State v. Rudolph

168 P.3d 430

141 Wn. App. 59

STATE of Washington, Respondent, v. Carlton Roosevelt RUDOLPH, Appellant.

No. 32658-2-II.

Court of Appeals of Washington, Division 2.

October 2, 2007.

David Mathews Soukup, Thurston County Prose Atty Ofc, Olympia, for Respondent.

Thomas Edward Doyle, Hansville, Patricia Anne Pethick, Tacoma, for Appellant.

PUBLISHED in part OPINION

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 POAA is 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, Ruldolph 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 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 v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), 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 Wash.App. 956, 113 P.3d 520 (2005), review denied, 156 Wash.2d 1018, 132 P.3d 734 (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 Wash.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 Wash.2d 736, 779, 921 P.2d 514 (1996) (citing State v. Kjorsvik, 117 Wash.2d 93, 812 P.2d 86 (1991)). Ten years later, in State v. Wheeler, our Supreme Court reexamined Thorne in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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 (chapter 9.94A RCW) ("SRA") 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 Wash.2d 116, 117, 121, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996, 122 S.Ct. 1559, 152 L.Ed.2d 482 (2002); see also State v. Smith, 150 Wash.2d 135, 156, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909, 124 S.Ct. 1616, 158 L.Ed.2d 256 (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 Wash.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, 124 S.Ct. 2531. 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 v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

B. Lavery

¶ 14 Rudolph argues, and the dissent agrees, that our ruling in Ball contradicts the Supreme Court's previous decision in In re Pers. Restraint of Lavery, 154 Wash.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. 154 Wash.2d at 256-57, 261-62, 111 P.3d 837. The Court did not hold, however, that a jury could or must determine such facts under these circumstances. Id. at 257-58, 111 P.3d 837. 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. W...