State v. Witherspoon ( 2014 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,.
Respondent, No. 88118-9
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ALVIN LESLIE WITHERSPOON, Filed - - - - -
Petitioner.
J.M. JOHNSON, J. *-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
*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 Wash. 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).
State v. Witherspoon, No. 88118-9
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
On November 12, 2009, Witherspoon and his fiancee 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 fiancee, obtained a search warrant, and found multiple items
belonging to the victim in their home. From jail, Witherspoon called his fiancee,
attempting to convince her to stop talking to the police and lie about the crime. The
phone conversation was recorded by the jail.
2
State v. Witherspoon, No. 88118-9
A jury found Witherspoon guilty of first degree 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 made to his fiancee 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 Witherspoon is a persistent offender and sentenced him to life in prison
without the possibility of early release.
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 Wash. 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 Wash. 2d 1007, 300 P.3d 416 (2013).
ISSUES
1. Whether there was sufficient evidence to support Witherspoon's second
degree robbery conviction.
2. Whether Witherspoon's counsel was ineffective in not asking for an
instruction on first degree theft as a lesser included offense.
3. Whether Witherspoon's persistent offender sentence constitutes cruel
or cruel and unusual punishment.
3
State v. Witherspoon, No. 88118-9
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
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 Wash. 2d 192, 201, 829 P.2d 1068 (1992)
(citing State v. Green, 94 Wash. 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 Wash. 2d 23, 35, 225 P.3d
237 (2010) (citing State v. Camarillo, 115 Wash. 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.
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
4
State v. Witherspoon, No. 88118-9
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 lmowledge was prevented by the use of
force or fear. [ZJ
(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 lmowledge of the
taking." Clerk's Papers (CP) at 55 (Instruction 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 Wash. 2d 366, 374, 103 P.3d 1213 (2005) (citing State v. Hickman, 135 Wash. 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
2
In 2011, the legislature amended this statute to be gender neutral. This amendment did not affect
the substance ofthe statute.
5
State v. Witherspoon, No. 88118-9
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.
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.
"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 P. 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. Jd. at 625 (quoting 67 AM. JUR. 2D Robbery§ 89,
at 114 (2003)).
6
State v. Witherspoon, No. 88118-9
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
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.
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
Wash. 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,
7
State v. Witherspoon, No. 88118-9
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 Wash. 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 Crace,
174 Wash. 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.
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 Wash. 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." !d. (citing State v. Gamble, 154 Wash. 2d 457, 462-63,
114 P.3d 646 (2005)).
8
State v. Witherspoon, No. 88118-9
In State v. Grier, 171 Wash. 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." !d. Here, the tactical decision was prudent, if
unsuccessful.
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.
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
In addition to challenging his robbery conviction, Witherspoon also
challenges his POAA sentence. He claims that his life sentence violates the Eighth
9
State v. Witherspoon, No. 88118-9
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 Wash. 2d 697, 712, 921 P.2d 495 (1996) (citing
State v. Fain, 94 Wash. 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.
Fain provides four factors to consider in analyzing whether punishment is
prohibited as cruel under article I, section 14: "(1) the nature ofthe 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." !d. at 713 (citing Fain, 94 Wash. 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
10
State v. Witherspoon, No. 88118-9
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.
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
Wash. 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.
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." !d. (citing State v. Thorne,
129 Wash. 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)).
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 four 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 18. Although these four states' treatment of
similar crimes indicates that Washington is not alone in this area, the
11
State v. Witherspoon, No. 88118-9
concurrence/dissent is correct that this Fain factor weighs in favor of a finding of
disproportionality. However, this factor alone is not dispositive.
The fourth Fain factor is the punishment meted out for other offenses in the
same jurisdiction. Rivers, 129 Wash. 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. !d. at 714 (citing State v. Lee, 87 Wash. 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 contained 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 Wash. 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.
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
12
State v. Witherspoon, No. 88118-9
Constitution. This court has repeatedly held that a life sentence after a conviction
for robbery is neither cruel nor cruel and unusual. See Rivers, 129 Wash. 2d at 715;
State v. Manussier, 129 Wash. 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 Wash. 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.
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.
13
State v. Witherspoon, No. 88118-9
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.
In Graham, 132 S. Ct. at 2034, 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
14
State v. Witherspoon, No. 88118-9
(3) children's characters are not well formed, meaning that their actions are less
likely than adults to be evidence of depravity. Id.
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.
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
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
15
State v. Witherspoon, No. 88118-9
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.
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 . . . 'find[ing] 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." I d. at 308 (second alteration in original) (citation omitted). Nowhere
3
State v. Magers, 164 Wash. 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 Wash. App. 956, 957, 959-60, 113 P.3d 520 (2005). We
agree with this conclusion.").
16
State v. Witherspoon, No. 88118-9
in Blakely did the Court question Apprendi's exception for prior convictions or the
propriety of determinate sentencing schemes.
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, Witherspoon'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.
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
Wash. 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
17
State v. Witherspoon, No. 88118-9
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 Wash. 2d
802, 803 n.1, 262 P .3d 1225 (20 11) (collecting cases); see also In re Pers. Restraint
of Lavery, 154 Wash. 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 Wash. 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).
"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 Wash. 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.
18
State v. Witherspoon, No. 88118-9
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 Wash. 2d 93, 100, 206 P.3d 332 (2009) (quoting In re
Pers. Restraint of Cadwallader, 155 Wash. 2d 867, 876, 123 P.3d 456 (2005)). In State
v. Hunley, 175 Wash. 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."' !d. at 910 (quoting State v. Ford, 137 Wash. 2d 472, 480, 973
P.2d 452 (1999)).
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.
19
State v. Witherspoon, No. 88118-9
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
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.
20
State v. Witherspoon., No. 88118-9
WE CONCUR:
21
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
NO. 88118-9
GORDON McCLOUD, J. (concurring and dissenting)-! agree that
Alvin Witherspoon's conviction must be affirmed. There was certainly
sufficient evidence to support his conviction of second degree robbery, despite
the bravery of the victim in this case. The robbery statute focuses on the
defendant's "use or threatened use" of force, fear, etc., not on the courage of
the victim in response. RCW 9A.56.190.
In addition, following State v. Grier, 171 Wash. 2d 17, 246 P.3d 1260
(20 11 ), the ineffective assistance of counsel claim fails on this direct appeal:
if Mr. Witherspoon seeks to prove that his lawyer's failure to ask for a lesser
included offense instruction was something other than tactical, he must submit
some evidence to prove it.
I respectfully disagree, however, with the majority's decision to affirm
the sentence. The trial judge in this case-an experienced jurist-stated that
life without parole was disproportionately harsh for Witherspoon's offense
and that if he had any discretion to impose a lower sentence, he would have
done so. The controlling Washington case interpreting the applicable
1
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
provision of the Washington State Constitution is State v. Fain, 94 Wash. 2d 387,
617 P.2d 720 (1980). Fain requires us to do just such a disproportionality
analysis now, in reviewing the sentence.
We should therefore subject Witherspoon's sentence to the four-factor
disproportionality analysis this court adopted in Fain. Under that analysis, I
conclude that Witherspoon's sentence-a mandatory term of life
imprisonment without the possibility of parole for the third "strike" offense
of second degree robbery-violates article I, section 14 of our state
constitution. I therefore respectfully dissent from the majority's holding on
that issue.
I. The Experienced Trial Judge Stated That He Would Not Have
Imposed a Sentence of Life without the Possibility of Parole If
He Was Not Required To Do So
Witherspoon received his "third strike" life sentence for a second
degree robbery that is best described as inept. His victim attested to this at
the sentencing hearing, where she exhorted him to pursue an interest to which
he was better suited:
I just would like to address Alvin ... because I really had a lot
of sleepless nights over this and felt that ... I wanted a fair and
just sentence or whatever for him. And [I] felt really bad for him
and talked to a lot of people about this and nobody seemed to
really have any compassion for him whatsoever. I think I had
more compassion for him than anybody. And then I learned that
2
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
he just does this over and over and over again and he doesn't
know anything else and I feel for his mom and his girlfriend and
they stand behind him and he just keeps doing this over and over
and he is a really lousy thief and he needs to know that he has
other potential and that he could learn something else and he
might not be so lucky next time, because I'm damned if I'm
going to be the one dead .... I hope you, Alvin, get some --
there's a lot of opportunities in jail and that you should take every
one of them, and find what you're good at, and it's not being a
thief so find something else and something that you like is --
probably something you're interested [in] is probably something
that you're good at and I doubt if it's being a thiefbecause you're
[not] getting much out of it.
Reporter's Transcript on Appeal (TR) (Sentencing) at 37-38.
I quote Ms. Pittario's statement at length not only because it captures
the bumbling nature of Witherspoon's crime but also because it expresses her
sincere belief that Mr. Witherspoon, who was 36 at the time, might reform.
The trial judge who sentenced Witherspoon, the late Judge Craddock
Verser, clearly shared this belief. His statement at sentencing, which I will
also quote at length, leaves no doubt that were it not for the constraints
imposed on him by the Persistent Offender Accountability Act (POAA) of the
Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, he would not
have sentenced Witherspoon to a life term:
When I first started in this profession years ago in 1980,
there was a prison and parole system and judges had discretion
to send people to jail, prison, parole, a number of different
discretionary possibilities at every sentencing and you could take
3
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
something like this crime and look at it and go, okay, serious
crime, it obviously affected Ms. Pittario. Nevertheless, is this the
type of crime that you want to put somebody in prison for the rest
of their life for. And, urn, exercising discretion I wouldn't do
that.
I -- over the last week, I -- I've never done a persistent
offender sentencing, we just don't have that many in Jefferson
County. Over the last week I looked at the statute and I was
looking at the case law of what kind of discretion if any I had. I
don't. I don't have any discretion. I don't take any pleasure, Mr.
Witherspoon, in sentencing you as a persistent offender. That's
a choice that was made in the filing decision and the decision that
went to trial. ...
The arguments that I should arrest judgment are -- quite
frankly they were appealing to me. I said this young man is [3 6]
years old ....
. . . I didn't think you should go to prison the rest ofyour
life and I don 't mind putting that on the record but I have no
discretion at all.
Id. at 41-43 (emphasis added). This is an accurate statement of the law. Under
Washington's persistent offender statute, the trial court had no discretion to
sentence Witherspoon to anything other than life imprisonment with no
possibility of parole. RCW 9.94A.570 ("[n]otwithstanding the statutory
maximum sentence or any other provision of this chapter, a persistent offender
shall be sentenced to a term of total confinement for life without the possibility
of release").
4
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
II. For Purposes of Article I, Section 14, of the Washington State
Constitution, Life without Parole Is a Harsher Penalty than Life
with the Possibility of Parole; the Rivers Holding Ignores This
Distinction and Is No Longer Good Law
The majority rejects Witherspoon's article I, section 14 challenge solely
on the basis of this court's decisions in In re Personal Restraint of Grisby, 121
Wash. 2d 419, 527, 858 P.2d 901 (1993), and State v. Rivers, 129 Wash. 2d 697,
921 P.2d 495 (1996). In so doing, the majority errs.
To the extent that Grisby applies at all to SRA convictions, 1 it is strictly
limited to the Sixth Amendment context. Grisby, 121 Wash. 2d at 430 ("The
case before us is not an Eighth Amendment case [but] rather[] a Sixth
Amendment case relating to a defendant's right to a jury trial."); U.S. CONST.
amends. VI, VIII. The petitioner in Grisby argued that the statute under which
he had been sentenced to life without the possibility of parole violated the
Sixth Amendment because it penalized him for invoking his right to a jury
trial. Id. at 421. That statute imposed a maximum penalty of life without
parole on a defendant convicted of aggravated murder following a jury trial,
but a maximum of life with parole for a defendant who pleaded guilty. Id.
This court rejected Grisby's Sixth Amendment argument on the basis that
1
1 note that State v. Thomas explicitly distinguishes Grisby as a "pre-
Sentencing Reform Act ... case." 150 Wash. 2d 821, 848, 83 P.3d 970 (2004).
5
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
because parole is granted '"strictly by grace through the Board of Prison
Terms and Paroles,'" a defendant sentenced to life with the possibility of
parole cannot actually expect to serve less than a life sentence. Id. at 426-27
(quoting State v. Frampton, 95 Wash. 2d 469, 529, 627 P.2d 922 (1981)
(Dimmick, J., concurring in part, dissenting in part)). That conclusion did not
lead the Grisby court to hold that there is never a significant distinction
between life with and without the possibility of parole. Rather, it led to the
much narrower holding that the distinction was not significant enough to
trigger the prohibition ~under United States v. Jackson, 390 U.S. 570, 583, 88
S. Ct. 1209, 20 L. Ed. 2d 138 (1968)) against '"needless encouragement of
guilty pleas."' Grisby, 121 Wash. 2d at 427 (quoting Frampton, 95 Wash. 2d at
530 (Dimmick, J., concurring in part, dissenting in part)). 2
Despite the narrowness of that holding and its limitation to the Sixth
Amendment context, the Rivers majority relied on Grisby to conclude that life
2 Notably, the Ninth Circuit granted Mr. Grisby's petition for writ of habeas
corpus challenging that sentencing decision and compelled the State to resentence
him, precisely because it rejected our decision that there is no constitutional
distinction between life with and without parole. Grisby v. Blodgett, 130 F.3d 365,
369-70 (9th Cir. 1997) (noting that federal precedent "establishes that, as a matter
of law, a sentence of life without the possibility of parole is significantly different
from a sentence of life with the possibility of parole" for purposes of the Jackson
decision).
6
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
with and without the possibility of parole are indistinguishable for purposes
of an article I, section 14 challenge. 3 The court reached that conclusion
without analyzing Grisby's relevance to article I, section 14 and Fain.
This court has never expressly overruled Rivers' holding on the
distinction between life with and without the possibility of parole. But it did
so impliedly in State v. Thomas, 150 Wash. 2d 821, 83 P.3d 970 (2004). Thomas
held that there is a significant difference between life with and without the
possibility of parole for purposes of the Apprendi rule. 4 15 0 Wash. 2d at 84 7-
48. After Thomas, a defendant convicted of murder under Washington's SRA
cannot be sentenced to life without parole unless aggravating factors are found
by a jury, because a "sentence of life without parole is an increased sentence
3
Rivers, 129 Wash. 2d at 714 ("This court has held that the distinction between
life sentences with and without parole is not significant." (citing Grisby, 121 Wash. 2d
at 427)). In Fain, the State urged this court to proceed as if Jimmy Fain had not
actually received a life sentence, since "the availability of parole and 'good
behavior' credits" created "a likelihood" that Fain would actually serve far less than
a lifetime behind bars. Fain, 94 Wash. 2d at 393 (citing RCW 9.95.110, .070). We
declined this invitation on the ground that a prisoner "has no right to parole, which
is merely a privilege granted by [an] administrative body." !d. at 394 (citing
January v. Porter, 75 Wash. 2d 768, 774, 453 P.2d 876 (1969)).
4
Under the Apprendi rule, "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." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000).
7
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
as compared to life with the possibility of parole in capital cases." !d. at 848
(emphasis added). 5
As the majority notes, the Thomas court purported to distinguish Rivers
on the basis that it did not involve an "Apprendi problem." !d. But for
purposes of the question presented in this case, that is a distinction without a
difference. Neither logic nor precedent supports the theory that an "increase"
under Thomas/Apprendi is meaningless for purposes of an article I, section
14/Fain analysis. In spite of its dicta to the contrary, the Thomas decision
cannot be confined to the Sixth Amendment context. It is directly relevant to
the question presented in this case.
5
The majority asserts that Thomas is limited to capital sentencing cases.
Majority at 13 n.2. It is true that the Thomas court cited the "statutory scheme" at
issue in that case-according to which "a defendant charged with murder is not
eligible for either life without parole or the death penalty unless aggravators are
found beyond a reasonable doubt"-as support for its conclusion that the legislature
intended life with and without parole to be "wholly different" sentences in the
context of a capital case. Thomas, 150 Wash. 2d at 848. But it would be absurd to
reach a contrary conclusion in the context of the three strikes statute simply because
that statute makes no provision whatsoever for the more lenient sentence. Like the
capital sentencing statute at issue in Thomas, the POAA imposes life without parole
as punishment for the "aggravat[ ed] ... guilt" associated with particular criminal
conduct. Rivers, 129 Wash. 2d at 714-15 ('"The repetition of criminal conduct
aggravates the guilt of the last conviction and justifies a heavier penalty for the
crime."' (quoting State v. Lee, 87 Wash. 2d 932, 937, 558 P.2d 236 (1976))). Under
the POAA, as under the capital sentencing statutes at issue in Thomas, a "sentence
of life without parole is an increased sentence as compared to life with the possibility
of parole." Thomas, 150 Wash. 2d at 848.
8
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
I would therefore not resolve Witherspoon's article I, section 14
argument by resurrecting Rivers' reliance on Grisby. To the extent Rivers
held that there is no distinction between a sentence of life with and without
parole, it is no longer good law. As this court acknowledged in Thomas, life
without parole is a unique sentence, harsher and more punitive than life with
the possibility of parole. 6
6
While the Thomas decision alone precludes the majority's reliance on
Grisby and Rivers to reject Witherspoon's article I, section 14 challenge, it should
be noted that that reliance is also inconsistent with United States Supreme Court
precedent. In Graham v. Florida, the Court concluded that for purposes of the
Eighth Amendment's ban on cruel and unusual punishments, the sentence of life
without parole has severe and punitive characteristics distinguishing it from a
sentence of life with the possibility of parole. 560 U.S. 48, 69, 130 S. Ct. 2011, 176
L. Ed. 2d 825 (20 10) ("The State does not execute the offender sentenced to life
without parole, but the sentence alters the offender's life by a forfeiture that is
irrevocable."). The Graham holding rested on those characteristics-not, as the
majority would have it, on "the differences between children and adults," majority
at 16-and on prior Eighth Amendment cases in which "the severity of sentences
that deny convicts the possibility of parole" played an integral part in the Court's
decision. 560 U.S. at 59-60 (citing Rummel v. Estelle, 445 U.S. 263, 100 S. Ct.
1133, 63 L. Ed. 2d 382 (1980) and Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001,
77 L. Ed. 2d 637 (1983)). In short, Graham unambiguously holds that the sentence
of life without parole is more severe, for purposes of the Eighth Amendment, than
the sentence of life with the possibility of parole.
As the majority acknowledges, article I, section 14 of the Washington
Constitution is more protective of individual rights than the Eighth Amendment.
Majority at 10 (citing Fain, 94 Wash. 2d at 392). It follows that article I, section 14
must recognize the unique severity oflife without parole. It cannot be that our more
protective constitutional provision would fail to account for "harshness" that is
dispositive in Eighth Amendment cases. Graham, 560 U.S. at 70.
9
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Just as life without parole is harsher than life with parole, for purposes
of article I, section 14, mandatory life without parole is harsher than
discretionary life without parole. This is true as a factual matter: the trial
judge in this case explicitly stated that he would not impose a life without
parole sentence if it were not mandatory. It is also true as a legal matter; in
Fain, we noted that "Washington [was then] one of only three states which
still retains a habitual criminal statute imposing a mandatory life sentence
after any three felonies." Fain, 94 Wash. 2d at 399 (emphasis added) (citing
Rummel v. Estelle, 445 U.S. 263, 279, 100 S. Ct. 1133, 63 L. Ed. 2d 382
(1980); id. at 296 (Powell, J., dissenting)); see also Harmelin v. Michigan,
501 U.S. 957, 996, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (acknowledging
that the petitioner's sentence-life without the possibility of parole-was
"unique in that it is the second most severe known to the law," more severe
than discretionary life without parole ). 7
7
In Harmelin, the majority rejected the argument that the Eighth Amendment
requires a sentencing court to exercise discretion (to consider mitigating or
aggravating circumstances) before imposing a sentence of life without parole. 501
U.S. at 994-95; id. at 1004 (Kennedy, J., concurring). The Court rejected that
argument, however, because it declined to apply a proportionality analysis to the
petitioner's sentence. Harmelin, 501 U.S. at 994-95. In Fain, this court adopted
the proportionality analysis endorsed by the dissenters in Harmelin. For purposes
of that analysis, a mandatory sentence is more severe than a sentence that permits
the trial court to consider the individual circumstances of a defendant's offense.
10
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
As a mandatory sentence of life without the possibility of parole,
Witherspoon's sentence is almost as unusual as the sentence imposed in Fain.
Of the 4 7 jurisdictions that have habitual offender statutes, only 5 (including
Washington) would impose a mandatory sentence of life without parole for a
third strike conviction of second degree robbery. See infra Part III.3.
III. A Mandatory Sentence of Life without Parole Is
Disproportionate to the Offense of Second Degree Robbery
Committed as a "Third Strike"; Witherspoon's Sentence Thus
Violates Article I, Section 14 of the Washington State
Constitution
The proportionality analysis this court adopted in Fain requires us to
consider four factors in an article I, section 14 challenge: (1) the legislative
purpose behind the challenged statute, (2) the nature of the defendant's
offense, (3) the punishment the defendant would have received in other
jurisdictions for the same offense, and (4) the punishment the defendant would
have received in Washington for other offenses. Fain, 94 Wash. 2d at 397 (citing
Hart v. Coiner, 483 F.2d 136, 140-43 (4th Cir. 1973)). In light of these
factors, a sentence of mandatory life without the possibility of parole violates
article I, section 14 protections when imposed for a second degree robbery
offense.
1. Legislative purpose behind the POAA
11
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
The POAA was enacted pursuant to popular initiative in 1993. LAws
OF 1994, ch. 1, § 2. Its statement of findings and intent identified four
purposes served by the new law:
(2) By sentencing three-time, most serious offenders to
prison for life without the possibility of parole, the people intend
to:
(a) Improve public safety by placing the most dangerous
criminals in prison.
(b) Reduce the number of serious, repeat offenders by
tougher sentencing.
(c) Set proper and simplified sentencing practices that both
the victims and persistent offenders can understand.
(d) Restore public trust in our criminal justice system by
directly involving the people in the process.
I d. § 1 (emphasis added).
Washington's POAA was the nation's first "three strikes" law; it was
passed in the wake of several high profile and horrific crimes committed by
repeat offenders. 8 Proponents of the POAA were motivated by the belief that
harsh sentencing laws would effectively deter and incapacitate the "relatively
small component of the offender population" who posed the greatest danger
to public safety. 9
8
Jennifer Cox Shapiro, Comment, Life in Prison for Stealing $48?:
Rethinking Second-Degree Robbery as a Strike Offense in Washington State, 34
SEATTLE U. L. REV. 935, 939-44 (2011).
9
Id. at 940 (quoting Edwin Meese III, Three-Strikes Laws Punish and
Protect, 7 FED. SENT'G REP. 58, 58 (1994).
12
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
As we acknowledged in State v. Lee, habitual offender statutes
in general, including the one that predated the POAA in Washington, serve
punitive as well as preventative purposes: "[t]he repetition of criminal conduct
aggravates the guilt of the last conviction and justifies a heavier penalty for
the crime." 87 Wash. 2d 932, 937, 558 P.2d 236 (1976) (citing State v. Miles,
34 Wash. 2d 55, 61-62, 207 P.2d 1209 (1949)); accord State v. Manussier, 129
Wash. 2d 652, 677 n.108, 921 P.2d 473 (1996) (citing Lee, 87 Wash. 2d at 937).
But the POAA differs from the prior habitual offender statute in its imposition
of mandatory life sentences without parole. LAWS OF 1994, ch. 1, § 2(4). 10
The legislative history indicates that the primary impetus for this change was
the desire to protect the public by incapacitating the most dangerous
offenders.
This factor would weigh in favor of upholding Witherspoon's
sentence if he were in "the relatively small component of the offender
population," who are the most incorrigible, that is, the worst of the worst. But
neither the victim nor the trial judge believed that he fell into that category.
10
See also id. at 939 & n.38 (describing the habitual offender statute that
predated the POAA in Washington); LAWS OF 1992, ch. 145, § 8 (describing ways
in which defendants sentenced to total confinement under the 1992 sentencing
reform act can earn early release credits).
13
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Thus, I cannot conclude that this factor weighs in favor of a finding of
proportionality.
2. Nature of Witherspoon's offense
Witherspoon's two prior "strike" convictions were for first degree
burglary and residential burglary with a firearm; his third strike conviction
was for second degree robbery. These are serious offenses-certainly more
serious than the "wholly nonviolent crimes involving small amounts of
property" at issue in Fain. 94 Wash. 2d at 402.
But Witherspoon's final offense stands m stark contrast to those
triggering the harshest penalties under Washington's SRA. See infra Part
III.4. As noted by the majority, Witherspoon's victim did not realize that
Witherspoon had retained any of her property until after Witherspoon was
already driving away from her house. Majority at 6. Because of that fact, the
dissenting judge in the Court of Appeals below concluded that Witherspoon
had used stealth to accomplish the taking but had not employed the "force or
fear" necessary to a robbery conviction under RCW 9A.56.190. See State v.
Witherspoon, 171 Wash. App. 271, 320,286 P.3d 996 (2012) (Armstrong, J.,
dissenting). Indeed, the dissent concluded that it was "logically impossible"
to find that Witherspoon used "force or fear" to prevent his victim from
14
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
recovering her possessions, since Witherspoon was already leaving when the
victim noticed that her possessions were in Witherspoon's car and since she
was not in fact prevented from giving chase. !d. at 321 ("It is logically
impossible to find that Pittario had the will to retain or recover property, which
she did not know had been stolen. And the State offered no evidence that
Witherspoon made any threat that Pittario should not follow them. Pittario
testified that she was not afraid and, in fact, she gave chase.").
I agree with the majority that the State need not prove the victim's
actual, subjective fear in order to sustain a robbery conviction, and I therefore
disagree with the conclusion of the dissent below. But the fact that the State
need not prove actual fear to sustain a robbery conviction shows how broadly
the robbery statute sweeps. In Washington, as in many other states, a person
can commit the crime of second degree robbery by means of brutal assault
or-as in Witherspoon's case-by an "implied threat" that the victim seems
to have regarded as more confusing than frightening. Majority at 7; TR (Trial
Day 1) at 42-49 (Pittario testimony). 11 Thus, the nature of a second degree
11
Ms. Pittario testified that she was not frightened by Mr. Witherspoon's
statement that he had a pistol concealed behind his back, that she in fact believed
that he was scared during their brief encounter, and that Mr. Witherspoon never
threatened her. TR (Trial Day 1) at 42 ("Q. So you must not have been concerned
that [Mr. Witherspoon] had a pistol? A. No."), 44 ("Q. Now, in fact, the man you
15
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
robbery offense may vary significantly from case to case.
Outside the POAA context, a court can consider the facts underlying a
robbery conviction when imposing a sentence. It may impose a sentence
anywhere within the standard sentence range; it may also depart from the
standard range if mitigating circumstances are established. RCW
9.94A.535(1). This discretion is a crucial means of avoiding sentences that
are "clearly excessive in light of the [SRA's] purpose[s]," id. § (l)(g), which
include ensuring that punishments are both "just" and "proportionate to the
seriousness ofthe offense," RCW 9.94A.010(2), (1).
Under the POAA, a court lacks that discretion. In this case, the result
is severe: a defendant who neither injured nor frightened his victim received
a sentence generally reserved for society's most violent and predatory
offenders. Thus, I cannot conclude that the nature of the offense factor weighs
in favor of upholding this sentence under Fain's second factor.
In fact, lack of discretion to depart from a habitual offender sentence is
frequently cited by critics of habitual offender statutes. 12 It has prompted
saw, you thought he was scared didn't you? A. Yes."), 46 ("Q. But he never
threatened you in any way? A. No."), 48 ("Q. You didn't fear any injury to yourself,
your person? A. No.").
12
See Robert G. Lawson, PFO Law Reform, A Crucial Step Toward
16
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
courts in several jurisdictions to adopt sentencing procedures specifically
designed to prevent the mandatory imposition of excessive punishments under
recidivist statutes. 13 Indeed, courts have done so in two of the three states
with habitual offender statutes equivalent to Washington's. 14
Sentencing Sanity in Kentucky, 97 KY. L.J. 1, 22 (2008-2009) (describing "typical"
defendants in persistent felony offender case study as those who "suffered
punishments grossly disproportionate to the seriousness of their crimes"); Michael
Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. CRIM. L. &
CRIMINOLOGY 395,396 & n.8 (1997) (collecting cases of"grossly disproportionate
prison terms" imposed for "minor third strikes"); Erik G. Luna, Foreward: Three
Strikes in a Nutshell, 20 T. JEFFERSON L. REv. 1, 24 & n.177 (1998) (noting that
"some judges have simply refused to apply [a three strikes] law when it would lead
to a disproportionate and unfair sentence").
13
State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993) (adopting rule for
applying the state's habitual offender statute whereby sentencing court must reduce
the statutorily mandated minimum if it finds that that minimum "'makes no
measurable contribution to acceptable goals of punishment' [or] amount[s] to
nothing more than 'the purposeful imposition of pain and suffering' and 'is grossly
out of proportion to the severity of the crime"' (quoting State v. Scott, 593 So. 2d
704, 710 (La. App. 1991); LA. REV. STAT. 15:529.1)); State v. Barker, 186 W.Va.
73, 74-75, 410 S.E.2d 712 (1991) (explaining "procedure for analyzing a life
recidivist sentence under [West Virginia's] proportionality principle" and holding
that life sentence for third strike offense of "forgery and uttering" violated state
constitutional protection against cruel and unusual punishments); Ashley v. State,
538 So. 2d 1181, 1184-85 (Miss. 1989) (trial court must perform proportionality
analysis when imposing life without parole for third strike attempted robbery
conviction; life without parole is unconstitutional as applied to defendant who stole
three or four cans of sardines); People v. Anaya, 894 P .2d 28, 32 (Colo. App. 1994)
(noting that defendant is automatically entitled to proportionality review when
sentenced under the State's habitual offender statute (citing People v. Mershon, 87 4
P.2d 1025 (Colo. 1994))).
14
Dorthey, 623 So. 2d at 1280-81; Ashley, 538 So. 2d at 1185.
17
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
As noted above, Washington's POAA was enacted mainly in response
to public safety concerns: it was designed to ensure that dangerous, violent
offenders would be permanently segregated from society. Applied
mechanically, the statute can exceed this purpose.
3. Punishment in other jurisdictions for second degree
robbery as a ((third strike" offense
As noted above, Witherspoon's sentence is almost as rare as the
sentence this court overturned in Fain. Outside of Washington, there are only
three states in which a conviction of second degree robbery as a "third strike"
offense triggers a mandatory sentence of life without parole. 15 In the vast
15
These are Louisiana, Massachusetts, and Mississippi. See App. There was
certainly some decision making involved in my choice of sister-state robbery
statutes to use in the appendix. I chose sister-state statutes with elements most
nearly identical to the crime of which Mr. Witherspoon was convicted. That crime
was second degree robbery in violation of RCW 9A.56.200 and .190, with no
aggravating factor alleged (other than the "free crimes" factor, see RCW
9.94A.535(2)(c)), which does not relate to the manner in which the robbery was
committed).
I believe this is the required comparison for three reasons. First, it comports
with Washington's case law on "comparability" under the SRA, which limits the
comparability analysis to facts/elements actually admitted to or proved beyond a
reasonable doubt. State v. Thiefault, 160 Wash. 2d 409,414-15, 158 P.3d 580 (2007);
In re Pers. Restraint ofLavery, 154 Wash. 2d 249, 258, 111 PJd 837 (2005). Second,
it is consistent with the comparison undertaken in Fain, 94 Wash. 2d at 399-400: a
statute-to-statute, elements-based comparison. Third, as discussed in State v. Olsen,
No. 89134-6 (Wash. May 15, 2014), the problems inherent in comparing factual
allegations, rather than proven factual elements, are virtually insurmountable when
evaluating other states' crimes.
18
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
majority of jurisdictions with habitual offender statutes-34 out of 48-such
a conviction would result in a mandatory minimum sentence of 10 years or
less. 16 Six states impose a mandatory minimum of 25 years or less for a third
strike offense comparable to Witherspoon's. 17
This Fain factor clearly weighs in favor of a finding of
disproportion ali ty.
Nevertheless, if I had compared certain uncharged facts underlying the
State's theory of how Witherspoon committed his third "strike" offense-the theory
that this was a robbery based on a verbal threat involving a nonexistent gun-the
results under the third Fain factor would be similar. That comparison would add
only three states to the list of jurisdictions that punish unarmed robbery as a third
strike with mandatory life without parole. (These are Delaware, New Jersey, and
Wisconsin. DEL. CODE ANN. tit. 11, § 832(a)(2), § 4214(b); N.J. STAT. ANN. §
2C:15-1(1)(b), § 2C:43-7.1.(b)(2); WIS. STAT.§ 939.62(2m)(a)(2m), § 943.32(2).)
16
There are 31 jurisdictions in which a third strike conviction for second
degree robbery triggers an enhanced mandatory minimum sentence of 10 years or
less. See App. These are Alabama, Alaska, Arizona, Arkansas, Connecticut,
Washington, DC, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine,
Michigan, Minnesota, Missouri, Nebraska, New Mexico, New York, North
Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Texas,
Utah, Wisconsin, Wyoming, and Montana. !d. Montana imposes a mandatory life
sentence on recidivist offenders in most cases, but not where (as in Witherspoon's
case) injury or threat of injury is an element of the third-strike offense but no injury
to the victim actually occurs. Id. In those cases, the sentence is discretionary. Id.
In four other states (Delaware, Pennsylvania, South Carolina, and Vermont),
habitual offender statutes exist but are not triggered by a third strike conviction for
second degree robbery. Id.
17
These are California, Colorado, Florida, Maryland, Nevada, and
Oklahoma. See id.
19
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
4. Punishment in Washington for other offenses
In the non-POAA context, Washington punishes only one crime with a
sentence of mandatory life without parole: aggravated first degree murder.
RCW 9.94A.510, .515. Aggravated first degree murder is a level16 offense,
the highest "seriousness level" in the SRA. RCW 9.94A.515. The next most
serious level of offense, level 15, includes homicide by abuse and
nonaggravated first degree murder. RCW 9.94A.515. In the non-POAA
context, a person convicted of those crimes might serve as little as 20 years-
far less than life without parole. 18
In the non-POAA context, Washington imposes mandatory minimum
sentences for only five offenses: aggravated and nonaggravated first degree
murder, first degree assault involving "force or means likely to result in death
or intended to kill the victim," rape in the first degree, and sexually violent
predator escape. RCW 9.94A.540(1)(b)-(d). A person convicted of first
degree murder faces a 20-year mandatory minimum, while a person convicted
18
For a defendant with no criminal history, the standard range sentence for
homicide by abuse or non-aggravated murder is 240-320 months. RCW 9.94A.510.
For a defendant with two violent prior offenses, the standard range sentence is 281-
374 months. Id.~ RCW 9.94A.525(9) (if present conviction is for a serious violent
offense, count two points for each prior violent conviction and one point for each
prior nonviolent felony conviction).
20
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
of first degree rape, first degree assault, or sexually violent predator escape
faces a mandatory minimum of five years. !d. For every other offense, the
court may impose a sentence below the standard sentence range if "mitigating
circumstances are established by a preponderance of the evidence." RCW
9.94A.535.
The gravity of Witherspoon's third strike offense must not be
understated; it was deliberate, and the fact that his victim exhibited
uncommon courage during the offense and extraordinary compassion
thereafter does not minimize the crime. But neither should that offense be
amplified beyond all recognition. To punish it with a sentence greater than
that imposed for the most brutal crimes-homicide, first degree assault, and
first degree rape-is to disregard two central purposes of the SRA: justice and
proportionality. RCW 9.94A.010(1), (2).
Thus, this final Fain factor also weighs m favor of a finding of
disproportionali ty.
5. The proper remedy for the constitutional violation in this
case is remand for resentencing under the SRA guidelines
For the reasons given in the analysis above, RCW 9.94A.570 is
unconstitutional as applied to the particular second degree robbery in this
case. Article I, section 14 of the Washington Constitution does not permit the
21
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
imposition of mandatory life without parole-the harshest penalty short of
death-on a second degree robber whose victim testified that he neither
frightened nor threatened her. Because the POAA is unconstitutional as
applied to Witherspoon, the proper remedy is to remand for resentencing
under the SRA guidelines-without the application of the POAA. State v.
Hunley, 175 Wash. 2d 901, 916, 287 P.3d 584 (2012) (holding a statute
unconstitutional as applied does not render it completely inoperable; rather, it
prohibits the future application of the statute in a similar context).
At Witherspoon's original sentencing hearing, the State characterized
its charging decision as "suspenders and belt." TR (Sentencing) at 30. The
State is correct. Its second degree robbery charge also included the
aggravating factor that "[t]he defendant has committed multiple current
offenses and the defendant's high offender score results in some of the current
offenses going unpunished." RCW 9.94A.535(2)(c). That statute places the
determination of whether that aggravating factor exists, and whether it
supports a sentence above the standard range, in the hands of the judge. !d.
At the original sentencing, where the judge felt compelled to impose life
without parole, the judge had no reason to address that aggravating factor.
The court is free to address it at resentencing.
22
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
CONCLUSION
The question before us in this case is narrow. We are asked whether it
is unconstitutional to force a trial court judge to impose a mandatory sentence
of life without parole on a defendant whose third "strike" is a second degree
robbery committed in a manner that did not cause physical harm or actual fear.
The answer to that question is yes.
This answer is based on the legal description of the crime of second
degree robbery (RCW 9A.56.190), the facts of its accomplishment in this
case, and the mandatory nature of the penalty.
We have not been asked to rule on whether it would be unconstitutional
to sentence a defendant to life without parole for a different crime, or for this
crime committed in a different manner. The remedy I would impose is
therefore particular to this case. The legislature, not this court, is the body
with the power to draft a procedure that would be constitutional in all cases.
I express no opinion as to what sort of procedure might comply with article I,
section 14 protections. Pursuant to the Fain analysis conducted above, I
conclude only that the current procedure, according to which a sentencing
judge has no discretion to impose a sentence lower than life without parole,
23
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
does not comply with state constitutional requirements. 19 A different
procedure certainly would. 20
19
Other states have taken a variety of approaches to the problem of
disproportionate sentencing in the "three strikes" context-there are no doubt
multiple ways this problem could be resolved. In at least four states, persons
convicted under habitual offender statutes are automatically entitled to a
constitutional proportionality review upon sentencing. See supra note 13
(explaining sentencing procedures in Colorado, Louisiana, Mississippi, and West
Virginia). In one state, third strike offenders receive mandatory life sentences in
most cases, but not where (as in Witherspoon's case) injury or threat of injury is an
element ofthe third strike offense but no injury to the victim actually occurs. MONT.
CODE ANN. § 46-18-219(b ), § 46-18-222. In those cases, the sentence is
discretionary. MONT. CODE ANN. § 46-18-222. See also supra note 16, discussing
the various penalties less harsh than mandatory life without parole, which are
imposed for third strike second degree robbery convictions in the overwhelming
majority of jurisdictions.
20
See State v. Pillatos, 159 Wash. 2d 459, 470-76, 150 P.3d 1130 (2007)
(applying new legislation, designed to fix the sentencing scheme declared
unconstitutional in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.
Ed. 2d 403 (2004), retroactively).
24
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
25
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
APPENDIX OF "PERSISTENT OFFENDER" LAWS
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Alabama 10 years ALA. CODE§ 13A-8-43(2)(b) (third
degree robbery equivalent is class
C felony),§ 13A-5-9(b)(l) (third
strike class C felony punished as if
class A felony), § 13A-5-6(a)(l)
(class A felony punished with 10
years to life)
Alaska 4 years ALASKA STAT.§ 11.41.510 (second
degree robbery equivalent is class
B felony), § 12.55.125(d)(3) (class
B felony as third felony conviction
triggers 4 to 7 year sentence)
Arizona 6 years ARIZ. REV. STAT. ANN. § 13-1902
(second degree robbery equivalent
is class 4 felony); § 13-703(C), (J),
§ 13-706 (third strike class 4 felony
triggers 8 year minimum sentence)
Arkansas 5 years ARK. CODE ANN.§ 5-12-102
(second degree robbery equivalent
is class B felony), § 5-4-50l(a)(l),
(2)(C) (third strike class B felony
triggers 5 to 30 year sentence)
California 25 years CAL. PENAL CODE§ 212.5(c), §
213(a)(2), § 1192.7(c)(19) (second
degree robbery equivalent is serious
felony punishable by a 2 to 5 year
sentence);§ 667(e)(2)(A)(ii) (third
serious and/or violent felony
conviction triggers minimum 25
year sentence)
1
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
- ··-
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Colorado 18 years COLO. REV. STAT. § 18-4-301
(second degree robbery equivalent
is class 4 felony), § 18-1.3-
401(1)(V)(A) (presumptive
maximum for class 4 felony is 6
years),§ 18-1.3-801(1.5)(a) (third
strike triggers sentence three times
the maximum presumptive range
for strike as first offense: 18 years
for class 4 felony)
Connecticut 1 year CONN. GEN. STAT. § 53a-133, §
53a-136, § 53a-35a(8) (second
degree robbery equivalent is class
D felony, carrying term of not less
than 1 to 5 years); § 53a-40G), §
53a-35a(7) (third strike offense
triggers sentence for next most
serious degree of felony: 1 to 10
years)
Delaware not applicable (N/A) DEL. CODE ANN. tit. 11, § 5-
831(a)(2), § 11-42-4201(a)(5), (c),
§ 11-42-4205(b)(5) (second degree
robbery equivalent a class E violent
felony, punishable by 5 year
maximum sentence); § 11-42-
4215(a) (may trigger greater
sentence than maximum for third
felony conviction);§ 11-42-4214
(habitual offender statute triggered
by four strikes law)
2
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
District of None, unless both priors D.C. CODE§ 22-2801 (minimum for
Columbia and current conviction first robbery offense is two years); §
are crimes of violence; in 22-1804a(a)(l), (2) (third conviction
that case, mandatory for crime of violence triggers 15
minimum is 2 years year minimum sentence; otherwise,
minimum is standard sentence for
current offense)
Florida 15 years FLA. STAT.§ 812.13(1), (2)(c)
(second degree robbery equivalent is
second degree felony), §
775.084(1 )( c)(1 )(c), (2)(b ),
(4)( c)(1 )(c) (three-time violent
offender mandatory minimum term
of 15 years)
Georgia 1 year GA. CODE ANN.§ 16-8-40(a)(2), (b)
(statutory term for second degree
robbery equivalent is 1 to 20 years),
§ 17-1 0-7 (a) (second felony repeat
offender conviction triggers
statutory maximum for underlying
offense but gives judge discretion to
"probate or suspend the maximum
sentence prescribed")
Hawaii 6 years, 8 months HAW. REV. STAT.§ 708-841(1)(b)
(second degree robbery equivalent is
class B felony), § 706-06.5(1 )(b )(iii)
(third strike class B felony triggers
sentence of 6 years, 8 months before
eligible for parole)
3
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
T~ird Strike Offense
Idaho 5 years IDAHO CODE ANN. § 18-6501, § 18-
6502(2), § 18-6503 (second degree
robbery equivalent presumptive
sentence of 5 years to life); § 19-
2514 ("persistent violator" third
strike felony triggers sentence of 5
years to life)
Illinois 6 years 720 ILL. COMP. STAT. 5/18-1(a), (c),
730 ILL. COMP. STAT. 5/5-4.5-35(a)
(second degree robbery equivalent
is class 2 felony triggering 3 to 7
year sentence); 5/5-4.5-95(b)
(habitual criminal third strike class
1 or 2 felony conviction triggers
class X offender status); 5/5-4.5-25
(class X offender gets 6-30 years)
Indiana Advisory minimum of 4 IND. CODE§ 35-42-5-1(2) (second
years degree robbery equivalent is class C
felony), § 35-50-2-6(a) (class C
felony advisory sentence is 4 years),
§ 35-50-2-8(h) ("habitual offender"
third strike felony triggers sentence
of "not less than the advisory
sentence for the underlying offense
nor more than three (3) times the
advisory sentence for the underlying
. -
offense")
4
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Iowa 3 years without parole IOWA CODE§ 711.1(1)(b), § 711.3,
§ 902.9(1 )(d) (second degree
robbery equivalent is Class C felony
triggering maximum sentence of 10
years); § 902.8 ("habitual offender"
third felony conviction triggers
sentence of no more than 15 years
or 3 without parole eligibility)
Kansas N/A (no habitual offender KAN, STAT. ANN. § 21-5420(a),
statute for crimes (c)( 1), § 21-6804 (second degree
committed after 1993) robbery equivalent is level 5
personal felony with presumptive
term of 50 months)
Kentucky 10 years without parole KY. REV. STAT. ANN.
§ 515.030, § 532.020(1)(b) (second
degree robbery equivalent is class C
felony, presumptive term of 5 to 10
years); § 532.080(3), (6)(b)
("persistent felony offender" class C
felony as third strike triggers
mandatory minimum of 10 years)
Louisiana Life without parole LA. REV. STAT. ANN.§ 14:65, §
14:2(B)(23) (second degree robbery
equivalent is violent crime with
maximum term of7 years);
§ 15:529.1(A)(3)(b) (third strike
violent crime triggers sentence of
life without parole where two priors
are also crimes of violence)
5
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Maine 9 months ME. REv. STAT. tit. 17-A §
651(l)(B)(2), 17-A § 1252(2)(B)
(second degree robbery equivalent
is class B crime carrying maximum
term of 10 years); 17-A § 1252(4-
A) (third strike felony, such as
robbery, triggers sentencing class
that is one class higher than it would
otherwise be); 17-A § 1252(2)(A),
(5-A)(A)-(C) (class A felony
triggers sentence minimum of 9
months to 30 years)
Maryland 25 years without parole MD. CODE ANN., CRIM. LAW § 3-
402, § 14-101(a)(9), (c)(1)(i), (2),
(3) (second degree robbery
equivalent is crime of violence,
third crime of violence triggers
minimum sentence of 25 years)
Massachusetts Life without parole MASS. GEN. LAWS ch. 265, § 21
(maximum sentence allowable for
second degree robbery equivalent is
life), ch. 279, § 25 (b) ("habitual
criminal" third felony conviction for
second degree robbery equivalent
triggers maximum sentence
allowable by law for the underlying
crime, without parole)
Michigan None MICH. COMP. LAWS § 750.530
(second degree robbery equivalent
triggers maximum sentence of 15
years); § 769.11(1)(a) (third strike
offender may be sentenced to twice
the maximum for the underlying
crime)
6
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Minnesota 10 years without parole MINN. STAT. § 609.24 (second
degree robbery equivalent triggers
maximum sentence of 10 years), §
609.1 095(1 )(d), (3) (dangerous
offender third violent felony
triggers at least the length of the
presumptive sentence for the
underlying offense; violent felonies
include second degree robbery
equivalent)
Mississippi Life without parole MISS. CODE ANN. § 97-3-73; Ashley
v. State, 538 So. 2d 1181 (Miss.
1989) (second degree robbery
equivalent is crime of violence);
MISS. CODE ANN.§ 99-19-83
(where any of three strike offenses
was crime of violence, defendant
shall be sentenced to life term
without parole)
Missouri 5 years Mo. REV. STAT. § 569.030, §
558.011(2) (second degree robbery
equivalent is class B felony
triggering sentence of 5 to 15
years); § 558.016(3), (7)(2), §
558.011(1) (persistent offender
class B felony may be punished as if
class A felony, triggering sentence
of 10 to 30 years)
7
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Montana 10 years (first 5 years MONT. CODE ANN. § 45-5-
without parole) 401(1)(b), (2), § 46-18-219 (b)
(second degree robbery equivalent
triggers term of2 to 40 years);§ 46-
18-501 (definition of "persistent
felony offender"), § 46-18-
219(1)(b)(iv), § 46-18-222(5) (if
third strike offense did not result in
any serious injury to the victim and
if weapon was not used, then judge
has discretion to sentence defendant
to less than a life term);§ 46-18-
502(2), (3) (persistent felony
offender sentenced to mandatory
minimum of 10 years)
Nebraska 10 years NEB. REV. STAT. § 28-324, § 28-
105(1) (sentence for second degree
robbery equivalent, class II felony,
is 1 to 50 years), § 29-2221(1)
(person convicted on separate
occasions of two crimes triggering
sentences of at least one year is
"habitual criminal" who receives
minimum sentence of 10 years)
Nevada 25 years (parole eligible NEV. REv. STAT. § 200.380(1)(a),
after 10 years) (b), (2) (second degree robbery
equivalent is category B felony,
penalty of 2 to 15 years), §
207.012(1)(a),(b)(3), (2) ("habitual
felon" defined as two prior second
degree robbery equivalent
convictions, mandatory minimum of
25 years, eligibility for parole after
10 years)
8
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
New Hampshire N/A (no persistent N.H. REV. STAT. ANN.§ 636:1(I)(b),
offender statute) (III), § 651 :2(II)(b) (second degree
robbery equivalent is class B felony,
triggering maximum term of7
years)
New Jersey 10 years N.J. STAT. ANN.§ 2C:15-1(a)(2),
(b),§ 2C:43-7.1(b), § 2C:43-7(a)(3)
(person convicted of crime
including second degree robbery
equivalent, who has previously been
convicted of two or more crimes,
shall be sentenced to a fixed term
between 10 and 20 years)
New Mexico 7 years without parole N.M. STAT. ANN.§ 30-16-2 (second
\
degree robbery equivalent is third
degree felony),§ 31-18-15(A)(9)
(third degree felony as first offense
triggers 3 year sentence), § 31-18-
17(B) (person with 2 prior felony
convictions is habitual offender;
sentence for habitual offender shall
be increased by 4 years)
New York 4 years N.Y. PENAL LAW§ 160.05 (second
degree robbery equivalent is class D
felony), § 70.00(2)-(4) (sentence for
class D felony as first offense is 1 to
7 years, with judicial discretion for
imposing a fixed term of 1 year or
less),§ 70.06(1), (3)(d) ("second
felony offender" term is 4 to 7
years)
9
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
North Carolina 77 months N.C. GEN. STAT. § 14-87.1 (second
degree robbery equivalent is class G
felony);§ 14-7.2, § 14-7.6
("habitual felon" must be sentenced
at a class level four higher than
underlying felony); § 14-7.1
("habitual felon" is any person
convicted of a felony three times); §
15A-1340.17(c) (class C felony as
third offense triggers presumptive
sentence of 77-96 months)
North Dakota No minimum N.D. CENT. CODE§ 12.1-22-01(1),
(2), § 12.1-32-01(4) (second degree
robbery equivalent is class C felony,
carrying a maximum penalty of 5
years and/or fine of$10,000);
§ 12.1-32-09(1)(c), (2)(c) (an adult
who has previously been convicted
of two felonies of class C or above
is an "habitual offender"; third
strike offense of class C triggers
maximum sentence of 10 years)
Ohio 1 year OHIO REV. CODE ANN.§
2911.02(A)(3), (B), §
2929.14(A)(3)(b) (second degree
robbery equivalent is third degree
felony, triggering minimum term of
9 months);§ 2929.14(A)(3)(a)
(upon third conviction or guilty
plea, person convicted of third
degree felony shall be sentenced to
term of 1 to 5 years)
10
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Oklahoma 20 years OKLA. STAT. tit. 21, § 791, § 792, §
794, § 797, § 799, tit. 57,§ 571
(second degree robbery equivalent
is a nonviolent offense, triggering
maximum term of 10 years); OKLA.
STAT. tit. 21, § 5l.l(B) (third felony
conviction within 10 year period
triggers sentence of 20 years to life)
Oregon N/A (no habitual offender OR. REv. STAT.§ 164.395(l)(a), (2),
statute) § 161.605(3) (second degree
robbery equivalent is a class C
felony, triggering maximum term of
5 years)
Pennsylvania NIA (second degree 18 PA. CONS. STAT.§
robbery equivalent does 370l(a)(l)(iv), (b),§ 106(a)(4),
not trigger habitual (b)(4) (second degree robbery
offender statute) equivalent is second degree felony,
triggering maximum term of 7
years); 42 PA. CONS. STAT. §
9714(g) (second degree robbery
equivalent not a "'crime of
violence'" and does not trigger
Pennsylvania's habitual offender
statute)
11
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Rhode Island 5 years R.I. GEN. LAWS§ 11-39-1(a), (b)
(second degree robbery equivalent
as first offense triggers minimum
sentence of five years),§ 12-19-
21(a) (person convicted of a felony
three times and sentenced to more
than 1 year of imprisonment is an
"habitual criminal" and shall be
sentenced to not more than 25 years
in addition to sentence for which he
or she was last convicted)
South Carolina N/A (second degree S.C. CODE ANN.§ 16-11-325, § 16-
robbery equivalent does 1-10(A)(4), (D) (second degree
not trigger the habitual robbery equivalent is a class D
offender statute) felony and triggers maximum
sentence of 15 years); § 16-1-120(1)
(repeat offender statute triggered
only by class A, B, or C felonies or
exempt offenses punishable with 20
year sentence)
South Dakota No minimum S.D. CODIFIED LAWS§ 22-30-1, §
22-30-6, § 22-30-7, § 22-6-1(7)
(second degree robbery equivalent
is class 4 felony, triggering
maximum term of 10 years);§ 22-7-
7 (second or third felony conviction
triggers sentence for felony of next
higher class);§ 22-6-1(6) (class 3
felony punishable by maximum
term of 15 years)
12
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense --
Tennessee 6 years TENN. CODE ANN. § 39-13-401, §
40-35-105(b) (second degree
robbery equivalent is a range I class
C felony, triggering minimum term
of3 years); § 40-35-105(a)(2), §
40-35-106(a)(l), (c),§ 40-35-
112(b)(3) (multiple offender second
degree robbery equivalent triggers
range II class C felony, carrying
minimum term of 6 years)
Texas 5 years TEX. PENAL CODE ANN.
§ 29.02(a)(2), (b) (second degree
robbery equivalent is second degree
felony), § 12.33(a) (second degree
felony punishable by 2 to 20 years),
§ 12.42(b) (person convicted of
second degree felony, who has
previously been convicted of a
felony, shall be sentenced for a
felony of the first degree), §
12.32(a) (first degree felony
punishable by term of 5 to 99 years
or life)
13
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
f-·
Third Strike Offense
Utah 5 years UTAH CODE ANN.§ 76-6-301(1)(b),
(3), § 76-3-203(2), § 76-3-
203.5(1)(c)(i)(BB), (l)(b), (2)(b)
(second degree robbery equivalent
is second degree violent felony,
punishable by term of 1 to 15 years;
if defendant is a habitual violent
offender, the penalty for a second
degree felony is as if the conviction
were for a first degree felony; a
habitual violent offender is a person
convicted of any "violent" felony
who has also been convicted of a
violent felony on any two previous
occasions; minimum sentence for
!-----
first degree felony is 5 years)
Vermont N/A ("habitual criminal" VT. STAT. ANN. tit. 13, § 608(a), §
statute triggered only 2507 (second degree robbery
where there were three equivalent triggers maximum term
prior convictions) of 10 years; § 11 (habitual criminal
enhanced sentence permitted for
fourth felony conviction, triggering
maximum life sentence)
14
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike O!Jense
Virginia Life without possibility of VA. CODE ANN.§ 18.2-58, § 18.2-
parole until defendant is 288(2) (second degree robbery
60 (if already served 10 equivalent crime of violence
years) or 65 (if already triggers minimum term of 5 years
served 5 years) up to life);§ 19.2-297.1(A)(e), (C)
(third act of violence conviction,
including second degree robbery
equivalent, shall be sentenced to life
without parole, subject to
exceptions for persons age 60 or
older)
Washington Life without parole RCW 9A.56.190, 9A.56.210,
9A.20.021(1)(b) (second degree
robbery is a class B felony,
triggering 10 year term or $20,000
fine or both term and fine);
9.94A.570, 9.94A.030(32)( o),
(37)(a)(i), (ii) (persistent offender
third most serious offense
conviction triggers sentence of life
without parole)
West Virginia Life W.VA. CODER.§ 61-2-12(b)
(second degree robbery equivalent
triggers term of 5 to 18 years), § 61-
11-18(c) (third felony offense
conviction triggers life sentence)
15
State v. Witherspoon, No. 88118-9
(Gordon McCloud, J., Concurrence/Dissent)
Appendix
State Mandatory Minimum for Applicable Statutes
Second Degree Robbery
Equivalent Committed as
Third Strike Offense
Wisconsin No minimum WIS. STAT.§ 943.32(1)(b), §
939.50(l)(e), (3)(e) (second degree
robbery equivalent is class E felony,
triggering maximum term of 15
years);§ 973.12, § 939.62(1)(c), (2)
(person convicted of second degree
robbery equivalent as second strike
is a "repeater" and shall have his or
her sentence increased by not more
than 6 years)
Wyoming 10 years WYO. STAT. ANN. § 6-2-40l(a)(ii),
(b) (second degree robbery
equivalent triggers term not to
exceed 10 years);§ 6-l-104(a)(xii)
(second degree robbery equivalent
is violent felony),§ 6-10-20l(a)(i),
(ii), (b )(i) (person convicted of a
"violent felony" who has previously
been convicted of two other felonies
is an "habitual criminal," punishable
by term of 10 to 50 years if he or
she has only two prior convictions)
16