State v. SmithState v. Smith
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),
The POAA is part of the Sentencing Reform Act of 1981(SRA), chapter
I
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In an unpublished decision, the Court of Appeals upheld the trial court‘s denial of a jury trial on the sentencing issue.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
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 reasonablе 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 bаsed 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
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
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 argument is based primarily on State v. Furth, 5 Wash.2d 1, 104 P.2d 925 (1940), which was decided before the SRA was enacted. In Furth, this court was asked to decide whether a jury trial was required in habitual offender proceedings under a 1909 statute. Although jury trials were required by the 1903 version of the statute, the 1909 version contained no such express provision. Id. at 3-4, 104 P.2d 925. Despite the change in the statutory requirements, Washington courts continued to provide jury trials in habitual offender proceedings. Manussier, 129 Wash.2d at 690, 921 P.2d 473 (Madsen, J., dissenting). Examining cases from other states, the Furth court found that states with habitual offender statutes required the fact of prior convictions to be proved to the jury. Furth, 5 Wash.2d at 11-18, 104 P.2d 925. The court concluded that based on the weight of authority, prior convictions must be proved to a jury. Id. at 10, 104 P.2d 925. This conclusion was reasonable given the widespread statutory practice in other states and given that Washington courts had continued to provide juries, despite the lack of any such requiremеnt in the current statute.
Although the Furth court could have upheld the existing practice based on statutory interpretation, the court went one step further, holding that jury trials were constitutionally required. The court concluded that the fact that a jury trial right was included in the 1903 habitual criminal statute did not indicate that a new right was being provided by statute; rather, the inclusion of the right “was merely declaratory of the right the defendant had” under the constitution. Id. at 19, 104 P.2d 925. Therefore, when the right was not included in the 1909 statute, no right was taken away. Finding that a jury trial was constitutionally required, the Furth court stated:
Under [
article I, section 21 ] of our constitution, the courts cannot trench on the province of the jury upon questions of fact. It is the function of the jury—not the cоurt—to settle disputed issues of fact.... On a charge of a second or subsequent offense, the question of a prior convictionis an issue of fact to be determined by the jury.
However, 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. See id. The court‘s analysis rested solely on its definition of the word “inviolate” and on its unsupported assertion that only juries decide disputed issues of fact. See id. at 18-19, 104 P.2d 925. As discussed below, the textual language 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. See infra pp. 939-940. Furthermore, there is no basis for the assertion that only juries determine questions of fact. Although the general rule is juries decide questions of fact, it is subject to numerous exceptions. 14 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: TRIAL PRACTICE CIVIL § 211, at held 419-21 (5th ed.1996). Judges, for example, decide factual issues on motions and in regard to the admissibility of evidence. Id. at n. 3. Judges frequently must decide issues of fact as they relate to sentencing under the SRA.8
The State contends that the Furth court‘s comments regarding a constitutional right to jury trial are not only flawed but are dicta. We agree. It may have been reasonable for the court to conclude that juries were required under the 1909 habitual offender statute given the previous version of the law, the practice of continuing to prоvide juries in such proceedings, and the fact that juries were required under various contemporary state statutes. But though the Furth court‘s holding rests on a reasonably sound statutory basis, its conclusion that the statutory right was based on a constitutional guaranty is not sound, as a historical analysis of
Post-SRA Case Law
The SRA, which became effective in 1984, establishes presumptive sentencing ranges for most criminal offenses. Ch.
In State v. Ammons, 105 Wash.2d 175, 713 P.2d 719, 718 P.2d 796 (1986); this court upheld the constitutionality of the SRA‘s procedural provisions. The defendants asserted that the existence of prior convictions must be proved beyond a reasonable doubt and that the State must prove that the prior convictions are constitutionally valid. Id. at 185-87. Finding the sentencing court‘s determination of prior convictions under the SRA to be analogous to the former parole board‘s revocation proceedings, this court held that due process was satisfied by the procedures set forth in the SRA. Id. at 186.
POAA Case Law
In 1993, Washington voters approved Initiative 593, known as the “Three Strikes” law or the POAA. The POAA was added to the SRA at
In Manussier, this court held that Initiative 593 did not violate state and federal due process standards by not requiring a jury trial and proof beyond a reasonable doubt for sentencing. 129 Wash.2d at 685, 921 P.2d 473. The majority based its holding on the due process rights protected by
The Manussier court compared Initiative 593 to the former habitual criminal statute, which mandated a life sentence for any defendant convicted of three felonies. 129 Wash.2d at 681, 921 P.2d 473. The former habitual criminal statute did not establish a specific procedural process, but this court had held that the existence of prior convictions was a question of fact to be resolved by a jury. Id. (citing Furth, 5 Wash.2d at 18-19, 104 P.2d 925). The Manussier court, however, found that Initiative 593 was different from the former habitual criminal statute because it was part of the SRA, which specifically provided that prior convictions need only be proved to the court by a preponderance of the evidence. Id. at 682, 921 P.2d 473.
Smith argues that Manussier does not control the decision in this case because the parties in Manussier did not present arguments based on
In Thorne, another post-POAA case, the defendant argued that because the POAA was so similar to the habitual criminal statute, the procedural protections established by case law for the habitual criminal statute must also apply under the POAA. 129 Wash.2d at 750, 921 P.2d 514. This court concluded that the procedures for the habitual criminal statute did not apply to the POAA since it was part of the SRA, which has its own procedural requirements. Id. at 778, 921 P.2d 514. The court stated: “Unless these statutory procedures violate constitutional guarantees, they must be applied to the new law.” Id. Proceeding to determine that the protections provided under the SRA were constitutionally sufficient, the court noted:
[W]e fail to see how the presenсe of a jury would be necessary. Prior convictions are proved by certified copies of the judgment and sentence, and identity (if contested) can be proved by fingerprints. The sentencing judge can make those determinations. While technically questions of fact, they are not the kinds of facts for which a jury trial would add to the safeguards available to a defendant.
Id. at 783, 921 P.2d 514 (citation omitted). The Thorne majority relied primarily on federal law and did not discuss
In Wheeler, this court reconsidered the procedural due process issues raised by Thorne and Manussier in light of the United States Supreme Court‘s decision in Apprendi. As discussed above, the Wheeler court held that the POAA was not procedurally defective under the due process clause of the federal constitution. 145 Wash.2d at 123-24, 34 P.3d 799. Because the petitioners failed to bring a state constitutional claim, the Wheeler court declined to address the issue. Id. at 124, 34 P.3d 799. However, the court left the door open for such arguments, stating: “Should this Court revisit the issue, the state constitution provides the most fruitful approach.” Id. In contrast to the Wheeler petitioners, Smith‘s briefs provided the Gunwall analysis that we require when considering whether the Washington Constitution provides greater protection than the federal constitution.
The Gunwall Analysis
Smith asserts that there is broader protection of a defendant‘s right to trial by jury under the Washington State Constitution than under the federal constitution. The United States Supreme Court has held that state courts may find that provisions of their state constitutions provide greater protection
Factor One: Textual Language
Smith argues that the language of
Although the use of the word “inviolate” in
This court has previously held that the use of the word “inviolate” in
Factor Two: Differences in the Texts
Smith notes that whereas the federal constitution mentions the right to trial by jury only in the Sixth Amendment, the Washington Constitution contains two provisions regarding this right.
We agree that the fact that the Washington Constitution mentions the right to a jury trial in two provisions instead of one indicates
Factor Five: Differences in Structure
The federal constitution is a grant of limited powers whereas state constitutions limit the otherwise plenary power of the states. Smith argues that because
However, this presupposes that there is such a guaranty arising from
Factor Six: Particular State Interest or Local Concern
Smith maintains that the manner of conducting criminal trials in state courts is of particular local concern, and therefore does not require adherence to a national standard. The State, on the other hand, argues that the right to a jury trial is a general concern of litigants nationwide, not just those in Washington. In Schaaf, this court found that providing jury trials for juveniles was a matter of local concern rather than an issue requiring national uniformity. 109 Wash.2d at 16, 743 P.2d 240. See also McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Likewise, it would seem that providing jury trials for adult defendants is a matter of particular local concern.
Factors Three and Four: State Constitutional and Common Law History and Preexisting State Law
The previous four factors indicate some support for interpreting Washington‘s right to a jury trial more broadly than the federal right. In fact, the State concedes that Washington‘s right to a jury trial has sometimes been interpreted more broadly. See Pasco, 98 Wash.2d at 99, 653 P.2d 618; see also State v. Hobble, 126 Wash.2d 283, 298, 892 P.2d 85 (1995) (“The right to trial by jury under the Washington State Constitution is not coextensive with the federal right.“). Even if the right to jury trial is broader under our state constitution, we still must determine the nature and extent of the right.
Both Smith and the Statе agree that in order to determine the scope of the jury trial right under the Washington Constitution, it must be analyzed in light of the Washington law that existed at the time of the adoption of our constitution. In Pasco, this court stated: “In construing [
Smith argues that Washingtоn courts have long recognized a common law right to trial by jury on the issue of prior convictions. As support for his argument, he notes that Washington‘s Code of 1881 provided that the common law of England would be the rule of
However, Washington specifically abolished the jury‘s role in sentencing by statute before the state constitution was adopted in 1889. Section 239 of the Laws of 1866 provided: “When the defendant is found guilty, the court, and not the jury, shall fix the amount of fine and the punishment to be inflicted.” Laws of 1866, § 239, in STATUTES OF THE TERRITORY OF WASHINGTON 102 (1866); see also DAVID BOERNER, SENTENCING IN WASHINGTON: A LEGAL ANALYSIS OF THE SENTENCING REFORM ACT OF 1981 § 2.2(a) (1985) (stating that judges had discretion in sentencing during territorial days). Because Washington territorial law specifically provided otherwise, the common law default rule did not apply.
It was not until 1903, well after the Washington Constitution was adopted, that the legislature enacted Washington‘s first habitual offender statute, which provided for increased penalties upon proof that a defendant had been previously convicted of felonies. Laws of 1903, ch. 86 (1 Rem. & Ball.Code §§ 2177-78 (1910)). This statute provided for jury trials at sentencing. Id. Because this law was not enаcted until after the constitution was adopted, it could not have had any effect on the drafters’ intent when they wrote
Smith also argues that the Code of 1881 limited a court‘s right to impose punishment to that which was authorized by the jury‘s verdict. While true that the Code provides that defendants must be convicted of their offenses by a jury,11 this court has previously held that recidivism is a sentencing factor rather than a separate offense. Thorne, 129 Wash.2d at 780, 921 P.2d 514. In Thorne, this court specifically found that the POAA is a sentencing law. Id. at 778, 921 P.2d 514. Finding that persistent offender status was not an element of an offense, this court stated: “A defendant‘s criminal history is a factor which has traditionally been considered by sentencing courts, and the legislature is well within its discretion in defining past crimes as sentencing factors rather than elements of a charge.” Id. at 780, 921 P.2d 514. Thus, although the Code of 1881 contemplated that offenses must be tried to a jury, recidivism need not be tried to a jury because it is not an element of an offense.
Although the Gunwall analysis indicates that the right to a jury trial may be broader under
IV
We hold that neither the sixth amendment to the United States Constitution nor
WE CONCUR: ALEXANDER, C.J., IRELAND, OWENS, FAIRHURST, JJ.
CHAMBERS, J. (dissenting).
I respectfully dissent for the reasons ably articulated by Justice Madsen in State v. Manussier, 129 Wash.2d 652, 685, 921 P.2d 473 (1996) (Madsen, J., dissenting). I will not attempt to duplicate Justice Madsen‘s scholarly Manussier dissent.
The majority properly notes that the United States Constitution does not dictate the meaning of the constitutional provisions laid down by our own founding fathers. Instead, our national constitution lays a floor below which we may not sink. See generally Justice Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. PUGET SOUND L.REV. 491 (1984). The Washington Constitution sets a high threshold before a sentence of life without parole may be imposed based on the fаct of prior convictions.
Our own founding fathers, having more than a century of experience with the national constitution behind them, were often more protective of individual procedural rights than their earlier, national, counterparts. See City of Pasco v. Mace, 98 Wash.2d 87, 99, 653 P.2d 618 (1982) (“the right to trial by jury ... was more extensive than that which was protected by the federal constitution when it was adopted ....“); see generally Utter, supra; see also Justice Charles W. Johnson, Survey of Washington Search and Seizure Law: 1998 Update, 22 SEATTLE U.L. REV 337 (1998); accord State v. Hobble, 126 Wash.2d 283, 298, 892 P.2d 85 (1995). Accordingly, our constitution provides that the right to a jury as it existed in 1889 is to remain inviolate.
The proper question is not whether a judge or a jury would have determined a
I give far less weight to the procedural bifurcation of the guilt and penalty stages of trial than the State would have us give. That sidesteps the underlying question; whether, when the fact of prior convictions elevates a sentence to life in prison, the State must charge and prove the fact of the prior convictions.
We have answered this question already. “On a charge of being an habitual criminal, is the question of defendant‘s prior conviction аn issue of fact to be determined by the jury? The weight of authority answers that question, which is one of first impression in this state, in the affirmative.” Furth, 5 Wash.2d at 10, 104 P.2d 925. Further:
Where previous convictions are charged in an information for the purpose of enhancing the punishment of the defendant, such convictions must be proved beyond a reasonable doubt, since the fact of the prior convictions is to be taken as an essential element of the offense charged, at least to the extent of aggravating it and authorizing an increased punishment.
Id. at 11, 104 P.2d 925 (citing People v. Reese, 258 N.Y. 89, 179 N.E. 305 (1932)). That was the holding of the case. It answered the underlying question presented, then and now. It should be our holding today. Accord Manussier, 129 Wash.2d at 691, 921 P.2d 473 (Madsen, J., dissenting); see also State v. Holsworth, 93 Wash.2d 148, 159, 607 P.2d 845 (1980).
I readily concede that in our constitutiоnal jurisprudence, sentencing is generally the province of the trial judge within the guidelines laid down by the legislature and the requirements of the state and federal constitutions. I agree that under our constitutions, many factual questions relevant only to the sentence need not be decided by a jury.
I also agree that, pragmatically, the jury‘s role in this fact finding will be limited. See, e.g., State v. Le Pitre, 54 Wash. 166, 169-70, 103 P. 27 (1909). Essentially, the jury will hear an expert testify that the fingerprints of the offender match the fingerprints on prior judgments and sentences. In only the rarest cases will there be a meaningful dispute.
But this particular fact is often the predicate fact that must be found before a life sentence without the possibility of parole mаy be imposed. The task of answering this question was vested in the able hands of the Washington jury. Efficiency must give way to constitutional command. Accordingly, I respectfully dissent.
SANDERS, JOHNSON, MADSEN, JJ., concur.