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State v. Moretti

Supreme Court of Washington, En Banc

August 15, 2019

STATE OF WASHINGTON, Respondent,
v.
ANTHONY ALLEN MORETTI, Petitioner. STATE OF WASHINGTON, Respondent,
v.
HUNG VAN NGUYEN, Petitioner. STATE OF WASHINGTON, Respondent,
v.
FREDERICK DEL ORR, Petitioner.

          FAIRHURST, C.J.

         Under the Persistent Offender Accountability Act (POAA), the third time a person is convicted of a "most serious offense," they must be sentenced to life in prison without the possibility of parole. RCW 9.94A.030(38)(a), .570. This statute is colloquially known as the "three strikes and you're out" law. State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people who were in their 30s or 40s when they committed their third strike but were young adults when they committed their first strike.

         We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. We also hold that the sentences in these cases are not grossly disproportionate to the crimes.

         I. FACTS AND PROCEDURAL HISTORY

         A. Anthony Allen Moretti

         Anthony Allen Moretti was born on April 22, 1983. When he was 20 years old, he was charged with breaking into a vacant home and setting fire to it. He pleaded guilty to arson in the first degree and was sentenced to 28 months in prison.

         When he was 26 years old, he was driving while intoxicated and caused an accident in which someone was injured. He pleaded guilty to vehicular assault causing substantial bodily harm to another while under the influence of alcohol and was sentenced to 13 months in prison.

         At age 32, Moretti assaulted and robbed two men at a boat launch. One of his victims, Michael Knapp, had recently won $1, 250 at a local casino. Knapp and his friend, Tyson Ball, wanted to use some of the money to buy methamphetamine. Ball arranged to meet a woman at a boat launch in order to buy the drugs, but instead of completing their purchase, Ball and Knapp were assaulted by two men, later identified as Moretti and Sam Hill. Hill assaulted Ball while Moretti beat Knapp with a bat, demanding that he give them the money. Moretti and Hill left after Knapp complied. Moretti and Hill were both later identified and arrested. Moretti proceeded to trial and was convicted of first degree robbery of Knapp and second degree assault of Ball. Because Moretti had previously been convicted of two separate most serious offenses, [1] he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole.

         Moretti appealed, arguing, among other things, that his mandatory life without parole sentence was a violation of article I, section 14. of our constitution and the Eighth Amendment to the United States Constitution. He claimed that this sentence was cruel because the judge was not permitted to consider his youth at the time of his prior strike offenses. Division Two of the Court of Appeals, by a majority, affirmed on this issue. State v. Moretti, No. 47868-4-II, slip op. at 19 (Wash.Ct.App. Oct. 3i, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/ D2%2047868-4-II%20Unpublished%20Opinion.pdf.

         B. Hung Van Nguyen

         Hung Van Nguyen was born on July 30, 1973. He grew up in Vietnam and moved to the United States in 1990. He did not receive any formal education in Vietnam or in the United States. Psychological evaluations have suggested that he may suffer from some cognitive difficulties. When he was 20 years old, he was convicted of first degree burglary and was sentenced to 18 months in prison. The facts underlying the burglary are not in the record.

         When he was 39 years old, Nguyen pleaded guilty to second degree assault by strangulation after he put his hands around his sister's throat during an argument, in front of her 6 year old son. He was sentenced to 17 months in prison. He does not argue that he was a young adult when he committed this strike.

         At age 41, Nguyen was staying with his friend Thu Nguyen.[2] She had asked him to leave more than once, but he refused. She called the police repeatedly over the course of 10 days in order to force him to leave, but the police were not helpful, so she eventually locked him outside while he was speaking to police officers. The next day, Thu Nguyen was taking a nap with her 4 year old grandson. She woke up to Nguyen walking out of her bedroom closet, holding a knife. He told her that he was going to kill her and then stabbed her 10 times, repeatedly catching her as she tried to escape. At that moment, Thu Nguyen's friend Linh Truong arrived for a visit. Truong knocked on the door, and Thu Nguyen's grandson opened the door to let her in. Truong saw Nguyen on top of Thu Nguyen and threw a chair at him to get him off her. The chair missed, but Nguyen turned and stabbed Truong, giving Thu Nguyen the chance to escape. Both victims were able to make it outside, and Truong called 911. Nguyen was arrested and was found competent to stand trial after a psychological evaluation. The jury convicted him of first and second degree assault, both while armed with a deadly weapon.

         Because Nguyen had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole. Nguyen appealed, and Division One of the Court of Appeals affirmed his sentence. State v. Hung Van Nguyen, No. 74962-5-1, slip op. at 7-8 (Wash.Ct.App. Jan. 16, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/749625.pdf.

         C. Frederick Del Orr

         Frederick Del Orr was born on April 8, 1974. When he was 19 years old, a police report alleges that he approached a one-legged man in downtown Spokane and demanded money. The man gave him $6 in cash and some change. Orr became angry at the low amount and demanded the man's bank card. The man refused. On-struck him in the face with a broken beer bottle, grabbed the crutch that the man used to walk, struck him again, and then left. Orr did not remember committing the crime, but he entered an Alford[3] plea of guilty to second degree of robbery and was sentenced to 6 months in the county jail.

         When he was 21 years old, Orr was charged with first degree robbery. The statement of probable cause alleges that he was drinking beer at a man's apartment when he started acting strangely and was asked to leave. Orr hit the man, and the man hit him back. Orr then grabbed a paring knife and threatened to kill the man and his roommate before eventually leaving with the man's Toshiba portable stereo. The man tried to stop him from taking the stereo, but Orr raised the knife and chased him down the hallway. Orr entered an Alford plea of guilty to first degree robbery and was sentenced to 50 months in prison.

         At age 41, Orr was living on the streets of Spokane. An acquaintance had allegedly told him that a man named Sasquatch was holding children against their will at a house !in the area and was sexually abusing them. Orr was abused as a child himself and had heard sex offenders discuss their abuse of children while he was in prison. He became deeply upset and decided to investigate. He went to the house in question carrying a large metal pipe. He investigated and eventually decided to break in. The owner of the house was inside with her 2 year old child. She saw On-searching around. When he saw her, he left the house and sat down on the porch. Meanwhile, a neighbor had seen what had happened and went to confront Orr. The neighbor had a gun. An argument ensued, and Orr swung the pipe at the neighbor's head several times, telling the neighbor to shoot him. Orr eventually acknowledged that he had the wrong house and dropped the metal pipe. He was arrested and was later convicted of first degree burglary and second degree assault, both with a deadly weapon.

         Because Orr had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole. Orr appealed, and Division Three of the Court of Appeals affirmed his sentence. State v. Orr, No. 34729-0-III, slip op. at 9-10 (Wash.Ct.App. Apr. 26, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/347290_unp.pdf.

         Moretti, Nguyen, and Orr each sought review of the constitutionality of their sentences in this court. We accepted review and consolidated these cases.

         II. ANALYSIS

         We have repeatedly upheld sentences of life in prison without the possibility of parole for adults who commit a third most serious offense after having been convicted of most serious offenses on two separate prior occasions. We now hold that it is not categorically cruel under article I, section 14 of the Washington Constitution to impose mandatory sentences of life without the possibility of parole under the POAA on adult offenders who committed one of their prior most serious offenses as young adults. The petitioners in these cases have not shown a national consensus against this sentencing practice, and in our own independent judgment, the concerns applicable to sentencing juveniles do not apply to adults who continue to reoffend after their brains have fully developed. Because we have previously held that article I, section 14 offers more protection than the federal constitution in the context of sentencing both recidivists and juveniles, we do not address the petitioners' argument that this punishment is cruel and unusual under the Eighth Amendment to the United States Constitution.

         We also hold that the sentences in these cases are not grossly disproportionate to the offenses under the four Fain factors: "(1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction." State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980).

         A. History of the POAA

         In 1993, 76 percent of the voters in Washington State approved the passage of the POAA. Under the POAA, "persistent offenders" must be sentenced to life in prison without the possibility of parole. RCW 9.94A.570. A "persistent offender" is a person who commits a third most serious offense after having been convicted on two separate prior occasions of most serious offenses or their out-of-state equivalents. RCW 9.94A.030(38). "Most serious offense" means any class A felony or certain class B felonies that are violent, sexual, or dangerous.[4] See RCW 9.94A.030(33). The age of majority in Washington State is 18 years old, RCW 26.28.010, and juvenile adjudications are not included as strikes under the POAA. Thorne, 129 Wn.2d at 748; RCW 9.94A.030(35).

         We have continually upheld sentences imposed under the POAA as constitutional and not cruel under article I, section 14. See, e.g., State v. Witherspoon, 180 Wn.2d 875, 889, 329 P.3d 888 (2014); State v. Magers, 164 Wn.2d 174, 193, 189 P.3d 126 (2008) (plurality opinion); State v. Manussier, 129 Wn.2d 652, 667, 921 P.2d 473 (1996); State v. Rivers, 129 Wn.2d 697, 715, 921 P.2d 495 (1996); Thorne, 129 Wn.2d at 772-73; see also State v. Davis, 133 Wn.2d 187, 190, 943 P.2d 283 (1997) (agreeing that the offenders' crimes are not distinguishable from Manussier, Rivers, and Thorne and, therefore, that a challenge arguing that the sentences were cruel would be frivolous).

         B. Sentencing an older adult recidivist who committed a prior crime as a young adult to life in prison without parole is not categorically unconstitutional

         Moretti, Nguyen, and Orr each challenge their POAA sentences, claiming that imposing a mandatory sentence of life without the possibility of parole on a person who committed at least one, but not all, of their strike offenses as a young adult categorically violates article I, section 14 of the Washington Constitution and the Eighth Amendment to the United States Constitution. We have previously held that article I, section 14 is more protective than the Eighth Amendment when evaluating both the proportionality of the POAA, Witherspoon, 180 Wn.2d at 887, and juvenile sentencing, State v. Bassett, 192 Wn.2d 67, 82, 428 P.3d 343 (2018). Therefore, if it is not cruel under article I, section 14 to apply the POAA to offenders who committed a prior strike offense as a young adult, then it is necessarily not cruel and unusual under the Eighth Amendment. "We review a statute's constitutionality, like questions of law, de novo." Id. at 77.

         1. There is no evidence of a national consensus against using a crime committed as a young adult to enhance the ...


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