535595MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 53559-5-I
Title of Case: State of Washington, Respondent v. Larry Rivers, Appellant
File Date: 11/21/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 03-1-00563-7
Judgment or order under review
Date filed: 12/19/2003
Judge signing: Hon. Gain Brian D


JUDGES
------
Authored by Ronald Cox
Concurring: Anne Ellington
Marlin Appelwick


COUNSEL OF RECORD
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Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
Seattle, WA 98101

Elaine L Winters
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Dennis John McCurdy
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2362


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

)
STATE OF WASHINGTON, ) No. 53559-5-I
)
Respondent, ) DIVISION ONE
)
v. )
)
LARRY RIVERS, ) PUBLISHED IN PART
)
Appellant. ) FILED: November 21, 2005
)

COX, C.J. -- Neither the federal nor the state constitution requires
a jury to determine beyond a reasonable doubt the fact of a prior
conviction.1 Despite speculation about the continued validity of
Almendarez-Torres v. United States,2 the United States Supreme Court has
not reconsidered that case.3 Accordingly, we reject the argument of Larry
Rivers in this appeal of his convictions for first degree robbery, second
degree assault, and first degree kidnapping that he was entitled to a jury
as part of his sentencing procedures under the Persistent Offender
Accountability Act (POAA). Moreover, the other substantive challenges that
he makes to the POAA and the restitution order are unpersuasive. The
evidentiary rulings that Rivers challenges do not require reversal. The
robbery and assault convictions do not violate double jeopardy. But, under
the facts of this case, the two crimes merge. We further hold that there
was insufficient evidence to prove that Rivers is a persistent offender
under the POAA.
Accordingly, we affirm his robbery and first degree kidnapping convictions,
vacate the second degree assault conviction, reverse his life sentence
without the possibility of parole, and remand for resentencing.4
An Mam, the victim of the charged crimes in this case, was sitting in his
parked car drinking coffee when Danielle McCrae approached him and asked
for money. Mam refused, claiming he had no money. McCrae then attempted
to kiss Mam. When he again rebuffed her, Rivers appeared, and demanded
money from Mam at gunpoint. McCrae climbed into the back seat of Mam's
car, while Rivers pushed Mam to the passenger side and got into the
driver's seat.
McCrae held Mam by the back of the shirt and demanded money and a ring
he was wearing, while Rivers drove. After ten or fifteen minutes, Rivers
stopped the car. He pulled Mam out, demanding his ring and assaulting him.
Rivers broke Mam's glasses and several teeth, and inflicted serious cuts
and bruises. Rivers and McCrae then took Mam's car and drove off, leaving
him to walk home covered in blood.
When he arrived home, Mam reported the incident to the police. A
short time later, a patrol officer stopped Mam's car for a minor traffic
violation and, upon learning the car was stolen, arrested Rivers and
McCrae.
The charges against Rivers included first degree kidnapping, first
degree robbery, and second degree assault. McCrae, his accomplice, was not
tried in this proceeding. A jury convicted Rivers as charged. Based on
the argument that Rivers had been previously convicted of certain
qualifying offenses, the court sentenced Rivers under the POAA as a
persistent offender to life without the possibility of parole. The court
also imposed an order of restitution.
Rivers appeals.
JURY DETERMINATION OF PRIOR CONVICTIONS
Rivers challenges his life sentence as a persistent offender based on the
assertion that the federal and state constitutions grant him the right to
trial by jury for two prior 'most serious offenses.' He claims a jury must
find beyond a reasonable doubt that he was convicted of those offenses.
Because neither the federal nor state constitution requires a jury to
determine the fact of a prior conviction, we disagree.
This issue is controlled primarily by State v. Wheeler,5 State v. Smith6
and the federal cases we now discuss.
Federal Constitution
Rivers argues that in Apprendi v. New Jersey,7 the United States
Supreme Court retreated from its earlier decision in Almendarez-Torres,8
the precedent for our supreme court's holding that the federal constitution
does not require the fact of a prior conviction to be proved to a jury
beyond a reasonable doubt.9 Almendarez-Torres, he contends, does not
answer the question before the court because Blakely v. Washington,10 and
Ring v. Arizona11 expanded Apprendi to require any fact that increases
punishment to be decided by a jury. However, this same argument relying on
Ring was explicitly rejected by our supreme court in State v. Smith.12
There, the court noted 'the Ring Court did not specifically overrule
Almendarez-Torres or address the issue of prior convictions.'13 The court
reaffirmed its holding in State v. Wheeler stating that ' {in} Almendarez-
Torres 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.'14
Moreover, Blakely did not overrule Almendarez-Torres. Rather, in
reiterating the Apprendi rule, Blakely specifically excluded its
application to prior convictions, noting that the juries must determine any
fact, 'other than the fact of a prior conviction,' that increases a
sentence over the statutory maximum.15
Because prior convictions are not elements of a crime that must be
found by a jury beyond a reasonable doubt, Rivers' argument that he was
denied due process under the Fourteenth Amendment also fails.16
State Constitution
Smith also held that under the state constitution, 'there is no
constitutional requirement that defendants be given a jury trial on the
fact of their prior convictions,'17 rejecting Rivers' argument on state law
grounds. Rivers' reliance on State v. Furth18 is misplaced, as the holding
of that case was rejected by Smith. Furth, a pre-SRA case, held that the
state constitution required that a jury determine prior convictions in
habitual criminal proceedings.19 Smith disapproved of Furth's reasoning,
noting that '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.'20
Smith concluded that textual language of the constitution, which was the
sole basis of Furth's reasoning, '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.'21
Finally, neither State v. Hughes22 nor State v. Recuenco,23 additional
authorities that Rivers submitted, deals with the issue of a defendant's
right to a jury trial under the POAA. Thus, neither is helpful to our
analysis.
We adhere to the rationale more fully outlined in Smith. None of the
case law since that case was decided requires that we retreat from the
federal and state authority holding that a right to trial by jury does not
exist for the fact of prior convictions.
PROOF OF PRIOR CONVICTIONS
Rivers next argues that there is insufficient evidence to prove the
existence and nature of the two prior most serious offenses on which the
State relied to establish that he is a persistent offender under the POAA.
The prior convictions at issue are a 1987 second degree robbery conviction
and a 1989 second degree assault conviction. We hold that the State failed
in its burden to prove by a preponderance of the evidence one of the two
prior convictions on which it relied to establish that Rivers is a
persistent offender.
Waiver
For the first time in a supplemental brief that this court ordered
limited to other questions, the State argues that Rivers waived this
insufficiency of evidence argument on appeal by failing to make a specific
objection at the sentencing hearing. We disagree.
The law requires that the State prove by a preponderance of the
evidence prior convictions at a sentencing hearing under the POAA.24 Where
a convicted person does not enter into a plea agreement requiring
disclosure of prior criminal history, that individual has no obligation to
provide evidence of such history.25 '{I}in the context of sentencing,
established case law holds that illegal or erroneous sentences may be
challenged for the first time on appeal.'26 'We must 'indulge every
reasonable presumption against waiver' of fundamental constitutional
rights.'27
At the sentencing hearing in this case, Rivers contested the State's
position that he was a persistent offender under the POAA. The State
correctly points out that Rivers did not contest the authenticity of the
documents at issue in this case. But authenticity of the admitted
documents is not the issue. Whether the State proved by a preponderance of
the evidence two most serious offenses is the issue. Moreover, Rivers
objected, albeit on other grounds, to the use of the documents at issue and
never stipulated that the State had proven by a preponderance of the
evidence that any of the evidence established two prior most serious
offenses.28
We conclude that Rivers did not waive the right to contest on appeal
the sufficiency of the State's proof at the sentencing hearing to prove
whether he qualified as a persistent offender under the POAA.
Sufficiency of Evidence
The substance of Rivers' primary argument challenging his sentence is
that the State failed to prove by a preponderance of the evidence two prior
convictions for most serious offenses. We agree that the State failed to
prove one of the two convictions on which it relied.
The State must prove the existence of a prior conviction by a
preponderance of the evidence.29 To establish the existence of a
conviction, a certified copy of the judgment and sentence is the best
evidence.30 The State may introduce other comparable evidence only if it
shows that the writing is unavailable for some reason other than the
serious fault of the proponent.31 In that case, comparable documents of
record or trial transcripts may suffice.32 We review de novo the sentencing
court's calculation of the offender score.33
At sentencing, the State offered into evidence a certified copy of a
July 14, 1989 judgment and sentence for a second degree assault conviction
as one of two prior qualifying offenses on which it relied.34 Rivers' sole
contention on appeal regarding this assault conviction is that the
certified copy did not contain readable fingerprints and therefore the
State did not prove that he was the person sentenced. We reject this
argument.
The State also offered into evidence a judgment and sentence for a March
20, 1987 second degree robbery conviction as the other qualifying offense.
Both qualifying offenses are for Washington convictions.35
Unlike the separate certified copy of the judgment and sentence for the
assault conviction, the State did not submit a separate certified copy of
the judgment and sentence for the second degree robbery conviction. The
record is silent on why the State did not also offer a separate certified
copy of the judgment and sentence for second degree robbery.
The record shows that the State offered certified copies of judgments and
sentences for other convictions where the robbery conviction was included
in Rivers' criminal history.36 The State also offered a certified copy of
Washington State Patrol records containing two uncertified copies of the
judgment and sentence for the robbery conviction, together with other
material.37
We first address Rivers' challenge to the court-certified copy of the
judgment and sentence for the 1987 second degree assault conviction that
the court admitted into evidence. His claim that the fingerprints on that
document are inadequate to show that he was the person named in that
proceeding is a challenge to the State's proof of his identity.
State v. Ammons38 is dispositive. There, the supreme court was faced
with a similar argument. The court held that where the State is required
to prove a prior conviction, identity of names is sufficient proof in the
absence of rebuttal by the defendant declaring under oath that he is not
the same person named in the prior proceeding.39 Here, the fingerprint
expert who testified at the sentencing hearing was unable to establish from
the fingerprints whether Rivers was the person named in the prior judgment
and sentence. But he did not present any statement on oath or otherwise
argue that he was not the person named in the judgment and sentence.
Therefore, the State sufficiently proved Rivers' identity as the person
named in the prior conviction for second degree assault.
We next address the judgment and sentence for second degree robbery.
Rivers argues that the copy of this judgment and sentence that is in the
record is insufficient to prove by a preponderance of the evidence the
second most serious offense.
Lopez and the other cases on which it relies make clear that the best
evidence of a prior conviction is a court-certified copy of the relevant
judgment and sentence. Here, there is neither a court-certified copy of
the second degree robbery judgment and sentence nor an explanation by the
State why that document was not presented to the court at the sentencing
hearing. As we have previously noted in this opinion, the judgment and
sentence appears to have been from a King County proceeding. We can think
of no reason why the State could not have obtained and offered into
evidence a court-certified copy of that document as part of sentencing
proceedings under the POAA.
Although a certified copy of a judgment and sentence is the best
evidence of a prior conviction, the State may introduce other documents of
record or transcripts of prior proceedings to establish a defendant's
criminal history.40 Typically, these will be other court-certified records.41
The issue is whether, in the absence of a court-certified copy of the
judgment and sentence for second degree robbery, the State proved by a
preponderance of the evidence that Rivers had a second qualifying offense.
A careful review of the record and relevant case law shows the State failed
in its burden.
The State submitted certified copies of a number of prior convictions
showing the robbery conviction in Rivers' criminal history. In cases where
the defense does not challenge the criminal history as presented by the
State, this use of prior Washington judgments and sentences satisfies the
State's burden.42 This is true whether the challenge is to the prior
convictions' existence or their comparability to Washington offenses.43
However, if the defendant challenges the use of these documents, as Rivers
did here, the State must present additional evidence to carry its burden of
proving the convictions by a preponderance of the evidence.44
In State v. Murdoch,45 the supreme court was faced with the question of the
proper evidentiary use of Department of Social and Health Services prison
record packets as evidence in a habitual offender trial.46 The court held
that
institutional records documenting commitments, which include copies of the
judgments, sentences, and identification materials, are admissible solely
to prove the identity of the defendant. Copies of the judgment and
sentence which are to be admitted to prove the fact of any conviction must
be certified by the court with the seal of the court annexed, as required
by RCW 5.44.010.{47}

The court further stated that this rule of evidence and due process had
been stated and applied in other cases.48
Here, the court admitted into evidence Exhibit 6, a packet of DOC documents
certified by a records custodian of the WSP pursuant to RCW 5.44.040 and
43.43.725. They are not court-certified.
We note that the State consistently maintains that the Washington State
Patrol packet includes 'a certified copy of the judgment and sentence for
{Rivers'} second-degree robbery conviction.' The State further asserts
that 'The judgment included a certification by the King County Superior
Court Clerk, dated April 14, 1987.'
Careful examination of Exhibit 6 shows neither assertion is correct. In
fact, the certification to which the State refers is not affixed to the
photocopy of the judgment and sentence.49 Moreover, those photocopies bear
no other indication that they are court-certified documents.50
The lack of a court-certified copy of the judgment and sentence for the
second degree robbery conviction is fatal to the State's claim that it bore
its burden of proof. Neither the criminal history in other parts of the
exhibits nor any other proper evidence in the record before us establishes
that Rivers has a second qualifying offense for purposes of the POAA.
The State relies on State v. Descoteaux51 and State v. J.A.B.52 to
support its position. Those cases, however, are factually distinguishable.
In Descoteaux, the prosecutor failed to present any documentary evidence of
the defendant's prior conviction in a trial for escape. Instead he offered
the testimony of the defendant's work release officer who testified to the
convictions for which Descoteaux had been incarcerated.53 Descoteaux did
not object. On appeal, the supreme court distinguished Murdoch, saying
sufficiency of oral testimony to which there was no objection was not at
issue in that case. Likewise, here, there is no issue of oral testimony.
As in Murdoch, the issue here is whether the State bore its proper burden
of proof to offer a court-certified copy of the judgment and sentence for
second degree robbery, or equivalent evidence.
In J.A.B., the method of proof of the juvenile defendant's prior
convictions was not a court-certified copy of the prior dispositions. It
was the disposition report.54 However, J.A.B. made no objection whatsoever
to this evidence. This court cited Descoteaux as an analogous case. But
unlike the case here, the issue there was the sufficiency of other
evidence, not whether something less than a court-certified document was
sufficient to prove the prior disposition.
The State also argues that the RCW 5.44.040 requirement of a court-
certified copy of the judgment and sentence is inapplicable in this case
and that the admissibility of the WSP records is governed by subsequently
enacted statutes. We disagree, noting Exhibit 6, on its face, explicitly
refers to RCW 5.44.040.
RCW 10.98.03055 and RCW 43.43.700, which the State argues govern the
admissibility of the WSP records, deal with such records used to prove the
identity of the defendant.56 They do not govern the use of records as proof
of a prior conviction's existence.
Moreover, the supreme court in Lopez applied the certified copy
requirement to evidence presented at a sentencing hearing.57 It went even
further in its application of the best evidence rule, permitting the State
to 'introduce other comparable evidence only if it is shown that the
writing is unavailable for some reason other than the serious fault of the
proponent.'58
To summarize, the State failed to offer a court-certified copy of the
1989 second degree robbery conviction, the best evidence of that
conviction, and provided no explanation why it failed to do so. By
contesting his status as a persistent offender at the sentencing hearing,
Rivers' did not waive his right to contest that status on appeal. The
State bore its burden of proof for one of the prior qualifying offenses,
the second degree assault conviction. But it failed to prove by a
preponderance of the evidence the second degree robbery conviction. Due
process requires more.
Remedy
Rivers maintains that the State should not be permitted another
opportunity to prove his prior convictions on remand. We disagree.
In Ford, though the court vacated the appellant's sentence, it
permitted the State to seek the same sentence on remand because the
defendant had not put the sentencing court on notice of the specific
defects claimed.59 The court reasoned that such a result was required in
order to discourage defendants from purposefully failing to raise defects
at sentencing in hopes of reversal on appeal, leaving the State without any
further opportunity to prove its case.60
Remand is appropriate where, as here, no specific objection was raised
to the State's evidence on the basis now urged on appeal. Rivers cites
Lopez for the proposition that the State cannot have a 'second bite at the
apple.' However, Lopez was a case in which the State offered no proof
whatsoever of the defendant's prior convictions. The court noted that
though the State argued Lopez was a persistent offender at the sentencing
hearing, 'it was nevertheless completely unprepared to prove his prior
offenses. The State does not meet its burden through bare assertions,
unsupported by evidence.'61 Where, as here, the State offered some
supporting evidence, a specific objection on the basis urged on appeal was
required to hold the State to the existing record.
Accordingly, remand to the sentencing court to permit the State the
opportunity to meet its burden of proof is appropriate.
We affirm the convictions for first degree robbery and first degree
kidnapping. We address in the unpublished portion of this opinion the
status of the second degree assault conviction. We reverse the life
sentence without possibility of parole under the POAA and remand for
resentencing.
The balance of this opinion has no precedential value. Accordingly,
pursuant to RCW 2.06.040, it shall not be published.