Opinion
No. 36398-4-II.
February 24, 2009.
Petition for relief from personal restraint.
Denied by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Jerry Brock seeks relief from personal restraint imposed following his 1995 child molestation conviction, after which the trial court sentenced him to a lifetime of confinement without possibility of parole under the Persistent Offender Accountability Act (POAA). Brock argues that Initiative 593 (I-593), which enacted the POAA, violates the subject in title requirement of article II, section 19 of the Washington State Constitution and asks that we vacate his sentence as a persistent offender. Because it is time-barred under RCW 10.73.090, we deny Brock's petition.
FACTS
I. Background on Initiative 593
In November 1993, I-593 asked Washington State voters the following question: Shall criminals who are convicted of "most serious offenses" on three occasions be sentenced to life in prison without parole? Seventy-six percent of voters answered "yes" to this question. I-593, also referred to as the POAA and commonly known as the "three strikes and you're out" law, amended sections of the Sentencing Reform Act of 1981 (SRA) to require trial courts to sentence "persistent offenders" to life imprisonment without the possibility of parole. See State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514 (2006). I-593 defined the phrase "persistent offender" as an offender who:
Chapter 9.94A RCW.
(a) Has been convicted in this state of any felony considered a most serious offense; and (b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.
Former RCW 9.94A.030(25) (1994). The initiative defined the phrase "most serious offense" to include, among other felony offenses, first degree promoting prostitution. Former RCW 9.94A.030(21) (1994). The primary issue upon which Brock bases his petition focuses on this phrase as it appears in the initiative's ballot title.
Laws of 1994 (ch. 1, § 3), as passed by I-593. Brock notes that the later amendment to RCW 9.94A.030, which was in effect at the time of Brock's molestation offense, did not change any of the relevant definitions at issue in this case.
II. Procedural History
In 1995, a jury convicted Brock of first degree child molestation. At his sentencing, the trial court determined that first degree child molestation is "a most serious offense" under former RCW 9.94A.030(21). Clerk's Papers (CP) at 129. It also determined that Brock had prior convictions for first degree promoting prostitution and first degree burglary, both of which constituted "most serious offenses" under former RCW 9.94A.030(21). The trial court determined that Brock was a "[p]ersistent [o]ffender" under the POAA and sentenced him to a lifetime of confinement without the possibility of parole. CP at 129.
Former RCW 9A.88.070(1) provides that a person is guilty of first degree promoting prostitution if he knowingly advances prostitution by compelling a person by threat or force to engage in prostitution or profits from prostitution which results from such threat or force, or advances or profits from prostitution of a person less than eighteen years old.
Brock subsequently filed a direct appeal of his conviction and sentence, challenging the constitutionality of the POAA and arguing that the trial court erred by using his prior first degree burglary conviction in classifying him as a persistent offender. In an unpublished opinion, we affirmed. We first noted that Brock challenged the constitutionality of the POAA without argument or citation to authority, and that he wished "merely to preserve his right to redress should the Act ever be declared unconstitutional." CP at 262. Furthermore, we noted that "the Washington Supreme Court has recently held that this Act is constitutionally valid." CP at 262. Finally, we held that the trial court did not err in using Brock's first degree burglary conviction in its determination that he was a persistent offender. On August 27, 1997, we issued a mandate finalizing Brock's conviction.
Court of Appeals Cause No. 20096-1-II.
In December 2000, Brock filed a personal restraint petition (PRP) with this court, arguing that his prior first degree burglary conviction was invalid and therefore should not have been used as a basis for his persistent offender status. He also contended that his prior convictions could not be used as a basis for his persistent offender status unless charged in the information and proved to a jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We determined that Brock's petition was time-barred under RCW 10.73.090(1) and dismissed it.
Court of Appeals Cause No. 26933-3-II.
Brock then petitioned the Washington Supreme Court for discretionary review. The commissioner of that court denied review, ruling that we properly dismissed Brock's petition as untimely. The commissioner also found that the Supreme Court had already ruled contrary to Brock's Apprendi argument in State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001). We issued a certificate of finality in reference to that petition on May 15, 2002. III. Current Petition
Supreme Court Cause No. 71584-0.
On January 3, 2007, Brock moved to vacate his sentence under CrR 7.8, arguing that the ballot title of I-593 is unconstitutional under article II, section 19 of the Washington State Constitution. The trial court transferred Brock's motion to this court for consideration as a PRP pursuant to CrR 7.8(c)(2). We determined that the issues Brock raised were not frivolous and appointed counsel to assist Brock with his claim.
CrR 7.8 specifies procedures for requesting relief from a judgment or order.
CrR 7.8(c)(2) requires that the trial court transfer a motion filed by the defendant to the Court of Appeals for consideration as a PRP unless the court determines that the motion is not barred by RCW 10.73.090 and either the defendant has made a substantial showing that he is entitled to relief or resolution of the motion will require a factual hearing.
ANALYSIS
The State argues that Brock's motion is barred under both RCW 10.73.090 and 10.73.140. Brock, through appointed counsel, responds that his petition is properly before this court and should be addressed on the merits. We disagree and therefore decline to address the substantive issues underlying Brock's petition.
RCW 10.73.140 provides that if a person has previously filed a PRP, this court will not consider the petition unless the person certifies that he has not filed a previous petition on similar grounds, and shows good cause why he did not raise the new grounds in the previous petition.
RCW 10.73.090(1) provides that no petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction. A judgment and sentence is constitutionally invalid on its face when an infirmity of constitutional magnitude is evident from the face of the document without further elaboration. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000). However, RCW 10.73.100(2) provides that RCW 10.73.090(1) does not apply to a petition or motion when the statute the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct.
In this case, Brock's judgment and sentence reflects that a jury convicted him of first degree child molestation. It also reflects that the trial court determined that he was a persistent offender and sentenced him to a lifetime of confinement without the possibility of release under the POAA. The Washington Supreme Court has repeatedly upheld the POAA as constitutional. See State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996) (rejecting challenges based on the prohibition of cruel and unusual punishment found in the state and federal constitutions); Thorne, 129 Wn.2d 736 (rejecting challenges based on bill of attainder, cruel and unusual punishment, separation of powers, and equal protection). Thus, Brock cannot now argue that an infirmity of constitutional magnitude is evident from the face of his judgment and sentence without further elaboration. Because Brock was incarcerated under a facially valid order of commitment and judgment and sentence, his petition is time-barred under RCW 10.73.090(1) and is therefore denied.
Furthermore, RCW 10.73.100(2) does not provide an exception to RCW 10.73.090(1) in this case, as the statute Brock was convicted of violating is constitutional on its face and as applied to his conduct. Although Brock appears to argue that the exception applies to the statute under which he was sentenced, this argument is without merit. The POAA is constitutional on its face and as applied in this case. Even if this exception applied, we would likely be precluded from deciding the merits of what appears to be a successive petition, and we would have to transfer it to the Supreme Court. See RCW 10.73.140.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and QUINN-BRINTNALL, J., concur.