State v. Moretti, No. 95263-9

CourtUnited States State Supreme Court of Washington
Writing for the CourtFAIRHURST, C.J.
Citation446 P.3d 609,193 Wash.2d 809
Parties STATE of Washington, Respondent, v. Anthony Allen MORETTI, Petitioner. State of Washington, Respondent, v. Hung Van Nguyen, Petitioner. State of Washington, Respondent, v. Frederick Del Orr, Petitioner.
Decision Date15 August 2019
Docket NumberNo. 95263-9, No. 96061-5, No. 95510-7

193 Wash.2d 809
446 P.3d 609

STATE of Washington, Respondent,
v.
Anthony Allen MORETTI, Petitioner.


State of Washington, Respondent,
v.
Hung Van Nguyen, Petitioner.


State of Washington, Respondent,
v.
Frederick Del Orr, Petitioner.

No. 95263-9
No. 95510-7
No. 96061-5

Supreme Court of Washington.

Filed August 15, 2019
Argued May 28, 2019


Susan Marie Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA 99223-3005, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th Street, Seattle, WA 98115-6655, for Petitioners.

Erin Christine Riley, Attorney at Law, 102 W. Broadway Avenue Room 102, Montesano, WA 98563-3621, Larry D. Steinmetz, County Prosecuting Attorney's Office, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondents.

Ulrike Buschbacher Connelly, Lindsay Jeanne McAleer, Miehelle Leigh Maley, Perkins Coie LLP, 1201 3rd Avenue, Suite 4900, Seattle, WA 98101-3099, Nancy Lynn Talner, Antoinette M. Davis, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, for Amicus Curiae (American Civil Liberties Union of Washington).

Jessica Levin, Seattle University School of Law, 901 12th Avenue, Korematsu Center For Law & Equality, Seattle, WA 98122-4411, for Amicus Curiae (Fred T. Korematsu Center for Law and Equality).

Kimberly Noel Gordon, Law Offices of Gordon & Saunders PLLC, 1000 2nd Avenue, Suite 3140, Seattle, WA 98104, Marsha I. Levick, Juvenile Law Center, 1315 Walnut Street, 4th Floor, Philadelphia, PA 19107, for Amicus Curiae (Washington Association of Criminal Defense Lawyers, Washington Defenders Association).

FAIRHURST, C.J.

193 Wash.2d 813

¶1 Under the Persistent Offender Accountability Act (POAA), the third time a person is convicted of a "most serious offense," they must be sentenced to life in prison without the possibility of parole.

193 Wash.2d 814

RCW 9.94A.030(38)(a), .570. This statute is colloquially known as the "three strikes and you’re

446 P.3d 611

out" law. State v. Thorne, 129 Wash.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people who were in their 30s or 40s when they committed their third strike but were young adults when they committed their first strike.

¶2 We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. We also hold that the sentences in these cases are not grossly disproportionate to the crimes.

I. FACTS AND PROCEDURAL HISTORY

A. Anthony Allen Moretti

¶3 Anthony Allen Moretti was born on April 22, 1983. When he was 20 years old, he was charged with breaking into a vacant home and setting fire to it. He pleaded guilty to arson in the first degree and was sentenced to 28 months in prison.

¶4 When he was 26 years old, he was driving while intoxicated and caused an accident in which someone was injured. He pleaded guilty to vehicular assault causing substantial bodily harm to another while under the influence of alcohol and was sentenced to 13 months in prison.

¶5 At age 32, Moretti assaulted and robbed two men at a boat launch. One of his victims, Michael Knapp, had recently won $1,250 at a local casino. Knapp and his friend, Tyson Ball, wanted to use some of the money to buy methamphetamine. Ball arranged to meet a woman at a boat launch in order to buy the drugs, but instead of completing their purchase, Ball and Knapp were assaulted by two men, later identified as Moretti and Sam Hill. Hill assaulted Ball while Moretti beat Knapp with a bat, demanding that he

193 Wash.2d 815

give them the money. Moretti and Hill left after Knapp complied. Moretti and Hill were both later identified and arrested. Moretti proceeded to trial and was convicted of first degree robbery of Knapp and second degree assault of Ball. Because Moretti had previously been convicted of two separate most serious offenses,1 he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole.

¶6 Moretti appealed, arguing, among other things, that his mandatory life without parole sentence was a violation of article I, section 14 of our constitution and the Eighth Amendment to the United States Constitution. He claimed that this sentence was cruel because the judge was not permitted to consider his youth at the time of his prior strike offenses. Division Two of the Court of Appeals, by a majority, affirmed on this issue. State v. Moretti , No. 47868-4-II, slip op. at 19, 2017 WL 4899567 (Wash. Ct. App. Oct. 31, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2047868-4-II%20Unpublished%200pinion.pdf.

B. Hung Van Nguyen

¶7 Hung Van Nguyen was born on July 30, 1973. He grew up in Vietnam and moved to the United States in 1990. He did not receive any formal education in Vietnam or in the United States. Psychological evaluations have suggested that he may suffer from some cognitive difficulties. When he was 20 years old, he was convicted of first degree burglary and was sentenced to 18 months in prison. The facts underlying the burglary are not in the record.

¶8 When he was 39 years old, Nguyen pleaded guilty to second degree assault by strangulation after he put his hands around his sister’s throat during an argument, in

193 Wash.2d 816

front of her 6 year old son. He was sentenced to 17 months in prison. He does not argue that he was a young adult when he committed this strike.

¶9 At age 41, Nguyen was staying with his friend Thu Nguyen.2 She had asked him to

446 P.3d 612

leave more than once, but he refused. She called the police repeatedly over the course of 10 days in order to force him to leave, but the police were not helpful, so she eventually locked him outside while he was speaking to police officers. The next day, Thu Nguyen was taking a nap with her 4 year old grandson. She woke up to Nguyen walking out of her bedroom closet, holding a knife. He told her that he was going to kill her and then stabbed her 10 times, repeatedly catching her as she tried to escape. At that moment, Thu Nguyen’s friend Linh Truong arrived for a visit. Truong knocked on the door, and Thu Nguyen’s grandson opened the door to let her in. Truong saw Nguyen on top of Thu Nguyen and threw a chair at him to get him off her. The chair missed, but Nguyen turned and stabbed Truong, giving Thu Nguyen the chance to escape. Both victims were able to make it outside, and Truong called 911. Nguyen was arrested and was found competent to stand trial after a psychological evaluation. The jury convicted him of first and second degree assault, i both while armed with a deadly weapon.

¶10 Because Nguyen had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole. Nguyen appealed, and Division One of the Court of Appeals affirmed his sentence. State v. Hung Van Nguyen, No. 74962-5-1, slip op. at 7-8, 2018 WL 417969 (Wash. Ct. App. Jan. 16, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/749625.pdf.

193 Wash.2d 817

C. Frederick Del Orr

¶11 Frederick Del Orr was born on April 8, 1974. When he was 19 years old, a police report alleges that he approached a one-legged man in downtown Spokane and demanded money. The man gave him $6 in cash and some change. Orr became angry at the low amount and demanded the man’s bank card. The man refused. Orr struck him in the face with a broken beer bottle, grabbed the crutch that the man used to walk, struck him again, and then left. Orr did not remember committing the crime, but he entered an Alford3 plea of guilty to second degree of robbery and was sentenced to 6 months in the county jail.

¶12 When he was 21 years old, Orr was charged with first degree robbery. The statement of probable cause alleges that he was drinking beer at a man’s apartment when he started acting strangely and was asked to leave. Orr hit the man, and the man hit him back. Orr then grabbed a paring knife and threatened to kill the man and his roommate before eventually leaving with the man’s Toshiba portable stereo. The man tried to stop him from taking the stereo, but Orr raised the knife and chased him down the hallway. Orr entered an Alford plea of guilty to first degree robbery and was sentenced to 50 months in prison.

¶13 At age 41, Orr was living on the streets of Spokane. An acquaintance had allegedly told him that a man named Sasquatch was holding children against their will at a house in the area and was sexually abusing...

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37 practice notes
  • State v. Teas, No. 51098-7-II
    • United States
    • Court of Appeals of Washington
    • August 20, 2019
    ...offenders who committed one of their prior strikes a young adults." State v. Moretti , No. 95263-9 slip op. at 2, ––– Wash.2d ––––, ––––, 446 P.3d 609, 2019 WL 3819733, at *1 (Wash. Aug. 15, 2019)4 . And review of other jurisdictions' statutes and case law does not show a national consensus......
  • State v. Jenks, No. 98496-4
    • United States
    • United States State Supreme Court of Washington
    • May 27, 2021
    ...acknowledged the severity of these sentences, and the reality of who was left out should give us pause. See State v. Moretti , 193 Wash.2d 809, 833, 446 P.3d 609 (2019) ("Mandatory life in prison without the possibility of parole is the harshest sentence currently available in Washington.")......
  • State v. Zwede, 81186-0-I
    • United States
    • Court of Appeals of Washington
    • May 2, 2022
    ...than the Eighth Amendment, so we will consider whether Zwede's sentence violates our state constitution. See State v. Moretti, 193 Wash.2d 809, 820, 446 P.3d 609 (2019).¶34 As a preliminary matter, the State argues that our review in this direct appeal is limited to whether the trial court ......
  • State v. Reynolds, 81022-7-I
    • United States
    • Court of Appeals of Washington
    • February 28, 2022
    ...is more protective than the Eighth Amendment when evaluating juvenile sentences and proportionality under the POAA. State v. Moretti, 193 Wash.2d 809, 820, 446 P.3d 609 (2019). Therefore, if a sentencing scheme is not cruel under our 21 Wash.App.2d 190 state constitution, "it is necessarily......
  • Request a trial to view additional results
37 cases
  • State v. Teas, No. 51098-7-II
    • United States
    • Court of Appeals of Washington
    • August 20, 2019
    ...offenders who committed one of their prior strikes a young adults." State v. Moretti , No. 95263-9 slip op. at 2, ––– Wash.2d ––––, ––––, 446 P.3d 609, 2019 WL 3819733, at *1 (Wash. Aug. 15, 2019)4 . And review of other jurisdictions' statutes and case law does not show a national consensus......
  • State v. Jenks, No. 98496-4
    • United States
    • United States State Supreme Court of Washington
    • May 27, 2021
    ...acknowledged the severity of these sentences, and the reality of who was left out should give us pause. See State v. Moretti , 193 Wash.2d 809, 833, 446 P.3d 609 (2019) ("Mandatory life in prison without the possibility of parole is the harshest sentence currently available in Washington.")......
  • State v. Zwede, 81186-0-I
    • United States
    • Court of Appeals of Washington
    • May 2, 2022
    ...than the Eighth Amendment, so we will consider whether Zwede's sentence violates our state constitution. See State v. Moretti, 193 Wash.2d 809, 820, 446 P.3d 609 (2019).¶34 As a preliminary matter, the State argues that our review in this direct appeal is limited to whether the trial court ......
  • State v. Reynolds, 81022-7-I
    • United States
    • Court of Appeals of Washington
    • February 28, 2022
    ...is more protective than the Eighth Amendment when evaluating juvenile sentences and proportionality under the POAA. State v. Moretti, 193 Wash.2d 809, 820, 446 P.3d 609 (2019). Therefore, if a sentencing scheme is not cruel under our 21 Wash.App.2d 190 state constitution, "it is necessarily......
  • Request a trial to view additional results

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