          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHNGTON,                                NO. 72852-1-1

                      Respondent,
                                                   DIVISION ONE
                      v.



JEFFREY LAFATE BRINKLEY,                           PUBLISHED OPINION

                      Appellant.                    FILED: February 1,2016



       Lau, J. — Appellant Jeffrey Brinkley was sentenced under the Persistent Offender

Accountability Act (POAA), Washington's "three strikes" recidivism law. Brinkley claims

the trial court erred when it determined the "temporal relationship" of his prior

convictions, in violation of the rule 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." Apprendi v. N.J..

530 U.S. 466, 490, 120 S. Ct. 2348, 147 L Ed. 2d 435 (2000). Because the facts here

fall squarely within the Apprendi exception and are facts "intimately related" to the

conviction under State v. Jones. 159 Wn.2d 231, 149 P.3d 636 (2006), we affirm the

judgments.
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                                         FACTS

       In 2011, Brinkley was convicted of one count of first degree robbery, one count of

second degree kidnapping, and one count of second degree assault based on a dispute

over a drug debt.

      At sentencing in January 2013, the State provided certified copies of Brinkley's

two prior judgments and sentences. In the first, Brinkley pleaded guilty to first degree

robbery in King County. The face of the certified judgment and sentence indicates the

crime occurred on March 30, 1996, and he pleaded guilty on July 1, 1996. In the

second, Brinkley pleaded guilty to second degree robbery in Spokane County. The face

of the judgment and sentence indicates the crime occurred on November 26, 1998, and

he pleaded guilty on January 29, 1999.

      The sentencing court reviewed the certified copies of the prior judgments to

determine Brinkley's status as a persistent offender. He sentenced Brinkley to life

imprisonment on each charge. On direct appeal, we reversed and vacated Brinkley's

assault conviction on double jeopardy grounds and remanded for resentencing.1

       At resentencing, Brinkley contended a jury was constitutionally required to

determine his status as a persistent offender. He argued the "temporal relationships"

between the convictions was necessarily a jury question. Report of Proceedings (RP)

(Nov. 21, 2014) at 3-5. The court disagreed, amended the judgment to reflect the

dismissed assault conviction, and left the life sentences on the two remaining counts

unchanged.

       Brinkley appeals.



       1 State v. Brinkley. noted at 179 Wn. App. 1053, 2014 WL 953487.
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                                        ANALYSIS

       Brinkley argues his due process rights under the Sixth and Fourteenth

Amendments of the United States Constitution were violated when the trial court

determined he was a persistent offender under the POAA.2

       By statute, a "[pjersistent offender" is defined as someone who at the time of

sentencing for a current most serious offense, has been convicted twice before of most

serious offenses under RCW 9.94A.525. The statute states in part:

       (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 and would be included in
      the offender score under RCW 9.94A.525; provided that of the two or
      more previous convictions, at least one conviction must have occurred
      before the commission of any of the other most serious offenses for which
      the offender was previously convicted.

RCW 9.94A.030(38)(a)(i)-(ii).

       Brinkley argues his persistent offender sentence violates the rule in Apprendi.

He claims the constitution requires a jury to find the temporal relationship between

convictions and offenses, "i.e. the requisite offense -^ conviction -> offense ->

conviction -> offense -> conviction." Br. of Appellant at 15.

       Under the statute, the court must determine the date of the prior convictions to

see if they occurred before commission of the present offense. Next, the court must



       2 Brinkley also suggests a state constitution claim. Article I, section 21 of the
Washington State Constitution provides that "[t]he right of trial by jury shall remain
inviolate..." But as Brinkley acknowledges, in State v. Smith. 150 Wn.2d 135, 156, 75
P.3d 934 (2003), the court rejected the contention that the state constitution separately
prohibits fact-finding under the POAA.
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determine the date of one of the earlier offenses and decide whether it followed the date

of the other prior conviction. The certified judgments presented at Brinkley's sentencing

hearing encompassed all of these facts.

       Recidivism need not be pleaded and proved to the jury beyond a reasonable

doubt. In Almendarez-Torres v. United States. 523 U.S. 224, 118 S. Ct. 1219, 140 L.

Ed. 2d 350 (1998), the Court held that prior convictions are sentence enhancements

and not elements of a crime. Therefore, they need not be submitted to the jury because

"the sentencing factor at issue here—recidivism—is a traditional, if not the most

traditional, basis for a sentencing court's increasing an offender's sentence."

Almendarez-Torres. 523 U.S. at 243.

       In Apprendi, the Court held that "other 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. at 490.

Brinkley does not dispute that Washington's persistent offender statute is a recidivism

statute.


       Washington courts have repeatedly rejected assertions similar to those made by

Brinkley. In Jones, the court considered whether an increase in the offender score for

crimes committed while on community supervision must be submitted to the jury. The

defendant argued that Apprendi's prior conviction exception did not include facts that

were merely "related" to a prior conviction. Rejecting this claim, the court explained:

       [T]he prior conviction exception encompasses a determination of the
       defendant's probation status because probation is a direct derivative of the
       defendant's prior criminal conviction or convictions and the determination
       involves nothing more than a review of the defendant's status as a repeat
       offender. In this regard, the community placement conclusion does not
       implicate the core concern of Apprendi and Blakely—that is the

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No. 72852-1-1/5



       determination does not involve in any way a finding relating to the present
       offense conduct for which the State is seeking to impose criminal
       punishment and/or elements of the charged crime or crimes. To give
       effect to the prior conviction exception, Washington's sentencing courts
       must be allowed as a matter of law to determine not only the fact of a prior
       conviction but also those facts "intimately related to the prior conviction"
       such as the defendant's community status.

Jones. 159 Wn.2d at 241 (emphasis added). Under Jones, Washington courts may

determine "as a matter of law" facts "intimately related to the prior conviction."3

       In State v. Witherspoon. 180 Wn.2d 875, 893, 329 P.3d 888 (2014), the court

reaffirmed its adherence to the rule that the POAA procedures do not violate federal or

state due process. Strike offenses need not be proved to a jury:

       We have long held that for the purposes of the POAA, a judge may find
       the fact of a prior conviction by a preponderance of the evidence. In
       Manussier. 129 Wn.2d [652, 681-84, 921 P.2d 473 (1996),] we held that
       because other portions of the SRA utilize a preponderance standard, the
       appropriate standard for the POAA is by a preponderance of the evidence.
       We also held that the POAA does not violate state or federal due process
       by not requiring that the existence of prior strike offenses be decided by a
       jury. This court has consistently followed this holding. We have
       repeatedly held that the right to jury determinations does not extend to the
       fact of prior convictions for sentencing purposes. See State v. McKague,
       172 Wn.2d 802, 803 n.1, 262 P.3d 1225 (2011) (collecting cases); see
       also In re Pers. Restraint of Laverv. 154 Wn.2d 249, 256, 111 P.3d 837
       (2005) ("In applying Apprendi, we have held that the existence of a prior
       conviction need not be presented to a jury and proved beyond a
       reasonable doubt."); State v. Smith. 150 Wn.2d 135, 139, 75 P.3d 934
       (2003) (prior convictions do not need to be proved to a jury beyond a
       reasonable doubt for the purposes of sentencing under the POAA).

       Accordingly, it is settled law in this state that the procedures of the POAA
       do not violate federal or state due process. Neither the federal nor state
       constitution requires that previous strike offense be proved to a jury.
       Furthermore, the proper standard of proof for prior convictions is by a
       preponderance of the evidence.




       3 Brinkley filed no reply and his opening brief ignores Jones. He also cites to
cases arguably critical of the prior conviction exception. We are not persuaded.
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Witherspoon. 180 Wn.2d at 892-93 (emphasis added).

       Brinkley relies on inapposite cases.4 See Butler v. Curry. 528 F.3d 624, 644-45

(9th Cir. 2008) (question of whether defendant committed crime while on probation

involved facts occurring after prior conviction and was therefore outside the scope of

Apprendi): United States v. Salazar-Looez. 506 F.3d 748 (9th Cir. 2007) (for crime of

illegal reentry, whether defendant was removed from the country after felony conviction

involved finding facts outside of Apprendi): State v. Irbv. 187 Wn. App. 183,147 P.3d

1103 (2015) (in determining factual comparability of prior offenses under POAA, trial

court considered facts outside prior convictions and violated Apprendi).

       We conclude that Brinkley's overly narrow view of Apprendi is not supported.

Jones and Witherspoon control. To determine whether Brinkley is a persistent offender

"involves nothing more than a review of the defendant's status as a repeat offender."

Jones. 159 Wn.2d at 241. The court is entitled to consider "facts intimately related to

the prior convictions" such as the dates of conviction, offense dates and the underlying

offense. Jones, 159 Wn.2d at 241. These facts all appear on the face of the

judgments.

       Indeed, other jurisdictions addressing Brinkley's specific contention rejected it.

       In People v. Rivera. 362 III. App. 3d 815, 841 N. E. 2d 532 (2005), the court

considered a three strikes law that, as in Washington, required the trial court to find the

second felony was committed after conviction for the first, and the third after conviction

for the second. The Rivera court rejected the same argument made by Brinkley:




       4 At oral argument in this court, appellate counsel candidly admitted
disagreement with Jones.

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No. 72852-1-1/7


       We reject defendant's argument that defendant's age and prior convictions
       and the timing, degree, number and sequence of defendant's prior
       convictions are 'facts other than the fact of a prior conviction' that the
       State is required to submit to a jury and prove beyond a reasonable doubt.
       As a result, the exception articulated in Apprendi applies to this case and
       defendant's contention that the circuit court may not rely on the
       [presentencing investigation] for determining those ancillary elements fails.

Rivera, 362 III. App. 3d at 821.

       In United States v. Grisel, 488 F.3d 844 (9th Cir. 2007), the Ninth Circuit also

rejected a similar contention involving prior guilty pleas. The defendant claimed that the

dates of his prior convictions were not part of the "fact" of his prior convictions. The

court disagreed, holding that the date of offense constitutes a part of the fact of

conviction:

       When, as here, the face of the document demonstrating Defendant's prior
       conviction includes the date of the offense, the date is just as much a part
       of the plea as is the nature of the offense described on the face of the
       document.


Grisel, 488 F.3d at 847.5

       In sum, the "prior conviction" exception includes not only the fact of the conviction

itself but also "facts intimately related to the prior conviction." Jones. 159 Wn.2d at 241.

As the Fourth Circuit observed, a prior conviction cannot "be reduced to nothing more

than that the defendant was at some prior time convicted of some crime" and therefore,

should include "other operative facts." United States v. Thompson, 421 F.3d 278, 282

(4th Cir. 2005). The dates of Brinkley's priorconvictions, the dates of the prioroffenses,



       5 The State cites to additional cases from other jurisdictions holding that judicial
fact-finding under Apprendi may include the date of the offense. See U.S. v. Elliott, 703
F.3d 378, 381-82 (7th Cir. 2012) (court could find crimes committed over five days were
"committed on occasions different from one another"); Commonwealth v. Gordon, 596
Pa. 231, 251, 942 A.2d 174, 186 (2007) (concluding that "logical and temporal
relationship between predicate crimes" is not fact-finding).
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No. 72852-1-1/8


and the offenses resulting in the prior convictions are all facts that fall within the facts of

prior conviction exception.

                                           CONCLUSION

       We affirm Brinkley's judgment and sentence.




WE CONCUR:




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