State v. GimarelliState v. Gimarelli
Gary Gimarelli appeals from his judgment and sentence of life in prison without parole under the “two-strikes” amendment to the Persistent Offender Accountability Act (POAA) for his conviction of attempted first degree child molestation. We affirm.
FACTS
On Christmas Eve 1998, Gimarelli entered the recreation room of the mobile home park where he lived. Gimarelli knew 11-year-old M.B. was sleeping there with her siblings. He went to M.B. and placed his hand on her stomach right below her navel. M.B. woke up and pushed Gimarelli away. A few minutes later, he began stroking her hair, and then slid his hand down the side of her body, across the side of her chest, to her hip. He then moved his hand over her navel to a point above her pubic region and pinched her. She again pushed him away, but a few minutes later he repeated this process. When she pushed him away a third time, she said she wanted her mother. Gimarelli asked where her mother was and learned that she was next door in her trailer. He then repeated the process a fourth time. Again M.B. pushed him away and asked for her mother. This time Gimarelli told her not to worry, it was okay, he would find her mother. He then left but did not go to her mother.
The State tried and convicted Gimarelli of attempted first degree child molestation based upon this incident. Gimarelli had a 1990 conviction of rape by forcible compulsion in Oregon in 1990, so the prosecutor sought a life sentence without the possibility of parole under the “two strikes” amendment to Washington‘s POAA. See
ANALYSIS
The Oregon conviction
Under the Sentencing Reform Act,2 before the State may use a prior conviction to enhance a defendant‘s sentence, it must prove the existence of that conviction by a preponderance of the evidence. State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999). The best evidence of the conviction is the prior judgment and sentence. Ford, 137 Wash.2d at 480, 973 P.2d 452. But if the judgment and sentence is not available, the State may use comparable documents or transcripts from the prior trial to prove the existence of the conviction. Ford, 137 Wash.2d at 480, 973 P.2d 452. A plea agreement is a sufficient substitute document. See In re Thompson, 141 Wash.2d 712, 718, 10 P.3d 380 (2000).
The State need not prove the constitutionality of prior convictions before it may use those convictions as part of a defendant‘s
For a conviction to be constitutionally invalid on its face, the conviction must show constitutional infirmities on its face, without further elaboration. Ammons, 105 Wash.2d at 188, 713 P.2d 719. The face of the conviction includes any plea agreement, but it excludes other items such as jury instructions. Thompson, 141 Wash.2d at 718, 10 P.3d 380 (citing Ammons, 105 Wash.2d at 189, 713 P.2d 719). Likewise, the defendant may not impeach the conviction by offering testimony that his or her rights were violated. State v. Bembry, 46 Wash.App. 288, 291-92, 730 P.2d 115 (1986). The conviction need not show that a defendant‘s rights were not violated; rather, for the conviction to be constitutionally invalid on its face, the conviction must affirmatively show that the defendant‘s rights were violated. Ammons, 105 Wash.2d at 189, 713 P.2d 719.3 The reason the defect must be apparent on the face of the conviction is because if a defendant were able to present evidence of defects in his or her prior convictions, it “would turn the sentencing proceeding into an appellate review of all prior convictions.” Ammons, 105 Wash.2d at 188, 713 P.2d 719. The defendant must use established avenues of appeal to challenge those prior convictions. Ammons, 105 Wash.2d at 188, 713 P.2d 719.
The Face of the Conviction
The first issue before us is what is the “face of the conviction.”
Ammons and Bembry provide examples of what does not qualify as the face of the conviction. In Ammons, the defendant offered the jury instructions and claimed that they denied him his constitutional rights. The court rejected this contention, stating, “The validity of that claim cannot be determined facially.” Ammons, 105 Wash.2d at 189, 713 P.2d 719. In Bembry, the defendant testified at the hearing that he was never told the elements of the charge or informed of his right to remain silent before he pleaded guilty. The court “express[ed] ... no opinion as to the merits of Bembry‘s claims” but ruled that the conviction did not show on its face that such constitutional safeguards were not provided. Bembry, 46 Wash.App. at 291, 730 P.2d 115.
Here, the State argues that because the judgment and sentence is sufficient to prove the Oregon conviction, once it offered that document, Gimarelli could not submit additional documents to prove a constitutional infirmity. Gimarelli counters, and the trial court found,4 that the jury‘s verdict form is
The State‘s position is consistent with the purpose of not allowing a defendant to use a sentencing hearing to collaterally attack his or her prior convictions. See Ammons, 105 Wash.2d at 188, 713 P.2d 719. Moreover, in Ammons, the court refused to consider the jury instructions Ammons had submitted to prove his prior conviction was unconstitutional. Ammons, 105 Wash.2d at 189, 713 P.2d 719.
On the other hand, Gimarelli‘s argument also has merit in that verdict forms do seem to be the most basic evidence of a conviction.5 Moreover, the requirement is that the error appear on the face of the “conviction,” not the face of the “judgment and sentence.” See Ammons, 105 Wash.2d at 187-88, 713 P.2d 719.
Assuming, without deciding that the verdict form qualifies as the conviction, Gimarelli‘s argument still fails because the conviction is not repugnant to either the U.S. or Oregon Constitution—the only constitutions relevant when determining whether the sentencing court could consider Gimarelli‘s 1990 Oregon rape conviction.
The Constitutionality of the Oregon Conviction
Under the Full Faith and Credit Clause of the U.S. Constitution,6 a judgment from any other state is valid in Washington unless the foreign court lacked jurisdiction or the conviction is constitutionally invalid.7 State v. Berry, 141 Wash.2d 121, 127-28, 5 P.3d 658 (2000).
To be constitutionally invalid, the conviction must be invalid under either the U.S. Constitution or the constitution of the state where the conviction was entered. See State v. Morley, 134 Wash.2d 588, 619, 952 P.2d 167 (1998); State v. Johnston, 17 Wash. App. 486, 498, 564 P.2d 1159, review denied, 89 Wash.2d 1007 (1977). Cf. State v. Herzog, 48 Wash.App. 831, 834, 740 P.2d 380 (1987). It is of no consequence that the judgment could not be sustained here in Washington. Lee v. Ferryman, 88 Wash. App. 613, 620, 945 P.2d 1159 (1997) (citing Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365 (1928)), review denied, 135 Wash.2d 1006, 959 P.2d 125 (1998).
In Morley, the defendant challenged the prosecution‘s ability to use his court-martial conviction as a strike by alleging that the military did not provide various constitutional protections, including a requirement for a unanimous verdict. The Morley court first held that all foreign convictions do not have to be obtained under a procedural system identical to Washington‘s because it would be “absolutely unworkable” if sentencing courts had to compare every aspect of each foreign jurisdiction before counting the convictions in defendants’ criminal histories. Morley, 134 Wash.2d at 596, 952 P.2d 167. The court then noted that because Morley had requested a bench trial at his court-martial, it was irrelevant that the military did not require a unanimous verdict. Morley, 134 Wash.2d at 615, 952 P.2d 167. Nevertheless, the court went on to hold that “[i]f a court-martial complies with federal constitutional protections, nothing prevents a sentencing court from counting the court [-] martial as a prior
Similarly, in Johnston, the defendant challenged the sentencing court‘s ability to use a prior California conviction. The court rejected this contention because the defendant failed to cite any authority that proved the conviction was invalid under “either the federal or California State Constitution.” Johnston, 17 Wash.App. at 498, 564 P.2d 1159.
Conversely, in Herzog, the court held that the defendant‘s prior German conviction could not be used to enhance his current sentence because it was apparent on the face of that conviction that a two-person jury convicted the defendant. Herzog, 48 Wash. App. at 834, 740 P.2d 380. The German conviction violated his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution. Herzog, 48 Wash.App. at 834, 740 P.2d 380. Because courts should consider state constitutional issues before addressing federal issues, the Herzog court‘s failure to address the more protective Washington Constitution8 suggests that the Herzog court did not think the Washington Constitution controlled. See Robinson v. City of Seattle, 102 Wash.App. 795, 808, 10 P.3d 452 (2000) (noting courts should address state constitutional issues before federal constitutional issues) (citing City of Chicago v. Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)).
Here, Gimarelli‘s Oregon conviction is valid under both the Oregon and U.S. Constitution and thus, the trial court properly considered it as Gimarelli‘s first strike. The Oregon Constitution allows for convictions if 10 of 12 jurors find the defendant guilty beyond a reasonable doubt.
Gimarelli argues against this conclusion by stressing that the Washington Constitution requires unanimous verdicts. But in other situations, Washington courts have refused to apply standards from the Washington Constitution to actions by actors who are not bound by the Washington Constitution. For example, under the “silver platter” doctrine, evidence gained by federal officials in violation of the Washington Constitution, but not in violation of the federal constitution, is admissible in a Washington state prosecution as long as the federal officials were not acting as agents of state law enforcement. In re Teddington, 116 Wash.2d 761, 772-73, 808 P.2d 156 (1991). That doctrine is based upon the idea that because state constitutions have inherent jurisdictional limits, it would disserve the principles of federalism and comity to subject foreign law enforcement officers to state constitutions. Teddington, 116 Wash.2d at 774, 808 P.2d 156. Just as article I, section 7 of the Washington Constitution does not apply to evidence gained by federal officers, article I, section 21 of the Washington Constitution does not apply to Oregon juries.
Cruel and Unusual Punishment
The trial court sentenced Gimarelli to life in prison without parole because he qualified as a persistent offender under Washington‘s “two strikes” law. Gimarelli does not argue that his Oregon conviction, if constitutional, would not count as a strike, qualifying his as a persistent offender; rather, he asserts that life in prison without parole would be cruel and unusual punishment and a violation of article I, section 14 of the Washington Constitution.
Article I, section 14 of the Washington Constitution prohibits cruel and unusual punishment and provides more protection than its federal counterpart. State v. Fain, 94 Wash.2d 387, 392, 617 P.2d 720 (1980) (holding that the defendant‘s life sentence for his third conviction for writing bad checks was cruel and unusual). Article I, section 14 protects against sentences that are grossly disproportionate to the crime committed. State v. Morin, 100 Wash.App. 25, 29, 995 P.2d 113, review denied, 142 Wash.2d 1010,
Under the first Fain factor, courts consider whether the crime is a violent crime and whether it is a crime against a person or property. Morin, 100 Wash.App. at 30, 995 P.2d 113. Courts should also consider the actual facts of the case. Morin, 100 Wash. App. at 31, 995 P.2d 113. Here, Gimarelli committed attempted child molestation in the first degree. This is a most serious and violent sex offense. See
Under the second Fain factor, the Legislature was concerned about the recidivism of sex offenders when it passed the “two strikes” amendment to the POAA, but did not intend to supplant the purposes of the POAA. Morin, 100 Wash.App. at 31, 995 P.2d 113. Thus, the purposes of the two strikes amendment is to provide mandatory sentences for repeat offenders to deter such crimes and protect society. Morin, 100 Wash.App. at 31, 995 P.2d 113. Here, Gimarelli had previously committed a rape by forcible compulsion, which he did not think was a “big deal” and “didn‘t really even matter,” see Clerk‘s Papers at 18-19, and now he has attempted to molest an 11-year-old girl. Based upon this conduct, Gimarelli‘s sentence is consistent with the purposes of the POAA.
Under the third Fain factor, most states that have “two strikes” laws require sex offenses with some degree of penetration and infliction of serious bodily harm. Morin, 100 Wash.App. at 32-33, 995 P.2d 113. Thus, it is unlikely that Gimarelli‘s attempted child molestation would earn him a life sentence in other jurisdictions. As noted, however, this factor is not dispositive.
Finally, under the fourth Fain factor, first degree child molestation is a class A offense and it is a most serious violent sex offense. See
Based upon these factors, we hold that Gimarelli‘s sentence is not grossly disproportionate to his crime. He is a convicted rapist who repeatedly and persistently attempted to molest an 11-year-old girl. The Legislature has a right to discourage such behavior and protect the public from such offenders. Although the sentence may be harsher than Gimarelli would have received in other jurisdictions, it is not harsher than he would have received for similar crimes in Washington.
Affirmed.
We concur: BRIDGEWATER, J., QUINN-BRINTNALL, J.
Notes
U.S. Constitution, article IV, section 1:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.