(dissenting) — This court long ago recognized that the right to an information alleging grounds for sentence enhancement and the right to a jury determination based on proof beyond a reasonable doubt of those allegations are guaranteed by the Washington State Constitution. State v. Furth, 5 Wn.2d 1, 104 P.2d 925 (1940). As *686recently as 1986, this court recognized these rights when the sentence to be imposed exceeds the statutory maximum. State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). Instead of following long established precedent, the majority treats sentencing of a persistent offender as a new concept and views a sentence of life without possibility of parole as just another line of the Sentencing Reform Act of 1981 (SRA) grid, despite the fact that such a sentence exceeds the statutory maximum available for any class C or B felony. To reach its result, the majority fails to acknowledge that this court has found the right to a jury trial under the Washington State Constitution is not coextensive with the federal right135 and the Furth decision which specifically addresses the right to an information and a jury trial before a court may impose an enhanced sentence based on prior convictions. I respectfully dissent.
Adhering to the requirements laid down by this court in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), the defendant in this case presents a careful, persuasive analysis of the Washington Constitution and case law dating from 1919 to argue for his right to trial by jury and other due process protections when facing an enhanced sentence under this state’s Persistent Offender Accountability Act. RCW 9.94A.030. In rejecting the defendant’s argument, the majority cites only one of the many cases relied on by the defendant, and erroneously concludes that the Washington case law on sentencing enhancements derives from federal law. Further, the majority announces that the statute under review here is not a matter of particular state or local concern. However, the issue is not whether the Persistent Offender Accountability Act is a matter of state or local concern; it is whether the constitutional rights to a jury trial and attendant due process protections afforded a criminal defend*687ant facing an enhanced penalty based on recidivism are historically matters of State concern.
The Gunwall analysis consists of six nonexclusive factors. Gunwall, 106 Wn.2d at 61-62. Factor three relates to the constitutional and common law history of the issues under consideration. Factor four requires a review of preexisting state law. The majority states that these two factors indicate no broader protection under the state constitution for a persistent offender facing an enhanced penalty in excess of statutory máximums. This is so, the majority says, because the case law requiring a jury trial on the facts used for enhancement relies upon federal authority for its holdings. Majority at 680. The majority acknowledges that case law was developed in this state requiring specific procedures to be followed in prosecutions under the habitual offender statutes. However, the majority states that such case law is inapposite because it dealt with the former habitual offender statutes, not the new persistent offender statute. Majority at 680.
Contrary to the conclusions drawn by the majority, a review of the former habitual offender statute and case law, as well as the case law pertaining to sentence enhancements, shows that (1) the persistent offender law, like the former habitual offender statute, is a sentencing enhancement which relies on proof of prior convictions, and (2) cases from this court defining the right to a jury and the due process requirements for sentence enhancement are grounded in this state’s own constitution.
Recidivist statutes such as the persistent offender law (Three Strikes and You’re Out) are not new in American jurisprudence. By 1820, habitual offender laws, or recidivist laws, were in existence in nearly every state as well as in England. See McDonald v. Massachusetts, 180 U.S. 311, 312, 21 S. Ct. 389, 45 L. Ed. 542 (1901); State v. Furth, 5 Wn.2d 1, 104 P.2d 925 (1940); Cases of William Ross and William Riley, 19 Mass. (2 Pick) 165 (1824); Johnson v. New York, 55 N.Y. 512, 514 (1874); 1 Joel Prentiss Bishop, Commentaries on The Criminal Law §§ 963-64 (5th ed. *6881872); 3 Francis Wharton, Criminal Law § 3417. These statutes generally imposed "aggravated penalties on one who commits a crime after having already been twice subjected to discipline by imprisonment.” McDonald, 180 U.S. at 312. In a discussion of recidivist laws generally, Bishop stated:
If, in a particular case, the offence is the first, or is to be prosecuted only as such, the indictment need not specially charge it to be the first; for this is presumed. But if it is the second or third, and it is sought to make the sentence heavier by reason of its being so, the fact thus relied on must be averred in the indictment; because the rules of criminal procedure require the indictment, in all cases, to contain an averment of every fact essential to the punishment sought to be inflicted. And, of course, the averment must be proved.
When the indictment is seen to charge a previous conviction, the prisoner is arraigned on the whole in the usual manner. Then, if he pleads not guilty, the jury is sworn, and they are first charged to inquire only as to the subsequent offence. If they find him guilty of it, they are next, without being re-sworn, to pass upon the other part of the indictment. And in each instance only the part of the indictment on which they are about to pass is read to them.
1 Bishop §§ 961, 964, at 564, 567.
Washington declared statehood and adopted its state constitution in 1889. In 1903, the Legislature passed the first habitual criminal statute, providing for life imprisonment upon a subsequent conviction for any person convicted twice previously of any felony or four prior convictions in which the intent to defraud was an element. Laws op 1903, ch. 86 (Rem. Ball. Code, §§ 2177-78). Consistent with the common law practice, Washington’s 1903 habitual offender statute included the right of a jury trial on the question of whether the prior convictions upon which the enhanced penalties rested were proven beyond a reasonable doubt. Furth, 5 Wn.2d at 3.
The constitutionality of recidivist laws was challenged *689on various grounds in state courts. The primary grounds for challenge were that enhanced penalties based on prior convictions violated the prohibition against being put twice in jeopardy and that the law was ex post facto. State v. Findling, 123 Minn. 413, 415, 144 N.W. 142 (1913) (collecting cases). Many of the challenges were brought under the various states’ constitutions. Id. at 415 (comparing the text of Minnesota constitution with other state constitutions); Blackburn v. State, 50 Ohio 428, 432 (1893) (challenging recidivist law on state and federal constitutional grounds). Other state court challenges were brought under the federal constitution. People v. Stanley, 47 Cal. 113, 117 (1873). In Washington, the first constitutional challenge to the recidivist law came in State v. Le Pitre, 54 Wash. 166, 103 P. 27 (1909) (challenging the 1903 habitual offender law).
It is not clear whether the original challenges to the habitual offender law in Washington were made under the state constitution or the federal constitution. However, in upholding the sentence enhancement law, this court cited cases which had decided the identical issues on both state and federal constitutional grounds. Le Pitre, 54 Wash. at 168. It is clear, though, that when a recidivist law was challenged before the U.S. Supreme Court in McDonald in 1900, the Court declined to determine whether federal protections regarding the right to a jury trial, the right to be free from being placed twice in jeopardy, the right to be free from cruel or unusual punishment, and the right to due process apply to state action. McDonald, 180 U.S. at 313. The court found no violation of federal protections and then stated:
There is therefore no occasion to consider whether any of the provisions of the Constitution of the United States on these points can apply to the courts of the several States.
Id. at 313.
Washington’s recidivist statute was amended in 1909. In that later statute, the Legislature failed to specify the pro*690cedure to be followed. Laws op 1909, ch. 249 § 34 (Rem. Rev. Stat., § 2286). In practice, however, the procedures followed under the 1903 statute continued in force. Following conviction on a charge which would expose a defendant to enhanced punishment, the prosecutor would file a supplemental information alleging the defendant was a habitual offender by virtue of his prior convictions. A jury would then decide whether (1) there were prior convictions, and (2) if the defendant was the subject of those convictions. Furth, 5 Wn.2d at 10; Le Pitre, 54 Wash, at 169.
In Furth, the court considered the appeal of a defendant who was denied a right to a jury trial under the 1909 version of the habitual offender statute. Just as in the case before us today, the trial court, sitting without a jury, determined whether the defendant qualified to be sentenced as a habitual offender. Following the jury trial on the underlying offense, the trial court heard evidence regarding the prior convictions and evidence relating the convictions to the defendant. Furth, 5 Wn.2d at 10. On appeal, the State argued that the defendant had no right to a jury trial under the 1909 statute and that there was no such right available under the Washington Constitution. This was so, the State argued, because the State constitution guarantees the right to a trial by jury where the defendant is charged with the commission of an "offense,” and being a habitual criminal is not a criminal offense. Id. at 6.
This court rejected the State’s argument, holding that under Const, art. I, § 21 a defendant facing a sentencing enhancement based on the existence of prior convictions is entitled to have the question of a prior conviction determined by a jury. Furth, 5 Wn.2d at 18-19.
Where previous convictions are charged in an information for the purpose of enhancing the punishment of the defendant, such convictions must be proved beyond a reasonable doubt, since the fact of the prior convictions is to be taken as an essential element of the offense charged, at least to the *691extent of aggravating it and authorizing an increased punishment.
Id. at 11. The court also acknowledged that the right to a jury trial, which had been included in the 1903 habitual criminal statute, was omitted from the 1909 version, the statute at issue. The court stated, however, that inclusion of the right to a jury trial in the 1903 statute was "merely declaratory of the right the defendant had” under the state constitution. Id. at 19.
[T]he courts cannot trench on the province of the jury upon questions of fact. It is the function of the jury—not the court—to settle disputed issues of fact. The jury does not determine the guilt or innocence of the accused of the previous crimes charged. The issues of fact were whether there were previous convictions and whether appellant was the subject of those convictions. On a charge of a second or subsequent offense, the question of a prior conviction is an issue of fact to be determined by the jury.
Furth, 5 Wn.2d at 19. The court noted that the overwhelming weight of authority agreed that "on a charge of a second or subsequent offense, the question of a prior conviction is an essential element of the offense charged and is an issue of fact to be determined by the jury.” Id. at 11.
The majority in this case attempts to distinguish the procedures required in Furth for habitual offender sentencing by stating that RCW 9.94A, which includes the persistent offender law, provides for a different procedure: prior convictions need only be proved by a preponderance of the evidence. Majority at 682. However, this overlooks the fact that Furth’s constitutional determination rests on state constitutional law, not on statutory language. As the court in Furth noted, "the omission from the present habitual criminal statute ... of the provision for trial by jury . . . did not thereby divest the appellant of his right to trial by jury of the disputed issues of fact.” Furth, 5 Wn.2d at 19. The Furth court determined that the process *692required under the Washington Constitution before a court may impose an enhanced penalty based on prior conviction is that the two predicate facts—(1) the existence of the prior convictions and (2) the identity of the subject of those convictions—be decided by a jury. Thus, this state’s constitution requires such a process regardless of the procedure outlined by statute.
It is fundamental that due process requires the court to review the fairness of a governmental decision-making process. 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 14.6 (2d ed. 1992). This review is required whether procedures are prescribed by the Legislature, or whether the statute is silent regarding procedures.
"Due process of law” has been well defined to be "law in its regular course of administration through courts of justice.” (2 Kent’s Com. 13). It is provided for, if the statute, under judicial examination, provides for the regular administration of its provisions by the courts of the state. (Sheppard v. Steele, 43 N.Y. 52.) It means that every citizen shall have his day in court and that he shall have the benefit of those rules of the common law, generally deemed to be fundamental in their nature because sanctioned by reason, by which judicial trials are governed. These rules, which secure to the accused a judicial trial, it is beyond the power of the legislature to subvert. (Wynehamer v. People, 13 N.Y. 378, 447.) It is beyond its power to deprive a person of his liberty, or to deprive him of his property, by mere legislation. . . . [These rights] are preserved to all persons by the Constitution of the state and it is the duty of the judicial branch of the government to uphold them whenever brought into question.
People v. Sickles, 156 N.Y. 541, 547-48, 51 N.E. 288 (1898) (cited in State v. Dale, 110 Wash. 181, 184, 188 P. 473 (1920)).
The provision in the Sentencing Reform Act of 1981 relied upon by the majority, which provides that criminal history may be proven by a preponderance of evidence, simply does not answer the issue in this case. While the *693use of the preponderance standard meets constitutional concerns when the sentence being imposed is within the statutory maximum, it does not suffice when the sentencing enhancement results in a sentence which exceeds the statutory maximum available for the crime. State v. Ammons, 105 Wn.2d. 175, 185-86, 713 P.2d 719, 718 P.2d 796 (recognizing the right to proof beyond a reasonable doubt when sentence is beyond the statutory maximum), cert. denied, 479 U.S. 930 (1986). The distinction recognized by this court in Ammons is ignored by the majority in this case.
The majority also discounts the case law developed in this State regarding sentencing enhancements in general. In Ammons, this court stated:
We recognize that in some proceedings we have required that the State prove the existence of prior convictions beyond a reasonable doubt when a sentence beyond the statutory maximum or a mandatory additional sentence could be imposed. See State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980) (deadly weapon enhancement); State v. McKim, 98 Wn.2d 111, 117, 653 P.2d 1040 (1982) (knowledge that codefendant armed with a deadly weapon); State v. Murdock, 91 Wn.2d 336, 340, 588 P.2d 1143 (1979) (proof of prior convictions in habitual criminal proceedings); State v. Nass, 76 Wn.2d 368, 370, 456 P.2d 347 (1969) (proof of sale of narcotics to a minor to impose a greater sentence).
Id. at 185-86.
In State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980), this court stated the rule in Washington regarding sentencing enhancement statutes.
Our cases involving other enhanced punishment statutes uniformly require proof beyond a reasonable doubt to establish the facts which, if proved, will increase a defendant’s penalty.
As Mr. Justice Cardozo expressed it, "The genius of our criminal law is violated when punishment is enhanced in *694the face of a reasonable doubt as to the facts leading to enhancement.” People v. Reese, 258 N.Y. 89, 101, 179 N.E. 305, 79 A.L.R. 1329 (1932). Id. at 754-55.
The majority abandons this long established principle of law in Washington, saying that the principle is based on federal case law. A review of the Washington cases, as well as the development of constitutional analysis by the U. S. Supreme Court, demonstrates the majority’s error.
Turning first to this court’s decision in Tongate, it should be noted that the cases relied on by this court in announcing the above criminal law principle were Washington cases: State v. Murdock, 91 Wn.2d 336, 588 P.2d 1143 (1979), State v. Furth 5 Wn.2d 1, and State v. Harkness, 1 Wn.2d 530, 543, 96 P.2d. 460 (1939). Murdock, while citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), first cited its own decision in Furth. Murdock, 91 Wn.2d at 340. For the majority to reject the defendant’s state constitutional argument because the cases he cites "relied upon federal authority for their holdings,” and then to cite Murdock, ignores defendant’s very real state constitutional challenge. Majority at 680.
Murdock is the only case cited by the defendant which the majority even addresses. There are several others which, when reviewed, will demonstrate that the due process requirements for imposition of enhanced sentences are based in the Washington Constitution. In State v. Nass, 76 Wn.2d 368, 456 P.2d 347 (1969) this court stated:
It is the rule that, where a factor aggravates an offense and causes the defendant to be subject to a greater punishment than would otherwise be imposed, the issue of whether that factor is present must be presented to the jury upon proper allegations and a verdict thereon rendered before the court can impose the harsher penalty.
Id. at 370. In support of this rule, the Nass court cited State v. Dericho, 107 Wash. 468, 182 P. 597 (1919), State v. Dale, 110 Wash. 181, 188 P. 473 (1920), State v. Magnusson, 128 Wash. 541, 223 P. 325, aff’d, 130 Wash. 706, 226 *695P. 1119 (1924), and State v. Harkness, 1 Wn.2d 530, 96 P.2d 460 (1939). Both Dericho and Dale rely on opinions from other jurisdictions in which those courts relied on their own state constitutions, see State v. Findling, 123 Minn. 413, 144 N.W. 142 (1913) (decided on Minnesota Constitution) (cited in Dericho, 107 Wash. at 470); People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898) (decided on New York Constitution) (cited in Dale, 110 Wash. at 184), thus indicating the Washington court was addressing an issue of state constitutional dimension.
The rule articulated in Nass was reiterated in State v. Frazier, 81 Wn.2d 628, 503 P.2d 1073 (1972), when this court decided that a defendant facing a deadly weapon allegation which enhanced his punishment had the right to a proper allegation, presentation to the jury, and an adverse decision before an enhanced sentence could be imposed. Id. at 633-35 (citing Nass, 76 Wn.2d 368).
Contrary to the majority’s conclusion, the due process protections afforded by the courts of this state for a defendant facing enhanced penalties based either on prior convictions which exceed the statutory maximum or where enhancement statutes mandate additional penalties are based on state constitutional and common law considerations. This is clear not only from the language of Washington’s cases, but also from the development of federal constitutional analysis by the U. S. Supreme Court.
In an early decision by the U.S. Supreme Court, Barron v. Mayor & City Council of Baltimore, 32 U.S. 243, 8 L. Ed. 672 (1833), the Court ruled that the first 10 amendments to the federal constitution were not applicable to the states, but instead, were designed as a check on the new national government. See 2 Rotunda & Nowak, § 14.2 at 346. Thus, the rights guaranteed therein were not available to a citizen challenging state action. In 1938, the Court suggested that the first 10 amendments (also referred to as the Bill of Rights) might be applicable through the Due Process clause of the Fourteenth Amendment to the United States Constitution. United States v. *696Carolene Prods. Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). The Court has not, even yet, adopted a total incorporation analysis, but has elected to selectively incorporate the specific rights articulated in the Bill of Rights. For example, the Fifth Amendment right to protection against double jeopardy was not applied to the states until 1969 in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The Sixth Amendment guarantee to a jury trial was not applied to the states until 1968 in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh’g denied, 392 U.S. 947 (1968).
The Washington cases which dictate the process due a persistent or habitual offender facing an enhanced sentence which exceeds the maximum statutory sentence precede the application of the federal due process protections to the states through the Fourteenth Amendment.
Finally, it is important to recognize that in construing the right to a jury under Const, art. I, § 21, this court has stated repeatedly it "preserves the right as it existed at common law in the territory at the time of its adoption.” Pasco v. Mace, 98 Wn.2d 87, 96, 653 P.2d 618 (1982). See also State v. Schaaf, 109 Wn.2d 1, 743 P.2d 240 (1987); State v. Hobble, 126 Wn.2d 283, 892 P.2d 85 (1995). Moreover, in Schaaf, this court gave considerable weight to a 70-year practice regarding the trial of juveniles when considering the Gunwall factor relating to pre-existing state law. Schaaf, 109 Wn.2d at 14. In this case, history vividly demonstrates that at the time the state constitution was adopted an individual facing an enhanced sentence based on prior convictions had the right to notice by information, the right to a jury trial, and the right to proof beyond a reasonable doubt. In addition, these rights have been provided in practice in Washington for over 90 years. See Furth, 5 Wn.2d at 6 (prosecutors have continued same practice since 1903); State v. Ward, 123 Wn.2d 488, 513, 869 P.2d 1062 (1994) (outlining the constitutional right to an information, a jury trial, and proof beyond a reasonable doubt for defendant facing enhanced penalty as a habitual offender).
*697There is little new under the sun and a review of history shows that the persistent offender law, despite its catchy title—Three Strikes and You’re Out—is no exception. The right to an information alleging the defendant is a persistent offender, the right to have the prosecutor exercise discretion in that determination, the right to a jury trial and proof beyond a reasonable doubt of the allegation have been guaranteed by this state’s case law and constitution since statehood and should not be tossed aside simply because an old law receives a new name.
Johnson and Sanders, JJ., concur with Madsen, J.
This court has found the right to a jury trial under the Washington State Constitution is not coextensive with the federal right. State v. Hobble, 126 Wn.2d 283, 298-99, 892 P.2d 85 (1995); City of Pasco v. Mace, 98 Wn.2d 87, 97, 653 P.2d 618 (1982).