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State v. Alvarado

The Court of Appeals of Washington, Division Three
Aug 16, 2007
140 Wn. App. 1011 (Wash. Ct. App. 2007)

Opinion

No. 25194-2-III.

August 16, 2007.

Appeal from judgments of the Superior Court for Yakima County, No. 05-1-00652-3, Blaine G. Gibson, J., entered May 12, 2006.


Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Stephens, J.


Following an automobile chase and shoot-out with Yakima police, Jesse A. Alvarado was convicted of five counts of first degree assault, four counts of second degree assault, and one first degree kidnapping count. The sentencing court imposed life sentences without the possibility of parole under Washington's Persistent Offender Accountability Act (POAA), chapter 9.94A RCW. Mr. Alvarado appeals his sentence, contending the court improperly considered a prior conviction and improperly engaged in jury fact-finding under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) by determining the dates of his prior convictions. We disagree and affirm.

FACTS

During sentencing, the court considered a 1992 judgment and sentence on a second degree assault conviction. Mr. Alvarado committed this offense shortly before turning 18 years old. The parties entered a stipulation, declining juvenile jurisdiction. Prior to approving the stipulation, the court questioned Mr. Alvarado whether he understood the agreement. He replied in the affirmative. The stipulation was approved and Mr. Alvarado was convicted as an adult for second degree assault. The court on the current offenses found the stipulation was constitutionally valid. The court also considered a 1994 judgment and sentence on a first degree burglary conviction.

Based on these two prior strikes, the court sentenced Mr. Alvarado on each of the 10 counts to life imprisonment without the possibility of parole. He appealed.

ANALYSIS The issue is whether the sentencing court erred in counting Mr. Alvarado's 1992 and 1994 convictions as prior most serious offenses for POAA purposes.

Under the POAA, a persistent offender must be sentenced to life imprisonment without the possibility of parole. State v. Smith, 150 Wn.2d 135, 139, 75 P.3d 934 (2003). A "persistent offender" is an offender who has been convicted in this state of a most serious offense and has been convicted previously, on two separate occasions, of most serious offenses ("strikes"). RCW 9.94A.030(33).

First, Mr. Alvarado contends his 1992 conviction should not count as a strike because a hearing did not take place before juvenile jurisdiction was declined. We review a sentencing court's decision to consider a prior conviction as a strike de novo. State v. Thiefault, ___ Wn.2d ___, 158 P.3d 580, 582 (2007).

RCW 13.40.110(1) provides that when a request for transfer of a juvenile to adult criminal proceedings, a declination hearing shall be held, "[u]nless waived by the court, the parties, and their counsel." This statute also requires the transfer be set forth in writing. RCW 13.40.110(3). In 1992, the prosecutor, defense counsel, and Mr. Alvarado stipulated that the matter be transferred to adult court. After confirming Mr. Alvarado understood the stipulation, the court signed an "Order Stipulating to Declination." Clerk's Papers at 177. Based on the plain language of RCW 13.40.110, a declination hearing was not required following the stipulation and the court properly entered an order on the stipulation. Mr. Alvarado's 1992 conviction in adult court was valid.

Second, relying on Blakely, Mr. Alvarado contends he has a constitutional right to have a jury find his criminal history. But in Blakely, the Court specifically excluded a defendant's prior convictions from those sentence-increasing facts that a jury must find. Blakely, 542 U.S. at 301. Even Blakely's predecessor, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), recognized a prior convictions exception based on Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).

Mr. Alvarado's argument that the prior conviction exception is no longer good law due to Justice Thomas' concurring opinion in Shepard v. United States, 544 U.S. 13, 27-28, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) is unpersuasive. Our Supreme Court "has repeatedly rejected similar arguments and held that Apprendi and its progeny do not require the State to submit a defendant's prior convictions to a jury and prove them beyond a reasonable doubt." Thiefault, 158 P.3d at 585. Thus, the sentencing court correctly determined Mr. Alvarado had two prior most serious offenses. Further, the court properly relied on the 1992 and 1994 judgment and sentences to determine the prior conviction dates. A judgment and sentence is ?`[t]he best evidence of a prior conviction.'" State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002) (quoting State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999)).

In sum, the sentencing court did not err in finding that Mr. Alvarado qualified as a persistent offender under the POAA's three strikes law, and in sentencing him to life without the possibility of parole.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SWEENEY, C.J., STEPHENS, J. Concur


Summaries of

State v. Alvarado

The Court of Appeals of Washington, Division Three
Aug 16, 2007
140 Wn. App. 1011 (Wash. Ct. App. 2007)
Case details for

State v. Alvarado

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JESSE ABRAM ALVARADO, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Aug 16, 2007

Citations

140 Wn. App. 1011 (Wash. Ct. App. 2007)
140 Wash. App. 1011