State Of Washington, V. Michael Reynolds, Jr.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 81022-7-I

Respondent, DIVISION ONE

v. PUBLISHED OPINION

MICHAEL SCOTT REYNOLDS, JR.,

Appellant.

SMITH, J. — After Michael Scott Reynolds, Jr.’s, 1 trial for attempted rape

and burglary, the court sentenced him to life in prison without the possibility of

parole (LWOP) under the Persistent Offender Accountability Act (POAA), of the

Sentencing Reform Act (SRA) of 1981, ch. 9.94A RCW. The court found that

Reynolds had two prior “most serious” or “strike” offenses, which triggered a

LWOP sentence under the POAA. 2 Reynolds’s first POAA strike was a 2002

conviction for an attempted robbery he committed when he was 17 years old.

Reynolds appeals his LWOP sentence asserting three errors, which are that the

State failed to prove that one of the previous convictions was a strike offense,

1Appellant is referred to as Michael Scott Reynolds-Rodriguez, Jr. in
some court documents.
2 If a person has been convicted of three most serious offenses, they are

considered a persistent offender and shall be sentenced to life in prison without
the possibility of release. RCW 9.94A.030(32)(37); RCW 9.94A.570.

Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81022-7-I/2

that his LWOP sentence violates state and federal constitutions, and that he was

deprived of equal protection of the state and federal constitutions. Finding no

error, we affirm.

FACTS

On December 30, 2001, Reynolds and his accomplices attempted to rob a

convenience store with a BB 3 gun and smoke bomb. In 2002, the State charged

then 17 year old Reynolds in juvenile court with attempted robbery in the first

degree. The case was later transferred to adult court. Reynolds subsequently

pleaded guilty to attempted first-degree assault in exchange for the State’s

agreement not to file any additional charges related to the BB gun or the smoke

bomb and to recommend a low-end standard range sentence of 34.5 months in

prison. Reynolds received a sentence consistent with this recommendation.

In January 2006, after being released from his sentence for the attempted

first degree assault, Reynolds and an accomplice forced their way into a married

couple’s home with large bladed weapons demanding money. After Reynolds

and the accomplice were not provided with money, Reynolds took the wife to an

ATM4 while threatening her with the knife and the accomplice stayed at the home

threatening the husband. The accomplice was later arrested at the victims’

home, and Reynolds was arrested the following day. Reynolds was initially

charged with kidnapping in the first degree and attempted robbery in the first

3BB is a shot pellet 0.175 inch diameter for use in a BB gun
4ATM: a computerized electronic machine that performs basic banking
functions (such as handling check deposits or issuing cash withdrawals), also
called an automated teller machine.

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No. 81022-7-I/3

degree, both with deadly weapon enhancements. However, Reynolds was

ultimately allowed to plead guilty to burglary in the first degree and robbery in the

first degree without any enhancements. Reynolds received a sentence of 144

months in prison and he was released in September 2017.

In February 2018, a 33 year-old Reynolds threatened M.G., a barista at a

drive-through espresso stand, with a knife and then forcefully dragged her from

the stand to an area with bushes where he violently attempted to rape her. The

State then charged Reynolds with burglary in the first degree and attempted rape

in the second degree. The case proceeded to a jury trial, and on January 17,

2020, the jury found Reynolds guilty as charged on both counts. The court found

that Reynolds’s 2002 and 2006 convictions were both “most serious offenses”

under the POAA and imposed concurrent LWOP sentences on both the burglary

and attempted rape counts. Reynolds appeals.

ANALYSIS

Reynolds challenges his judgment and sentence on three grounds. First,

he claims that because the State failed to prove that a decline hearing took place

for his 2002 conviction, the conviction cannot qualify as a strike offense.

Second, he claims that his sentence under the POAA violates the Eighth

Amendment to the United States Constitution and article I, section 14 of the

Washington State Constitution because the court relied on his 2002 conviction,

which he committed as a juvenile. Third, Reynolds claims that the trial court

deprived him of equal protection under the Fourteenth Amendment to the United

States Constitution and article I, section 12 of the Washington State Constitution

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when the court, and not a jury, found the facts necessary to sentence him as a

persistent offender. As further discussed below, Reynolds’s claims fail.

Most Serious Offense

Interpretation of the POAA, under the SRA of 1981, is reviewed de novo.

State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). Under the POAA, a

persistent offender shall be sentenced to a term of total confinement for life

without the possibility of release. State v. Knippling, 166 Wn.2d 93, 98, 206 P.3d

332 (2009); RCW 9.94A.570. An “offender” includes “a person who has

committed a felony established by state law and is eighteen years of age or older

or is less than eighteen years of age but whose case[. . .]has been transferred by

the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.”

Knippling, 166 Wn.2d at 99; RCW 9.94A.030(34). A “persistent offender” is an

offender who has been convicted of a felony considered a most serious offense

and has been convicted as an offender on at least two separate occasions.

Knippling, 166 Wn.2d at 98-99; RCW 9.94A.030(37). A “most serious offense”

includes assault in the first degree, any class B felony with a finding of sexual

motivation, and any other felony with a deadly weapon verdict under

RCW 9.94A.825. RCW 9A.36.011; RCW 9.94A.030(32)(r),(s). The trial court

cannot sentence a defendant as a persistent offender if the State fails to meet its

burden to prove a defendant was convicted of “most serious offenses.”

Knippling, 166 Wn.2d at 102. Under the POAA, the State bears the burden to

prove by a preponderance of the evidence an accused’s prior “most serious

offenses” to establish their persistent offender status. Knippling, 166 Wn.2d at

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No. 81022-7-I/5

100; RCW 9.94A.030(37).

Here, Reynolds claims that the State did not satisfy its burden because it

did not prove that the juvenile court properly declined jurisdiction over his 2002

offense due to its failure to produce a transcript from the decline hearing. We

disagree. To satisfy its burden to prove that Reynolds’s 2002 conviction was a

most serious offense, the State had to prove “by a preponderance of the

evidence” that Reynolds’s 2002 case was properly transferred to adult court.

State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). This, in turn

required the State to prove that the juvenile court properly declined jurisdiction.

“ ‘Preponderance of the evidence means evidence that is more probably

true than not true.’ ” In re Pugh, 7 Wn. App. 2d 412, 422, 433 P.3d 872 (2019)

(quoting In re Welfare of Sego, 82 Wn.2d 736, 739 n. 2, 513 P.2d 831 (1973)).

“The best evidence of a prior conviction is a certified copy of the judgment of

conviction, but the State may use any documents of record or transcripts of prior

proceedings to establish criminal history.” State v. Mitchell, 81 Wn. App. 387,

390, 914 P.2d 771 (1996). “If there is no record of the declination hearing, we

can presume that no such hearing occurred.” Knippling, 166 Wn.2d at 102.

To support this claim, Reynolds asserts that there was no evidence that

he was even represented by counsel. However, the State produced a certified

copy of the juvenile court’s decline order, the minutes of the decline hearing, and

a copy of the juvenile probation report submitted by Reynolds’s juvenile

counselor. In addition, the certified copy of the clerk’s minutes indicates that the

hearing took place on January 16, 2002, counsel for Reynolds was present, the

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No. 81022-7-I/6

declination report was admitted, and Reynolds stipulated to decline jurisdiction to

adult court. The hearing, findings, and order for decline of jurisdiction indicate

that declining jurisdiction was in the best interest of the juvenile or the public and

that the juvenile court declined jurisdiction and transferred the case to adult court.

Although there is no transcript of the decline hearing, there is sufficient

documentation to establish the decline hearing took place and that Reynolds was

represented by counsel. The trial court did not err by concluding that the State

met its burden to prove that the 2002 conviction was properly under adult court

jurisdiction. Cf. Knippling, 166 Wn.2d at 101 (where our Supreme Court held that

the State failed to prove “strike” status of a prior offense because Knippling was

convicted at 16 years of age and “there was no evidence in the record that the

superior court had jurisdiction over him”). Because the existence of a decline

hearing is the basis on which Reynolds’s challenges the “strike” status of his

2002 conviction, the trial court did not err by including that conviction as a “strike”

offense.

Life Without the Possibility of Parole Sentence

Reynolds asserts that because he committed his first strike offense when

he was a juvenile, his LWOP sentence violates both the Eighth Amendment’s

prohibition on cruel and unusual punishment and article I, section 14 of the

Washington State Constitution, which also prohibits cruel punishment. He

advances two claims in support of this assertion. First, he contends that the

Eighth Amendment and article I, section 14 categorically bar a LWOP sentence

for an offender whose first strike under the POAA was committed as a juvenile.

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Second, he claims that even if this sentence is not categorically barred, it violates

article I, section 14 under the analysis set forth in State v. Fain, 94 Wn.2d 387,

397, 617 P.2d 720 (1980). Each of these claims present constitutional questions,

which we review de novo. State v. Abrams, 163 Wn.2d 277, 282, 178 P.3d 1021

(2008). As discussed below, we reject both claims.

1. Categorical Bar Analysis

The Eighth Amendment to the United States Constitution and article I,

section 14 of the Washington State Constitution both categorically bar sentencing

practices based on disproportionality “between the culpability of a class of

offenders and the severity of the penalty.” Miller v. Alabama, 567 U.S. 460, 470,

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); WASH. CONST. art. I, § 14.

“Mandatory life-without-parole sentences for juveniles violate the Eighth

Amendment” because children are constitutionally different from adults for

sentencing purposes. Miller, 567 U.S. at 470. Accordingly, mandatory

sentencing schemes failing to take into account the fact that “children are

different” are constitutionally infirm. State v. Houston-Sconiers, 188 Wn.2d 1, 18,

391 P.3d 409 (2017) (holding that Eighth Amendment requires courts to consider

the mitigating characteristics of youth, and use appropriate discretion, in

sentencing juvenile offenders). The Washington State Constitution is more

protective than the Eighth Amendment when evaluating juvenile sentences and

proportionality under the POAA. State v. Moretti, 193 Wn.2d 809, 820, 446 P.3d

609 (2019). Therefore, if a sentencing scheme is not cruel under our state

constitution, “it is necessarily not cruel and unusual under the Eighth

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No. 81022-7-I/8

Amendment.” Moretti, 193 Wn.2d at 820. Statutes are presumed constitutional,

and the defendant challenging the statute has the burden to prove otherwise

beyond a reasonable doubt. State v. Bassett, 192 Wn.2d 67, 77, 428 P.3d 343

(2018).

We observe that our Supreme Court recently held in Moretti 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.” Moretti, 193 Wn.2d at 818. We determine whether a

sentencing scheme is categorically barred under article I, section 14 of the

Washington State Constitution by applying a two part test. Id.at 821-22. First,

we determine whether there is a national consensus against the type of sentence

applied, and then we consider the exercise of the court’s independent judgment.

Id. at 823. Reynolds contends that the two part test mandates a different result

for those who committed their first offenses as juveniles because juveniles are a

protected class, and a LWOP sentence under the POAA is a mismatch between

culpability and the severity of the penalty. We disagree.

A. National Consensus

To determine whether a national consensus exists as to the sentencing at

issue, we analyze the “ ‘objective indicia of society’s standards as expressed in

legislative enactments and state practice.’ ” Id. at 821 (internal quotation marks

omitted) (quoting Bassett, 192 Wn.2d at 85). It is the consistency of direction of

change that is significant and not the number of states that follow a certain

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No. 81022-7-I/9

practice. Id. The burden is on the defendant to show that a national consensus

exists. Id.

Moretti and other petitioners who committed their first strike offense as

young adults claimed that “states overwhelmingly prohibit the use of juvenile

offenses to drastically enhance later sentences under recidivist schemes.” Id.

(emphasis omitted). However, our Supreme Court upheld their sentences, partly

reasoning that they did not provide evidence of a national consensus on

prohibiting the use of convictions as young adults to enhance a sentence

imposed on an offender who commits a third strike as an older adult. Id. at 821-

22.

Here, Reynolds asserts that there is an emerging national consensus

against the use of juvenile strikes in the calculation of sentencing enhancements.

But, as explained above, Reynolds’s 2002 matter was properly transferred to

adult court, so it was not a juvenile strike. Moretti, 193 Wn.2d at 821 (“[T]he

POAA already prohibits counting a juvenile adjudication as a strike offense”).

Reynolds cites to scholarly articles and cases to support his reasoning that a

person should not be punished later in life for prior criminal activity committed as

a juvenile. But the scholarly articles and cases that Reynolds cites are not

applicable because they focus on juvenile adjudication rather than adult POAA

convictions based on prior offenses committed by a juvenile tried in adult court.

Although there is a rising national consensus that juveniles and adults are

different and courts have expressed this through Miller and Houston-Sconiers,

Reynolds was not a juvenile when he was sentenced and the crime he was

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No. 81022-7-I/10

sentenced for was a crime that he committed as an adult. Therefore, like the

petitioners in Moretti, Reynolds fails to present evidence of a national consensus

applying to recidivist statutes, such as the POAA, that punish adults with a

LWOP sentence who committed a prior strike offense when they were a juvenile

and were tried in adult court.

B. Independent Judgment

The second step in the categorical bar analysis requires the court to

exercise independent judgment by considering the “ ‘culpability of the offenders

at issue in light of their crimes and characteristics, along with the severity of the

punishment in question’[,] and ‘whether the challenged sentencing practice

serves legitimate penological goals.’ ” Moretti, 193 Wn.2d at 823; (emphasis

omitted)(quoting Bassett, 192 Wn.2d at 87). Reynolds asserts that the

sentencing court did not correctly exercise independent judgment because it

failed to consider the mitigating qualities of youth that diminish culpability. He

specifically claims that the court did not consider the diminished culpability of his

youth when it used his 2002 conviction to sentence him under the POAA to a

mandatory LWOP sentence because it is the most severe sentence possible

short of death. Reynolds also claims that imposing LWOP sentences on

offenders who committed their first strike offense as juveniles does not serve

legitimate penological goals. We disagree.

a) Culpability

In Moretti, the petitioners claimed that because they were young adults

when they committed their first strike offenses, they were less culpable than

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No. 81022-7-I/11

other persistent offenders who committed all of their strike offenses as older

adults. Moretti, 193 Wn.2d at 824. In support, they relied on psychological and

neurological studies as well as case law demonstrating that parts of the brain

involved in behavior control continue to develop in a person past 20 years of age.

Id. at 823. Our Supreme Court stated that even though it has recognized that

age can “ ‘mitigate a defendant’s culpability . . . age is not a per se mitigating

factor automatically entitling every youthful defendant to an exceptional

sentence.” Id.at 824, (alteration in original) (quoting State v. O'Dell, 183 Wn.2d

680, 695, 358 P.3d 359 (2015)). Our Supreme Court further stated that “trial

courts [instead] are statutorily allowed to consider evidence that […] youth in fact

diminished . . . the defendant’s culpability.” Id. The court then concluded that the

petitioners did not produce “any evidence that their youth contributed to the

commission of the instant offenses.” Id. Additionally, the court concluded that

they were not able to prove “that the brains of 32 or 41 year old men are not fully

mature,” and “nothing in the record suggested that they are any less culpable

than any other adult offender.” Id.

Here, Reynolds asserts that an adult who commits their first strike as a

child has not demonstrated the same culpability and blameworthiness as a

person who commits all three strikes as an adult. Reynolds asserts this is

because youths’ “immaturity, recklessness, and impetuosity” make them less

culpable than adults. Miller, 567 U.S. at 472. Reynolds further claims that the

court must not have considered the mitigating qualities of youth that diminish

culpability for his prior offense when it gave him the LWOP sentence because his

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No. 81022-7-I/12

first strike offense was committed with a BB gun, which resulted in no injuries or

theft.

However, like the petitioners in Moretti, Reynolds did not present any

evidence that his youthful characteristics in fact contributed to the commission of

his most recent offense. Although it is true that immaturity, recklessness, and

impetuosity make a juvenile less culpable than an adult, Reynolds was 33 years

old when he threatened a barista with a knife and violently attempted to rape her.

Reynolds is not being sentenced for his 2002 conviction, and he has failed to

establish that his youthfulness at the time he committed his first strike offense

reduces his current culpability. Therefore, Reynolds fails to establish that he is

any less culpable than any other adult offender.

b) Severity of Punishment

The United States Supreme Court has stated that “[b]ecause juveniles

have diminished culpability and greater prospects for reform . . . they are less

deserving of the most severe punishments.” Moretti, 193 Wn.2d at 826; (quoting

Miller, 567 U.S. at 471). A LWOP sentence is inappropriate for juveniles

because it does not give them the opportunity to reform and all “good behavior

and character improvements become immaterial.” Bassett, 192 Wn.2d at 88. A

LWOP sentence is “especially harsh for children, who will on average serve more

years and a greater percentage of [their] li[ves] in prison than an adult offender.”

Id. (quoting Graham v. Florida, 560 U.S 48, 88, 130 S.Ct. 2011, 76 L. Ed.2d 825

(2010)). “Many of the cases exempting juveniles from harsh sentencing

practices have relied on the strong prospects of juveniles for change.” Moretti,

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193 Wn.2d at 824.

Here, Reynolds cites to Miller to assert that a LWOP sentence for

juveniles is similar to capital punishment and that “ ‘imprisoning an offender until

he dies alters the remainder of his life ‘by a forfeiture that is irrevocable.’ ” 567

U.S. at 474-75 (quoting Florida, 560 U.S at 69). Reynolds also attempts to

demonstrate that his LWOP sentence is excessive by presenting evidence that

the State previously made an unofficial offer to not count the 2002 offense as a

strike under the POAA.

However, Reynolds is being sentenced for his most recent crime

committed at age 33 which is aggravated by the continuous offenses throughout

his life that justify a heavier penalty. See Moretti, 193 Wn.2d at 826 (internal

quotation marks omitted) (quoting State v. Lee, 87 Wn.2d 932, 937, 558 P.2d

236 (1976)). (“ ‘POAA sentences are not punishment for the crimes the

petitioners committed as young adults because recidivist statutes do not impose

cumulative punishment for prior crimes. The repetition of criminal conduct

aggravates the guilt of the last conviction and justifies a heavier penalty for the

crime.’ ”) In 2002, Reynolds was sentenced to 34.5 months of incarceration. He

then reoffended in 2006 and was incarcerated until 2017. After about a year of

being released, Reynolds chose to commit another most serious offense.

Because Reynolds has not shown that he is any less culpable than any other

adult offender who committed the same crimes, punishment in accordance with

the POAA is not excessive.

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No. 81022-7-I/14

c) Penological Purpose

Reynolds claims that the penological purposes of the POAA are not

served by imprisoning him for life for three reasons. First, Reynolds claims that

the rationale for retribution is the offender’s blameworthiness, and a juvenile,

such as Reynolds was in 2002, is less blameworthy than an adult. Next,

Reynolds claims that deterrence has little justification when applied to a juvenile

offender because the characteristics of youth make them less likely to consider

potential punishment. Finally, Reynolds claims that incapacitation cannot fairly

justify his LWOP sentence as it “disregards the possibility of rehabilitation.”

Miller, 567 U.S. at 477-78.

In deciding if the court correctly exercised independent judgment, we must

decide “whether the penological goals of retribution, deterrence, incapacitation,

and rehabilitation are served by this sentence.” Bassett, 192 Wn.2d at 88. The

concept of retribution in a sentence is diminished for juveniles because they have

diminished capacity. Id. at 89. Deterrence is also diminished because “ ‘the

same characteristics that render juveniles less culpable than adults’ ” make it

difficult for them to consider punishment. Id.at 88 (quoting Roper v. Simmons,

543 U.S. 551, 161 L.Ed.2d 1 (2005)). Incapacitating a juvenile for life does not

serve legitimate penological goals because “ ‘[d]eciding that a juvenile offender

forever will be a danger to society would require mak[ing] a judgment that [he] is

incorrigible—but incorrigibility is inconsistent with youth.’ ” Id. (internal quotation

marks omitted) (quoting Miller 567 U.S. at 472). Indeed, a LWOP sentence “will

never serve the goal of rehabilitation” for the reason that someone spending the

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rest of their life in prison will never benefit from having been rehabilitated.

Moretti, 193 Wn.2d at 826-27.

The main purpose of the POAA is “ ‘deterrence of criminals who commit

three most serious offenses and the segregation of those criminals from the rest

of society.’ ” Id. at 827 (quoting State v. Witherspoon, 180 Wn.2d 875, 888, 329

P.3d 888 (2014)). “Article I, section 14 does not categorically prohibit imposing a

life without parole sentence on a fully developed adult offender who committed

one of their prior strike offenses as a young adult.” Id. at 830.

Here, Reynolds’s sentence is not retribution, deterrence, or incapacitation

for the crime he committed when he was a juvenile. The enhanced penalty was

given because he is a repeat offender who committed his third serious crime at

33 years of age. Furthermore, “‘[t]he main purposes of the POAA are deterrence

of criminals who commit three ‘most serious offenses’ and the segregation of

those criminals from the rest of society.’” Id.at 827 (alteration in original)(quoting

Witherspoon, 180 Wn.2d at 888). That purpose is being served by Reynolds’s

sentence. Therefore, Reynolds fails to show that his LWOP sentence does not

serve the penological purpose of the POAA.

In short, Reynolds fails to show that there is a national consensus on

LWOP sentences for adults under the POAA based on a strike offense

committed as a juvenile or that the court did not correctly exercise independent

judgment in imposing an LWOP sentence. Accordingly, we reject Reynold’s

assertion that article I, section 14 and the Eighth Amendment categorically bar

his LWOP sentence because he committed his first strike offense as a juvenile.

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Article I, section 14 allows courts to impose mandatory LWOP sentences under

the POAA on offenders like Reynolds who committed a prior most serious

offense as a juvenile. Id. at 830.

Disproportionality

Reynolds claims that even if his LWOP sentence is not categorically

barred, a combination of the Fain factors renders his sentence unconstitutional

under article I, section 14. We disagree.

A sentence may be cruel under article I, section 14 if it is grossly

disproportionate to the offense. Moretti, 193 Wn.2d at 830. The four factors

courts consider in deciding whether a LWOP sentence is proportional under

article I, section 14 are (1) the nature of the offense; (2) the legislative purpose

behind the sentencing statute; (3) the punishment imposed in other jurisdictions

for the same offense; and (4) the punishment imposed for other offenses in the

same jurisdiction. Fain, 94 Wn.2d at 397.

Reynolds specifically contends that his LWOP sentence under a

combination of the Fain factors is excessive for three reasons. The first reason

Reynolds gives is that he was a juvenile when he committed his first strike

offense. Second, Reynolds points out that although his previous strike offenses

were robberies, he is serving the same sentence as a person convicted of

multiple counts of murder in the same jurisdiction. Third, Reynolds notes that he

is serving the same sentence as a POAA offender who committed all three

strikes as a fully formed adult.

Nevertheless, Reynolds’s sentence is not unconstitutional. As for the first

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Fain factor, the nature of Reynolds’s most recent offense—attempted rape with a

deadly weapon—was violent and traumatic for the victim. In Moretti, our court

upheld Moretti’s LWOP sentence under the POAA. 193 Wn.2d at 830-32.

Moretti was found guilty of first degree robbery and second degree assault with

no evidence that his youthfulness affected his behavior. Id. “Moretti beat a man

with a bat in order to rob him, breaking the bat against the victim’s arms.” Id. at

831. “Moretti and his companion also attacked a second man, splitting open his

forehead, the back of his head, and his ear.” Id.

Here, similarly, Reynolds was found guilty of burglary in the first degree

and attempted rape with special allegations with no evidence that his

youthfulness affected his behavior. Reynolds premeditated his attack on the

coffee barista, dragged her out of the window, threatened her with a knife to her

throat as he violently attempted to rape her, and then strangled her to near

unconsciousness when she tried to stop him.

Additionally, like in Moretti, Reynolds also committed two most serious

offenses, of which he was found guilty. Moretti, 193 Wn.2d at 821. In his 2002

prior strike conviction, Reynolds pleaded guilty in adult court for attempted

robbery in the first degree for a crime he committed at 17-years of age. 5

Reynolds and four companions planned and then attempted to rob a gas station

store with a BB gun that looked like a real gun and a smoke bomb. 6 Reynolds

pointed the BB gun at the gas station clerk and demanded money before being

5 CP at 554.
6 CP at 387.

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No. 81022-7-I/18

told to leave to which a companion then lit the smoke bomb inside of the store. 7

Further, in his 2006 prior strike offense, Reynolds and an accomplice forced their

way into an occupied home where Reynolds then took a woman from the home

to an ATM threatening her at knifepoint. In applying this factor, it is apparent that

each of the crimes that underlies Reynolds’s conviction as a habitual offender

involved the use of threat of violence to obtain his goal. The nature of

Reynolds’s crime supports a conclusion that the punishment imposed on

Reynolds is proportional to the crime he committed.

Second, as stated above, the purpose of the POAA is to segregate

criminals who have committed three most serious offenses from the rest of

society. Moretti, 193 Wn.2d at 827. Reynolds committed three most serious

offenses and has not been able to demonstrate that he is willing to change his

behavior and to stop endangering the public. The legislative purpose of the

POAA supports a conclusion that Reynolds’s LWOP sentence is proportional to

his offense.

Third, as for the punishment that offenders would have received in other

jurisdictions, “13 other states impose mandatory sentences of life without parole

on offenders who continue to recidivate. A total of 34 states appear to have

some sort of habitual offender statute, many of which allow or require imposing

life sentences.” Moretti, 193 Wn.2d at 833. Reynolds did not receive a sentence

that is uncommon for a recidivist offender. Furthermore, although each state has

its own threshold for what qualifies as a strike offense and even if Reynolds could

7 CP at 387.

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have received a shorter sentence in another jurisdiction, that fact alone is not

dispositive. Witherspoon, 180 Wn.2d at 888.

Lastly, if Reynolds had committed a different most serious crime in the

same jurisdiction, he would have received the same punishment. “‘[I]n

Washington, all adult offenders convicted of three most serious offenses are

sentenced to life in prison without the possibility of release under the POAA.’”

Moretti, 193 Wn.2d at 833 (quoting Witherspoon, 180 Wn.2d at 888). Therefore,

consideration of the Fain factors does not establish that Reynolds’s sentence is

unconstitutional under article I, section 14.

Equal Protection

Reynolds further claims that because the State was not required to prove

the existence of his prior strike offenses to a jury beyond a reasonable doubt, his

sentence violates the equal protection clause of the Fourteenth Amendment and

article I, section 12 of the Washington State Constitution. We disagree.

The Fourteenth Amendment and article I, section 12 require “persons

similarly situated with respect to the legitimate purpose of the law must receive

like treatment.” State v. Coria 120 Wn.2d 156, 169, 839 P.2d 890 (1992).

Because repeat offenders do not constitute a suspect or semi-suspect class and

physical liberty is not a fundamental right, the proper standard of review for an

equal protection challenge to the “three strikes law” is rational basis. State v.

Manussier, 129 Wn.2d 652, 673-74, 921 P.2d 473 (1996). See also Coria, 120

Wn.2d at 169-171 (the rational basis test applies when a statutory classification

does not involve a suspect or semi-suspect class and does not threaten

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fundamental rights, and when a physical liberty alone is involved in a statutory

classification).

The rational basis test requires that the statute have a legitimate state

objective and the statute’s means must be rationally related to that goal. Coria,

120 Wn.2d at 173. The statute’s means do not have to be the best way of

achieving that goal. Coria, 120 Wn.2d at 173. When applying rational basis

review, this court has held that “recidivists whose conduct is inherently culpable

enough to incur a felony sanction are, as a group, rationally distinguishable from

persons whose conduct is felonious only if preceded by a prior conviction for the

same or a similar offense.” State v. Salinas, 169 Wn. App. 210, 226, 279 P.3d

917 (2012) (quoting State v. Langstead, 155 Wn. App. 448, 457, 228 P.3d 799

(2010)). Our court has also “‘repeatedly rejected’ the argument that a jury must

determine the existence of prior convictions’” for sentencing purposes. Salinas,

169 Wn. App. at 225-26 (quoting State v. Thiefault, 160 Wn.2d 409, 418, 158

P.3d 580 (2007)).

When evaluating equal protection challenges under the rational basis test,

the three factors we consider are: (1) whether the classification applies to all

members within the designated class alike, (2) whether some rational basis

exists for reasonably distinguishing between those within the class and those

outside the class, and (3) whether the challenged classification bears a rational

relation to the purpose of the challenged statute. Morris v. Blaker, 118 Wn.2d

133, 149, 821 P.2d 482 (1992).

Here, Reynolds points out that some crimes require proof of a prior

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conviction beyond a reasonable doubt as an element of the crime. He asserts

that because the rational basis test applies to equal protection challenges raised

in recidivist criminal cases, there is no rational basis for classifying the

punishment for recidivist criminals as an element in certain circumstances and an

aggravator in others. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000) (internal quotation marks omitted) (“Merely using

the label sentence enhancement to describe a [sentencing element] surely does

not provide a principled basis for treating them differently"). He then contends

that equal protection under the constitution requires that the existence of prior

felonies to increase a sentence should be proven to a jury as an element of the

crime under the reasonable doubt standard. State v. Roswell, 165 Wn.2d 186,

192, 196 P.3d 705 (2008) (where a prior conviction alters the crime that may be

charged, the prior conviction is an essential element that must be proved beyond

a reasonable doubt); Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151,

186 L. Ed. 2d 314 (2013) (facts that increase the mandatory minimum sentence

are elements and must be submitted to the jury and found beyond a reasonable

doubt). However, both the Washington Supreme Court and this court have

repeatedly concluded that the legislature did not intend for the POAA to classify

the persistent offender finding as an element that would need to be proven to a

jury. Thiefault, 160 Wn.2d at 418; Salinas, 169 Wn. App. at 225-26.

Reynolds supports his claims by citing to Roswell, Apprendi, and Alleyne.

In Roswell, the defendant was charged under the communication with a minor for

immoral purposes statute, which is usually a gross misdemeanor, but because

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the defendant had prior sex offense convictions, he was found guilty of a felony.

165 Wn.2d at 190. The court held that prior offense convictions were elements

that had to be proved to the jury beyond a reasonable doubt under the

communication with a minor for immoral purposes statute. Roswell, 165 Wn.2d

at 194.

In Apprendi, the trial court found by a preponderance of the evidence that

the shooting by the defendant was racially motivated, and increased his

sentence. 530 U.S. at 466, 471. The defendant appealed, claiming that the

“Due Process Clause” of the United States Constitution requires that a bias

finding should be proved beyond a reasonable doubt. Apprendi, 530 U.S. at 471.

The appeal made its way to the United States Supreme Court, and the Court

held that,

[U]nder the Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty for
a crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt. The Court further held that the
Fourteenth Amendment commands the same answer.

Apprendi, 530 U.S. at 476 (emphasis added) (quoting Jones v. United States,

526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)).

In Alleyne, the defendant appeals the court imposed minimum sentence

for possession of a firearm in relation to a robbery. 570 U.S. at 99. The

defendant claimed that because the jury did not find that he brandished his

weapon “beyond a reasonable doubt and that raising his mandatory minimum

sentence based on a sentencing judge's finding of brandishing would violate his

Sixth Amendment [to the United States Constitution] right to a jury trial.” Alleyne,

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570 U.S. at 99. The Court held that “[b]ecause mandatory minimum sentences

increase the penalty for a crime, it is an element that must be submitted to a jury.’

Alleyne, 570 U.S. at 99.

However, Reynolds’s interpretation of Roswell, Apprendi, and Alleyne is

incorrect. Contrary to Reynolds’s interpretation, the Court in Roswell explained

that “[d]espite the similarities between an aggravating factor and a prior

conviction element under RCW 9.68A.090(2), a prior sexual offense conviction is

an essential element that must be proved beyond a reasonable doubt” because

“[t]he prior conviction is not used to merely increase the sentence beyond the

standard range[,] but actually alters the crime that may be charged.” Roswell,

165 Wn.2d at 192. This case is also different than Roswell because Reynolds

has committed multiple serious offense crimes and recidivists are, as a group,

different than people whose conduct is felonious only if preceded by prior

convictions for the same or similar offense. As for in Apprendi, the Court

explicitly states that “any fact (other than prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a

jury, and proven beyond a reasonable doubt.” 530 U.S. at 476 (quoting Jones

243 n.6)). Lastly, in Alleyne, the Court upheld Apprendi and concluded that their

ruling in the case did not mean that “any fact that influences judicial discretion

must be found by a jury.” Alleyne, 570 U.S. at 116. Therefore, requiring

persistent offender status to be proven only by a preponderance of the evidence

and only to a judge—not a jury—does not violate equal protection.

Because the State proved the 2002 conviction was a strike offense, the

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LWOP sentence does not deprive Reynolds of equal protection, and the LWOP

sentence does not constitute cruel and unusual punishment, we affirm.

WE CONCUR:

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