Opinion
No. 59098-7-I.
February 19, 2008.
Petition for relief from personal restraint.
Denied by unpublished opinion per Becker, J., concurred in by Appelwick, C.J., and Baker, J.
Eddie Lawrence seeks relief from his sentence of life in prison without the possibility of parole, imposed under Washington's "two strikes" law. Lawrence was convicted of rape, and he had a prior New York conviction for attempted rape in the first degree. Because Lawrence's prior offense is one specifically listed in the two strikes statute, his sentence stands.
Police arrested Lawrence in 1997 for raping a homeless woman under the viaduct in downtown Seattle. Lawrence, 54 years old at the time, was also homeless. The victim saw Lawrence a few weeks after the rape and notified the police. The State charged Lawrence with rape in the second degree. A jury found him guilty as charged in February 1999.
At sentencing, the State argued that Lawrence's previous convictions counted as both two-strike and three-strike offenses. Either way, Lawrence would be classified a persistent offender, and the court would be required to sentence him to life in prison without the possibility of parole.
The legislature has defined "persistent offender" in two ways. At the time of Lawrence's offense, an offender had three strikes if his current conviction and at least two previous convictions were for a "most serious offense." RCW 9.94A.030(27)(a)(i) and (ii) (1997). "Most serious offense" is defined as including rape and other serious felonies as well as attempts. It also expressly includes "any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection." RCW 9.94A.030(23)(u) (1997).
An offender had two strikes if his current offense was a "most serious offense" and if at least one previous conviction was for one of certain specified sex crimes, including attempts.
(27) "Persistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony considered a most serious offense; and
. . . .
(b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree, with a finding of sexual motivation; or (C) an attempt to commit any crime listed in this subsection (27)(b)(i); and
(ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection.
RCW 9.94A.030(27) (1997) (emphasis added).
The State presented evidence of Lawrence's prior convictions for sex crimes: a 1974 New York conviction for attempted rape in the first degree, a 1982 Arizona conviction for sexual abuse, and a 1988 Texas conviction for attempted sexual assault.
Lawrence's sentencing was set over a number of times in order for the prosecution and the defense to research the comparability of Lawrence's out-of-state convictions. For purposes of the two strikes provision, the statute in effect at that time did not expressly include previous federal or out-of-state convictions shown to be factually comparable to a "most serious offense" in Washington, and it did not incorporate the definition of "most serious offense" into the list of eligible prior convictions. Nevertheless, both sides apparently assumed that a comparability analysis needed to be done to bring Lawrence's previous out-of-state convictions into consideration for two strikes as well as three strikes. The State acknowledged that it was unable to establish the comparability of Lawrence's Arizona conviction for sexual abuse. The trial court ruled that the Texas conviction for attempted sexual assault was not comparable. This left only the New York conviction as a possibility to support a life sentence under the two strikes provision.
To provide details about the New York conviction for purposes of a comparability analysis, the State submitted the New York indictment, a portion of the transcript from the arraignment, and a portion of the transcript from the plea hearing. The transcript shows that when Lawrence was asked by the New York court to describe in his own words what had happened, he stated that he took the victim into the projects and "had sex with her by force." He pled guilty to attempted rape in the first degree.
Appendix D to Supp. Br. of Respondent.
Based on Lawrence's admission at his New York plea hearing that he had actually raped the victim, the trial court concluded that "the comparable Washington state crime would have been rape in the second degree. And that is a crime that falls within the two strikes legislation." In November 1999, the court sentenced Lawrence to life in prison as a two strikes persistent offender based on the 1974 New York conviction for attempted rape and his current Washington conviction for rape in the second degree. Lawrence appealed, unsuccessfully. State v. Lawrence, 108 Wn. App. 226, 31 P.3d 1198 (2001). Lawrence claimed that the persistent offender law was unconstitutional because it results in disparate treatment of similarly situated defendants, violating a defendant's right to equal protection. Lawrence argued that while the three strikes law requires a comparability analysis when the State seeks to count an out-of-state conviction, the two strikes law applied only to offenses specifically named in that statute. In other words, the name assigned to the conviction by the foreign jurisdiction, not the acts committed, should determine whether or not the conviction would count as a strike.
Report of Proceedings, Nov. 5, 1999 at 26.
This court rejected Lawrence's argument that the sentencing court lacked authority to conduct a factual comparability analysis. "The statute does not require such an absurd result. The statute lists certain substantive crimes and counts the convictions for those crimes whether committed in Washington or elsewhere. Whether an out-of-state conviction is equivalent to a crime listed in the statute requires a factual inquiry into the elements." Lawrence, 108 Wn. App. at 241. The Supreme Court denied Lawrence's petition for review on April 2, 2002. State v. Lawrence, 145 Wn.2d 1037 (2002).
Meanwhile, in the 2001 Regular Legislative Session, the legislature amended the two strikes statute by adding a comparability clause so that there was an explicit direction to count as a strike "any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection." ESSB 5013, 57th Leg., Reg. Sess. § 2(31)(b)(ii) (Wash. 2001). The legislature explained that the bill was to "clarify" legislative intent:
The legislature finds that an ambiguity may exist regarding whether out-of-state convictions or convictions under prior Washington law, for sex offenses that are comparable to current Washington offenses, count when determining whether an offender is a persistent offender. This act is intended to clarify the legislature's intent that out-of-state convictions for comparable sex offenses and prior Washington convictions for comparable sex offenses shall be used to determine whether an offender meets the definition of a persistent offender.
ESSB 5013, 57th Leg., Reg. Sess. § 1 (2001).
After the amendment was enacted, this court was asked to decide whether a sexual crime not specifically listed in the two strikes statute should count as a strike. State v. Delgado, 109 Wn. App. 61, 33 P.3d 753 (2001). A trial court had ruled that a Washington conviction for statutory rape, the former name of an offense later recodified under a different name, did not constitute a strike under the two strikes law because "statutory rape" was not specifically listed in the statute. The State appealed. Relying on Lawrence and the recent legislative amendment that explicitly added a comparability clause to the two strikes law, this court reversed and remanded for resentencing. We stated that "whether an out-of-state conviction counts as a strike turns on the conviction's factual equivalency to one of the crimes listed in the statute" and held that the same reasoning applied to crimes such as statutory rape that are not specifically listed in the statute. Delgado, 109 Wn. App. at 67. The applicability of the two strikes statute turned on "the comparability of criminal conduct rather than nomenclature as Delgado suggests." Delgado, 109 Wn. App. at 67.
The Supreme Court granted review and reinstated the trial court ruling, in effect holding that the applicability of the former two strikes statute does turn on nomenclature, not comparability. The court concluded that the list of predicate strike offenses in the former two strikes statute was exclusive. The Court characterized the omission of a comparability clause as an intentional decision by the legislature:
[T]he legislature knew how to include comparable offenses in the definition of a persistent offender. Yet, the legislature neither directly included a comparability clause, nor incorporated the definition of "most serious offense," into the definition of two-strike persistent offenders directly following the three-strike definition. . . . We therefore presume the absence of such language in the two-strike scheme was intentional.
State v. Delgado, 148 Wn.2d 723, 728-29, 63 P.3d 792 (2003). The court interpreted the legislature's recent amendment adding a comparability clause as "an acknowledgment that, at the time of Delgado's current offense, such a clause did not exist, nor can it be read in." Delgado, 148 Wn.2d at 729. The intent of the legislature had to be derived from the "plain language" of the statute. Delgado, 148 Wn.2d at 729.
In this personal restraint petition, Lawrence claims that his classification as a persistent offender and his sentence to life in prison without parole are invalid in light of the Supreme Court's holding in Delgado. The State agrees that the Supreme Court's decision in Delgado which explicitly rejects the reasoning of Lawrence constitutes a significant change in the law such that this petition is not untimely.
In his petition, Lawrence claims that the two strikes statute in effect when he committed his crime "did not permit the use of out-of-state convictions for purposes of two strike sentences." He overlooks the language in the two strikes provision that counts a conviction for a listed offense "whether in this state or elsewhere." RCW 9.94A.030(27)(b)(ii) (in part) (1997). Although Delgado shows that the trial court lacked statutory authority to analyze the facts of the New York conviction to see if it was comparable to a Washington two strikes offense, the fact remains that Lawrence's New York conviction was for a crime specifically listed in the two strikes statute. Counting Lawrence's New York conviction for attempted rape as a strike does not run afoul of Delgado because we can determine from the plain language of the statute that the conviction was for a listed offense.
Br. of Petitioner at 7.
Lawrence then points out that the New York Certificate of Disposition listed the crime as "Attempted Rape First (1) Degree," whereas the Washington two strikes statute refers to "Rape in the first degree" and also includes attempts. Lawrence claims the slight variation in the arrangement of the words renders his sentence unlawful. "The State cites nothing that permits it or the sentencing court to rename out-of-state offenses to fit its purposes." Because "Attempted Rape First (1°) Degree" uses the same words as the Washington statute to designate the offense, we conclude there has been no renaming, and reject this argument.
Reply Br. of Petitioner at 4.
We note the offense listed in New York Penal Code, § 130.35, is exactly the same as Washington's: "Rape in the First Degree." However, the parties have not cited this statute and therefore our holding concerns only the nomenclature used in the certificate of disposition.
Lawrence next argues that the New York offense cannot be counted as a strike because it could not have been included in his offender score. He quotes from State v. Cruz: "a conviction for purposes of implementing the POAA must also be a conviction that forms part of a defendant's offender score." State v. Cruz, 139 Wn.2d 186, 190, 985 P.2d 384 (1999), citing RCW 9.94A.030(27)(a)(ii) and State v. Morley, 134 Wn.2d 588, 604, 952 P.2d 167 (1998). Lawrence posits that an out-of-state conviction must be comparable to a Washington offense in order to count in the offender score. Since the trial court did not have statutory authority to conduct a comparability analysis, Lawrence reasons that the New York conviction could not have been included in his offender score, and consequently could not be counted as a strike under Cruz.
Persistent Offender Accountability Act.
Cruz was addressing the three strikes statute, not the two strikes statute at issue here. Cruz cites Morley, another case in which only the three strikes statute was under consideration. The statute as discussed in Cruz specifically mentions that to come under the three strikes provisions, a previous conviction must be for a felony that would be considered a most serious offense in Washington and would be included in the offender score. At the time of Lawrence's offense, the two strikes statute did not have a corresponding provision mandating that any offense counted as a strike had to be one that would be included in the offender score. Consequently, we reject the Cruz argument.
Attempted rape in the first degree is a crime specifically listed in the two strikes statute that applied to Lawrence. The New York conviction was properly counted as a strike.
The petition for relief from the sentence is denied.