J.M. JOHNSON, J.
¶ 1 Petitioner Alvin Witherspoon challenges his conviction and life sentence for second degree robbery.
¶ 2 On November 12, 2009, Witherspoon and his fiancée drove to the victim's home. Witherspoon does not dispute that he then broke into the victim's home and stole several items. While the burglary was in progress, the victim returned home and noticed an unknown car parked in her driveway. The victim exited her car and saw Witherspoon walking from around the side of her home. He was holding his left hand behind
¶ 3 A jury found Witherspoon guilty of residential burglary and second degree robbery based on the events of November 12, 2009. See RCW 9A.52.025(1); RCW 9A.56.190, .210(1). The jury also found him guilty of witness tampering based on the jailhouse phone conversation he made to his fiancée after his arrest. See RCW 9A.72.120(1). At sentencing, the court determined that the certified conviction documents met the State's burden to prove two prior strike convictions. The court found that Witherspoon is a persistent offender and sentenced him to life in prison without the possibility of early release.
¶ 4 On appeal, he challenged his convictions and sentence on a number of grounds. The Court of Appeals affirmed his convictions and sentence. State v. Witherspoon, 171 Wn.App. 271, 286 P.3d 996 (2012). Witherspoon sought discretionary review in this court, which was granted on only four issues. State v. Witherspoon, 177 Wn.2d 1007, 300 P.3d 416 (2013).
¶ 5 1. Whether there was sufficient evidence to support Witherspoon's second degree robbery conviction.
¶ 6 2. Whether Witherspoon's counsel was ineffective in not asking for an instruction on first degree theft as a lesser included offense.
¶ 7 3. Whether Witherspoon's persistent offender sentence constitutes cruel or cruel and unusual punishment.
¶ 8 4. Whether Witherspoon's previous strike offenses should have been proved to a jury beyond a reasonable doubt.
¶ 9 Witherspoon claims that insufficient evidence exists to prove all elements of second degree robbery, as instructed to the jury. "The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). Witherspoon must accordingly admit the truth of the State's evidence and all reasonable inferences that can be drawn from such evidence. Id. We must also defer to the fact finder on issues of witness credibility. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). In this case, a rational trier of fact could have found guilt beyond a reasonable doubt. Consequently, sufficient evidence exists to support the jury's verdict.
¶ 10 Pursuant to RCW 9A.56.190:
¶ 11 Witherspoon asserts that under the law of the case doctrine, the jury instruction required the State to prove actual force or fear. This doctrine provides that a jury instruction not objected to becomes the law of the case. State v. Willis, 153 Wn.2d 366, 374, 103 P.3d 1213 (2005) (citing State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)). "In a criminal case, the State assumes the burden of proving otherwise unnecessary elements of the offense when such elements are included without objection in a jury instruction." Id. at 374-75, 103 P.3d 1213 (citing Hickman, 135 Wash.2d at 102, 954 P.2d 900). Contrary to Witherspoon's assertion, the exclusion of the word "such" does not change the plain meaning of the instruction in a way that requires the State to prove actual force or fear.
¶ 12 Witherspoon claims that he made, at most, an implied threat that instilled no fear. He further claims that even if there had been force or fear, it did not help accomplish the robbery because the victim did not know that Witherspoon had taken any of her property until he drove away. He contends that her ignorance did not stem from force, fear, or threats. Because we determine intimidation based on an objective test, Witherspoon's argument does not stand.
¶ 13 "Robbery encompasses any `taking of ... property [that is] attended with such circumstances of terror, or such threatening by menace, word or gesture as in common experience is likely to create an apprehension of danger and induce a man to part with property for the safety of his person.'" State v. Shcherenkov, 146 Wn.App. 619, 624-25, 191 P.3d 99 (2008) (alterations in original) (quoting State v. Redmond, 122 Wn. 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. Id. at 625, 191 P.3d 99 (quoting 67 AM.JUR.2D Robbery § 89, at 114 (2003)).
¶ 14 Taking the facts in the light most favorable to the State, a rational jury could have found that Witherspoon used force or the threatened use of force in this case. The victim testified at trial that she noticed an unknown car in her driveway when she arrived home. As she exited her car, she saw Witherspoon come around the side of her home with one hand behind his back. She testified that she asked him what he had behind his back, and he said he had a pistol. A rational jury could have found that this was an implied threat that he would use force if necessary to retain her property. The evidence is sufficient to prove the elements of second degree robbery beyond a reasonable doubt. We accordingly affirm the Court of Appeals, which upheld Witherspoon's robbery conviction.
¶ 15 Witherspoon argues ineffective assistance of counsel because his trial counsel did not request an instruction on theft as a lesser included offense. Counsel's performance, however, did not fall below an objective standard of reasonableness.
¶ 16 In order for a petitioner to prevail on an ineffective assistance claim, he must overcome the presumption that his counsel was effective. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
¶ 17 Under RCW 10.61.006, both the defendant and the State have the right to present a lesser included offense to the jury. State v. Stevens, 158 Wn.2d 304, 310, 143 P.3d 817 (2006). To prove the lesser included offense, the party requesting the instruction must meet a two-pronged test: (1) "under the legal prong, all of the elements of the lesser offense must be a necessary element of the charged offense" and (2) "under the factual prong, the evidence must support an inference that the lesser crime was committed." Id. (citing State v. Gamble, 154 Wn.2d 457, 462-63, 114 P.3d 646 (2005)).
¶ 18 In State v. Grier, 171 Wn.2d 17, 39, 246 P.3d 1260 (2011), we recognized that whether to request a jury instruction on lesser included offenses is a tactical decision. "Thus, assuming that defense counsel has consulted with the client in pursuing an all or nothing approach, a court should not second-guess that course of action, even where, by the court's analysis, the level of risk is excessive and a more conservative approach would be more prudent." Id. Here, the tactical decision was prudent, if unsuccessful.
¶ 19 Witherspoon's trial counsel chose to take an "all or nothing" approach that included not requesting a jury instruction on the lesser included offense of theft. Admittedly, conviction for the robbery charge was a close call. Witherspoon and his counsel chose to tactically defend on the possibility that the State could not prove to the jury that the property was taken by the use or threatened use of force or injury. See RCW 9A.56.190. They lost that bet, and the jury convicted Witherspoon of second degree robbery.
¶ 20 Witherspoon failed to meet his burden of proving ineffective assistance of counsel under Strickland. Accordingly, we affirm the Court of Appeals on this issue.
¶ 21 In addition to challenging his robbery conviction, Witherspoon also challenges his POAA sentence. He claims that his life sentence violates the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington State Constitution. The Eighth Amendment bars cruel and unusual punishment while article I, section 14 bars cruel punishment. This court has held that the state constitutional provision is more protective than the Eighth Amendment in this context. State v. Rivers, 129 Wn.2d 697, 712, 921 P.2d 495 (1996) (citing State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980)). Consequently, if we hold that Witherspoon's life sentence does not violate the more protective state provision, we do not need to further analyze the sentence under the Eighth Amendment. See id.
¶ 22 Fain provides four factors to consider in analyzing whether punishment is prohibited as cruel under article I, section 14: "(1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction." Id. at 713, 921 P.2d 495 (citing Fain, 94 Wash.2d at 397, 617 P.2d 720). 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
¶ 23 The first Fain factor is the nature of the offense. Id. As was noted in Rivers, robbery is a most serious offense. Id.; RCW 9.94A.030(32)(o). "The nature of the crime of robbery includes the threat of violence against another person." Rivers, 129 Wash.2d at 713, 921 P.2d 495. Here, the victim testified that the defendant told her he had a gun behind his back. This statement contains an implied threat.
¶ 24 The second Fain factor is the legislative purpose behind the statute. Id. In Rivers, we recognized that "the purposes of the persistent offender law include deterrence of criminals who commit three `most serious offenses' and the segregation of those criminals from the rest of society." Id. (citing State v. Thorne, 129 Wn.2d 736, 775, 921 P.2d 514 (1996), abrogated on other grounds by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)).
¶ 25 The third Fain factor is the punishment that the defendant would have received in other jurisdictions. Id. at 714, 921 P.2d 495. 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 904. Although these four states' treatment of similar crimes indicates that Washington is not alone in this area, the concurrence/dissent is correct that this Fain factor weighs in favor of a finding of disproportionality. However, this factor alone is not dispositive.
¶ 26 The fourth Fain factor is the punishment meted out for other offenses in the same jurisdiction. Rivers, 129 Wash.2d at 714, 921 P.2d 495. In Washington, all adult offenders convicted of three "most serious offenses" are sentenced to life in prison without the possibility of release under the POAA. In State v. Lee, we held that a life sentence imposed on a defendant convicted of robbery and found to be a habitual criminal was not cruel and unusual punishment. Id. at 714, 921 P.2d 495 (citing State v. Lee, 87 Wn.2d 932, 558 P.2d 236 (1976)). In that case, this court held, "`Appellant's sentence does not constitute cruel and unusual punishment. The life sentence 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, 921 P.2d 495 (quoting Lee, 87 Wash.2d at 937, 558 P.2d 236). In Washington, "most serious offenses," including robbery, carry with them the sentence of life in prison without the possibility of release when the offender has a history of at least two other similarly serious offenses.
¶ 27 Considering the four Fain factors, Witherspoon's sentence of life in prison without the possibility of release does not violate article I, section 14 of the Washington State Constitution or the Eighth Amendment to the United States Constitution. This court has repeatedly held that a life sentence after a conviction for robbery is neither cruel nor cruel and unusual. See Rivers, 129 Wash.2d at 715, 921 P.2d 495; State v. Manussier, 129 Wn.2d 652, 677, 921 P.2d 473 (1996) (a life sentence imposed for second degree robbery under POAA did not constitute cruel or cruel and unusual punishment where defendant's prior convictions were for first degree robbery); Lee, 87 Wash.2d at 937, 558 P.2d 236 (holding that a life sentence imposed for robbery under habitual criminal statute did not constitute cruel and unusual punishment where defendant's prior convictions were for robbery, two second degree burglaries, and second degree assault). Here, Witherspoon's earlier offenses were for first degree burglary and residential burglary with a firearm. The sentence of life in prison without the possibility of release for this third strike offense is proportionate to the crime.
¶ 28 As noted, because we hold that Witherspoon's life sentence does not violate the Washington Constitution's prohibition on cruel
¶ 29 Witherspoon cites to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), for the proposition that a second degree robbery conviction cannot give rise to a mandatory sentence of life in prison without the possibility of release. He contends that the sentencing court must be able to reject such sentences when warranted by the pettiness of the offense or the characteristics of the offender. Graham and Miller are readily distinguishable and do not support such a claim.
¶ 30 In Graham, 130 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 (3) children's characters are not well formed, meaning that their actions are less likely than adults to be evidence of depravity. Id.
¶ 31 Graham and Miller unmistakably rest on the differences between children and adults and the attendant propriety of sentencing children to life in prison without the possibility of release. Witherspoon was an adult when he committed all three of his strike offenses. These cases do not support Witherspoon's argument that all sentencing systems that mandate life in prison without the possibility of release for second degree robbery are per se invalid under the Eighth Amendment.
¶ 32 Under our established precedent, along with that of the United States Supreme Court, Witherspoon's sentence violates neither article I, section 14 of our state constitution nor the Eighth Amendment to the United States Constitution. We accordingly affirm the Court of Appeals, upholding Witherspoon's POAA sentence.
¶ 33 Witherspoon claims that previous strike offenses must be proved to a jury beyond a reasonable doubt within the context of sentencing under the POAA. He argues that prior convictions are elements of a crime when they elevate a class B felony to a third strike offense. Witherspoon concedes that Blakely contains an exception for prior convictions
¶ 34 In Apprendi v. New Jersey the United States Supreme Court held that "[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (emphasis added). Several years later in Blakely, 542
¶ 35 Earlier this year, the United States Supreme Court again considered which facts must be proved to a jury under the Sixth Amendment if such facts may increase a criminal sentence. Alleyne, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314. 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.
¶ 36 We have long held that for the purposes of the POAA, a judge may find the fact of a prior conviction by a preponderance of the evidence. In Manussier, 129 Wash.2d at 681-84, 921 P.2d 473, we held that because other portions of the SRA utilize a preponderance standard, the appropriate standard for the POAA is by a preponderance of the evidence. We also held that the POAA does not violate state or federal due process by not requiring that the existence of prior strike offenses be decided by a jury. Id. at 682-83, 921 P.2d 473. This court has consistently followed this holding. We have repeatedly held that the right to jury determinations does not extend to the fact of prior convictions for sentencing purposes. See State v. McKague, 172 Wn.2d 802, 803 n. 1, 262 P.3d 1225 (2011) (collecting cases); see also In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837 (2005) ("In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt."); State v. Smith, 150 Wn.2d 135, 139, 75 P.3d 934 (2003) (prior convictions do not need to be proved to a jury beyond a reasonable doubt for the purposes of sentencing under the POAA).
¶ 37 "The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned." In re Rights to Waters of Stranger Creek, 11 Wn.2d 649, 653, 466 P.2d 508 (1970). Witherspoon has not made such a showing. Accordingly, it is settled law in this state that the procedures of the POAA do not violate federal or state due process. Neither the federal nor state constitution requires that previous strike offenses be proved to a jury. Furthermore, the proper standard of proof for prior convictions is by a preponderance of the evidence.
¶ 38 The State bears the burden of proving by a preponderance of the evidence the existence of prior convictions as predicate strike offenses for the purposes of the POAA. State v. Knippling, 166 Wn.2d 93, 100, 206 P.3d 332 (2009) (quoting In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005)). In State v. Hunley, 175 Wn.2d 901, 915, 287 P.3d 584 (2012), this court held that "constitutional due process requires at least some evidence of the alleged convictions." Furthermore, "`[t]he best evidence of a prior conviction is a certified copy of the judgment.'" Id. at 910, 287 P.3d 584 (quoting State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999)).
¶ 40 United States Supreme Court precedent, as well as this court's own precedent, dictate that under the POAA, the State must prove previous convictions by a preponderance of the evidence and the defendant is not entitled to a jury determination on this issue. Here, based on certified copies of two judgments and sentences, the trial court determined that Witherspoon is a persistent offender and must be sentenced to life in prison without the possibility of release. We affirm the Court of Appeals, upholding Witherspoon's POAA sentence.
¶ 41 We affirm the Court of Appeals on all four issues accepted for review. First, there was sufficient evidence to support Witherspoon's second degree robbery conviction. Second, Witherspoon failed to meet his burden of proving ineffective assistance of counsel on the grounds that he and his counsel tactically determined not to request a jury instruction on first degree theft as a lesser included offense, hoping for a not guilty verdict if the State failed to prove all elements of the greater offense. Third, Witherspoon's life sentence without the possibility of release does not constitute cruel or cruel and unusual punishment. Finally, the law does not require that Witherspoon's previous strike offenses be proved to a jury beyond a reasonable doubt. We accordingly affirm the Court of Appeals, upholding the robbery conviction and the POAA life sentence without the possibility of release.
WE CONCUR: MADSEN, C.J., C. JOHNSON, OWENS, and STEPHENS, JJ.
MARY I. YU, J., not Participating.
GORDON McCLOUD, J. (concurring and dissenting).
¶ 42 I 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.
¶ 43 In addition, following State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011), 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.
¶ 44 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 provision of the Washington State Constitution is State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). Fain requires us to do just such a disproportionality analysis now, in reviewing the sentence.
¶ 45 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.
¶ 46 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:
Reporter's Transcript on Appeal (TR) (Sentencing) at 37-38.
¶ 47 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.
¶ 48 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:
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").
¶ 49 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 Wn.2d 419, 427, 853 P.2d 901 (1993), and State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996). In so doing, the majority errs.
¶ 50 To the extent that Grisby applies at all to SRA convictions,
¶ 51 Despite the narrowness of that holding and its limitation to the Sixth Amendment context, the Rivers majority relied on Grisby to conclude that life with and without the possibility of parole are indistinguishable for purposes of an article I, section 14 challenge.
¶ 52 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 Wn.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
¶ 53 As the majority notes, the Thomas court purported to distinguish Rivers on the basis that it did not involve an "Apprendi problem." Id. 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.
¶ 54 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.
¶ 55 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
¶ 56 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 47 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.
¶ 57 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, 617 P.2d 720 (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.
¶ 58 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:
Id. § 1 (emphasis added).
¶ 59 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.
¶ 60 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 Wn.2d 932, 937, 558 P.2d 236 (1976) (citing State v. Miles, 34 Wn.2d 55, 61-62, 207 P.2d 1209 (1949)); accord State v. Manussier, 129 Wn.2d 652, 677 n. 108, 921 P.2d 473 (1996) (citing Lee, 87 Wash.2d at 937, 558 P.2d 236). 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).
¶ 61 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. Thus, I cannot conclude that this factor weighs in favor of a finding of proportionality.
¶ 62 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, 617 P.2d 720.
¶ 63 But Witherspoon's final offense stands in 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 893. 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 Wn.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 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. Id. at 321, 286 P.3d 996 ("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.").
¶ 64 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 893; TR (Trial Day 1) at 42-49 (Pittario testimony).
¶ 65 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. § (1)(g), which include ensuring that punishments are both "just" and "proportionate to the seriousness of the offense," RCW 9.94A.010(2), (1).
¶ 66 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.
¶ 67 In fact, lack of discretion to depart from a habitual offender sentence is frequently cited by critics of habitual offender statutes.
¶ 68 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.
¶ 69 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.
¶ 70 This Fain factor clearly weighs in favor of a finding of disproportionality.
¶ 71 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 level 16 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.
¶ 72 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 of first degree rape, first degree assault, or sexually violent predator escape faces a mandatory minimum of five years. Id. 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.
¶ 74 Thus, this final Fain factor also weighs in favor of a finding of disproportionality.
¶ 75 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 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 Wn.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).
¶ 76 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. Id. 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.
¶ 77 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.
¶ 78 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.
¶ 79 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, does not comply with state constitutional requirements.
WIGGINS, FAIRHURST, and GONZÁLES, JJ., concur.
State Mandatory Minimum Applicable Statutes
for 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-59-(b)(1) (third strike class C felony punished as if class
A felony), § 13A-5-6(a)(1) (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), § 5-4-501(a)(1), (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)
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-40(j), § 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); § 11-42-1214
(habitual offender statute triggered by four strikes law)
District of None, unless both priors D.C.CODE § 22-2801 (minimum for first robbery offense is two years);
Columbia and current conviction § 22-1804a(a)(1), (2) (third conviction for crime of violence triggers 15
are crimes of violence; in year minimum sentence; otherwise, minimum is standard sentence for
that case, mandatory current offense)
minimum is 2 years
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), § 17-10-7(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) 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), (e), 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 degree robbery equivalent is class C years 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") 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), (c)(1), § 21-6804 (second degree robbery statute for crimes equivalent is level 5 personal felony with presumptive term of 50 committed after 1993) 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 of 7 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) Maine 9 months ME. REV. STAT. tit. 17-A § 651(1)(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, § 14401(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) Minnesota 10 years without parole MINN. STAT. § 609.24 (second degree robbery equivalent triggers maximum sentence of 10 years), § 609.1095(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 cime 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)
Montana 10 years (first 5 years MONT. CODE ANN. § 45-5-401(1)(b), (2), § 46-18-219(b) (second degree without parole) robbery equivalent triggers term of 2 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), (b), (2) (second degree robbery equivalent after 10 years) 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) New N/A (no persistent N.H.REV.STAT. ANN. § 636:1(I)(b), (III), § 651:2(II)(b) (second degree Hampshire offender statute) robbery equivalent is class B felony, triggering maximum term of 7 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) 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) 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, § 51.1(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(1)(a), (2), § 161.605(3) (second degree robbery statute) equivalent is a class C felony, triggering maximum term of 5 years) Pennsylvania N/A (second degree robbery 18 PA. CONS.STAT. § 3701(a)(1)(iv),(b), § 106(a)(4), (b)(4) (second degree equivalent does not robbery equivalent is second degree felony, triggering maximum term trigger habitual offender of 7 years); 42 PA. CONS.STAT. § 9714(g) (second degree robbery statute) equivalent not a "`crime of violence'" and does not trigger Pennsylvania's habitual offender statute) 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 robbery S.C.CODE ANN. § 16-11-325, § 16-1-10(A)(4), (D) (second degree robbery equivalent does not equivalent is a class D felony and triggers maximum sentence of trigger the habitual 15 years); § 16-1-120(1) (repeat offender statute triggered only by offender statute) 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) 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 of 3 years); § 40-35-105(a)(2), § 40-35-106(a)(1),(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) Utah 5 years UTAH CODE ANN. § 76-6-301(1)(b), (3), § 76-3-203(2), § 76-3-203.5(1)(c)(i)(BB), (1)(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), § 2507 (second degree robbery equivalent statute triggered only triggers maximum term of 10 years); § 11 (habitual criminal where there were three enhanced sentence permitted for fourth felony conviction, triggering prior convictions) maximum life sentence) Virginia Life without possibility of VA. CODE ANN. § 18.2-58, § 18.2-288(2) (second degree robbery equivalent parole until defendant is crime of violence triggers minimum term of 5 years up to life); 60 (if already served 10 § 19.2297.1(A)(e), (C) (third act of violence conviction, including second years) or 65 (if already degree robbery equivalent, shall be sentenced to life without served 5 years) 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.CODE R. § 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) Wisconsin No minimum WIS. STAT. § 943.32(1)(b), § 939.50(1)(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. § 6-2-401(a)(ii), (b) (second degree robbery equivalent triggers term not to exceed 10 years); § 6-1-104(a)(xii) (second degree robbery equivalent is violent felony), § 6-10-201(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)
As the majority acknowledges, article I, section 14 of the Washington Constitution is more protective of individual rights than the Eighth Amendment. Majority at 894 (citing Fain, 94 Wash.2d at 392, 617 P.2d 720). It follows that article I, section 14 must recognize the unique severity of life 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, 130 S.Ct. 2011.
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 Wn.2d 409, 414-15, 158 P.3d 580 (2007); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837 (2005). Second, it is consistent with the comparison undertaken in Fain, 94 Wash.2d at 399-400, 617 P.2d 720: a statute-to-statute, elements-based comparison. Third, as discussed in State v. Olsen, 180 Wn.2d 468, 325 P.3d 187 (2014), the problems inherent in comparing factual allegations, rather than proven factual elements, are virtually insurmountable when evaluating other states' crimes.
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).)
