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State v. Manussier

August 8, 1996


Appeal from Superior Court, Pierce (94-1-01601-8) County; Honorable Arthur W. Verharen, Judge. Judgment Date: 6-30-94.

Smith, J., Durham, C.j., Dolliver, Guy, Alexander, Talmadge, J.j., Madsen, J. (dissenting by separate opinion), Johnson, Sanders, J.j., Concurring. Sanders, J. (dissenting by separate opinion)

The opinion of the court was delivered by: Smith

En Banc

SMITH, J.--Appellant George W. Manussier appeals his mandatory sentence of life imprisonment without possibility of parole under the "three strikes law" of RCW 9.94A.120(4) following his plea of "guilty" in the Pierce County Superior Court to second degree robbery. He challenges on various state and federal constitutional grounds the validity of the "three strikes law," enacted by the Legislature in 1994 after approval of Initiative 593 by the people of Washington in 1993. We affirm.


The questions presented in this case are whether Initiative 593 (1) was adopted in violation of Article II, Section 37 of the Washington Constitution; (2) violates Article I, Section 10 of the United States Constitution and Article I, Section 23 of the Washington Constitution as a bill of attainder; (3) violates the separation of powers doctrine; (4) violates Article IV, Section 4 of the United States Constitution, which guarantees a republican form of government; (5) violates either the federal Equal Protection Clause, or its counterpart, the privileges and immunities clause of Article I, Section 12 of the Washington Constitution; (6) violates the Eighth Amendment of the United States Constitution and the cruel punishment clause of Article I, Section 14 of the Washington Constitution; and (7) violates substantive or procedural due process.


Initiative 593, commonly referred to as the "three strikes law," was adopted by the voters of this state in November 1993 under the ballot title, "Shall criminals who are convicted of 'most serious offenses' on three occasions be sentenced to life in prison without parole?" *fn1 The initiative, which took effect on December 2, 1993, *fn2 amended RCW 9.94A.120 by adding a new subsection which requires trial courts to sentence "persistent offenders" to life imprisonment without possibility of parole. *fn3 A "persistent offender" is defined as one convicted of any felony considered a "most serious offense" under RCW 9.94A.030(21) and who has, in addition, been twice convicted of an offense falling under that category. *fn4

A "most serious offense" includes the following: (a) any Class A felony; (b) any Class B felony with a finding of "sexual motivation" as defined by statute; (c) any felony with a deadly weapon finding; and (d) seventeen other named offenses. *fn5 The statute's mandatory life sentence applies to any persistent offender "notwithstanding the maximum sentence under any other law." *fn6

On April 12, 1994, Appellant Manussier entered a bank in Fife, Washington, handed a teller a note demanding money, and claimed he was armed with a gun and would shoot. After the teller complied with his demand, appellant fled on foot to a nearby restaurant, where he was arrested with the money taken from the bank in his possession.

On April 15, 1994, the Pierce County Prosecuting Attorney charged appellant by information with first degree robbery, a class A felony, in the Pierce County Superior Court. *fn7 The State also filed a "Most Serious Offense Notice," informing appellant he would be classified as a persistent offender and sentenced to life imprisonment without parole under RCW 9.94A.120(4) if he had twice previously been convicted of most serious offenses. *fn8 Because he had twice been convicted of first degree robbery in 1985 and 1989, *fn9 appellant was subject to the "three strikes law" upon his conviction on the 1994 charge.

In the Superior Court, appellant asked the court to declare Initiative 593 unconstitutional on several state and federal constitutional grounds. *fn10 He also argued, in the alternative, that Initiative 593 reinstated the former habitual criminal statute, *fn11 thus entitling him to certain "procedural protections developed under Washington case law." *fn12 More specifically, appellant claimed he had a right to a jury trial on the issue of prior convictions, and that the State was required to prove the fact of his convictions beyond a reasonable doubt. *fn13 The Pierce County Superior Court rejected both arguments and denied appellant's motion by order dated June 24, 1994. *fn14 The court, the Honorable Arthur W. Verharen, noted in the order that it would not "impose any additional due process requirements upon the State beyond those which are provided for in the Sentencing Reform Act, RCW 9.94A.010 et seq." *fn15

On June 27, 1994, appellant pleaded "guilty" to second degree robbery, *fn16 which qualifies as a "most serious offense" under Initiative 593. *fn17 Although he did not acknowledge his two prior robbery convictions at the time of his plea, on that date he signed a statement on plea of guilty acknowledging that the penalty for this third conviction was a mandatory sentence of life imprisonment without parole. *fn18 Second degree robbery would otherwise carry a standard range sentence of 15 to 20 months' imprisonment. *fn19

At appellant's sentencing hearing, the State offered as proof of his criminal history (1) a certified copy of the verdict form in the 1985 robbery conviction, a certified copy of the judgment and sentence from that case, and the Court of Appeals' affirmance of the conviction; and (2) a copy of the Statement of Defendant on Plea of Guilty in the 1989 robbery case, the warrant of commitment in that case, and a certified copy of the 1989 judgment and sentence. *fn20 The State also offered testimony of Washington State Community Corrections Officer Thomas Patdonea, who stated he knew appellant from the Department of Corrections and that appellant's department file confirmed two prior first degree robbery convictions. *fn21 Further testimony was offered by David Cotton, forensic investigation supervisor, Pierce County Sheriff's Department. Mr. Cotton testified he compared a set of fingerprints taken from appellant during booking for the 1994 robbery conviction with prints he took from appellant in court that day, prints on the 1985 judgment, and prints on the 1989 warrant of commitment. *fn22 He concluded that all prints came from the same person. *fn23

Finding that appellant had been convicted of first degree robbery in 1985 and 1989, the trial court concluded he was a "persistent offender" as defined in RCW 9.94A.030(25). *fn24 The court, the Honorable Bruce W. Cohoe, then under RCW 9.94A.120(4) sentenced him to life imprisonment without possibility of parole on June 30, 1994, *fn25 noting that the court did not have discretion to do otherwise. *fn26 Appellant then timely filed this appeal.



Article II, Section 37 of the Washington Constitution declares that "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length." Appellant claims Initiative 593 violates this constitutional provision because it amends RCW 9A.20.021, the section of the criminal code providing maximum penalties for all offenses, without referring to the statute. *fn27

While we have not previously ruled on this point, we now conclude that article II, Section 37 applies to initiative measures, as well as to acts adopted by the Legislature. In Washington Federation of State Employees v. State, we stated that:

Amendment VII [to the state constitution], which established the initiative right, was an amendment to Const. art. II, which concerns legislative authority, and therefore the provisions of article II, including section 19, are applicable to both the legislative and initiative processes.

Although in that case we were principally concerned with application of article II, Section 19 to the initiative process, our Conclusion nevertheless logically extends to section 37 as well. Because we conclude that article II, Section 37 applies to Initiative 593, the question now becomes whether the initiative complies with that provision.

This court has set out a two-part conjunctive test for determining whether a law violates section 37: (1) "Is the new enactment such a complete act that the scope of the rights or duties created or affected by the legislative action can be determined without referring to any other statute or enactment?"; and (2) "Would a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment?" *fn29 Initiative 593 satisfies this test, at least for application of Section 37 of article II.

Applying part one of the test, we conclude Initiative 593 is a complete act capable of being understood without reference to statutes not set forth in its provisions. The initiative addresses the limited subject of sentencing for "persistent offenders." Every statute amended was set out in full in the initiative. *fn30 By defining "persistent offender" in RCW 9.94A.030(25) and mandating in RCW 9.94A.120(4) a life sentence without parole for such offenders "notwithstanding the maximum sentence under any other law," the initiative completely addresses the scope of the rights affected. There is no need to go beyond the wording of the initiative to determine the penalty for engaging in certain delineated recidivist conduct because the law states its applicability is independent of maximum sentences imposed by any other law. *fn31

Part two of the test is not so easily satisfied. The initiative does affect the law on maximum sentences under RCW 9A.20.021. Under that statute, the maximum penalty for a class A felony is life imprisonment, while the maximum penalty for a class B felony is "a term often years." *fn32 By mandating a life sentence for persistent offenders, however, Initiative 593 has the effect of increasing from ten years to life imprisonment without parole the maximum sentence for all "most serious" class B felonies. *fn33

Notwithstanding this effect on maximum sentences, Initiative 593 still satisfies the second part of the test. This court has "found constitutional the modification of existing law by a complete statute." *fn34 A complete act, not revisory in character, is not rendered unconstitutional by article II, Section 37, even though it may by implication operate to change or modify prior acts. *fn35 Section 37 "was not intended to prohibit the passage of a law which declared fully its provisions without direct reference to any other act, although its effect should be to enlarge or restrict the operation of some other statutes." *fn36 Instead, the purpose of section 37 was to "protect the members of the legislature and the public against fraud and deception . . . ." *fn37 Initiative 593 is a complete act. Its purpose was not hidden, *fn38 and its modification of other sentencing laws is readily apparent from a reading of its provisions. *fn39 Even though the initiative may in some manner affect RCW 9A.20.021, that is not a defect of constitutional magnitude. *fn40 Initiative 593 does not violate Article II, Section 37 of the Washington constitution.


Appellant argues that Initiative 593 is a bill of attainder proscribed by United States Constitution Article I, Section 10 and Washington Constitution Article I, Section 23. *fn41 This argument is without merit.

A bill of attainder is a "law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." *fn42 It is "a general safeguard against legislative exercise of the judicial function, or more simply--trial by legislature." *fn43 However, a legislative act is not a bill of attainder merely because it compels an individual or a defined group to "bear burdens which the individual or group dislikes . . . ." *fn44 Such an interpretation would "cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality." *fn45

Initiative 593 does not constitute a bill of attainder. Three elements distinguish bills of attainder from constitutionally permissible legislation: (1) legislative infliction of punishment upon (2) specifically designated persons or groups (3) in the absence of the procedural safeguards of a judicial trial. *fn46 Not all of these elements are present in the initiative. Like any other sentencing law, it does establish the punishment for commission of certain criminal offenses, in itself a proper legislative function. *fn47 However, punishment is only imposed upon a judicial determination that those offenses were committed.

In this case, the determination whether appellant committed a third "most serious offense," thus bringing him within the purview of the initiative, was made under the procedural safeguards of a judicial proceeding. *fn48 Also, the initiative does not specifically designate any pre-existing class of persons or groups to be punished, nor does it attempt to identify them by past conduct. Only those persons who commit a third "most serious offense" after the effective date of the initiative's enactment are subject to a life sentence. It follows, then, that those persons falling within the initiative's purview do not comprise a targeted, readily identifiable group being subjected to legislative punishment. *fn49


Appellant next claims Initiative 593 violates the separation of powers doctrine by transferring sentencing discretion from Judges to prosecutors without providing standards for exercise of that discretion. *fn50 This argument, too, is without merit.

Appellant's Conclusion that Initiative 593 constitutes an impermissible delegation of sentencing authority rests upon the erroneous premise that sentencing authority is vested solely in the judiciary. It is not. This court has consistently held that fixing penalties for criminal offenses is a legislative, and not a judicial, function. *fn51

In State v. Ammons, for example, the appellant made a similar challenge to the constitutionality of the Sentencing Reform Act of 1981 (SRA), RCW 9.94A. Appellant in that case argued that the SRA violated the separation of powers doctrine by limiting the trial court's discretion over sentencing, thus infringing upon the judicial power. *fn52 This court rejected that argument, stating that appellant "failed to recognize that the trial court does not have absolute discretion to do whatever it pleases. The trial court's discretion in sentencing is that . . . given by the Legislature." *fn53 Even if Initiative 593 did give prosecutors complete discretion to determine which defendants should be sentenced under its provisions, that would still not constitute impermissible intrusion upon the judicial power.

The argument might perhaps suggest an unconstitutional delegation to the executive branch of the legislative authority to alter the sentencing process. *fn54 But that argument is also without support. This court in State v. Lee rejected a similar challenge to the former habitual criminal statute (RCW 9.92.090), which imposed a life sentence for a defendant's third felony conviction. *fn55 In Lee, the appellant claimed RCW 9.92.090 was an unconstitutional delegation of legislative authority to the prosecutor. *fn56 This court rejected that claim, however, holding that "the statute [was] a proper legislative investiture of authority to the executive branch." *fn57 In reaching that Conclusion, the court reasoned that:

RCW 9.92.090 is not a delegation of the legislature's power to determine appropriate punishment for criminal violations. The statute merely vests the prosecution with the power to charge a person with the status of being a habitual criminal. The prosecution must prove its allegations beyond a reasonable doubt. Implicit within the statute is a reasonable standard to govern the prosecuting attorney's exercise of discretion to initiate these proceedings. The decision to prosecute must be based on the prosecutor's ability to meet the proof required by the statute. *fn58

Prosecutors have no more discretion under Initiative 593 than they had under the habitual criminal statute. Initiative 593, like that statute, does no more than vest the prosecutor with the power to charge a person with the status of being a "persistent offender," much like the charge of being an "habitual criminal" under former RCW 9.92.090. Indeed, prosecutorial discretion is limited under Initiative 593 because sentence enhancement under the initiative applies only to third convictions for a "most serious offense," *fn59 while under the former habitual criminal statute, RCW 9.92.090, sentence enhancement was available to prosecutors against offenders upon a third conviction for any felony.


United States Constitution Article IV, Section 4, commonly referred to as the "Guarantee Clause," provides in part that "the United States shall guarantee to every state in this union a republican form of government . . . ." Appellant argues that the Guarantee Clause is "absolutely incompatible with direct democracy as embodied in the recall, referendum, and initiative schemes . . . ." *fn60 Those schemes, appellant claims, violate the ideal of a republican form of government because they allow enactment of laws outside the legislature's deliberative processes which are designed to protect the public from its own imprudent impulses. *fn61 Reasoning that "the Constitution's reference to 'republican government' is a reference to this sort of deliberative democracy," and that "deliberative ...

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