State Of Washington, V William Henry Ellison ( 2015 )


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  •                                                                                                   FILED
    COURT OF
    APPEAL'
    DIVISION
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                            ISI        3
    AN 8: 33
    S T.4 ``    U'
    DIVISION II                                                       AS   G TON
    BY
    STATE OF WASHINGTON,                                                No. 44951 -0 -II
    Respondent,                  PART PUBLISHED OPINION
    v.
    WILLIAM H. ELLISON,
    Appellant.
    BJORGEN, A.C. J. —     Following a bench trial, the trial court found William H. Ellison
    guilty of second degree rape and second degree child molestation based on conduct against AE,1
    the minor granddaughter of Ellison' s former wife. The court imposed a mandatory life sentence
    without the possibility of early release, based on a finding that Ellison had previously been
    convicted of two crimes defined in RCW 9. 94A.030 as " most serious" offenses under the
    Persistent Offender      Accountability   Act (POAA),   RCW 9. 94A.570. Ellison appeals, arguing that
    the trial court denied him the right of allocution and that increasing his punishment based on the
    judicial finding, not expressly made beyond a reasonable doubt, that Ellison had two prior
    qualifying convictions violated his rights to due process of law and to equal protection of the
    laws under the federal constitution.
    Ellison also submits a statement of additional grounds for review (SAG) under RAP
    10. 10, claiming that the trial court violated his right to a speedy trial and that his attorney denied
    him the right to participate in his own defense, refused to present exculpatory evidence, and
    1
    Consistently with our court' s General Order 2011 -1, we refer to minor victims by their initials
    to   protect   their privacy.
    No. 44951 -0 -II
    denied Ellison his right to a jury trial. Ellison further contends in his SAG that the trial judge
    and the prosecutor committed misconduct. We affirm Ellison' s convictions and sentence.
    FACTS
    In January 2011, AE accused Ellison of forcing her to have sexual intercourse on one
    occasion and fondling her breasts on several occasions. AE alleged that the sexual abuse
    occurred between September 2006 and July 2008, while she lived with her grandmother and
    legal guardian, Joan Ellison, who was married to William Ellison at the time.2 Based on AE' s
    accusations,     the State   filed   charges against   Ellison in April 2011.   The State subsequently
    notified Ellison that second degree rape qualified as a " most serious offense" under RCW
    9. 94A.030( 37) and that, if he had previously been convicted on separate occasions of two other
    such offenses, he would be sentenced to a term of total confinement for life without the
    possibility    of release under      the POAA.    1 Verbatim Report of Proceedings ( VRP) at 8; Clerk' s
    Papers ( CP) at 6.
    Ellison   remained    in custody from April 2011 throughout the        proceedings.   On October 9,
    2012, the day trial was set to begin, the prosecutor requested a continuance, informing the court
    that she had developed a medical problem that required surgery and rendered her unable to
    proceed as scheduled. Against Ellison' s wishes, defense counsel did not object. The trial court
    found good cause and granted the continuance.
    In November 2012, against his attorney' s wishes, Ellison filed a pro se motion to dismiss
    the charges against him. Ellison based the motion on, among other grounds, violation of the
    2
    The   couple   divorced in   July   2011.   For clarity, we refer to Joan Ellison by her first name. We
    intend    no   disrespect.
    No. 44951 -0 -II
    time -for -trial rule and his constitutional right to a speedy trial. After reviewing the scheduling
    orders in the case, the trial court denied the motion.
    The   parties completed voir   dire   on   January   7, 2013.   The next day, following an extensive
    colloquy, Ellison waived his right to a jury trial. The court began hearing testimony on January
    9.
    The State presented the testimony of Joan, AE, and David Duralde, M.D., a child abuse
    expert. Ellison testified on his own behalf, and the defense called no other witnesses.
    The trial court found Ellison guilty of one count of second degree rape and one count of
    child molestation and entered written findings of fact and conclusions of law. The State
    presented certified copies of the judgment and sentence evidencing Ellison' s history of felony
    convictions, as well as an affidavit from a forensic technician stating that Ellison was the same
    person identified in those documents.
    The court concluded that Ellison was a persistent offender based on the current
    convictions and its findings that Ellison had two robbery convictions from 1994 and 1997.
    Ellison did not object to these findings, and the record does not reveal what evidentiary standard
    the court applied in making them.
    After hearing a statement from Joan and argument from counsel, the sentencing court
    invited Ellison to allocute. Ellison sang a short religious song and spoke about various topics not
    clearly   related   to the sentencing proceeding.       After making extensive remarks, Ellison began to
    protest his innocence and accuse his trial attorney of lying to the court. At that point, the court
    cut Ellison off, explained that the matters he related were irrelevant to the issues at hand, and
    pronounced the sentence. Ellison asked for permission to finish his remarks, but the court
    declined.
    3
    No. 44951 -0 -II
    As required by RCW 9. 94A.570, the sentencing court imposed a term of total
    confinement for life without the possibility of release. Ellison timely appeals.
    ANALYSIS
    Because it raises an issue of first impression in Washington, we begin by addressing in
    the published portion of this opinion Ellison' s contention that the sentencing court denied him
    the right of allocution. In the unpublished portion, we turn to Ellison' s constitutional challenges
    to the sentencing procedure and the claims raised in Ellison' s SAG.
    I. THE RIGHT OF ALLOCUTION
    Ellison claims that the sentencing court violated his right to meaningful allocution by
    interrupting his remarks and refusing to allow him to finish. Ellison contends that this error
    requires resentencing before a different judge.3 We hold that the sentencing court did not violate
    Ellison' s right of allocution.
    The     right of allocution       is   guaranteed   by   RCW 9. 94A. 500( 1), which states in relevant part
    that "[ t] he   court [ shall] ...    allow ``arguments          from ...   the   offender[] ...   as to the sentence to be
    imposed." ( Alterations in           original.)    Our Supreme Court has specified that " trial courts should
    scrupulously follow" this statutory mandate. In re Pers. Restraint ofEcheverria, 
    141 Wash. 2d 323
    , 336 -37, 
    6 P.3d 573
    ( 2000).              Offenders subject to a mandatory life sentence enjoy this right .
    even though the sentencing court has no discretion to exercise. State v. Snow, 
    110 Wash. App. 667
    , 669 -70, 
    41 P.3d 1233
    ( 2002).
    3 The State invites us to decline to consider Ellison' s allocution claim, asserting that he failed to
    timely object. Ellison, however, repeatedly protested the court' s termination of his remarks,
    which sufficiently apprised the trial court of the claimed error. State v. Moen, 
    129 Wash. 2d 535
    ,
    547, 
    919 P.2d 69
    ( 1996);           see   United States   v.   Li, 
    115 F.3d 125
    , 132 ( 2d Cir. 1997) ( rejecting an
    identical waiver argument on the ground that the defendant' s protestations adequately apprised
    the trial court of the issue).
    4
    No. 44951 -0 -II
    Here, the sentencing court invited Ellison to speak, allowing him to make lengthy
    remarks before interrupting and pronouncing the sentence. Thus, the issue presented involves
    the extent to which a court may limit the exercise of the right to allocution.
    Our state Supreme Court has specified that allocution
    is the right of a criminal defendant to make a personal argument or statement to the
    court before the pronouncement of sentence. It is the defendant' s opportunity to
    plead for mercy and present any information in mitigation of sentence.
    State   v.   Canfield, 
    154 Wash. 2d 698
    , 701, 
    116 P.3d 391
    ( 2005). It is not, however, intended to
    advance or       dispute facts.   State   v.   Lord, 
    117 Wash. 2d 829
    , 897 -98, 
    822 P.2d 177
    ( 1991); see State
    v. Curtis, 
    126 Wash. App. 459
    , 463, 
    108 P.3d 1233
    ( 2005).
    The sentencing court allowed Ellison to speak for some time, cutting him off only when
    he began using the opportunity to testify about the facts of the case and complain about the
    conduct of his trial attorney. Under Canfield, those were not legitimate purposes for allocution.
    Because the court let Ellison speak without interruption until it was clear he was using the
    allocution for improper purposes, we hold that the trial court did not abuse its discretion in
    cutting short Ellison' s allocution.4
    A majority of the panel having determined that only the foregoing portion of this opinion
    will be printed in the Washington Appellate Reports and that the remainder shall be filed for
    public record pursuant to RCW 2. 06. 040, it is so ordered.
    4 This conclusion is consistent with United States v. Muniz, 
    1 F.3d 1018
    , 1024 -25 ( 10th Cir.
    which held that a sentencing court did not violate the right to allocute by cutting the
    1993),
    defendant off after he began rearguing the case and complaining that his trial rights had been
    violated.
    5
    No. 44951 -0 -II
    II. CONSTITUTIONAL CHALLENGE TO THE PERSISTENT OFFENDER DETERMINATION
    Ellison contends that the sentencing court' s persistent offender determination violated his
    constitutional rights for two reasons. First, he argues that the use of prior convictions to impose
    a harsher sentence than the law would otherwise authorize violated his right to due process of
    laws because the sentencing court did not expressly find that the State had proved beyond a
    reasonable doubt that the convictions ( 1) exist and ( 2) qualify as most serious offenses. Ellison
    also argues that increasing the penalty for the charged crime on the basis of prior convictions
    found by a preponderance of the evidence denies defendants equal protection of the laws because
    in other, similar contexts the courts have made such prior convictions " elements" of a greater
    crime, which elements the State must prove beyond a reasonable doubt. Br. of Appellant at 8 - 14.
    A.        Due Process
    Ellison' s due process challenge turns on the United States Supreme Court' s holding in
    Apprendi    v.   New   Jersey   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). The Apprendi Court based the prior- conviction exception to its general rule on
    Almendarez -Torres v. United States, 
    523 U.S. 224
    , 
    118 S. Ct. 1219
    , 
    140 L. Ed. 2d 350
    ( 1998).
    
    Apprendi, 530 U.S. at 488
    -90. Ellison argues that subsequent decisions have undermined the
    5 In his first assignment of error, Ellison challenges the sentencing court' s persistent offender
    determination based on the due process provisions of both the Washington and federal
    constitutions. Ellison, however, presented no analysis under State v. Gunwall, 
    106 Wash. 2d 54
    ,
    64 -69, 
    720 P.2d 808
    ( 1986), as to whether the state constitutional provision provides greater
    protection than its federal counterpart. Without that analysis or some other reason why we
    should interpret the state constitutional provision more broadly, we do not reach the state
    constitutional issue. Nelson v. McClatchy Newspapers, Inc., 
    131 Wash. 2d 523
    , 538, 
    936 P.2d 1123
    1997).
    6
    No. 44951 -0 -II
    validity      of   the   relevant   holding   in Almendarez -Torres, notably Alleyne      v.       United States, - -- U. S. -
    
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    ( 2013), on remand, United States v. Alleyne, 539 Fed.
    Appx. 269 ( 4th Cir. Sept. 24, 2013).                He argues also that even if the Almendarez- Torres
    exception to the Apprendi rule remains viable, it does not apply here because the court based
    Ellison' s sentence not only on the fact of Ellison' s prior convictions, but also on the fact that
    those convictions qualified as most serious offenses.
    Ellison' s challenge to the Almendarez -Torres exception founders on our state Supreme
    Court' s opinions expressly affirming the continuing validity of that exception. See State v.
    Witherspoon, 
    180 Wash. 2d 875
    , 891 -94, 
    329 P.3d 888
    ( 2014); State v. McKague, 
    172 Wash. 2d 802
    ,
    803   n. 1,    
    262 P.3d 1225
    ( 2011); State v. Wheeler, 
    145 Wash. 2d 116
    , 122 -24, 
    34 P.3d 799
    ( 2001).
    Witherspoon addressed Alleyne and held that it did not require the fact of prior offenses under the
    POAA to be proved beyond a reasonable doubt. 
    Witherspoon, 180 Wash. 2d at 891
    -92. Even more
    to the point, the Wheeler court rejected due process challenges to the POAA' s persistent offender
    procedure          indistinguishable from Ellison' s         challenges.    
    Wheeler, 145 Wash. 2d at 118
    -19, 124.
    Opinions of our state Supreme Court do not bind us to the extent they conflict with
    applicable United States Supreme Court precedents. See, e. g., State v. Anderson, 
    112 Wash. App. 828
    , 839, 
    51 P.3d 179
    ( 2002). The United States Supreme Court has declined to repudiate the
    Almendarez -Torres            exception       in light   of Apprendi.   
    Alleyne, 133 S. Ct. at 2160
      n. 1.   Therefore,
    its precedents do not conflict with the holdings of our state Supreme Court that the exception
    remains viable. Those holdings therefore control, State v. Gore, 
    101 Wash. 2d 481
    , 486 -87, 
    681 P.2d 227
    ( 1984), and compel us to reject Ellison' s argument.
    Ellison' s attempt to distinguish Almendarez -Torres on the ground that his sentence rests
    on more than simply a finding that the prior convictions exist fails for the same reason: our.
    7
    No. 44951 -0 -II
    Supreme Court expressly rejected his arguments in 
    Wheeler, 145 Wash. 2d at 118
    -19, 124, and
    declined to reconsider its holding in 
    Witherspoon, 180 Wash. 2d at 891
    -94. Accord 
    McKague, 172 Wash. 2d at 803
      n.   1.    Furthermore, because the statute explicitly defines " most serious offense,"
    RCW 9. 94A. 030( 32),            whether a given conviction qualifies presents an issue of statutory
    interpretation: a question of law for the court, not a question of fact. See State v. Ford, 99 Wn.
    App.   682, 691, 
    995 P.2d 93
    ( 2000). Whether the prior conviction qualifies as a " most serious
    offense" under RCW 9. 94A.030( 32) is not a question that could be submitted to the trier of fact
    and found beyond a reasonable doubt in the first place.
    Unless our Supreme Court decides to overrule Wheeler and Witherspoon, or the United
    State Supreme Court expressly repudiates the Almendarez -Torres exception, those state
    decisions remain binding precedents. Ellison' s due process challenge must yield to their
    authority.
    B.       Equal Protection
    Ellison contends that we should apply strict scrutiny to the persistent offender
    determination in our equal protection analysis, because it deprives defendants of a fundamental
    liberty interest. Ellison further contends that the POAA' s procedure for designating persistent
    offenders fails even rational basis review. This is so, Ellison argues, because designating prior
    convictions used             to increase the penalty for    certain crimes as "    sentencing factors," requiring only
    a finding by preponderance of the evidence, while designating prior convictions used to increase
    the penalty for     other crimes as " elements,"            requiring proof beyond a reasonable doubt, furthers
    no   legitimate    government         interest. Br.   of   Appellant   at   9 - 14. Stated another way, the government
    interest in punishing recidivists more severely is the same in both contexts, making the
    distinction artificial and arbitrary.
    8
    No. 44951 -0 -II
    These   arguments   fail for the    same reasons         that Ellison' s due     process   claim   fails:   our
    courts have already rejected them. Our Supreme Court held that rational basis review applies to
    the persistent offender determination procedure, which procedure does not offend the equal
    protection clause.   State   v.   Manussier, 
    129 Wash. 2d 652
    , 672 -74, 
    921 P.2d 473
    ( 1996); ; State v.
    Thorne, 
    129 Wash. 2d 736
    , 770 -72, 
    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).
    III. SAG
    In his SAG, Ellison       claims   that ( 1)   his attorney denied him the         right   to a jury trial, ( 2) the
    judge   committed misconduct, ( 3)       the trial      court violated   his   right   to a speedy trial, ( 4)   his
    attorney refused to present exculpatory evidence and denied him the right to participate in his
    own defense, and ( 5) the prosecutor committed misconduct. Except for his claims that his
    attorney denied him his right to a jury trial and that the trial judge committed misconduct, which
    claims the record squarely refutes, all of the claims depend on the truth of Ellison' s allegations
    concerning matters outside the record. On direct appeal, we do not address claims that depend
    on facts not in the record. State v. McFarland, 
    127 Wash. 2d 322
    , 335, 
    899 P.2d 1251
    ( 1995).
    A.       The Right to a Jury Trial
    Ellison alleges that his attorney " bullied" him into choosing a bench trial. SAG at 6. The
    record affirmatively refutes this allegation. After voir dire, when Ellison' s attorney informed the
    court that Ellison had decided to opt for a bench trial, the attorney made clear that Ellison did so
    against the advice of counsel. Although Ellison addressed the court at length about his decision,
    he never disputed his attorney' s statement. The court specifically asked Ellison whether anyone
    had pressured him, and Ellison denied it:
    The Court:      Has anybody done anything to force you or coerce you or otherwise
    try to make you give up your right to a jury trial?
    9
    No. 44951 -0 -II
    Ellison]:           Just   by   what    I feel. Just   by   what   I'   ve seen.    Just      by —no    coercing.
    No     one' s   threatened   me.    I just —I know I           won'   t   get a   fair trial. I
    know it. I know I will not get a fair trial. And I' m hoping I can get
    one    from     you.   But even from your standpoint, you look like you
    don' t even want to do it. So now you might as well just convict me.
    3 VRP at 45.
    The record establishes that Ellison waived his jury trial rights knowingly, voluntarily, and
    intelligently and, contrary to the allegation in his SAG, against the advice of counsel. Ellison' s
    claim fails.
    B.       Judicial Misconduct
    Ellison bases his judicial misconduct claim on the allegation that the trial judge cut short
    Ellison' s impeachment of Joan, then reminded Joan that she was under oath. The record shows
    that Ellison tried extensively to impeach Joan, using allegedly untruthful answers she had given
    on forms submitted to the state Department of Social and Health Services, and stopped cross -
    examining her about it after a sidebar discussion. Although the court made a record of the
    sidebar, the transcript shows no reminder from the court that Joan was still under oath. Ellison
    did not object to the trial court' s termination of his attempt to impeach Joan.
    ER 608( b)     specifies     that "[   s] pecific instances of the conduct of a witness, for the purpose
    of attacking or supporting the witness' credibility, other than conviction of crime as provided in
    rule   609, may   not   be   proved    by    extrinsic evidence."      The rule, however, gives trial courts
    discretion whether to allow a party to cross -examine a witness about instances of conduct
    probative of   truthfulness. ER 608( b).            The trial court allowed Ellison to cross -examine Joan
    about her answers on the forms. Thus, to the extent that the record shows that the matters Ellison
    alleges occurred, nothing suggests that the trial court did anything improper. For these reasons,
    Ellison' s judicial misconduct claim fails.
    10
    No. 44951 -0 -II
    C.        The Right to a Speedy Trial
    The record shows that Ellison spent well over a year in custody before commencement of
    his trial, asserted his right to a speedy trial on at least two occasions, and was clearly not
    responsible for at least the final delay. Such matters bear on whether a constitutional speedy trial
    violation   has   occurred.   State   v.   011ivier, 
    178 Wash. 2d 813
    , 827, 
    312 P.3d 1
    ( 2013), cert. denied,
    
    135 S. Ct. 72
    ( 2014) ( holding       that whether a constitutional speedy trial violation has occurred
    depends on the length of the delay, the reasons for the delay, the defendant' s assertion of his
    speedy trial right, and prejudice to the defendant).
    Proper analysis of the claim, however, requires consideration of the reasons for each
    delay. 
    011ivier, 178 Wash. 2d at 831
    -32 ( citing State v. Iniguez, 
    167 Wash. 2d 273
    , 294, 
    217 P.3d 768
    2009) ( citing    Barker v. Wingo, 
    407 U.S. 514
    , 531, 
    92 S. Ct. 2182
    , 
    33 L. Ed. 2d 101
    ( 1972))).
    The record does not reveal how many continuances the trial court granted. Except for the
    continuance to accommodate the deputy prosecutor' s medical issue, the record does not disclose
    the reasons the court granted any continuances or whether Ellison objected in each instance.
    Because the record is inadequate for review of Ellison' s speedy trial challenge, we decline to
    address the issue. 
    McFarland, 127 Wash. 2d at 335
    ; see also Stuart v. Consol. Foods Corp., 6 Wn.
    App.   841, 846, 
    496 P.2d 527
    ( 1972) ( " In order to evaluate a trial court' s decision, the basis for
    the decision must be known. ").
    D.        Ellison' s Remaining SAG Claims
    The remainder of the claims raised in Ellison' s SAG also depend on matters outside the
    record.    The    prosecutorial misconduct claim rests on        two   allegations: (   1) that the prosecutor
    removed Aaron Wilson, AE' s boyfriend, from the State' s witness list after discovering that his
    version of AE' s disclosure differed from AE' s, and ( 2) that the prosecutor coached Joan outside
    11
    No. 44951 -0 -II
    the courtroom to change her testimony about Ellison' s underwear. Because neither Wilson' s
    description of AE' s disclosure nor the witness lists appear in the record, we cannot evaluate the
    first allegation on its merits. Although the record does show that Joan gave slightly different
    testimony about the underwear at two different points in the trial, nothing in the record suggests
    that she gave the second description based on coaching by the prosecutor. Thus, the second
    allegation also depends on matters outside the record. We therefore decline to address Ellison' s
    prosecutorial misconduct claim.
    Ellison bases his misconduct claims against his attorney on allegations that the attorney
    1) pressured Ellison into agreeing to continue the trial by threatening to quit, (2) failed to
    explain what rights   Ellison   would waive    by   agreeing to   a continuance, (   3) refused to have DNA
    deoxyribonucleic acid) testing performed on the mattress where the rape allegedly occurred, and
    4) failed to procure the testimony of Wilson. All of these claims depend on matters outside the
    record.
    Nothing in the record supports Ellison' s claim that his attorney failed to inform him of
    the consequences of agreeing to a continuance. The only aspect of the record suggesting that
    Ellison' s attorney threatened to quit or otherwise pressured Ellison to agree to any continuance is
    Ellison' s allegation to that effect in a letter he sent to the trial judge pro se. Given the " strong
    presumption [ that] counsel'    s   representation was effective,"    
    McFarland, 127 Wash. 2d at 335
    ,
    Ellison' s bare allegation in the trial court does not suffice to merit review of this claim.
    Similarly, nothing in the record supports Ellison' s claim that his attorney refused to have
    AE' s mattress tested. Further, neither Wilson' s description of AE' s disclosure of the abuse
    allegations, nor any evidence of defense counsel' s efforts to secure Wilson' s testimony appear in
    12
    No. 44951 -0 -II
    the record. We decline to address these claims on this record before us. 
    McFarland, 127 Wash. 2d at 335
    .
    We affirm the trial court in all respects.
    We concur:
    13