State v. Rudolph

141 Wash. App. 59

• Court: Court of Appeals of Washington
• Decided: October 2, 2007
• Docket: No. 32658-2-II
• Status: Published

Opinions

Hunt, J.

¶1 Carlton Roosevelt Rudolph appeals his jury conviction for first degree robbery and his life-without-parole sentence imposed under the Persistent Offender Accountability Act (POAA).¹ He argues that (1) the POAAis unconstitutional because it allows the trial court, rather than requiring a jury, to find the “fact” of a prior conviction used as a prior “strike” offense; (2) the trial court, therefore, made impermissible factual findings about Rudolph’s identity as the perpetrator of prior convictions; (3) the trial court erred when it ruled that a prior Illinois offense was factually comparable to a Washington “strike” offense for POAA sentencing purposes; and (4) because the information did not charge an alternative means of committing robbery, the trial court improperly included an alternative means in the to-convict jury instruction and failed to give an alternative-means unanimity instruction.

¶2 We hold that under Almendarez-Torres,2 Apprendi,3 and Blakely,⁴ the POAA is a constitutionally permissible statute and, therefore, Rudolph had no right to a jury trial on the issue of whether he was the person who committed previous strike offenses that subject him to a POAA sentence of life without parole. Accordingly, the trial court properly entered findings about Rudolph’s prior convictions, including his identity as the perpetrator. We also hold that Rudolph’s prior Illinois offense is legally comparable to a Washington POAA “strike” offense and that any error in the information and/or instructions was harmless. We affirm.

FACTS

I. Robbery

¶3 In May 2004, Carlton Rudolph stole money from a fabric store cash register. The store clerk confronted and engaged Rudolph in a brief physical altercation, bruising her leg. Rudolph grabbed the clerk’s wallet from near the cash register and fled with the cash and the wallet. The clerk later identified Rudolph, in a photomontage, as the man who had robbed her.

II. Procedure

¶4 The State charged Rudolph with one count of first degree robbery. When the trial court instructed the jury on the elements of the crime, neither the State nor Rudolph objected. The jury found Rudolph guilty of first degree robbery. At sentencing, the State proved to the court that Rudolph was a persistent offender under the POAA, based on prior Florida and Illinois convictions.

A. Prior Illinois Home Invasion

¶5 The State presented 10 exhibits in support of its POAA sentencing recommendation of life imprisonment without parole. These exhibits included (1) a clerk’s “fact sheet” noting that the Illinois home invasion conviction referred to “John Williams AKA Clarence Rudolph”; (2) a certified fingerprint comparability analysis from the Washington State Patrol (WSP) Identification Section, comparing Rudolph’s fingerprints, taken when he was in custody for the current offense, to the fingerprints of “John Williams” from Illinois and finding them to have been made by the same person; and (3) a certified statement of conviction/ disposition attached to a computer printout of clerk’s entries listing Rudolph’s Illinois convictions for home invasion, residential burglary, armed robbery, and burglary. Although at sentencing Rudolph argued that he was not the “John Williams” who had committed the Illinois home invasion, he neither disputed the accuracy of the fingerprint evidence, Report of Proceedings (Dec. 10, 2004) at 18-19, nor denied the fact of his identity under oath.

¶6 Based on the WSP fingerprint comparison and the certified fingerprint evidence from Illinois, the trial court found, by a preponderance of the evidence, that “John Williams” from Illinois and Carlton Rudolph were the same person. The trial court further found that the Illinois home invasion was factually comparable to Washington’s first degree burglary.⁵ Therefore, the trial court counted Rudolph’s Illinois home invasion conviction as a prior “strike” offense under the POAA.

B. Prior Florida Felony Convictions

¶7 The trial court also concluded that there was no real dispute about Rudolph’s prior Florida felony convictions because (1) the certified multiple felony judgment and sentence documents⁶ clearly proved these convictions and (2) they were clearly comparable to at least one Washington “strike” offense for POAA. purposes. More specifically, the trial court found that Rudolph’s robbery conviction under Fla. Stat. § 812-13 was legally comparable to robbery under Washington’s RCW 9A.56.190. Therefore, the trial court counted Rudolph’s Florida robbery conviction as a “strike” under the POAA.

¶8 As a result, the trial court found that Rudolph was a persistent offender and sentenced him to life imprisonment without parole. Rudolph appeals his conviction and POAA sentence.

ANALYSIS

I. Persistent Offender—Constitutionality

¶9 Citing Blakely, 542 U.S. 296, Rudolph argues that Washington’s POAA sentencing procedures are unconstitutional because they allow the trial court to make factual findings about prior convictions, which increase punishment, rather than requiring a jury to make these findings. The State responds that we have already resolved this issue contrary to Rudolph’s position in State v. Ball, 127 Wn. App. 956, 113 P.3d 520 (2005), review denied, 156 Wn.2d 1018 (2006), in which we held that the POAA is a recidivism statute not subject to Blakely analysis.⁷ We decline to reverse Ball and, instead, adhere to our previous holding that POAA sentencing procedures are not subject to Blakely.⁸

A. Continuing Validity of Fact of a Prior-Conviction Exception

¶10 At the outset, we reiterate a long-standing rule of statutory construction: We presume statutes to be constitutional. State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971).

¶11 In 1991, in State v. Thorne, the Washington Supreme Court decided that because the essential elements of a crime must be set out in the charging document, the POAA would be unconstitutional only if it created a separate offense that the charging document did not allege. 129 Wn.2d 736, 779, 921 P.2d 514 (1996) (citing State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991)). Ten years later, in State v. Wheeler, our Supreme Court reexamined Thorne in light of Apprendi, 530 U.S. 466, and held that the POAA did not create a separate offense because the POAA did not define or specify the elements of a crime; therefore, neither the federal constitution nor the Sentencing Reform Act of 1981 (SRA) (chapter 9.94ARCW) required prior convictions resulting in a life sentence under the POAA to be pleaded in the information, submitted to a jury, or proved beyond a reasonable doubt.⁹ 145 Wn.2d 116, 117, 121, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002); see also State v. Smith, 150 Wn.2d 135, 156, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004) (discussing Wheeler’s continued validity in light of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and Apprendi, and stating: “[N] either the sixth amendment to the United States Constitution nor article I, sections 21 and 22 of the Washington Constitution includes the right to a jury determination of prior convictions at sentencing.”); State v. Rivers, 130 Wn. App. 689, 694-95, 128 P.3d 608 (2005) (citing Smith and holding that Blakely and Ring did not alter the holdings in Smith or Wheeler).

¶12 The United States Supreme Court’s subsequent decision in Blakely excludes the fact of prior convictions from its constitutionally-based jury trial requirement in Apprendi for facts that increase the penalty beyond what the court could impose without additional factual findings.¹⁰ Blakely, 542 U.S. at 313. Therefore, Blakely does not affect Wheeler’s holding that imposing a life sentence without parole under the POAA is constitutional.

¶13 Accordingly, we decline to depart from our holding in Ball that the POAA is a recidivism statute: A life sentence under the POAA depends only on the fact of prior convictions; therefore, Blakely does not apply. The Almendarez-Torres exception to the jury trial requirement remains for facts of a prior conviction that can be proved by trustworthy documentation.¹¹ Almendarez-Torres, 523 U.S. 224.

B. Lavery

¶14 Rudolph argues, and the dissent agrees, that our ruling in Ball contradicts the Supreme Court’s previous decision in In re Personal Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005). In Lavery, our Supreme Court held that a sentencing court cannot determine disputed facts relating to the factual comparability of a prior federal crime used as a strike offense for POAA sentencing purposes. Id. at 256-57, 261-62. The court did not hold, however, that s jury could or must determine such facts under these circumstances. Id. at 257-58. Rather, it held that if the sentencing court cannot determine the relevant facts from the appropriate record, no fact finder, be it court or jury, can find the facts necessary to establish factual comparability of a broader foreign offense. Id.12 Lavery simply did not reach the issue here: whether a court or a jury must make new factual determinations related to facts implicit in the fact of a prior conviction, such as identity of the perpetrator.

¶15 Moreover, we acknowledged Lavery in a footnote in Ball,13 and our Supreme Court denied Ball’s petition for review. We are well aware that the Supreme Court’s denial of review is not an expression of their implicit acceptance of our decision in Ball. Nevertheless, Rudolph does not persuade us that the Supreme Court viewed our decision in Ball as inconsistent with its decision in Lavery either then or in the two years since. Nor does Rudolph persuade us that we should now overrule Ball.

¶16 Thus, we hold that the Almendarez-Torres prior-conviction exception remains and it applies to Washington’s POAA: The constitution requires neither a jury finding nor proof beyond a reasonable doubt of the fact of a prior conviction. Apprendi, 530 U.S. at 490. Accordingly, Rudolph does not overcome the presumption that the POAA is constitutional.

II. Scope of Prior-Conviction Exception: Identity Issue

¶17 Rudolph also argues, and the dissent asserts, that Blakely limits Almendarez-Torres’s prior-conviction exception by requiring a jury to decide the issue of whether the present and the prior perpetrators are the same person, where the defendant contests identity. This issue goes to the scope of the fact-of-a-prior-conviction exception. Again, we disagree.

¶18 At the outset, contrary to Rudolph’s and the dissent’s assertions, we adhere to our holding that neither Blakely nor Apprendi apply to the fact of Rudolph’s prior convictions, including the “ ‘intimately related,’ ”¹⁴ intrinsic fact of the prior perpetrator’s identity. Consistent with our holding, the dissent frankly acknowledges that “ [t]he United States Supreme Court has never directly ruled on whether, under a recidivist sentencing statute, a defendant contesting identity has a right to jury trial under the Apprendi/Blakely ‘prior conviction’ exception.” Dissent at 78-79. Nonetheless, the dissent advocates, “[I]t is no longer appropriate to hold categorically that the Sixth Amendment does not require a jury trial in a POAA sentencing proceeding.” Dissent at 82. We respectfully disagree.

A. Jones’ Holding

¶19 In our view, there is neither precedent nor justification to predict what the United States Supreme Court might hold under the facts here and then to apply an anticipatory, speculative new rule, especially in light of our Supreme Court’s recent, seemingly contrary, post -Blakely and post-Lavery decision in State v. Jones, 159 Wn.2d 231, 241, 149 P.3d 636 (2006). In Jones, the court addressed issues closely related to the identity issue here and concluded that “[t]o give effect to the prior-conviction exception, Washington’s sentencing courts must be allowed as a matter of law to determine not only the fact of a prior conviction but also those facts ‘intimately related to [the] prior conviction.’ ” Id. (emphasis added) (second alteration in original) (quoting United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005)).

¶20 In Jones, a five-justice majority of our Supreme Court expressly rejected the contention that the Almendarez-Torres prior-conviction exception no longer exists.¹⁵ Id. at 239 n.7. The court stated:

To give effect to the prior[-]conviction exception, Washington’s sentencing courts must be allowed as a matter of law to determine not only the fact of a prior conviction but also those facts “intimately related to [the] prior conviction” such as the defendant’s community custody status.

Id. at 241 (emphasis added) (second alteration in original) (quoting Moore, 401 F.3d at 1225; citing United States v. Mattix, 404 F.3d 1037, 1038 (8th Cir. 2005) (per curiam) (courts have long considered prior criminal history as a sentencing factor for a court to decide rather than a fact issue for the jury, and the Supreme Court has not changed that rule, pointing to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and Shepard v. United States, 544 U.S. 13, 27, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005)).

¶21 If, as our Supreme Court held in Jones, a defendant’s community custody status is a fact “intimately related to [the] prior conviction,” then surely the identity of a prior crime’s perpetrator is similarly a fact “intimately related to [the] prior conviction,” which falls under the prior-conviction exception to the Blakely jury requirement. Rudolph does not point to any authority that allows us to ignore Jones and to conclude, instead, that the AlmendarezTorres prior-conviction exception no longer exists. This lack of authority is especially glaring in the context of proving prior perpetrator identity, which, as Jones noted, is most “intimately related to” the fact of the prior conviction itself. Jones, 159 Wn.2d 231.

¶22 Furthermore, mere speculation that the United States Supreme Court might eventually reject the Almendarez-Torres prior-conviction exception does not justify our rejection of the prior-conviction exception preemptively, as the dissent would have us do. See, e.g., id. at 239 n.7 (“Even if we were inclined to agree with the dissent’s unstated assertion that it is only a matter of time before that case is overruled, we are certainly not free to overrule or ignore established Supreme Court precedent.” “ ‘[I]t is [the Supreme] Court’s prerogative alone to overrule one of its precedents.’ ” (second alteration in original) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d (1997))). On the contrary, in light of the United States Supreme Court’s and the Washington Supreme Court’s continued adherence to excepting the fact of prior convictions from Apprendi’s and Blakely's jury trial requirement, we believe it improvident for us to extend Blakely to apply to proof of identity, which is intrinsic to the clearly excepted fact of a prior conviction itself.¹⁶

B. Jones' Dicta

¶23 Insofar as the dissent seeks to rely on dicta in Lavery, we recite at the outset our Supreme Court’s recent admonition that we should not treat as dispositive its rulings that do not “answer [ ] the question [s] presented in the case at bar.” State v. Frost, 160 Wn.2d 765, 775, 161 P.3d 361 (2007).

¶24 Nevertheless, if, as the dissent urges, we are to look to Supreme Court dicta for guidance in answering questions that our Supreme Court has not yet expressly addressed, then in our view, it is logical to look to its most recent relevant dicta. Our Supreme Court decided Jones a year after it decided Lavery. Especially in comparison with Lavery, the court’s dicta in Jones is both directly on point and the most recent pronouncement of its view on the issue before us. In a footnote, the Jones court stated:

[W]e join the Second Circuit Court of Appeals in rejecting the argument that the prior [-] conviction exception applies only when the prior conviction and facts related thereto may be determined with ease and/or without challenge. See [United States v.] Santiago, 268 F.3d [151,] 156 [(2d Cir. 2001)] (“While the Almendarez-Torres exception to the Apprendi rule . . . typically involves a relatively uncontested record, this is by no means always the case. The determination of‘the fact of a prior conviction’ implicitly entails many subsidiary findings, not the least of which is that the defendant [presently] being sentenced is the same defendant who . . . was convicted of those prior offenses, a fact that could be quite controversial indeed.” . . .).

Jones, 159 Wn.2d at 244 n.8 (emphasis added) (emphasis omitted) (some alterations in original).

¶25 This explanation in Jones directly acknowledges that identity may be an issue relevant to determining whether a prior conviction was committed by the defendant being sentenced. But Jones neither holds nor suggests that the Almendarez-Torres exception to the jury requirement does not apply to identity; instead, it suggests a contrary result.

¶26 Nor does Jones require a jury to decide the fact of a prior perpetrator’s identity. Jones not only holds that the sentencing court can determine facts closely related to and implicit in finding the fact of a prior conviction, but it also specifically notes that included in the realm of such closely related facts is identity, namely that the defendant being sentenced is the same defendant who was convicted of the prior enumerated offenses. Id. But even aside from this dicta in Jones, we can think of no fact more intimately related to the fact of a prior conviction than the identity of the defendant.

¶27 Accordingly, we hold that (1) existing case law does not give Rudolph the right to have a jury decide whether he is the same defendant who committed the crimes resulting in his prior convictions used as strike offenses to establish his persistent offender status under the POAA and, thus, subject him to life imprisonment without parole for his new crime; (2) identity is a fact so “intimately related to [the] prior conviction,” under Jones, as to be virtually inseparable from the finding of the existence of a prior conviction; (3) the Almendarez-Torres fact-of-the-prior-conviction exception to the Apprendi/Blakely jury-trial requirement necessarily includes identity; and (4) thus, Apprendi and Blakely do not require a jury to decide the identity component of the fact of a prior conviction. Therefore, the sentencing court may, as it did here, find by a preponderance of the evidence that the perpetrator of the present crime is the same person as the perpetrator of a prior crime used as a strike offense for POAA sentencing purposes.

¶28 Affirmed.

¶29 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Van Deren, A.C.J., concurs.

1 RCW 9.94A.570.

2 Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).

3 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

4 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

5 ROW 9A.52.020(1).

6 The Florida judgment and sentences included Rudolph’s guilty plea convictions for petit theft, three counts of aggravated battery, robbery, two counts of armed robbery, and one count of aggravated battery with a firearm.

7 Following oral argument and after the Washington Supreme Court denied review of Ball, we requested additional briefing from the parties on the scope and application of Ball and the impact of Blakely, if any, on the requirements for proving identity in a POAA case. Order Requiring Additional Briefing, State v. Rudolph, No. 32658-2-II (Wash. Ct. App. Aug. 7, 2006).

8 We note that another panel of this court recently addressed arguments substantially similar to Rudolph’s arguments and also adhered to Ball. State v. Lewis, 141 Wn. App. 367, 166 P.3d 786 (2007).

9 At the outset in Wheeler, our Supreme Court noted:

We must decide whether, in light of Apprendi, prior convictions used to prove a defendant is a persistent offender must be charged in the information, submitted to a jury, and proved beyond a reasonable doubt. 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 [POAA] of the [SRA], chapter 9.94ARCW.

State v. Wheeler, 145 Wn.2d 116, 117, 121, 34 P.3d 799 (2001) (citation omitted), cert. denied, 535 U.S. 996 (2002).

10 Under Apprendi a jury must find any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the penalty the court can impose without making additional factual findings. 530 U.S. at 490. Prior convictions can be proved to a judge by a preponderance of the evidence because of the procedural safeguards attached to any “fact” of a prior conviction. Id. at 488.

As the dissent notes, this prior-conviction exception originated with the United States Supreme Court’s decision in Almendarez-Torres, in which the Court recognized that a defendant’s recidivism “is a traditional, if not the most traditional, basis for a sentencing court” to increase the offender’s current sentence. 523 U.S. at 243.

11 Such documentation is frequently derived in part from, for example, a previous jury’s verdict or the defendant’s guilty plea to a prior crime, which provide the necessary factual basis to support the fact of a prior conviction.

12 More specifically, the Lavery court held:

Where the foreign statute is broader than Washington’s, [an examination of the record to determine factual comparability] may not be possible because there may have been no incentive for the accused to have attempted to prove that he did not commit the narrower offense. See, e.g., State v. Ortega, 120 Wn. App. 165, 84 P.3d 935 (2004).

Any attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction, proves problematic. Where the statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable.

As in Ortega Lavery had no motivation in the earlier conviction to pursue defenses that would have been available to him under Washington’s robbery statute but were unavailable in the federal prosecution.

Lavery, 154 Wn.2d at 257-58.

13 In this footnote, we noted:

We considered [Lavery] in reaching our decision. Lavery is inapplicable to this case because Ball’s prior convictions were from the state of Washington and not foreign convictions. Further, the court did not have to make any factual findings regarding the prior convictions ....

Ball, 127 Wn. App. at 957 n.1.

14 State v. Jones, 159 Wn.2d 231, 241, 149 P.3d 636 (2006) (quoting United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005)).

15 The Jones court addressed and concluded that under the prior-conviction exception, the sentencing court could determine, as a “matter of law,” whether a defendant was on community custody at the time he committed the current offense because this fact was closely related to and flowed directly from the fact of the prior conviction. Jones, 159 Wn.2d at 239 n.7, 241.

In so holding, the Jones court rejected the argument that the sentencing court could not decide a defendant’s community custody status as a matter of law because this issue might require the sentencing court to “consider factors beyond the existence of the prior conviction and that because such considerations could be complex or even challenged, ‘[t]he procedural safeguards necessary to the priori-] conviction exception are not present’ in the community placement determination.” Id. at 244 (alteration in original) (footnote omitted) (quoting Resp’ts’ Answer to Pet. for Review at 10).

16 For example, in Shepard, 544 U.S. 13, the United States Supreme Court limited the scope of judicial fact finding under a federal sentencing scheme that increased penalties based on the existence of certain types of prior offenses. In so doing, however, the Court neither addressed nor held that a jury must find the identity of a person convicted of a prior offense.