State v. Witherspoon, 180 Wash. 2d 875

Background

In November 2009 Witherspoon broke into a victim’s home, was seen leaving with his hand behind his back, told the victim he had a pistol, and drove away with some of her property; police recovered stolen items and a recorded jailhouse call showed he tried to influence a witness.
Jury convicted him of residential burglary, second‑degree robbery, and witness tampering.
At sentencing the State introduced certified judgments of two prior convictions (first‑degree burglary and residential burglary with a firearm); the court found him a persistent offender under Washington’s Persistent Offender Accountability Act (POAA) and imposed life without possibility of release.
Court of Appeals affirmed; the Washington Supreme Court granted review on four issues: (1) sufficiency of evidence for second‑degree robbery, (2) ineffective assistance for not requesting a lesser included theft instruction, (3) whether the POAA life sentence is cruel/cruel and unusual, and (4) whether prior strikes must be proved to a jury beyond a reasonable doubt.
The Supreme Court affirmed on all four issues: evidence supported robbery, counsel’s tactical decision was reasonable, the POAA sentence did not violate state or federal cruel/cruel and unusual punishment protections, and prior convictions need only be proven at sentencing by a preponderance and need not be jury‑found beyond a reasonable doubt.

Issues

Issue	Witherspoon's Argument	State's Argument	Held
1. Sufficiency of evidence for second‑degree robbery	The evidence did not show force or fear used to obtain or retain property; victim did not know items were taken until after defendant left	Victim’s testimony that defendant implied he had a pistol and acted to retain property was sufficient; review deferential to jury	Affirmed: viewing evidence in State’s favor, an ordinary person could infer an implied threat; sufficient evidence for robbery
2. Ineffective assistance for failure to request lesser included theft instruction	Counsel was ineffective for not requesting theft instruction	Counsel made a tactical all‑or‑nothing choice; reasonable strategy	Affirmed: tactical decision reasonable; Strickland prejudice not established
3. POAA life without release violates Eighth Amendment / WA Const. art. I, §14	Mandatory life without parole for a non‑homicide third‑strike robbery is disproportionate and cruel	POAA targets repeat ‘most serious offenders’; precedent upholds such sentences; Graham/Miller (juvenile cases) distinguishable	Affirmed: sentence does not violate state or federal cruel/cruel and unusual punishment under controlling precedent
4. Whether prior strikes must be proved to a jury beyond a reasonable doubt	Alleyne and related rulings require jury proof beyond reasonable doubt of prior convictions used to enhance sentence	Apprendi/Blakely preserved exception for prior convictions; state precedent allows judge to find prior convictions by preponderance	Affirmed: prior convictions are proved by preponderance at sentencing; no jury‑proof requirement; Apprendi exception remains binding

Key Cases Cited

State v. Salinas, 119 Wn.2d 192 (deference to jury on sufficiency and credibility)
State v. Green, 94 Wn.2d 216 (standard for sufficiency review)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Apprendi v. New Jersey, 530 U.S. 466 (prior‑conviction exception to jury‑finding rule)
Blakely v. Washington, 542 U.S. 296 (limits judge‑found facts increasing sentence above statutory maximum; did not overrule Apprendi exception)
Alleyne v. United States, 570 U.S. 99 (facts that increase mandatory minimum are elements)
Graham v. Florida, 560 U.S. 48 (juvenile life‑without‑parole bar for nonhomicide)
Miller v. Alabama, 567 U.S. 460 (mandatory LWOP for juveniles unconstitutional)
State v. Rivers, 129 Wn.2d 697 (upholding POAA sentence under state constitution)
State v. Manussier, 129 Wn.2d 652 (prior precedent re: POAA procedures)
State v. Grier, 171 Wn.2d 17 (tactical decisions about lesser‑included instructions)