State v. Rivers

• Decision Date: 21 November 2005
• Docket Number: No. 53559-5-I.,53559-5-I.
• Citation: 128 P.3d 608,130 Wash.App. 689
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Larry RIVERS, Appellant.

128 P.3d 608

130 Wash.App. 689

STATE of Washington, Respondent, v. Larry RIVERS, Appellant.

No. 53559-5-I.

Court of Appeals of Washington, Division 1.

November 21, 2005.

As Modified on Denial of Reconsideration February 3, 2006.

Elaine L. Winters, Seattle, WA, for Appellant.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

PUBLISHED IN PART

COX, C.J.

¶ 1 Neither the federal nor the state constitution requires a jury to determine beyond a reasonable doubt the fact of a prior conviction.¹ Despite speculation about the continued validity of Almendarez-Torres v. United States,² the United States Supreme Court has not reconsidered that case.³ Accordingly, we reject the argument of Larry Rivers in this appeal of his convictions for first degree robbery, second degree assault, and first degree kidnapping that he was entitled to a jury as part of his sentencing procedures under the Persistent Offender Accountability Act (POAA). Moreover, the other substantive challenges that he makes to the POAA and the restitution order are unpersuasive. The evidentiary rulings that Rivers challenges do not require reversal. The robbery and assault convictions do not violate double jeopardy. But, under the facts of this case, the two crimes merge. We further hold that there was insufficient evidence to prove that Rivers is a persistent offender under the POAA.

¶ 2 Accordingly, we affirm his robbery and first degree kidnapping convictions, vacate the second degree assault conviction, reverse his life sentence without the possibility of parole, and remand for resentencing.⁴

¶ 3 An Mam, the victim of the charged crimes in this case, was sitting in his parked car drinking coffee when Danielle McCrae approached him and asked for money. Mam refused, claiming he had no money. McCrae then attempted to kiss Mam. When he again rebuffed her, Rivers appeared, and demanded money from Mam at gunpoint. McCrae climbed into the back seat of Mam's car, while Rivers pushed Mam to the passenger side and got into the driver's seat.

¶ 4 McCrae held Mam by the back of the shirt and demanded money and a ring he was wearing, while Rivers drove. After ten or fifteen minutes, Rivers stopped the car. He pulled Mam out, demanding his ring and assaulting him. Rivers broke Mam's glasses and several teeth, and inflicted serious cuts and bruises. Rivers and McCrae then took Mam's car and drove off, leaving him to walk home covered in blood.

¶ 5 When he arrived home, Mam reported the incident to the police. A short time later, a patrol officer stopped Mam's car for a minor traffic violation and, upon learning the car was stolen, arrested Rivers and McCrae.

¶ 6 The charges against Rivers included first degree kidnapping, first degree robbery, and second degree assault. McCrae, his accomplice, was not tried in this proceeding. A jury convicted Rivers as charged. Based on the argument that Rivers had been previously convicted of certain qualifying offenses, the court sentenced Rivers under the POAA as a persistent offender to life without the possibility of parole. The court also imposed an order of restitution.

¶ 7 Rivers appeals.

JURY DETERMINATION OF PRIOR CONVICTIONS

¶ 8 Rivers challenges his life sentence as a persistent offender based on the assertion that the federal and state constitutions grant him the right to trial by jury for two prior "most serious offenses." He claims a jury must find beyond a reasonable doubt that he was convicted of those offenses. Because neither the federal nor state constitution requires a jury to determine the fact of a prior conviction, we disagree.

¶ 9 This issue is controlled primarily by State v. Wheeler,⁵ State v. Smith⁶ and the federal cases we now discuss.

Federal Constitution

¶ 10 Rivers argues that in Apprendi v. New Jersey,⁷ the United States Supreme Court retreated from its earlier decision in Almendarez-Torres,⁸ the precedent for our supreme court's holding that the federal constitution does not require the fact of a prior conviction to be proved to a jury beyond a reasonable doubt.⁹ Almendarez-Torres, he contends, does not answer the question before the court because Blakely v. Washington,¹⁰ and Ring v. Arizona¹¹ expanded Apprendi to require any fact that increases punishment to be decided by a jury. However, this same argument relying on Ring was explicitly rejected by our supreme court in State v. Smith.¹² There, the court noted "the Ring Court did not specifically overrule Almendarez-Torres or address the issue of prior convictions."¹³ The court reaffirmed its holding in State v. Wheeler stating that ". . . [in] Almendarez-Torres . . . the United States Supreme Court expressly held that prior convictions need not be proved to a jury. Because the Court has not specifically held otherwise since then, we hold that the federal constitution does not require that prior convictions be proved to a jury beyond a reasonable doubt."¹⁴

¶ 11 Moreover, Blakely did not overrule Almendarez-Torres. Rather, in reiterating the Apprendi rule, Blakely specifically excluded its application to prior convictions, noting that the juries must determine any fact, "other than the fact of a prior conviction," that increases a sentence over the statutory maximum.¹⁵

¶ 12 Because prior convictions are not elements of a crime that must be found by a jury beyond a reasonable doubt, Rivers' argument that he was denied due process under the Fourteenth Amendment also fails.¹⁶

State Constitution

¶ 13 Smith also held that under the state constitution, "there is no constitutional requirement that defendants be given a jury trial on the fact of their prior convictions,"¹⁷ rejecting Rivers' argument on state law grounds. Rivers' reliance on State v. Furth¹⁸ is misplaced, as the holding of that case was rejected by Smith. Furth, a pre-SRA case, held that the state constitution required that a jury determine prior convictions in habitual criminal proceedings.¹⁹ Smith disapproved of Furth's reasoning, noting that "the Furth court failed to support this proposition with any historical evidence indicating that the drafters meant to include a right to a jury trial on the issue of prior offenses in the constitution."²⁰ Smith concluded that textual language of the constitution, which was the sole basis of Furth's reasoning, "is only one of the factors that this court now uses to determine whether the state constitution grants broader protection of a right than the federal constitution."²¹

¶ 14 Finally, neither State v. Hughes²² nor State v. Recuenco,²³ additional authorities that Rivers submitted, deals with the issue of a defendant's right to a jury trial under the POAA. Thus, neither is helpful to our analysis.

¶ 15 We adhere to the rationale more fully outlined in Smith. None of the case law since that case was decided requires that we retreat from the federal and state authority holding that a right to trial by jury does not exist for the fact of prior convictions.

PROOF OF PRIOR CONVICTIONS

¶ 16 Rivers next argues that there is insufficient evidence to prove the existence and nature of the two prior most serious offenses on which the State relied to establish that he is a persistent offender under the POAA. The prior convictions at issue are a 1987 second degree robbery conviction and a 1989 second degree assault conviction. We hold that the State failed in its burden to prove by a preponderance of the evidence one of the two prior convictions on which it relied to establish that Rivers is a persistent offender.

Waiver

¶ 17 For the first time in a supplemental brief that this court ordered limited to other questions, the State argues that Rivers waived this insufficiency of evidence argument on appeal by failing to make a specific objection at the sentencing hearing. We disagree.

¶ 18 The law requires that the State prove by a preponderance of the evidence prior convictions at a sentencing hearing under the POAA.²⁴ Where a convicted person does not enter into a plea agreement requiring disclosure of prior criminal history, that individual has no obligation to provide evidence of such history.²⁵ "[I]in the context of sentencing, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal."²⁶ "We must `indulge every reasonable presumption against waiver' of fundamental constitutional rights."²⁷

¶ 19 At the sentencing hearing in this case, Rivers contested the State's position that he was a persistent offender under the POAA. The State correctly points out that Rivers did not contest the authenticity of the documents at issue in this case. But authenticity of the admitted documents is not the issue. Whether the State proved by a preponderance of the evidence two most serious offenses is the issue. Moreover, Rivers objected, albeit on other grounds, to the use of the documents at issue and never stipulated that the State had proven by a preponderance of the evidence that any of the evidence established two prior most serious offenses.²⁸

¶ 20 We conclude that Rivers did not waive the right to contest on appeal the sufficiency of the State's proof at the sentencing hearing to prove whether he qualified as a persistent offender under the POAA.

Sufficiency of Evidence

¶ 21 The substance of Rivers' primary argument challenging his sentence is that the State failed to prove by a preponderance of the evidence two prior convictions for most serious offenses. We agree that the State failed to prove one of the two convictions on which it relied.

¶ 22 The State must prove the existence of a prior conviction by a preponderance of the evidence.²⁹ To establish the existence of a conviction, a certified copy of the judgment and sentence is the best evidence.³⁰ The State may introduce other comparable evidence only if it shows that the writing is unavailable for some reason other than the serious fault of the proponent.³¹ In that case, comparable documents of record...