Oral Argument Date June 26, 2014
Appeal from Pierce County Superior Court. Docket No: 10-1-02833-3. Judge signing: Honorable Edmund Murphy. Judgment or order under review. Date filed: 03/02/2012.
Marla L. Zink (of Washington Appellate Project ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.
Authored by Rich Melnick. Concurring: Bradley A. Maxa, Jill M Johanson.
[183 Wn.App. 245] ¶ 1 Lorenzo Webb appeals his second degree assault conviction and persistent offender sentence. He argues that his right to a public trial was violated when the attorneys conducted peremptory challenges on paper. He also argues that the trial court erred when it considered his two previous assault convictions at sentencing because the 1982 conviction is not comparable to a most serious offense and his 1992 conviction is facially constitutionally invalid. We hold that the trial court erred when it considered Webb's prior convictions because the 1982 assault does not qualify as a most serious offense under the persistent offender statute and because the 1992 assault conviction was based on an expired statute and therefore is facially constitutionally invalid. Finally, no violation of Webb's public trial right occurred. We affirm Webb's second degree assault conviction, reverse his persistent offender sentence, and remand for resentencing.
¶ 2 The State charged Webb with second degree assault after he attacked his girlfriend. At trial, counsel conducted voir dire in open court. After voir dire, the trial court stated,
At this time, the attorneys are going to exercise their peremptory challenges which are the challenges they have by law for which they don't have to give a reason. They do it on paper. They pass a sheet of paper back and forth. While this happens, you are free to stand up and stretch if you want. You [183 Wn.App. 246] can have a quiet conversation with your neighbor. ... They will pass that back and forth, and we should get the jury selected this afternoon.
Report of Proceedings (RP) (June 1 & 2, 2011) at 64. The record indicates a pause in the proceedings. Counsel exercised their peremptory challenges. The court then said, " We have the jury selected for this case." RP (June 1 & 2, 2011) at 64.
¶ 3 The jury found Webb guilty of second degree assault--domestic violence. The State argued that Webb, a persistent offender, should be sentenced to a term of total confinement for life without the possibility of release. The State asserted that Webb's two previous second degree assault convictions from 1982 and 1992 were comparable to most serious offenses under RCW 9.94A.030(32)(b) and (u). Webb argued that (1) he was not a persistent offender because his prior assaults were not comparable to most serious ...