sought life without possibility of parole under the POAA. 1 It introduced evidence that Cruz pleaded guilty to rape under former RCW 9.79.101 in 1975 and to attempted first degree burglary in 1989. Cruz argued the court should consider various mitigating circumstances before imposing a sentence of life without parole. He also contended the State failed to comply with the procedural requirements for persistent offender proceedings. After the State presented its evidence, he argued that the act (I-593) violated Washington Constitution, article 2, section 19's "single subject" rule and life without parole in his case would be cruel and unusual under both the state and federal constitutions. The court rejected his arguments. Based on the State's evidence, the court concluded Cruz's two prior convictions were "strikes" and sentenced him to life without parole.
Cruz contends I-593 is unconstitutional as enacted. He argues that the Attorney General's summary of the initiative in the voter's pamphlet failed to inform voters of several critical provisions and did not fairly summarize the SRA as it was written before the initiative. He also argues that the preamble to the ballot description was inflammatory and mischaracterized the initiative.
Cruz does not allege any specific constitutional violation. Rather, he argues the Legislature specifically gave the courts authority to invalidate an initiative if its presentation on the ballot is not a fair and unbiased summary of its purpose and effect. 2 Under RCW 29.79.060, courts may review the Attorney General's explanatory statement and determine whether it meets the requirements of that chapter. But the statute sets out a specific procedure for challenging an explanatory statement. The objection must be raised in an appeal to the Thurston County Superior Court within five days after the statement is filed. 3 Once the appeal is filed, the court will determine whether the ballot title and summary provide a true and impartial statement of the measure's purpose and effect. Cruz did not use this procedure. Because he does not point us to a specific constitutional violation, he cannot raise this issue on appeal. 4
Cruz's next argument, that the POAA violates the separation of powers, is precluded by the recent decision in State v. Thorne. 5 He also argues that the act violates the guarantee of a republican form of government because it became law through the initiative process. This argument has likewise been rejected in State v. Davis. 6
Cruz next contends the statute is procedurally defective because it only requires the court to find facts about prior convictions by a preponderance of the evidence. He argues that, because the life without parole sentence is above the maximum sentence range, it is akin to a sentence enhancement. The State must prove the facts supporting a sentence enhancement beyond a reasonable doubt. 7 But life without possibility of parole under RCW 9.94A.120(4) is not a sentence enhancement. An enhancement is an act committed along with the crime which the Legislature concluded warrants increased penalties. 8 In contrast, it is the offender's criminal history, not the facts of the latest crime, which mandates a sentence beyond the top of the range under RCW 9.94A.120(4). When the trial court is only finding facts about an offender's criminal history and not about whether he is guilty of a crime, the preponderance of the evidence standard satisfies due process. 9
Cruz next contends that his 1975 guilty plea and rape conviction should not have been included as a strike because it "washed out" under former RCW 9.94A.360(2). He also argues the conviction was invalid because the plea form did not clearly state that he was advised of his right to remain silent.
In 1975, Cruz admitted he had sexual intercourse with a woman after she was threatened by another person. Cruz was charged and pleaded guilty to rape under former RCW 9.79.010. At that time, the maximum punishment was life imprisonment. The court sentenced Cruz to 20 years in prison. He was released in 1977. In 1989, he was convicted of attempted first degree burglary after he unlawfully entered his ex-wife's apartment and attempted to assault her. At that time, the trial court determined that Cruz's 1975 conviction was a class B felony. Under former RCW 9.94A.360, class B felonies washed out if the offender remained in the community for 10 years or more without any additional felony convictions. Based on this rule, the trial court did not consider the 1975 conviction in his criminal history. In 1990, the Legislature amended RCW 9.94A.360 to exclude sex offenses. The trial court in this case concluded that, under the amended law, Cruz's 1975 conviction should again be included in his criminal history. But Cruz argues that because "once a crime meets the 'wash out' test, it is always 'washed out' " 10 and can never again be considered in calculating criminal history, even if the wash-out provisions change.
This court rejected a related argument in State v. Watkins. 11 Watkins had a 1971 conviction for burglary. Between 1971 and 1985, he was convicted of various misdemeanors. In 1985, he was convicted of another felony. At that time, the SRA provided that felony convictions washed out if the defendant remained in the community for 10 years without a felony conviction. 12 In accordance with that rule, the trial court calculated his offender score as zero for his 1985 conviction. In 1995, that provision was, like the one at issue here, amended. It now provides that the defendant must remain crime free, and convictions do not wash out if the defendant is convicted of either a felony or a misdemeanor. 13 In 1996, Watkins pleaded guilty to a violation of the Uniform Controlled Substances Act. The trial court included the 1971 conviction in his offender score, ruling that it was revived by the 1995 amendments. We agreed, holding that criminal history is determined under the version of the SRA in effect at the time of sentencing. Amendments to the wash-out provisions revive felonies which were previously washed out, unless the Legislature clearly states otherwise. 14
Cruz argues that the 1990 amendments to the wash-out rules cannot revive his 1975 conviction because the Legislature provided that the amendments apply only to crimes committed after July 1, 1990. 15 We generally presume that newly-enacted statutes and amendments act prospectively, 16 and we make that assumption here. And, as applied to Cruz, the amendment is prospective because it applies only to the crime for which he is presently being sentenced, rape of a child. Had he not committed another crime after 1989, the amendment would have had no affect on him at all. One of the express purposes of the SRA is to impose proportionate sentences, considering the crime and the offender's criminal history at the time of sentencing. 17 Consistent with that purpose, we apply an amendment reflecting legislative decisions about what crimes will be considered part of criminal history only to sentencing for future crimes. It would produce inconsistent sentences if we were to permanently wash out a crime even though the Legislature had changed the nature or extent of the wash-out provisions. It is not, after all, as if the wash-out means the crime was never committed. What the Legislature gave in the former wash-out provisions it may properly take away by amending them. Cruz's 1975 rape conviction was revived by the 1990 amendments to RCW 9.94A.360(2), and the trial court correctly included it in his criminal history. Because Cruz is being punished only for the present crime, including in his history of most serious offenses crimes which may have washed out under previous versions of the SRA does not render this an ex post facto law. 18
Cruz next argues his...
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