Opinion
No. 37458-7-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-05900-0, Susan Serko, J., entered February 29, 2008.
Affirmed by unpublished opinion per Kulik, J., concurred in by Van Deren, C.J., and Houghton, J.
Unpublished Opinion
Tramaine Miles appeals his convictions for first degree robbery with a deadly weapon enhancement, attempting to elude a pursuing police vehicle, and obstructing a law enforcement officer. The trial court sentenced Miles to life without the possibility of parole under RCW 9.94A.570. Miles argues that the court erred by failing to sentence him within 40 days of his conviction. We conclude that good cause supported continuing the sentencing hearing and that the short delay was not oppressive or prejudicial. We also conclude that Miles's statement of additional grounds for review is without merit. Accordingly, we affirm Miles's convictions.
FACTS
On November 24, 2007, Marshalls's department store loss prevention personnel, Amparo Medina-Perez and Vincent San Nicolas, were watching a surveillance video of a specific area of the store where several "Phat Farm" brand jackets had recently been stolen. Report of Proceedings (RP) (Jan. 23, 2008) at 162. The jackets, which were priced between $200 and $300, were secured to a metal display rack by wire cable.
While watching live surveillance video in the loss prevention office, Medina-Perez observed a man, who was later identified as Miles, walk into the store and then to the Phat Farm jackets. Medina-Perez and San Nicolas saw a wire cable fall to the ground near the jackets. They watched as Miles removed a jacket from the rack. He then left the area with the jacket in hand.
San Nicolas watched as Miles walked to another section of the store, knelt down, and then put a drawstring bag on his back. The jacket was no longer visible and the bag appeared to be full. Darrell Butorac, the operations manager for Marshalls, saw Miles walking through the store wearing the bag. Miles walked around the customer service area to exit the store. Butorac did not see Miles purchase anything.
Miles began to leave the store and was followed by four Marshalls's employees — the two loss prevention staff, the store manager, and Butorac. Inside the store vestibule, Medina-Perez identified herself to Miles and said, "`Marshalls loss prevention. We just need to go inside and talk about the . . . unpaid-for merchandise.'" RP (Jan. 23, 2008) at 184. Miles replied: "`Step back, little girl. You're going to get stepped on.'" RP
(Jan. 23, 2008) at 184. He then pushed Medina-Perez on the shoulder, and went out the exterior doors onto the sidewalk. In describing the contact, Medina-Perez testified that "he pushed me with some quite bit of force [sic], which threw me back." RP (Jan. 23, 2008) at 184.
Medina-Perez followed Miles, trying to convince him to come back into the store. At that point, Miles told her to "`[s]tep back.'" RP (Jan. 23, 2008) at 186. He then pulled out what appeared to be a knife and pointed it at her. Butorac heard someone yell "`[i]t's a knife,'" and everyone backed off. RP (Jan. 23, 2008) at 153. Miles got into a red pickup truck and drove through the parking lot before getting stuck behind other cars at the mall exit.
The store manager contacted Officer Kenneth Devaney of the Lakewood Police Department. Officer Devaney located a red pickup truck stopped at a stop sign. A highspeed chase ensued. During the pursuit, Miles drove 50 to 60 m.p.h. in a residential 25 m.p.h. zone, crossed into the oncoming lane of traffic, and failed to stop at stop signs and a red light. The chase ended on foot.
Ultimately, Miles was handcuffed and searched. Officer Devaney found a folding knife with a three and one-quarter inch blade in Miles's right front pants' pocket and a pair of wire cutters. In Miles's truck, Officer Devaney found a bag on the front passenger seat containing a gray fur "Baby Phat" brand jacket. RP (Jan. 23, 2008) at 121. The jacket had a Marshalls's price tag and security tag. Two store employees arrived on the scene and identified Miles. After returning to Marshalls, Officer Devaney obtained the surveillance video of the incident from San Nicolas. The surveillance video was later played for the jury.
The State charged Tramaine Gregory Miles with one count of first degree robbery with a deadly weapon enhancement, one count of attempting to elude a pursuing police vehicle, and one count of obstructing a law enforcement officer.
On January 3, 2008, the State filed a persistent offender notice. At a January 17 pretrial hearing, the State informed the trial court that Miles had an extensive criminal history, extending from 1980 through 2007. The prosecutor explained that a 1984 conviction for first degree robbery in Pierce County was "clearly a strike offense." RP (Jan. 17, 2008) at 13. The State was also trying to obtain records from Nassau County, New York, on a 1980 conviction for second degree attempted robbery, which was potentially a second strike. The prosecutor informed the court that he had submitted multiple requests for documents to New York, with no response.
On January 29, the jury found Miles guilty of all three counts as charged. The jury also returned a special verdict, finding that Miles was armed with a deadly weapon at the time he committed the robbery. The court set sentencing for February 29.
At the February 29 hearing, the State advised the court of the continuing problems getting the necessary paperwork from Nassau County, despite having put in 8 to 10 requests and talking with supervisors in the Nassau County records division. The State also explained that there was some question as to whether the 1984 robbery could be counted as a conviction because it might have been overturned on appeal. The State then argued for a continuance, as follows:
Unfortunately, for the court to sentence him, the court will have to have a good solid offender score. In this case, I believe Mr. Miles' offender score might be as little as a seven; could be as high as a nine; could be even higher than a nine and, frankly, he could be a persistent offender. And I think, in fairness to all the parties, the State would be asking for a set-over of Mr. Miles' sentencing.
RP (Feb. 29, 2008) at 4.
The trial court then asked if there was any issue with speedy sentencing. The State conceded that continuing sentencing to the next available court date of March 14 would potentially go beyond the 40-day time limit in the speedy sentencing statute. But the State asserted that Miles would not be prejudiced. The prosecutor later argued that the delay could work in Miles's favor, pointing out that if the 1984 Pierce County conviction had been reversed, it would not count toward his offender score or count as a strike offense.
Defense counsel acknowledged the State's effort to resolve the sentencing issues before the hearing, stating: "Your Honor, I happen to know that [the prosecutor] was diligently ferreting out Mr. Miles' offender score weeks prior to trial. So, through no fault of his own, we come here today for sentencing and Mr. Miles' true offender score is somewhat cloudy." RP (Feb. 29, 2008) at 6. Nonetheless, defense counsel stipulated to an offender score of eight and asked to proceed to sentencing. He argued that if additional information was received, it could mean a longer sentence for Miles.
The trial court granted the State's request and continued sentencing until March 14, allowing the State time to figure out the true offender score and whether Miles qualified as a persistent offender. The court concluded that there was no prejudice to Miles "because regardless of whether his offender score is a seven, a nine-plus, or I am sentencing under the persistent offender statute, . . . he's going to remain incarcerated at least through the 14th of March." RP (Feb. 29, 2008) at 8.
On March 14, the court found Miles to be a persistent offender, based on a 1984 Pierce County conviction for third degree rape and the 1984 Pierce County conviction for first degree robbery. The court accepted the State's sentencing recommendation and sentenced Miles to life without the possibility of parole on count I, the first degree robbery conviction. The court also imposed a 24-month deadly weapon enhancement on that count. Miles was sentenced to 29 months on count II and 365 days' confinement on count III. Finally, the court ordered the term of confinement was to be followed by 18 to 36 months of community custody. Miles timely filed a notice of appeal.
ANALYSIS
I. Speedy Sentencing. Miles contends that the trial court violated his constitutional right to speedy sentencing by granting the State's motion for a continuance, thereby unreasonably delaying his sentencing. Miles further argues that the delay was purposeful and oppressive. He argues that dismissal of his convictions is the appropriate remedy. We disagree.
RCW 9.94A.500(1) requires a trial court to conduct a sentencing hearing within 40 court days following a conviction, subject only to an extension for good cause on a motion by either party or the court. In addition, CrR 7.1(a)(1) requires the court to set a date, time, and place for sentencing in compliance with RCW 9.94A.500.
We review a trial court's decision to grant or deny a motion to continue sentencing for an abuse of discretion. State v. Armstead, 13 Wn. App. 59, 66, 533 P.2d 147 (1975). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Woods, 143 Wn.2d 561, 626, 23 P.3d 1046 (2001).
Importantly, "reversal of sentence is not an automatic remedy when a trial court fails in its obligation to conduct a sentencing hearing within 40 court days." State v. Anderson, 92 Wn. App. 54, 60, 960 P.2d 975 (1998). Rather, the defendant must show prejudice arising from such a violation in order to reverse a criminal sentence. Id. at 60-61.
Moreover, only a delay that is "purposeful or oppressive" violates a defendant's constitutional speedy sentencing rights under the state and federal constitutions. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994) (quoting Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957)). To determine whether a delay in sentencing is purposeful or oppressive, a court balances the following four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) the extent of any prejudice to the defendant. Ellis, 76 Wn. App. at 394. Here, the continuance of two additional court days beyond the 40-day limit was not "purposeful or oppressive," or prejudicial.
First, the length of delay was minimal. At the February 29 sentencing hearing, the prosecutor noted that "we are essentially at day 32," which was not disputed. RP (Feb. 29, 2008) at 5. The hearing was then set over until March 14, the next available court date. Significantly, only 10 court days elapsed between February 29 and March 14. As such, the time for sentencing exceeded the 40-day limit provided in the speedy sentencing statute by only 2 days. Miles's assertion that he was harmed by the delay because he continued to languish in the county jail is unpersuasive.
Second, good cause supported the State's motion. The State informed the court of the possibility that Miles qualified as a persistent offender. The State argued that it needed a continuance to obtain documents regarding Miles's prior criminal history from the State of New York. These documents were needed to calculate Miles's offender score and New York had not been forthcoming despite multiple requests. The State provided ample justification for the continuance.
Miles asserts that the delay was unreasonable because the State was aware of the extent of Miles's criminal history for at least two months before the hearing. This argument is also unpersuasive. The State informed the court before trial on January 17 that it was having difficulty obtaining the necessary documents from New York. Then, at the February 29 hearing, the State advised the court of its difficulty in getting documents from New York. Defense counsel corroborated the State's efforts in pursuing the matter.
Third, Miles's contention that he "emphatically asserted his right to speedy sentencing" at the February 29 hearing is a mischaracterization. Appellant's Br. at 13. Defense counsel agreed that Miles's "true offender score is somewhat cloudy" and only stipulated to the offender score as established by the certified copies that the prosecutor had in his possession at that time. RP (Feb. 29, 2008) at 6. Although defense counsel did inform the trial court that Miles "would like to proceed," he conceded that "I don't know what prejudice entails exactly in this particular situation." RP (Feb. 29, 2008) at 6.
Fourth, the trial court's decision to continue the sentencing hearing was not prejudicial. The court correctly noted that potential prejudice would occur if a delay in sentencing prevented someone from getting out of jail. The court further questioned the attorneys about whether such reasoning was "completely off base," and both parties responded "no." RP (Feb. 29, 2008) at 6-7.
In State v. Johnson, 100 Wn.2d 607, 630, 674 P.2d 145 (1983), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985), the court held that the defendant's constitutional right to speedy sentencing was not violated by a 13-month delay pending disposition of the habitual offender proceeding. The court stated: "In light of the fact that the State, as was its right, wished to prepare and institute a habitual offender proceeding, the delay of 13 months, while long and not to be encouraged, was not outrageous." Johnson, 100 Wn.2d at 630. The court determined that the defendant could not establish that the delay prejudiced him because the time he served in detention would ultimately be credited toward the sentence imposed. Id.
Here, the trial court properly concluded that the continuance did not prejudice Miles because he was going to remain incarcerated through March 14 regardless of the sentencing date.
In sum, the trial court acted within its discretion by granting the State's motion to extend the sentencing hearing, as provided in RCW 9.94A.500(1). The court's failure to sentence Miles within 40 days of the guilty verdict does not require reversal of his sentence under either the constitutional or statutory right to speedy sentencing.
II. Statement of Additional Grounds for Review. Miles filed a pro se statement of additional grounds for review (SAG), raising additional issues for review.
A. Ineffective Assistance of Counsel. Miles contends he received ineffective assistance of counsel. He argues that defense counsel's performance was deficient during the plea bargaining process because counsel failed to advise Miles of the consequences of accepting or rejecting the plea offer, thereby preventing him from making an informed decision.
Specifically, Miles claims that defense counsel failed to tell him of the potential sentence he faced if he was found guilty at trial. Miles further argues that defense counsel did not advise him that the State would be using his prior convictions to establish that he was a persistent offender. He maintains that had he known of all of the facts, he would have accepted the plea bargain.
Defense counsel has an ethical obligation to discuss plea negotiations with a client and must not only communicate actual offers, but must also keep the client apprised of developments in plea discussions and provide sufficient information to enable the client to make an informed judgment on whether to plead guilty. State v. Holm, 91 Wn. App. 429, 435, 957 P.2d 1278 (1998). Here, the record does not support Miles's argument that he received ineffective assistance of counsel.
As we noted above, the State explained the basis for filing a persistent offender notice during the January 17 pretrial hearing. Defense counsel responded that it initially appeared to him that Miles's conviction from New York would count as a strike offense. He stated: "I looked at the elements, I think it is a strike offense. And so if the abstract comes through, I believe that this will be Mr. Miles' third strike, and I have informed him of that." RP (Jan. 17, 2008) at 14 (emphasis added). Defense counsel went on to inform the court:
I also would like to go on the record and say that I spoke with Mr. Miles about preparing a mitigation package to get to the prosecutor to avoid a potential life sentence without the possibility of parole. And he has rejected that idea. He has rejected it out of hand, and we have discussed it thoroughly, and he does not want to take any kind of an offer that the State is willing to give him. . . .
So we have discussed it, and I have informed Mr. Miles for the purposes of deciding whether to take the deal that the State has extended to him, that this is a strike offense, and he has rejected the State's offer.
. . . .
. . . We were given notice by the State that they intend to have Mr. Miles sentenced as a persistent offender. . . .
So we have gotten notice, and Mr. Miles has made a decision, presuming that this is his third strike, and I think he is competent, and we are prepared to go to trial.
RP (Jan. 17, 2008) at 14-16 (emphasis added). At that point, the trial court noted: "All right. And he [Miles] is nodding at me, so I assume that that is the case." RP (Jan. 17, 2008) at 16.
Hence, the record shows that defense counsel properly communicated the State's plea offer, discussed the plea, and provided sufficient guidance and advice to Miles concerning the risks of rejecting the plea. Miles's ineffective assistance claim is without merit.
B. Robbery and Intent Instruction. Miles suggests that there is insufficient evidence to convict him of robbery; he contends that he committed only theft in the third degree. Miles claims that the theft was completed when he left the store and, therefore, he did not take the jacket by force or threat. Miles argues: "The property was not taken by force; it was taken, and then afterwards, the keeping of the property was done under duress in a state of panic without intention." SAG at 17. Miles also argues that by failing to instruct the jury on intent, the State was relieved of its burden to prove every element of the crime.
Miles's argument is without merit. The trial court instructed the jury on intent in instruction 8. Miles's argument that he did not commit robbery because he used force only to retain the jacket is equally without merit. In State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992), the court held that the forceful retention of stolen property was sufficient to support a robbery conviction, even where initial appropriation was peaceable or occurred in the owner's absence. The court noted that the plain language of the robbery statute, RCW 9A.56.190, states that the force used may be "either to obtain or retain possession" of the property. Handburgh, 119 Wn.2d at 293. The court explained that "the force necessary to support a robbery conviction need not be used in the initial acquisition of the property. Rather, the retention, via force against the property owner, of property initially taken peaceably or outside the presence of the property owner, is robbery." Id.
Lastly, there is no evidence to support Miles's claim that he acted under duress. To the contrary, Miles was acting alone during the commission of robbery and while attempting to elude officers during the high-speed chase. In conclusion, the trial court properly instructed the jury, and substantial evidence supports Miles's conviction for first degree robbery.
C. Sufficiency of the Evidence. Miles suggests that there was insufficient evidence to support the deadly weapon enhancement. Miles argues that he informed the police officers and his defense attorney that he did not possess a knife. He also argues that when Officer Devaney arrested and searched him, no knife or any other weapon was found on his person. He points to Officer Devaney's computerized police report, in which the officer indicated that Miles was "unarmed." SAG at 21.
Officer Devaney testified at trial that a search of Miles incident to arrest revealed a folding knife in his right front pants' pocket and a pair of wire cutters. After seizing those items, the officer packaged them as evidence. At trial, Officer Devaney identified the knife as the one he removed from Miles's pocket following the incident. He also measured the length of the blade as three and one-quarter inches. Likewise, Officer Darrin Latimer testified that he observed the knife being removed from Miles after Officer Devaney patted down his pockets.
On cross-examination, defense counsel asked about Officer Devaney's police report. The report contained a computer-generated section with an entry line in one column entitled "Armed With" followed by the word "unarmed." RP (Jan. 23, 2008) at 141. Officer Devaney explained the discrepancy as a computer coding problem. Officer Devaney stated that while that one particular section recorded that Miles was unarmed, other sections of the report state that Miles had a knife.
There was sufficient evidence to support the deadly weapon enhancement.
D. Lesser-Included Instruction. Miles contends the trial court erred by refusing to instruct the jury on the lesser-included offenses of both first degree robbery and attempting to elude a police vehicle. Miles argues that the court should have instructed the jury on second degree robbery, attempted first degree robbery, and attempted second degree robbery.
A lesser-included offense instruction is required when: (1) each of the elements of the lesser offense are necessary elements of the charged offense, and (2) the evidence in the case supports an inference that the defendant committed the lesser offense. State v. Roche, 75 Wn. App. 500, 509, 878 P.2d 497 (1994). Importantly here, the evidence "must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). Moreover, "the evidence must affirmatively establish the defendant's theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt." Id. at 456.
Even if the evidence is viewed in the light most favorable to Miles, the evidence at trial was insufficient to raise an inference that he committed only second degree robbery or attempted robbery in either the first or second degree. See id. at 455. Consequently, the trial court properly determined that Miles was not entitled to the requested instructions.
E. Evidentiary Hearing. Miles contends that the trial court erred by failing to hold an evidentiary hearing to determine whether his prior felonies, a 1984 conviction for third degree rape and a 1984 conviction for first degree robbery, qualified as strike offenses. Miles mistakenly argues that only those offenses specifically listed under the Persistent Offender Accountability Act (POAA), RCW 9.94A.030, may be counted as strike offenses.
At the March 14 sentencing hearing, Miles demanded that the court hold a hearing to determine if his prior convictions counted as strike offenses. The trial court explained to Miles, at length, that each of the two convictions counted as a "most serious offense or strike offense," qualifying him as a persistent offender as defined in subsection (a)(i) of that statute. RP (Mar. 14, 2008) at 19.
Former RCW 9.94A.030(32) (2007) provided in part, that a "persistent offender" is an offender who:
Former RCW 9.94A.030(32) is presently numbered RCW 9.94A.030(35).
(a)(i) Has been convicted in this state of any felony considered a most serious offense; and
(ii) 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.
Importantly, former RCW 9.94A.030(28)(2007) defines "most serious offense," in part, to mean:
Former RCW 9.94A.030(28) is presently numbered RCW 9.94A.030(30).
(28) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies:
(a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;
. . . .
(n) Rape in the third degree.
The trial court correctly determined that Miles's 1984 Pierce County conviction for third degree rape counted as a one strike offense under former RCW 9.94A.030(28)(n). And because RCW 9A.56.200(2) provides that first degree robbery is a class A felony, Miles's 1984 conviction for first degree robbery in Pierce County counted as a second strike under former RCW 9.94A.030(28)(a). No further hearing was necessary.
F. "Washed Out" Convictions. Miles challenges the inclusion of the two prior felony convictions in his criminal history, arguing that these prior convictions should have "washed out." RCW 9.94A.525(2)(a) provides that "Class A and sex prior felony convictions shall always be included in the offender score." (Emphasis added.) Additionally, RCW 9.94A.525(2)(c) provides that
class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
(Emphasis added.)
Under this authority, Miles's previous convictions for first degree robbery and third degree rape were properly included in his criminal history.
G. Cruel and Unusual Punishment. Miles next contends that the POAA violates the Eighth Amendment's prohibition against cruel and unusual punishment. Arguing that he was convicted for merely "shoplifting a coat worth a small amount of money," Miles contends that the "penalty is so disproportionate to the crime that is inflicted [sic] shocks the conscience and offend[s] fundamental notions of human dignity." SAG at 47.
The Washington Supreme Court recently held in State v. Magers, 164 Wn.2d 174, 193-94, 189 P.3d 126 (2008) that a sentence of life without the possibility of parole imposed on a defendant, as a persistent offender, did not violate state and federal constitutional prohibitions against cruel and unusual punishment. There, the court applied the factors set forth in State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980) to determine whether a life sentence violated the federal or state constitutional provisions on the basis that the sentence was disproportionate to the underlying offenses. The four factors identified in Fain are: (1) the nature of the offense, (2) the legislative purpose behind the habitual criminal statute, (3) the punishment the defendant would have received in other jurisdictions for the same offense, and (4) the punishment imposed for other offenses in the same jurisdiction. Id.
Here, in light of Miles's past convictions for third degree rape and first degree robbery, we are satisfied that the sentence he received — life without the possibility of parole — is not grossly disproportionate to the offenses he committed. Accordingly, the punishment imposed on Miles did not violate the federal or state constitutions.
H. Racial Bias in Jury Selection. Miles asserts that racial bias tainted jury selection. Miles is African American. He claims that during jury selection, there was only one African-American woman in the entire jury pool. Miles further asserts that when he expressed his concern to defense counsel and asked if he could get a different jury pool with a greater number of African Americans, he was told he could not. Miles contends that his constitutional rights were violated because members of a racial group were purposely excluded from the jury.
The record does not contain the necessary facts for us to address the merits of Miles's challenge. The jury voir dire was not transcribed. The remaining portions of the record addressing jury selection contain no reference to the race or to the racial makeup of the jury pool. Accordingly, the record contains no basis for this court to conclude that racial bias tainted jury selection. Because Miles asks this court to consider matters outside the record, the proper procedure to raise this issue is a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) (A personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record.).
I. Ex Post Facto. Finally, Miles contents that the POAA violates the ex post facto clause of the United States and Washington Constitutions. Miles argues that the POAA retroactively increases the punishment associated with his previously-committed first and second strike crimes.
The ex post facto clauses of the United States Constitution, article I, section 10, and the Washington Constitution, article I, section 23, prohibit the State from exacting any law that: (1) punishes an act that was not punishable at the time the act was committed, (2) aggravates a crime or makes the crime greater than it was when committed, (3) increases the punishment for an act after the act was committed, and (4) changes the rules of evidence to receive less or different testimony than required at the time the act was committed in order to convict the offender. State v. Angehrn, 90 Wn. App. 339, 343, 952 P.2d 195 (1998) (citing Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994)).
Washington courts have consistently rejected similar ex post facto arguments regarding the use of prior convictions in applying the POAA. State v. Nordlund, 113 Wn. App. 171, 192, 53 P.3d 520 (2002). The Court of Appeals rejected Miles's argument in Angehrn, which addressed whether the POAA aggravates a crime or increases the punishment for a prior committed act. Angehrn, 90 Wn. App. at 343. The Angehrn court determined that the POAA's increased punishment is triggered only upon the third conviction of a "most serious offense." Id. Consequently, the POAA "does not retroactively increase the penalty for prior offenses." Id. The court went on to conclude:
In this case, POAA was passed in November 1993, well before [the defendant] committed the robberies that constituted his third most serious offense. As previously stated, POAA's increased punishment is triggered only upon the third conviction of a most serious offense. . . . As a result, [the defendant] had fair notice that he would be sentenced to life without the possibility of parole if convicted of a third most serious offense.
Id. at 344. The court held that the POAA's mandatory life sentence does not constitute ex post facto punishment when applied to cases, as here, where the act constituting the third strike occurs after the POAA's enactment. Id.
Here, using Miles's prior convictions to determine the POAA's application did not increase the punishment for his prior strikes; rather, the prior strikes were used only to calculate his current sentence for his post-POAA convictions. Because Miles committed the third strike well after the 1993 passage of the POAA, he had fair notice of the life sentence before he committed that third offense. Accordingly, we find no ex post facto violation.
We affirm Miles's convictions.
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.
HOUGHTON, J. and VAN DEREN, C.J., concur.