State v. Smith

Decision Date28 August 2003
Docket NumberNo. 73113-6.,73113-6.
Citation150 Wash.2d 135,75 P.3d 934
PartiesSTATE of Washington, Respondent, v. Russell L. SMITH, Petitioner.
CourtWashington Supreme Court

Shannon Marsh, David Donnan, Washington Appellate Project, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Lee Yates, James Whisman, Deputy Prosecuting Attorneys, for Respondent.

Pamela B. Loginsky, Olympia, Amicus Curiae on Behalf of Washington Association of Prosecuting Attorneys.


Following convictions for burglary in the first degree and criminal trespass in the first degree, the trial court found Russell Smith to be a persistent offender under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, and sentenced him to life without the possibility of parole. Smith challenges the sentencing procedures of the POAA, otherwise known as the "three strikes and you're out" law, under both the United States and the Washington State Constitutions.

The POAA is part of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW,1 which provides that the court rather than the jury determines a defendant's sentence.2 The POAA mandates that courts sentence "persistent offenders" to life imprisonment without the possibility of parole. RCW 9.94A.570. Under RCW 9.94A.030(29)(a)(ii), a "persistent offender" is a person who has two prior convictions for "most serious offenses" as defined by RCW 9.94A.030(25).3 Smith asserts that this sentence violates his right to a jury trial under the sixth and fourteenth amendments to the United States Constitution and under article I, sections 21 and 22 of the Washington Constitution. We do not agree.


Russell Smith was charged with first degree burglary, attempted residential burglary, and intimidating a witness. The charges arose out of several incidents involving Mariann Harrison, with whom he had engaged in a romantic relationship. The first incident occurred on June 10, 1999, when Smith tried to gain entry into Harrison's fifth floor condominium by climbing down from the roof. The second incident occurred on June 13, 1999, when Smith kicked open the door to Harrison's apartment, shoving and striking her. After Smith was arrested, Harrison began receiving threatening phone calls from him, allegedly as many as 20 per day.

On August 18, 2000, a jury found Smith guilty of first degree burglary and first degree criminal trespass.4 During the subsequent sentencing proceeding, Smith filed a motion requesting a jury trial on the issue of whether he was a persistent offender. The motion was denied. The trial court then found that Smith had four prior felony convictions (three of which are considered "most serious offenses"),5 was therefore a persistent offender under the POAA, and imposed the mandatory sentence of life in prison without the possibility of parole. Smith appealed to Division One of the Court of Appeals, contending that the United States and Washington State Constitutions afford him the right to have a jury determine beyond a reasonable doubt whether he had been convicted of two prior most serious offenses.

In an unpublished decision, the Court of Appeals upheld the trial court's denial of a jury trial on the sentencing issue. State v. Smith, No. 48986-1-I, 113 Wash.App. 1018, slip op. at 11, 2002 WL 1898185 (Aug. 19, 2002). The court rejected Smith's federal constitutional claim, finding that the issue had already been decided in State v. Wheeler, 145 Wash.2d 116, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996, 122 S.Ct. 1559, 152 L.Ed.2d 482 (2002). Id. On Smith's state constitutional claim, the court found that the issue was controlled by this court's decision in State v. Manussier, 129 Wash.2d 652, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1563, 137 L.Ed.2d 709 (1997). Id. Although the Manussier majority did not directly address the issue, the Court of Appeals found that the majority was presumed to have rejected the argument because it was substantially the same as the one articulated in the Manussier dissent. Id.

Smith sought this court's review, which we granted. We now affirm the Court of Appeals.

II Federal Constitutional Claim

Smith asserts that the sixth and fourteenth amendments to the United States Constitution dictate that a defendant is entitled to notice, a jury determination, and proof beyond a reasonable doubt of persistent offender status. Because the State did not prove his persistent offender status to a jury, he contends that the trial court was precluded from imposing a sentence beyond that authorized for the underlying crimes. However, the United States Supreme Court has never held that recidivism must be pleaded and proved to a jury beyond a reasonable doubt. Additionally, this court recently held that prior offenses need not be proved to a jury under the federal constitution. Wheeler, 145 Wash.2d at 124,34 P.3d 799. Nonetheless, Smith argues that Wheeler must be reexamined in light of the United States Supreme Court's most recent decision on this issue, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

In Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that prior convictions are sentence enhancements rather than elements of a crime, and therefore need not be proved beyond a reasonable doubt to a jury. Despite the fact that the Supreme Court has never explicitly overruled Almendarez-Torres, Smith argues that the case is no longer good law. He points out that the holding of Almendarez-Torres was called into question by the Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348 (emphasis added). But though the Apprendi Court commented that "it is arguable that Almendarez-Torres was incorrectly decided," it declined to overrule its previous decision. Id. at 489, 120 S.Ct. 2348.

In Wheeler, this court was charged with deciding whether, in light of Apprendi, the United States Constitution requires prior convictions to be submitted to a jury in persistent offender cases. 145 Wash.2d at 117, 34 P.3d 799. This court declined to extend the holding of Apprendi to sentence enhancements based on the fact of prior convictions, stating: "No court has yet extended Apprendi to hold that sentence enhancements based on the fact of a prior conviction are unconstitutional." Id. at 123, 34 P.3d 799. Although the Wheeler court acknowledged that the issue was uncertain under the United States Supreme Court's recent decisions, it declined to address the issue until clarified by that Court. Id.

Recently, in Ring v. Arizona, the United States Supreme Court held that when aggravating factors are used to determine whether a defendant will receive the death penalty, those factors must be found by a jury. 536 U.S. at 609, 122 S.Ct. 2428. Although the Court did not explicitly address the issue of prior convictions, it did not specifically exclude them from matters that must be decided by the jury, stating: "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it— must be found by a jury beyond a reasonable doubt." Id. at 602. Although Smith argues that Ring clarified that defendants are entitled to a jury trial for determination of any facts that increase their maximum punishment, the Ring Court did not specifically overrule Almendarez-Torres or address the issue of prior convictions.

In Ring, the sentencing factor at issue was the existence of aggravating and mitigating circumstances, whereas here the sentencing factor is prior convictions. Earlier, in State v. Thorne, 129 Wash.2d 736, 783, 921 P.2d 514 (1996), this court found that prior convictions are not the type of fact for which a jury trial would provide additional safeguards for the defendant.6 As the Thorne court noted: "A certified copy of a judgment and sentence is highly reliable evidence." Id. See also United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir.)

("Prior convictions are highly verifiable matters of public record...."), cert. denied, 495 U.S. 938, 110 S.Ct. 2188, 109 L.Ed.2d 516 (1990). In contrast, aggravating and mitigating circumstances and the weight that each should be accorded are matters of opinion about which reasonable minds could differ.7 Thus, for aggravating and mitigating factors, it seems appropriate to require, as does Ring, the additional process of a jury trial. It does not follow, however, that such process is also required to determine the fact of prior convictions.

In Wheeler we followed Almendarez-Torres, wherein 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.

III State Constitutional Claim

In addition to his federal constitutional claim, Smith argues that article I, section 21 of the Washington Constitution mandates that a jury determine a defendant's persistent offender status. First, Smith argues that prior Washington case law supports his argument. He also contends that based on an analysis of the factors laid out in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), the Washington Constitution provides greater protection of the jury trial right than does the federal constitution.

Prior Washington Cases
Pre-SRA Case Law

Smith argues that pre-SRA cases holding that jury trials are required on the issue of prior convictions under Washington's former habitual criminal statute should also apply to the POAA. Smith's...

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