Opinion
No. 30592-5-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 99-1-02886-6. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Bruce W Cohoe.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St. Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Frank Reed Nordlund appeals his sentence of life imprisonment without parole under the Persistent Offender Accountability Act (POAA). He argues that the trial court erred in determining that he is a persistent offender because the POAA violates the federal and state constitutions. We reject these contentions and affirm.
Facts
In July 1999, the State charged Frank Reed Nordlund by information with indecent liberties with forcible compulsion, count I; unlawful imprisonment, counts II and IV; and second degree attempted rape, count III. A jury convicted Nordlund on all counts. Following a sentencing hearing on June 30, 2000, the trial court found that Nordlund is a persistent offender and sentenced him to life imprisonment without the possibility of parole under the POAA, former RCW 9.94A.560 (2000).
Currently codified at RCW 9.94A.570.
Nordlund then appealed to this court, and on August 30, 2002, we affirmed his convictions on counts I and II, but reversed the convictions on counts III and IV. Following our remand, the State elected not to re-try Nordlund on counts III and IV. At re-sentencing, the trial court again found that Nordlund is a persistent offender based upon his prior sex crime convictions, and on June 13, 2003, re-sentenced him to life imprisonment without the possibility of parole on counts I and II. Norlund again appeals, challenging the constitutionality of the POAA.
State v. Nordlund, 113 Wn. App. 171, 53 P.3d 520 (2002), review denied, 149 Wn.2d 1005 (2003).
Analysis
Where the constitutionality of a statute is challenged, the statute is presumed constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt. Island County v. State, 135 Wn.2d 141, 146, 955 P.2d 377 (1998); State v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995). Nordlund contends that the POAA violates the federal constitution under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because it does not require a jury determination of the fact of a defendant's prior convictions. Former RCW 9.94A.560. He also argues that the POAA violates Washington's state constitutional provisions guaranteeing due process and the right to a jury trial.
The Ring court, in interpreting Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that if a state legislature uses additional or aggravating factors to increase a defendant's sentence, due process requires that those factors be found by a jury. Ring, 536 U.S. at 609. However, Apprendi holds that where a prior conviction is used to increase a sentence, the fact of the prior conviction need not be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490 (emphasis added). Thus, Nordlund's prior convictions were not required to be determined by a jury.
Moreover, our Supreme Court recently resolved these same issues in State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003), cert. denied, 124 S.Ct. 1616 (2004). The Smith court held that neither the state nor the federal constitution requires that the fact of prior convictions be determined by a jury beyond a reasonable doubt for sentencing under the POAA, stating that `[n]o court has yet extended Apprendi to hold that sentence enhancements based on the fact of a prior conviction are unconstitutional.' Smith, 150 Wn.2d at 142 (citing State v. Wheeler, 145 Wn.2d 116, 123, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002)). We are bound by this holding and thus reject Norlund's state and federal constitutional claims without further discussion.
This being so, we elect not to reach the State's contentions that Nordlund is not entitled to raise his constitutional challenges in this appeal because he failed to raise them in his first appeal in this same case, and that his remedy, if any, lies in a personal restraint petition. To the extent that the State may be correct, Smith is nevertheless dispositive of the merits of this appeal, and it would be a waste of scarce judicial resources to require Nordlund to file a personal restraint petition in order to raise the issues, only to have his petition dismissed in light of Smith.
We affirm Nordlund's sentence of life imprisonment without the possibility of parole.
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.
ARMSTRONG, P.J., and SEINFELD, J.P.T., concur.