Opinion
40732-9-II
01-04-2012
STATE OF WASHINGTON, Respondent, v. STEVEN EUGENE ONG, Appellant.
UNPUBLISHED OPINION
Worswick, A.C.J.
Steven Eugene Ong appeals his life sentence as a persistent offender following his jury trial convictions for second degree assault with sexual motivation and fourth degree assault. He argues that the trial court denied his right to a jury trial by finding him to be a persistent offender and that his persistent offender sentence violated equal protection. We affirm.
FACTS
A jury found Ong guilty of second degree assault with sexual motivation and one count of fourth degree assault. Ong committed both offenses on May 28, 2005.
This was Ong's second trial. Division One of this court had previously reversed his original convictions in an unpublished opinion. State v. Ong, noted at 153 Wn.App. 1016, 2009 WL 4024841.
At sentencing, the trial court determined that two of Ong's prior felony convictions, a second degree assault and a second degree kidnapping, were most serious offenses under former RCW 9.94A.030(28)(b) and (i) (2002), and sentenced him to life in prison without the possibility of parole as a "persistent offender" under RCW 9.94A.570. Ong appeals his persistent offender sentence.
Former RCW 9.94A.030(32) (2002).
Ong does not challenge his convictions or the classification of his prior felony offenses as most serious offenses.
ANALYSIS
Ong argues that (1) the trial court violated his federal due process and jury trial rights in sentencing him as a persistent offender because the court, not a jury, determined the existence of his prior convictions by a preponderance of the evidence; and (2) treating his prior offenses as sentencing factors (which may be found by the trial court) rather than as elements of the offense (which must be found by a jury) violated his federal and state equal protection rights because there is no rational basis for the legislature to have classified the existence of some prior offenses as elements of certain offenses but as sentencing factors in other circumstances. We disagree.
U.S. Const. amend. XIV, § 1.
U.S. Const. amend. XIV, § 1; Wash. Const. art. I, § 12.
Ong also argues that he did not waive these arguments by stipulating at his first trial that the trial court was authorized to make these sentencing determinations. The State does not assert that Ong waived these arguments; accordingly, we do not address any possible waiver.
One week after Ong filed his opening brief, we rejected these identical arguments in State v. McKague, 159 Wn.App. 489, 513-19, 246 P.3d 558 (2011) (McKague I) (Armstrong, J., dissenting in part and concurring in part) (Quinn-Brintnall, J., concurring in part and dissenting in part); aff'd, __ Wn.2d __, 262 P.3d 1225, (2011) (McKague II). Under McKague I, Ong's arguments fail.
Although Judge Quinn-Brintnall disagreed with these portions of the lead opinion in McKague I, Judge Armstrong concurred in the relevant portions. McKague I, 159 Wn.App. at 524, 527-35.
We note that, although our Supreme Court accepted review of only the sufficiency of the evidence issue in McKague II, it commented in a footnote:
See also Thiefault, 160 Wn.2d at 418 ("Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] 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."); Smith, 150 Wn.2d at 143 (noting that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) "expressly held that prior convictions need not be proved to a jury" and that the Supreme Court has not held otherwise since); State v. Wheeler, 145 Wn.2d 116, 124, 34 P.3d 799 (2001) (rejecting defendant's argument that the federal constitution requires recidivism to be pleaded and proved to a jury beyond a reasonable doubt), cert. denied, 535 U.S. 996 (2002), and cert. denied sub nom Sanford v. Washington, 535 U.S. 1037 (2002); State v. Williams, 156 Wn.App. 482, 496-98, 234 P.3d 1174 (Division Three of this court rejecting identical equal protection argument), review denied, 170 Wn.2d 1011 (2010); State v. Langstead, 155 Wn.App. 448, 455, 228 P.3d 799 (Division One of this court rejecting identical equal protection argument), review denied, 170 Wn.2d 1009 (2010); State v. Rudolph, 141 Wn.App. 59, 69, 168 P.3d 430 (2007) (rejecting similar due process argument), review denied, 163 Wn.2d 1045 (2008); State v. Ball, 127 Wn.App. 956, 959, 113 P.3d 520 (2005) (rejecting similar due process argument in persistent offender context), review denied, 156 Wn.2d 1018 (2006).
Accordingly, we affirm his persistent offender sentence.
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.
We concur: Armstrong, J., Hunt, J.
In his petition for review, McKague also challenged the majority's holding that he was not entitled to a jury determination on the fact of his prior convictions for persistent offender sentencing purposes. But as we have repeatedly held, the right to jury determinations does not extend to the fact of prior convictions for sentencing purposes. See, e.g., State v. Thiefault, 160 Wn.2d 409, 418, 158 P.3d 580 (2007); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256–57, 111 P.3d 837 (2005); State v. Smith, 150 Wn.2d 135, 143, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004). We decline to review the issue again here.McKague II, 262 P.3d at 1225 fn 1 (citations omitted).