State v. Witherspoon

329 P.3d 888, 180 Wash. 2d 875

Opinions

J.M. Johnson, J.

Footnotes

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¶1 — Petitioner Alvin Witherspoon

challenges his conviction and life sentence for second degree robbery.¹ Because the robbery conviction was his third “most serious offense,” he was sentenced to life in prison without the possibility of release under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW; RCW 9.94A-.570. We affirm the Court of Appeals, upholding Witherspoon’s conviction and sentence.

Facts and Procedural History

¶2 On November 12, 2009, Witherspoon and his fiancée drove to the victim’s home. Witherspoon does not dispute that he then broke into the victim’s home and stole several items. While the burglary was in progress, the victim returned home and noticed an unknown car parked in her driveway. The victim exited her car and saw Witherspoon walking from around the side of her home. He was holding his left hand behind his back. The victim testified at trial that she asked Witherspoon what he had behind his back, and he said he had a pistol. He then got in his car and drove away. The victim noticed some of her belongings in the back of his car, followed him in her own car, and called 911 as he fled the scene. Police arrested Witherspoon and his fiancée, obtained a search warrant, and found multiple items belonging to the victim in their home. From jail, Witherspoon called his fiancée, attempting to convince her to stop talking to the police and lie about the crime. The phone conversation was recorded by the jail.

¶3 A jury found Witherspoon guilty of residential burglary and second degree robbery based on the events of November 12, 2009. See RCW 9A.52.025(1); RCW 9A.56-.190, .210(1). The jury also found him guilty of witness tampering based on the jailhouse phone conversation he had with his fiancée after his arrest. See RCW 9A.72-.120(1). At sentencing, the court determined that the certified conviction documents met the State’s burden to prove two prior strike convictions. The court found that Wither-spoon is a persistent offender and sentenced him to life in prison without the possibility of early release.

¶4 On appeal, he challenged his convictions and sentence on a number of grounds. The Court of Appeals affirmed his convictions and sentence. State v. Witherspoon, 171 Wn. App. 271, 286 P.3d 996 (2012). Witherspoon sought discretionary review in this court, which was granted on only four issues. State v. Witherspoon, 177 Wn.2d 1007, 300 P.3d 416 (2013).

Issues

¶5 1. Whether there was sufficient evidence to support Witherspoon’s second degree robbery conviction.

¶6 2. Whether Witherspoon’s counsel was ineffective in not asking for an instruction on first degree theft as a lesser included offense.

¶7 3. Whether Witherspoon’s persistent offender sentence constitutes cruel or cruel and unusual punishment.

¶8 4. Whether Witherspoon’s previous strike offenses should have been proved to a jury beyond a reasonable doubt.

Analysis

1. There Was Sufficient Evidence To Support Witherspoon’s Second Degree Robbery Conviction

¶9 Witherspoon claims that insufficient evidence exists to prove all elements of second degree robbery, as instructed to the jury. “The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). Witherspoon must accordingly admit the truth of the State’s evidence and all reasonable inferences that can be drawn from such evidence. Id. We must also defer to the fact finder on issues of witness credibility. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). In this case, a rational trier of fact could have found guilt beyond a reasonable doubt. Consequently, sufficient evidence exists to support the jury’s verdict.

¶10 Pursuant to RCW 9A.56.190:

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.[²]

(Emphasis added.) The jury instruction in this case included the statutory language above but omitted the word “such” from the phrase “such force or fear must be used to obtain or retain possession of the property.” It therefore read, in part, “That force or fear was used by the Defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking or to prevent knowl edge of the taking.” Clerk’s Papers at 55 (Instruction 11).

¶11 Witherspoon asserts that under the law of the case doctrine, the jury instruction required the State to prove actual force or fear. This doctrine provides that a jury instruction not objected to becomes the law of the case. State v. Willis, 153 Wn.2d 366, 374, 103 P.3d 1213 (2005) (citing State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)). “In a criminal case, the State assumes the burden of proving otherwise unnecessary elements of the offense when such elements are included without objection in a jury instruction.” Id. at 374-75 (citing Hickman, 135 Wn.2d at 102). Contrary to Witherspoon’s assertion, the exclusion of the word “such” does not change the plain meaning of the instruction in a way that requires the State to prove actual force or fear.

¶12 Witherspoon claims that he made, at most, an implied threat that instilled no fear. He further claims that even if there had been force or fear, it did not help accomplish the robbery because the victim did not know that Witherspoon had taken any of her property until he drove away. He contends that her ignorance did not stem from force, fear, or threats. Because we determine intimidation based on an objective test, Witherspoon’s argument does not stand.

¶13 “Robbery encompasses any ‘taking of . . . property [that is] attended with such circumstances of terror, or such threatening by menace, word or gesture as in common experience is likely to create an apprehension of danger and induce a man to part with property for the safety of his person.’ ” State v. Shcherenkov, 146 Wn. App. 619, 624-25, 191 P.3d 99 (2008) (alterations in original) (quoting State v. Redmond, 122 Wash. 392, 393, 210 R 772 (1922)). To determine whether the defendant used intimidation, we use an objective test. We consider whether an ordinary person in the victim’s position could reasonably infer a threat of bodily harm from the defendant’s acts. Id. at 625 (quoting 67 Am. Jur. 2d Robbery § 89, at 114 (2003)).

¶14 Taking the facts in the light most favorable to the State, a rational jury could have found that Witherspoon used force or the threatened use of force in this case. The victim testified at trial that she noticed an unknown car in her driveway when she arrived home. As she exited her car, she saw Witherspoon come around the side of her home with one hand behind his back. She testified that she asked him what he had behind his back and he said he had a pistol. A rational jury could have found that this was an implied threat that he would use force if necessary to retain her property. The evidence is sufficient to prove the elements of second degree robbery beyond a reasonable doubt. We accordingly affirm the Court of Appeals, which upheld Witherspoon’s robbery conviction.

2. Witherspoon Does Not Prove That Counsel Was Ineffective in Not Asking for an Instruction on First Degree Theft as a Lesser Included Offense

¶15 Witherspoon argues ineffective assistance of counsel because his trial counsel did not request an instruction on theft as a lesser included offense. Counsel’s performance, however, did not fall below an objective standard of reasonableness.

¶16 In order for a petitioner to prevail on an ineffective assistance claim, he must overcome the presumption that his counsel was effective. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome this presumption, Witherspoon must demonstrate that “(1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’ ” In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013) (quoting Strickland, 466 U.S. at 687-88). However, “if a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual and substantial prejudice.” In re Pers. Restraint of Grace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). Accordingly, to prevail on his claim, Witherspoon must prove that trial counsel’s “acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

¶17 Under RCW 10.61.006, both the defendant and the State have the right to present a lesser included offense to the jury. State v. Stevens, 158 Wn.2d 304, 310, 143 P.3d 817 (2006). To prove the lesser included offense, the party requesting the instruction must meet a two-pronged test: (1) “under the legal prong, all of the elements of the lesser offense must be a necessary element of the charged offense” and (2) “under the factual prong, the evidence must support an inference that the lesser crime was committed.” Id. (citing State v. Gamble, 154 Wn.2d 457, 462-63, 114 P.3d 646 (2005)).

¶18 In State v. Grier, 171 Wn.2d 17, 39, 246 P.3d 1260 (2011), we recognized that whether to request a jury instruction on lesser included offenses is a tactical decision. “Thus, assuming that defense counsel has consulted with the client in pursuing an all or nothing approach, a court should not second-guess that course of action, even where, by the court’s analysis, the level of risk is excessive and a more conservative approach would be more prudent.” Id. Here, the tactical decision was prudent, if unsuccessful.

¶19 Witherspoon’s trial counsel chose to take an “all or nothing” approach that included not requesting a jury instruction on the lesser included offense of theft. Admittedly, conviction for the robbery charge was a close call. Witherspoon and his counsel chose to tactically defend on the possibility that the State could not prove to the jury that the property was taken by the use or threatened use of force or injury. See RCW 9A.56.190. They lost that bet, and the jury convicted Witherspoon of second degree robbery.

¶20 Witherspoon failed to meet his burden of proving ineffective assistance of counsel under Strickland. Accordingly, we affirm the Court of Appeals on this issue.

3. Witherspoon’s Persistent Offender Sentence Does Not Constitute Cruel or Cruel and Unusual Punishment

¶21 In addition to challenging his robbery conviction, Witherspoon also challenges his POAA sentence. He claims that his life sentence violates the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington State Constitution. The Eighth Amendment bars cruel and unusual punishment while article I, section 14 bars cruel punishment. This court has held that the state constitutional provision is more protective than the Eighth Amendment in this context. State v. Rivers, 129 Wn.2d 697, 712, 921 P.2d 495 (1996) (citing State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980)). Consequently, if we hold that Witherspoon’s life sentence does not violate the more protective state provision, we do not need to further analyze the sentence under the Eighth Amendment. See id.

¶22 Fain provides four factors to consider in analyzing whether punishment is prohibited as cruel under article I, section 14: “(1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction.” Id. at 713 (citing Fain, 94 Wn.2d at 397). In Rivers, we analyzed facts similar to the ones in this case under the Fain factors. In Rivers, a jury returned a verdict of guilty on the robbery charge. Rivers was sentenced to life in prison without the possibility of release because he was found to have committed three most serious offenses. He challenged his sentence on a number of grounds, including that it violated both the Eighth Amendment and article I, section 14. This court applied the Fain factors, concluding that the POAA, as applied to Rivers, was not unconstitutional. Id. We reach the same conclusion in this case.

¶23 The first Fain factor is the nature of the offense. Id. As was noted in Rivers, robbery is a most serious offense. Id.) RCW 9.94A.030(32)(o). “The nature of the crime of robbery includes the threat of violence against another person.”Rivers, 129 Wn.2d at 713. Here, the victim testified that the defendant told her he had a gun behind his back. This statement contains an implied threat.

¶24 The second Fain factor is the legislative purpose behind the statute. Id. In Rivers, we recognized that “the purposes of the persistent offender law include deterrence of criminals who commit three ‘most serious offenses’ and the segregation of those criminals from the rest of society.” Id. (citing State v. Thorne, 129 Wn.2d 736, 775, 921 P.2d 514 (1996), abrogated on other grounds by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)).

¶25 The third Fain factor is the punishment that the defendant would have received in other jurisdictions. Id. at 714. According to the concurrence/dissent, there are only three states outside of Washington in which a conviction of second degree robbery as a “third strike” offense triggers a mandatory sentence of life without parole. Concurrence/ dissent at 907. Although these three states’ treatment of similar crimes indicates that Washington is not alone in this area, the concurrence/dissent is correct that this Fain factor weighs in favor of a finding of disproportionality. However, this factor alone is not dispositive.

¶26 The fourth Fain factor is the punishment meted out for other offenses in the same jurisdiction. Rivers, 129 Wn.2d at 714. In Washington, all adult offenders convicted of three “most serious offenses” are sentenced to life in prison without the possibility of release under the POAA. In State v. Lee, we held that a life sentence imposed on a defendant convicted of robbery and found to be a habitual criminal was not cruel and unusual punishment. Id. (citing State v. Lee, 87 Wn.2d 932, 558 P.2d 236 (1976)). In that case, this court held, “ ‘Appellant’s sentence does not constitute cruel and unusual punishment. The life sentence con tained in RCW 9.92.090 is not cumulative punishment for prior crimes. The repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty for the crime.’ ” Id. at 714-15 (quoting Lee, 87 Wn.2d at 937). In Washington, “most serious offenses,” including robbery, carry with them the sentence of life in prison without the possibility of release when the offender has a history of at least two other similarly serious offenses.

¶27 Considering the four Fain factors, Witherspoon’s sentence of life in prison without the possibility of release does not violate article I, section 14 of the Washington State Constitution or the Eighth Amendment to the United States Constitution. This court has repeatedly held that a life sentence after a conviction for robbery is neither cruel nor cruel and unusual. See id. at 715; State v. Manussier, 129 Wn.2d 652, 677, 921 P.2d 473 (1996) (a life sentence imposed for second degree robbery under POAA did not constitute cruel or cruel and unusual punishment where defendant’s prior convictions were for first degree robbery); Lee, 87 Wn.2d at 937 (holding that a life sentence imposed for robbery under habitual criminal statute did not constitute cruel and unusual punishment where defendant’s prior convictions were for robbery, two second degree burglaries, and second degree assault). Here, Witherspoon’s earlier offenses were for first degree burglary and residential burglary with a firearm. The sentence of life in prison without the possibility of release for this third strike offense is proportionate to the crime.

¶28 As noted, because we hold that Witherspoon’s life sentence does not violate the Washington Constitution’s prohibition on cruel punishment, we do not need to further analyze Witherspoon’s sentence under the Eighth Amendment. However, Witherspoon claims that recent United States Supreme Court precedent regarding the Eighth Amendment prohibits life sentences for offenders in his position. This argument is entirely without merit.

¶29 Witherspoon cites to Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller v. Alabama, _ U.S. _, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), for the proposition that a second degree robbery conviction cannot give rise to a mandatory sentence of life in prison without the possibility of release. He contends that the sentencing court must be able to reject such sentences when warranted by the pettiness of the offense or the characteristics of the offender. Graham and Miller are readily distinguishable and do not support such a claim.

¶30 In Graham, 560 U.S. at 81, the United States Supreme Court held that the Eighth Amendment prohibits the imposition of life sentences without the possibility of release on juvenile offenders who did not commit homicide. Two years later in Miller, 132 S. Ct. at 2460, the Court held that mandatory sentencing of life without release for those under the age of 18 at the time of their crimes violates the Eighth Amendment. In Miller, the Court noted that Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and Graham establish that children are constitutionally different from adults for sentencing purposes. Miller, 132 S. Ct. at 2464. This line of cases has relied on three argued differences between children and adults: (1) children lack maturity and have an underdeveloped sense of responsibility that can lead to impulsivity and risk taking; (2) children are vulnerable to negative influences and have little control over their environments; and (3) children’s characters are not well formed, meaning that their actions are less likely than adults’ to be evidence of depravity. Id.

¶31 Graham and Miller unmistakably rest on the differences between children and adults and the attendant propriety of sentencing children to life in prison without the possibility of release. Witherspoon was an adult when he committed all three of his strike offenses. These cases do not support Witherspoon’s argument that all sentencing systems that mandate life in prison without the possibility of release for second degree robbery are per se invalid under the Eighth Amendment.

¶32 Under our established precedent, along with that of the United States Supreme Court, Witherspoon’s sentence violates neither article I, section 14 of our state constitution nor the Eighth Amendment to the United States Constitution. We accordingly affirm the Court of Appeals, upholding Witherspoon’s POAA sentence.

4. The Law Does Not Require That Witherspoon’s Previous Strike Offenses Be Proved to a Jury beyond a Reasonable Doubt

¶33 Witherspoon claims that previous strike offenses must be proved to a jury beyond a reasonable doubt within the context of sentencing under the POAA. He argues that prior convictions are elements of a crime when they elevate a class B felony to a third strike offense. Witherspoon concedes that Blakely contains an exception for prior convictions³ but contends that the United States Supreme Court’s recent decision in Alleyne v. United States, _ U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), eliminates justification for this exception. This argument fails.

¶34 In Apprendi v. New Jersey the United States Supreme Court 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.” 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis added). Several years later in Blakely, 542 U.S. at 313-14, the United States Supreme Court held that sentencing above the statutory maximum of the standard range based on the sentencing judge’s finding of deliberate cruelty violated a defendant’s right to trial by jury under the Sixth Amendment to the United States Constitution. However, the Court specifically noted, “By reversing the judgment below, we are not . . . ‘finding] determinate sentencing schemes unconstitutional.’ This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.” Id. at 308 (second alteration in original) (citation omitted). Nowhere in Blakely did the Court question Apprendi’s exception for prior convictions or the propriety of determinate sentencing schemes.

¶35 Earlier this year, the United States Supreme Court again considered which facts must be proved to a jury under the Sixth Amendment if such facts may increase a criminal sentence. Alleyne, 133 S. Ct. 2151. The Court held that any fact that increases a mandatory minimum sentence for a crime is an element of the crime that must be submitted to the jury. Id. at 2155. Witherspoon argues that under Alleyne’s reasoning, prior convictions must be proved to a jury beyond a reasonable doubt before they can be used to enhance a sentence. This is, however, incorrect. Like Blakely, nowhere in Alleyne did the Court question Apprendi’s exception for prior convictions. It is improper for us to read this exception out of Sixth Amendment doctrine unless and until the United States Supreme Court says otherwise. Accordingly, Wither-spoon’s argument that recent United States Supreme Court precedent dictates that his prior convictions must be proved to a jury beyond a reasonable doubt is unsupported.

¶36 We have long held that for the purposes of the POAA, a judge may find the fact of a prior conviction by a preponderance of the evidence. In Manussier, 129 Wn.2d at 681-84, we held that because other portions of the SRA utilize a preponderance standard, the appropriate standard for the POAA is by a preponderance of the evidence. We also held that the POAA does not violate state or federal due process by not requiring that the existence of prior strike offenses be decided by a jury. Id. at 682-83. This court has consistently followed this holding. We have repeatedly held that the right to jury determinations does not extend to the fact of prior convictions for sentencing purposes. See State v. McKague, 172 Wn.2d 802, 803 n.1, 262 P.3d 1225 (2011) (collecting cases); see also In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837 (2005) (“In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt.”); State v. Smith, 150 Wn.2d 135, 139, 75 P.3d 934 (2003) (prior convictions do not need to be proved to a jury beyond a reasonable doubt for the purposes of sentencing under the POAA).

¶37 “The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.” In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). Witherspoon has not made such a showing. Accordingly, it is settled law in this state that the procedures of the POAA do not violate federal or state due process. Neither the federal nor state constitution requires that previous strike offenses be proved to a jury. Furthermore, the proper standard of proof for prior convictions is by a preponderance of the evidence.

¶38 The State bears the burden of proving by a preponderance of the evidence the existence of prior convictions as predicate strike offenses for the purposes of the POAA. State v. Knippling, 166 Wn.2d 93, 100, 206 P.3d 332 (2009) (quoting In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005)). In State v. Hunley, 175 Wn.2d 901, 915, 287 P.3d 584 (2012), this court held that “constitutional due process requires at least some evidence of the alleged convictions.” Furthermore, “ ‘[t]he best evidence of a prior conviction is a certified copy of the judgment.’ ” Id. at 910 (quoting State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999)).

¶39 Here, the trial court possessed certified copies of three judgments and sentences from Snohomish County. Exs. 2-4. Exhibit 3 showed the defendant had committed a residential burglary with a firearm, which is a most serious offense pursuant to RCW 9.94A.030(32)(t). Exhibit 4 demonstrated that the defendant had committed a first degree burglary, which is a most serious offense pursuant to RCW 9.94A.030(32)(a). The court noted at sentencing, “I believe that it is the same person in light of the presentence investigation as well as the certified copy that’s entered.” Reporter’s Tr. on Appeal (Sentencing) at 35. Accordingly, the State met its burden of proving two previous strike offenses by a preponderance of the evidence.

¶40 United States Supreme Court precedent, as well as this court’s own precedent, dictate that under the POAA, the State must prove previous convictions by a preponderance of the evidence and the defendant is not entitled to a jury determination on this issue. Here, based on certified copies of two judgments and sentences, the trial court determined that Witherspoon is a persistent offender and must be sentenced to life in prison without the possibility of release. We affirm the Court of Appeals, upholding Witherspoon’s POAA sentence.

Conclusion

¶41 We affirm the Court of Appeals on all four issues accepted for review. First, there was sufficient evidence to support Witherspoon’s second degree robbery conviction. Second, Witherspoon failed to meet his burden of proving ineffective assistance of counsel on the grounds that he and his counsel tactically determined not to request a jury instruction on first degree theft as a lesser included offense, hoping for a not guilty verdict if the State failed to prove all elements of the greater offense. Third, Witherspoon’s life sentence without the possibility of release does not constitute cruel or cruel and unusual punishment. Finally, the law does not require that Witherspoon’s previous strike offenses be proved to a jury beyond a reasonable doubt. We accordingly affirm the Court of Appeals, upholding the robbery conviction and the POAA life sentence without the possibility of release.

Madsen, C.J., and C. Johnson, Owens, and Stephens, JJ., concur.

Justice James M. Johnson is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).

1

The Court of Appeals erred by stating that the challenged conviction was for second degree robbery while armed with a deadly weapon. See State v. Witherspoon, 171 Wn. App. 271, 280, 286 P.3d 996 (2012). The trial court never made a finding that Witherspoon was armed with a deadly weapon. See Clerk’s Papers at 5. The presentence investigation report also contains this error. See Reporter’s Tr. on Appeal (Sentencing) at 2 (identifying this inaccuracy and noting that the trial court did not rely on it for sentencing purposes).

2

In 2011, the legislature amended this statute to be gender neutral. This amendment did not affect the substance of the statute.

3

State v. Magers, 164 Wn.2d 174, 193, 189 P.3d 126 (2008) (“[T]he Court of Appeals has held that Blakely does not apply to sentencing under the POAA, Blakely being specifically directed at exceptional sentences. State v. Ball, 127 Wn. App. 956, 957, 959-60, 113 P.3d 520 (2005). We agree with this conclusion.”).