                                                                                                  FILED
                                                                                             COURT OF
                                                                                                      APPEAL'
                                                                                                      DIVISION
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                            ISI        3
                                                                                                                AN 8: 33
                                                                                           S T.4 `    U'
                                             DIVISION II                                                       AS   G TON
                                                                                           BY
    STATE OF WASHINGTON,                                                No. 44951 -0 -II


                                   Respondent,                  PART PUBLISHED OPINION


          v.




    WILLIAM H. ELLISON,


                                   Appellant.


         BJORGEN, A.C. J. —     Following a bench trial, the trial court found William H. Ellison

guilty of second degree rape and second degree child molestation based on conduct against AE,1
the minor granddaughter of Ellison' s former wife. The court imposed a mandatory life sentence

without the possibility of early release, based on a finding that Ellison had previously been

convicted of two crimes defined in RCW 9. 94A.030 as " most serious" offenses under the


Persistent Offender      Accountability   Act (POAA),   RCW 9. 94A.570. Ellison appeals, arguing that

the trial court denied him the right of allocution and that increasing his punishment based on the

judicial finding, not expressly made beyond a reasonable doubt, that Ellison had two prior

qualifying convictions violated his rights to due process of law and to equal protection of the

laws under the federal constitution.


          Ellison also submits a statement of additional grounds for review (SAG) under RAP


10. 10, claiming that the trial court violated his right to a speedy trial and that his attorney denied

him the right to participate in his own defense, refused to present exculpatory evidence, and




1
    Consistently with our court' s General Order 2011 -1, we refer to minor victims by their initials
to   protect   their privacy.
No. 44951 -0 -II



denied Ellison his right to a jury trial. Ellison further contends in his SAG that the trial judge

and the prosecutor committed misconduct. We affirm Ellison' s convictions and sentence.


                                                        FACTS


          In January 2011, AE accused Ellison of forcing her to have sexual intercourse on one

occasion and fondling her breasts on several occasions. AE alleged that the sexual abuse

occurred between September 2006 and July 2008, while she lived with her grandmother and

legal guardian, Joan Ellison, who was married to William Ellison at the time.2 Based on AE' s

accusations,     the State   filed   charges against   Ellison in April 2011.   The State subsequently

notified Ellison that second degree rape qualified as a " most serious offense" under RCW

9. 94A.030( 37) and that, if he had previously been convicted on separate occasions of two other

such offenses, he would be sentenced to a term of total confinement for life without the


possibility    of release under      the POAA.    1 Verbatim Report of Proceedings ( VRP) at 8; Clerk' s

Papers ( CP) at 6.


           Ellison   remained    in custody from April 2011 throughout the        proceedings.   On October 9,


2012, the day trial was set to begin, the prosecutor requested a continuance, informing the court

that she had developed a medical problem that required surgery and rendered her unable to

proceed as scheduled. Against Ellison' s wishes, defense counsel did not object. The trial court

found good cause and granted the continuance.


           In November 2012, against his attorney' s wishes, Ellison filed a pro se motion to dismiss

the charges against him. Ellison based the motion on, among other grounds, violation of the




2
    The   couple   divorced in   July   2011.   For clarity, we refer to Joan Ellison by her first name. We
intend    no   disrespect.
No. 44951 -0 -II



time -for -trial rule and his constitutional right to a speedy trial. After reviewing the scheduling

orders in the case, the trial court denied the motion.


          The   parties completed voir   dire   on   January   7, 2013.   The next day, following an extensive

colloquy, Ellison waived his right to a jury trial. The court began hearing testimony on January

9.


          The State presented the testimony of Joan, AE, and David Duralde, M.D., a child abuse

expert. Ellison testified on his own behalf, and the defense called no other witnesses.


          The trial court found Ellison guilty of one count of second degree rape and one count of

child molestation and entered written findings of fact and conclusions of law. The State


presented certified copies of the judgment and sentence evidencing Ellison' s history of felony

convictions, as well as an affidavit from a forensic technician stating that Ellison was the same

person identified in those documents.


          The court concluded that Ellison was a persistent offender based on the current


convictions and its findings that Ellison had two robbery convictions from 1994 and 1997.

Ellison did not object to these findings, and the record does not reveal what evidentiary standard

the court applied in making them.

          After hearing a statement from Joan and argument from counsel, the sentencing court

invited Ellison to allocute. Ellison sang a short religious song and spoke about various topics not

clearly   related   to the sentencing proceeding.       After making extensive remarks, Ellison began to

protest his innocence and accuse his trial attorney of lying to the court. At that point, the court
cut Ellison off, explained that the matters he related were irrelevant to the issues at hand, and

pronounced the sentence. Ellison asked for permission to finish his remarks, but the court

declined.



                                                          3
No. 44951 -0 -II



         As required by RCW 9. 94A.570, the sentencing court imposed a term of total

confinement for life without the possibility of release. Ellison timely appeals.

                                                         ANALYSIS


         Because it raises an issue of first impression in Washington, we begin by addressing in

the published portion of this opinion Ellison' s contention that the sentencing court denied him

the right of allocution. In the unpublished portion, we turn to Ellison' s constitutional challenges


to the sentencing procedure and the claims raised in Ellison' s SAG.

                                                I. THE RIGHT OF ALLOCUTION


         Ellison claims that the sentencing court violated his right to meaningful allocution by

interrupting his remarks and refusing to allow him to finish. Ellison contends that this error

requires resentencing before a different judge.3 We hold that the sentencing court did not violate
Ellison' s right of allocution.


         The     right of allocution       is   guaranteed   by   RCW 9. 94A. 500( 1), which states in relevant part


that "[ t] he   court [ shall] ...    allow `arguments          from ...   the   offender[] ...   as to the sentence to be


imposed." ( Alterations in           original.)    Our Supreme Court has specified that " trial courts should


scrupulously follow" this statutory mandate. In re Pers. Restraint ofEcheverria, 141 Wn.2d

323, 336 -37, 6 P. 3d 573 ( 2000).              Offenders subject to a mandatory life sentence enjoy this right .

even though the sentencing court has no discretion to exercise. State v. Snow, 110 Wn. App.

667, 669 -70, 41 P. 3d 1233 ( 2002).




3 The State invites us to decline to consider Ellison' s allocution claim, asserting that he failed to
timely object. Ellison, however, repeatedly protested the court' s termination of his remarks,
which sufficiently apprised the trial court of the claimed error. State v. Moen, 129 Wn.2d 535,
547, 919 P. 2d 69 ( 1996);           see   United States   v.   Li, 115 F. 3d 125, 132 ( 2d Cir. 1997) ( rejecting an
identical waiver argument on the ground that the defendant' s protestations adequately apprised
the trial court of the issue).

                                                                   4
No. 44951 -0 -II



             Here, the sentencing court invited Ellison to speak, allowing him to make lengthy

remarks before interrupting and pronouncing the sentence. Thus, the issue presented involves

the extent to which a court may limit the exercise of the right to allocution.

             Our state Supreme Court has specified that allocution


             is the right of a criminal defendant to make a personal argument or statement to the
             court before the pronouncement of sentence. It is the defendant' s opportunity to
             plead for mercy and present any information in mitigation of sentence.

State   v.   Canfield, 154 Wn.2d 698, 701, 116 P. 3d 391 ( 2005). It is not, however, intended to


advance or       dispute facts.   State   v.   Lord, 117 Wn.2d 829, 897 -98, 822 P. 2d 177 ( 1991); see State


v. Curtis, 126 Wn. App. 459, 463, 108 P.3d 1233 ( 2005).

             The sentencing court allowed Ellison to speak for some time, cutting him off only when

he began using the opportunity to testify about the facts of the case and complain about the

conduct of his trial attorney. Under Canfield, those were not legitimate purposes for allocution.

Because the court let Ellison speak without interruption until it was clear he was using the

allocution for improper purposes, we hold that the trial court did not abuse its discretion in

cutting short Ellison' s allocution.4

             A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record pursuant to RCW 2. 06. 040, it is so ordered.




4 This conclusion is consistent with United States v. Muniz, 1 F. 3d 1018, 1024 -25 ( 10th Cir.
      which held that a sentencing court did not violate the right to allocute by cutting the
 1993),

defendant off after he began rearguing the case and complaining that his trial rights had been
violated.




                                                             5
No. 44951 -0 -II



          II. CONSTITUTIONAL CHALLENGE TO THE PERSISTENT OFFENDER DETERMINATION


       Ellison contends that the sentencing court' s persistent offender determination violated his

constitutional rights for two reasons. First, he argues that the use of prior convictions to impose


a harsher sentence than the law would otherwise authorize violated his right to due process of


laws because the sentencing court did not expressly find that the State had proved beyond a

reasonable doubt that the convictions ( 1) exist and ( 2) qualify as most serious offenses. Ellison

also argues that increasing the penalty for the charged crime on the basis of prior convictions

found by a preponderance of the evidence denies defendants equal protection of the laws because
in other, similar contexts the courts have made such prior convictions " elements" of a greater

crime, which elements the State must prove beyond a reasonable doubt. Br. of Appellant at 8 - 14.

A.        Due Process


          Ellison' s due process challenge turns on the United States Supreme Court' s holding in

Apprendi    v.   New   Jersey   that, "[   o] ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved       beyond   a reasonable      doubt." 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435


 2000). The Apprendi Court based the prior- conviction exception to its general rule on


Almendarez -Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 ( 1998).

Apprendi, 530 U. S. at 488 -90. Ellison argues that subsequent decisions have undermined the



5 In his first assignment of error, Ellison challenges the sentencing court' s persistent offender
determination based on the due process provisions of both the Washington and federal
constitutions. Ellison, however, presented no analysis under State v. Gunwall, 106 Wn.2d 54,
64 -69, 720 P. 2d 808 ( 1986), as to whether the state constitutional provision provides greater
protection than its federal counterpart. Without that analysis or some other reason why we
should interpret the state constitutional provision more broadly, we do not reach the state
constitutional issue. Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 538, 936 P. 2d 1123

 1997).



                                                             6
No. 44951 -0 -II



validity      of   the   relevant   holding   in Almendarez -Torres, notably Alleyne      v.       United States, - -- U. S. -


   133 S. Ct. 2151, 186 L. Ed. 2d 314 ( 2013), on remand, United States v. Alleyne, 539 Fed.


Appx. 269 ( 4th Cir. Sept. 24, 2013).                He argues also that even if the Almendarez- Torres


exception to the Apprendi rule remains viable, it does not apply here because the court based

Ellison' s sentence not only on the fact of Ellison' s prior convictions, but also on the fact that

those convictions qualified as most serious offenses.


              Ellison' s challenge to the Almendarez -Torres exception founders on our state Supreme


Court' s opinions expressly affirming the continuing validity of that exception. See State v.

Witherspoon, 180 Wn.2d 875, 891 -94, 329 P. 3d 888 ( 2014); State v. McKague, 172 Wn.2d 802,


803   n. 1,    262 P. 3d 1225 ( 2011); State v. Wheeler, 145 Wn.2d 116, 122 -24, 34 P. 3d 799 ( 2001).


Witherspoon addressed Alleyne and held that it did not require the fact of prior offenses under the


POAA to be proved beyond a reasonable doubt. Witherspoon, 180 Wn.2d at 891 -92. Even more

to the point, the Wheeler court rejected due process challenges to the POAA' s persistent offender

procedure          indistinguishable from Ellison' s         challenges.    Wheeler, 145 Wn.2d at 118 -19, 124.


              Opinions of our state Supreme Court do not bind us to the extent they conflict with

applicable United States Supreme Court precedents. See, e. g., State v. Anderson, 112 Wn. App.

828, 839, 51 P. 3d 179 ( 2002). The United States Supreme Court has declined to repudiate the


Almendarez -Torres            exception       in light   of Apprendi.   Alleyne, 133 S. Ct.   at   2160   n. 1.   Therefore,


its precedents do not conflict with the holdings of our state Supreme Court that the exception

remains viable. Those holdings therefore control, State v. Gore, 101 Wn.2d 481, 486 -87, 681

P. 2d 227 ( 1984), and compel us to reject Ellison' s argument.


              Ellison' s attempt to distinguish Almendarez -Torres on the ground that his sentence rests


on more than simply a finding that the prior convictions exist fails for the same reason: our.


                                                                  7
No. 44951 -0 -II



Supreme Court expressly rejected his arguments in Wheeler, 145 Wn.2d at 118 -19, 124, and

declined to reconsider its holding in Witherspoon, 180 Wn.2d at 891 -94. Accord McKague, 172

Wn.2d   at   803   n.   1.    Furthermore, because the statute explicitly defines " most serious offense,"

RCW 9. 94A. 030( 32),            whether a given conviction qualifies presents an issue of statutory

interpretation: a question of law for the court, not a question of fact. See State v. Ford, 99 Wn.


App.   682, 691, 995 P. 2d 93 ( 2000). Whether the prior conviction qualifies as a " most serious


offense" under RCW 9. 94A.030( 32) is not a question that could be submitted to the trier of fact

and found beyond a reasonable doubt in the first place.

        Unless our Supreme Court decides to overrule Wheeler and Witherspoon, or the United


State Supreme Court expressly repudiates the Almendarez -Torres exception, those state

decisions remain binding precedents. Ellison' s due process challenge must yield to their

authority.


B.       Equal Protection


         Ellison contends that we should apply strict scrutiny to the persistent offender

determination in our equal protection analysis, because it deprives defendants of a fundamental

liberty interest. Ellison further contends that the POAA' s procedure for designating persistent

offenders fails even rational basis review. This is so, Ellison argues, because designating prior

convictions used             to increase the penalty for    certain crimes as "    sentencing factors," requiring only


a finding by preponderance of the evidence, while designating prior convictions used to increase

the penalty for     other crimes as " elements,"            requiring proof beyond a reasonable doubt, furthers

no   legitimate    government         interest. Br.   of   Appellant   at   9 - 14. Stated another way, the government


interest in punishing recidivists more severely is the same in both contexts, making the

distinction artificial and arbitrary.



                                                                 8
No. 44951 -0 -II



         These   arguments   fail for the    same reasons         that Ellison' s due     process   claim   fails:   our




courts have already rejected them. Our Supreme Court held that rational basis review applies to

the persistent offender determination procedure, which procedure does not offend the equal

protection clause.   State   v.   Manussier, 129 Wn.2d 652, 672 -74, 921 P. 2d 473 ( 1996); ; State v.


Thorne, 129 Wn.2d 736, 770 -72, 921 P. 2d 514 ( 1996),                 abrogated on other grounds by Blakely v.

Washington, 542 U. S: 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004).

                                                         III. SAG


         In his SAG, Ellison       claims   that ( 1)   his attorney denied him the         right   to a jury trial, ( 2) the


judge   committed misconduct, ( 3)       the trial      court violated   his   right   to a speedy trial, ( 4)   his


attorney refused to present exculpatory evidence and denied him the right to participate in his

own defense, and ( 5) the prosecutor committed misconduct. Except for his claims that his

attorney denied him his right to a jury trial and that the trial judge committed misconduct, which

claims the record squarely refutes, all of the claims depend on the truth of Ellison' s allegations

concerning matters outside the record. On direct appeal, we do not address claims that depend

on facts not in the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).

A.       The Right to a Jury Trial

         Ellison alleges that his attorney " bullied" him into choosing a bench trial. SAG at 6. The

record affirmatively refutes this allegation. After voir dire, when Ellison' s attorney informed the

court that Ellison had decided to opt for a bench trial, the attorney made clear that Ellison did so

against the advice of counsel. Although Ellison addressed the court at length about his decision,


he never disputed his attorney' s statement. The court specifically asked Ellison whether anyone

had pressured him, and Ellison denied it:


         The Court:      Has anybody done anything to force you or coerce you or otherwise
                         try to make you give up your right to a jury trial?

                                                              9
No. 44951 -0 -II



         Ellison]:           Just   by   what    I feel. Just   by   what   I'   ve seen.    Just      by —no    coercing.
                             No     one' s   threatened   me.    I just —I know I           won'   t   get a   fair trial. I

                             know it. I know I will not get a fair trial. And I' m hoping I can get
                             one    from     you.   But even from your standpoint, you look like you
                             don' t even want to do it. So now you might as well just convict me.
3 VRP at 45.


         The record establishes that Ellison waived his jury trial rights knowingly, voluntarily, and

intelligently and, contrary to the allegation in his SAG, against the advice of counsel. Ellison' s

claim fails.


B.       Judicial Misconduct


         Ellison bases his judicial misconduct claim on the allegation that the trial judge cut short

Ellison' s impeachment of Joan, then reminded Joan that she was under oath. The record shows


that Ellison tried extensively to impeach Joan, using allegedly untruthful answers she had given

on forms submitted to the state Department of Social and Health Services, and stopped cross -


examining her about it after a sidebar discussion. Although the court made a record of the

sidebar, the transcript shows no reminder from the court that Joan was still under oath. Ellison

did not object to the trial court' s termination of his attempt to impeach Joan.

         ER 608( b)     specifies     that "[   s] pecific instances of the conduct of a witness, for the purpose


of attacking or supporting the witness' credibility, other than conviction of crime as provided in
rule   609, may   not   be   proved    by    extrinsic evidence."      The rule, however, gives trial courts


discretion whether to allow a party to cross -examine a witness about instances of conduct

probative of   truthfulness. ER 608( b).            The trial court allowed Ellison to cross -examine Joan

about her answers on the forms. Thus, to the extent that the record shows that the matters Ellison

alleges occurred, nothing suggests that the trial court did anything improper. For these reasons,

Ellison' s judicial misconduct claim fails.




                                                                10
No. 44951 -0 -II



C.        The Right to a Speedy Trial

          The record shows that Ellison spent well over a year in custody before commencement of

his trial, asserted his right to a speedy trial on at least two occasions, and was clearly not

responsible for at least the final delay. Such matters bear on whether a constitutional speedy trial

violation   has   occurred.   State   v.   011ivier, 178 Wn. 2d 813, 827, 312 P. 3d 1 ( 2013), cert. denied,


135 S. Ct. 72 ( 2014) ( holding       that whether a constitutional speedy trial violation has occurred

depends on the length of the delay, the reasons for the delay, the defendant' s assertion of his

speedy trial right, and prejudice to the defendant).

          Proper analysis of the claim, however, requires consideration of the reasons for each


delay. 011ivier, 178 Wn.2d at 831 -32 ( citing State v. Iniguez, 167 Wn.2d 273, 294, 217 P. 3d 768

 2009) ( citing    Barker v. Wingo, 407 U. S. 514, 531, 92 S. Ct. 2182, 33 L. Ed. 2d 101 ( 1972))).

The record does not reveal how many continuances the trial court granted. Except for the

continuance to accommodate the deputy prosecutor' s medical issue, the record does not disclose

the reasons the court granted any continuances or whether Ellison objected in each instance.

Because the record is inadequate for review of Ellison' s speedy trial challenge, we decline to

address the issue. McFarland, 127 Wn.2d at 335; see also Stuart v. Consol. Foods Corp., 6 Wn.

App.   841, 846, 496 P. 2d 527 ( 1972) ( " In order to evaluate a trial court' s decision, the basis for


the decision must be known. ").


D.        Ellison' s Remaining SAG Claims

          The remainder of the claims raised in Ellison' s SAG also depend on matters outside the

record.    The    prosecutorial misconduct claim rests on        two   allegations: (   1) that the prosecutor


removed Aaron Wilson, AE' s boyfriend, from the State' s witness list after discovering that his

version of AE' s disclosure differed from AE' s, and ( 2) that the prosecutor coached Joan outside



                                                           11
No. 44951 -0 -II



the courtroom to change her testimony about Ellison' s underwear. Because neither Wilson' s

description of AE' s disclosure nor the witness lists appear in the record, we cannot evaluate the


first allegation on its merits. Although the record does show that Joan gave slightly different

testimony about the underwear at two different points in the trial, nothing in the record suggests

that she gave the second description based on coaching by the prosecutor. Thus, the second

allegation also depends on matters outside the record. We therefore decline to address Ellison' s

prosecutorial misconduct claim.



          Ellison bases his misconduct claims against his attorney on allegations that the attorney

 1) pressured Ellison into agreeing to continue the trial by threatening to quit, (2) failed to

explain what rights   Ellison   would waive    by   agreeing to   a continuance, (   3) refused to have DNA


 deoxyribonucleic acid) testing performed on the mattress where the rape allegedly occurred, and

 4) failed to procure the testimony of Wilson. All of these claims depend on matters outside the

record.




          Nothing in the record supports Ellison' s claim that his attorney failed to inform him of

the consequences of agreeing to a continuance. The only aspect of the record suggesting that

Ellison' s attorney threatened to quit or otherwise pressured Ellison to agree to any continuance is

Ellison' s allegation to that effect in a letter he sent to the trial judge pro se. Given the " strong

presumption [ that] counsel'    s   representation was effective,"    McFarland, 127 Wn.2d at 335,


Ellison' s bare allegation in the trial court does not suffice to merit review of this claim.

          Similarly, nothing in the record supports Ellison' s claim that his attorney refused to have

AE' s mattress tested. Further, neither Wilson' s description of AE' s disclosure of the abuse

allegations, nor any evidence of defense counsel' s efforts to secure Wilson' s testimony appear in




                                                        12
No. 44951 -0 -II



the record. We decline to address these claims on this record before us. McFarland, 127 Wn.2d


at 335.


          We affirm the trial court in all respects.




 We concur:




                                                       13
