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Washington Appellate Project, Sarah Hrobsky, Richard Tassano, Nielsen, Broman & Associates, Eric Broman, Seattle, for Petitioners. The Court of Appeals affirmed, finding we had previously rejected the constitutional arguments raised by Wheeler. The State filed a persistent offender memorandum describing current and prior convictions. We have previously upheld the POAA as constitutional. Manussier, 129 Wash.2d 652, 921 P.2d 473 (1996) (rejecting challenges based on substantive and procedural due process), cert. Thorne, 129 Wash.2d at 783, 921 P.2d 514 (citing State v. However, traditional factors considered by a judge in determining the appropriate sentence, such as prior criminal history, are not elements of the crime. Therefore, the prior convictions that result in a sentence of life imprisonment without the possibility of parole need not be pleaded in the information. In a 5-4 decision, the Court held that the fact of the prior conviction constituted a sentence enhancement rather than an element of the crime of being a persistent offender. This Court has already addressed these specific issues in Thorne, Manussier, and Rivers and we decline to overrule these cases. I posit the question is whether the principle articulated by Apprendi already embraces our facts, not whether the Supreme Court has specifically ruled on those facts post Apprendi. It may be fairly said that although it is our obligation not to construe the United States Constitution in a manner inconsistent with the United States Supreme Court, it is equally our responsibility, and solemn duty, to ensure federal constitutional rights of litigants who appear before us are respected and vindicated without exception. The Supreme Court reversed, holding that Apprendi's right to that process constitutionally due had been abridged when the trial court sentenced the defendant to more than the statutory maximum based on a fact neither presented to nor found by the jury. Although Apprendi had five votes for the result, the lead opinion contained but three unqualified signatures, Justices Thomas and Scalia writing separately.
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FACTSPetitioners John Wheeler and Kinnick Sanford were separately convicted of second degree robbery and sentenced to life imprisonment without the possibility of parole under the POAA. Wheeler John Wheeler was charged with two counts of robbery in the second degree, a class B felony. Subsequently, the State filed a persistent offender memorandum and presentence statement outlining Wheeler's current and prior offenses. The statutory maximum sentence for class B felonies is 10 years' imprisonment. Sanford had previously been convicted of assault with a firearm in California, equivalent to a charge of assault with a deadly weapon in the state of Washington, and of attempted first degree murder and first degree robbery. ANALYSIS The POAA requires trial courts to sentence “persistent offenders” to life imprisonment without the possibility of parole. A “persistent offender” is one who has two previous convictions for a “most serious offense” as defined by former RCW 9.94A.030(25) (1999). Manussier, 129 Wash.2d at 682, 921 P.2d 473; Rivers, 129 Wash.2d at 712, 921 P.2d 495; Thorne, 129 Wash.2d at 779-84, 921 P.2d 514. Finally, the Court found that New Jersey's “hate crime” law was unconstitutional because it provided for a mandatory increase in the sentence beyond the statutory maximum if the trial judge determined, by a preponderance of the evidence, that the defendant acted with certain prohibited motivations. Therefore, even if this Court were inclined to revisit its earlier decisions, these Petitioners do not argue or brief the issues critical to the task. The question here is whether proof of criminal history when used to exceed the statutory maximum sentence must also be submitted to the jury. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”Apprendi, 530 U.
Unless and until the federal courts extend Apprendi to require such a result, we hold these additional protections are not required under the United States Constitution or by the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. Wheeler argues under Apprendi he is entitled to formal notice, a jury trial, and a determination beyond a reasonable doubt that he is a persistent offender. Sanford Kinnick Sanford was found guilty of second degree robbery, a class B felony, and of first degree escape. Sanford challenges his sentence on the grounds it exceeds the statutory maximum and the State failed to plead and prove the prior convictions to a jury beyond a reasonable doubt. These companion cases hold that the prior convictions used to prove that a defendant is a persistent offender need not be charged in the information, submitted to the jury, or proved beyond a reasonable doubt. The question of whether recidivism might be defined as an element of a persistent offender determination under the three-part test was not before the Court. Sanford only briefly mentions the “fundamental principles” provision of the Washington State Constitution. That, I believe, is the constitutional principle at the heart of Apprendi. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.
This change in federal case law requires us to revisit the issue of procedural due process raised by the POAA. IAs recognized by the majority, this federal claim is enlightened by the United States Supreme Court's recent decision in Apprendi v. In Apprendi the trial court, from the bench, doubled the sentence of the perpetrator based upon his alleged racial bias without submitting that factual inquiry to the jury as an element to be proved.
When this Court originally upheld enhanced statutory sentences under the POAA, our holdings were consistent with federal due process jurisprudence. However, federal jurisprudence may be developing in the direction of finding a due process violation where the facts underlying a sentence enhancement are not proved beyond a reasonable doubt to a jury. First, the United States Supreme Court explicitly held that prior criminal history need not be proved beyond a reasonable doubt to a jury.
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