IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHNGTON, Respondent,

v. JEFFREY LAFATE BRINKLEY, Appellant. NO. 72852-1-1

DIVISION ONE

PUBLISHED OPINION FILED: February 1,2016

Lau, J. —AppellantJeffrey Brinkley was sentenced underthe Persistent Offender Accountability Act (POAA), Washington's "three strikes" recidivism law. Brinkley claims the trial court erred when itdetermined the "temporal relationship" of his prior convictions, in violation of the rule that "[o]therthan the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. N.J.. 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L Ed. 2d 435 (2000). Because the facts here 

### fall squarely within the Apprendi exception and are facts "intimately related" to the conviction under State v. Jones. 159 Wn.2d 231, 149 P.3d 636 (2006), we affirm the judgments.No. 72852-1-1/2
FACTS 

### In2011, Brinkley was convicted ofone count of first degree robbery, one count of second degree kidnapping, and one count of second degree assault based on a dispute
over a drug debt. At sentencing inJanuary 2013, the State provided certified copies of Brinkley's 

### two priorjudgments and sentences. Inthe first, Brinkley pleaded guilty to first degree robbery in King County. The face ofthe certifiedjudgment and sentence indicates the crime occurred on March 30, 1996, and he pleaded guilty on July 1, 1996. Inthe second, Brinkley pleaded guilty to second degree robbery in Spokane County. The face ofthejudgment and sentence indicates the crime occurred on November 26, 1998, and he pleaded guilty on January 29, 1999. 

### The sentencing court reviewed the certified copies ofthe priorjudgments to determine Brinkley's status as a persistent offender. He sentenced Brinkleyto life imprisonment on each charge. On direct appeal, we reversed and vacated Brinkley's 

### assault conviction on doublejeopardy grounds and remanded for resentencing.1 At resentencing, Brinkley contended a jury was constitutionally required to determine his status as a persistent offender. He argued the "temporal relationships" 

### between the convictions was necessarily a jury question. Report ofProceedings (RP) (Nov. 21, 2014) at 3-5. The court disagreed, amended thejudgmentto reflect the dismissed assault conviction, and left the life sentences on the two remaining counts unchanged. Brinkley appeals.



### 1State v. Brinkley. noted at 179 Wn. App. 1053, 2014 WL953487. -2-No. 72852-1-1/3
ANALYSIS Brinkley argues his due process rights underthe Sixth and Fourteenth Amendments ofthe United States Constitution were violated when the trial court 

### determined he was a persistent offender underthe POAA.2 By statute, a "[pjersistent offender" is defined as someone who at the time of sentencing for a current most serious offense, has been convicted twice before ofmost 

### serious offenses under RCW 9.94A.525. The statute states in part: (a)(i) Has been convicted inthis state ofany felony considered a most serious offense; and 

### (ii) Has, before the commission ofthe offense under (a) of this subsection, been convicted as an offender on at leasttwo separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in 

### the offenderscore under RCW 9.94A.525; provided that ofthe two or more previous convictions, at least one conviction must have occurred 

### before the commission ofany ofthe other most serious offenses for which the offenderwas previously convicted. RCW 9.94A.030(38)(a)(i)-(ii). Brinkley argues his persistent offender sentence violates the rule inApprendi. 

### He claims the constitution requires a jury to find the temporal relationship between convictions and offenses, "i.e. the requisite offense -^ conviction -> offense -> conviction -> offense -> conviction." Br. ofAppellant at 15. Underthe statute, the court must determine the date ofthe priorconvictions to
see ifthey occurred before commission ofthe present offense. Next, the court must



### 2Brinkleyalso suggests a state constitution claim. Article I, section 21 ofthe Washington State Constitution provides that "[t]he right of trial by jury shall remain inviolate..." But as Brinkley acknowledges, in State v. Smith. 150 Wn.2d 135, 156, 75 P.3d 934 (2003), the court rejected the contention that the state constitution separately prohibits fact-finding underthe POAA.No. 72852-1-1/4
determine the date of one of the earlier offenses and decide whether itfollowed the date 

### of the other priorconviction. The certifiedjudgments presented at Brinkley's sentencing hearing encompassed all ofthese facts. 

### Recidivism need not be pleaded and proved to the jurybeyond a reasonable doubt. InAlmendarez-Torres v. United States. 523 U.S. 224, 118 S. Ct. 1219, 140 L. 

### Ed. 2d 350 (1998), the Court held that prior convictions are sentence enhancements 

### and not elements of a crime. Therefore, they need not be submitted to the jurybecause "the sentencing factor at issue here—recidivism—is a traditional, ifnot the most 

### traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres. 523 U.S. at 243. 

### In Apprendi, the Court held that "otherthan the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. 

### Brinkleydoes not dispute thatWashington's persistent offenderstatute is a recidivism

statute. 

### Washington courts have repeatedly rejected assertions similarto those made by Brinkley. InJones, the court considered whether an increase inthe offender score for 

### crimes committed while on community supervision must be submitted to thejury. The defendant argued that Apprendi's priorconviction exception did not include facts that
were merely "related" to a priorconviction. Rejecting this claim, the court explained: [T]he prior conviction exception encompasses a determination ofthe defendant's probation status because probation is a direct derivative ofthe defendant's prior criminal conviction orconvictions and the determination involves nothing more than a review ofthe defendant's status as a repeat offender. Inthis regard, the community placement conclusion does not implicate the core concern ofApprendi and Blakely—that is the
-4-No. 72852-1-1/5 

### determination does notinvolve in any way a finding relating to the present offense conductfor which the State is seeking to impose criminal punishment and/or elements ofthe charged crime or crimes. To give effect to the priorconviction exception, Washington's sentencing courts must be allowed as a matter of law to determine not only the fact of a prior conviction but also those facts "intimately related to the prior conviction" such as the defendant's community status. 

### Jones. 159Wn.2d at 241 (emphasis added). Under Jones, Washington courts may determine "as a matteroflaw" facts "intimatelyrelated to the priorconviction."3 InState v. Witherspoon. 180 Wn.2d 875, 893, 329 P.3d 888 (2014), the court reaffirmed its adherence to the rule thatthe POAAprocedures do not violate federal or state due process. Strike offenses need not be proved to a jury: We have long held that for the purposes ofthe POAA, a judge may find the fact of a priorconviction by a preponderance ofthe evidence. In 

### Manussier. 129 Wn.2d [652, 681-84, 921 P.2d 473 (1996),] we held that because otherportions ofthe SRA utilize a preponderance standard, the appropriate standard for the POAA is by a preponderance ofthe evidence. 

### We also held that the POAA does not violate state or federal due process by not requiring that the existence of prior strike offenses be decided by a jury. This court has consistently followed this holding. We have repeatedly held that the right to jury determinations does not extend to the 

### fact of prior convictions for sentencing purposes. See State v. McKague, 172 Wn.2d 802, 803 n.1, 262 P.3d 1225 (2011) (collecting cases); see also In re Pers. Restraint of Laverv. 154 Wn.2d 249, 256, 111 P.3d 837 (2005) ("Inapplying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt."); State v. Smith. 150 Wn.2d 135, 139, 75 P.3d 934 (2003) (priorconvictions do not need to be proved to a jury beyond a reasonable doubt for the purposes ofsentencing underthe POAA). Accordingly, it is settled law inthis state that the procedures ofthe POAA do not violate federal or state due process. Neitherthe federal nor state constitution requires that previous strike offense be proved to a jury. Furthermore, the proper standard ofprooffor priorconvictions is by a preponderance ofthe evidence.



### 3Brinkley filed no reply and his opening briefignores Jones. He also cites to cases arguably critical ofthe priorconviction exception. We are not persuaded. -5-No. 72852-1-1/6 

### Witherspoon. 180Wn.2d at 892-93 (emphasis added). Brinkley relies on inapposite cases.4 See Butler v. Curry. 528 F.3d 624, 644-45 

### (9th Cir. 2008) (question of whether defendant committed crimewhile onprobation involvedfacts occurring after priorconviction and was therefore outside the scope of Apprendi): United States v. Salazar-Looez. 506 F.3d 748 (9thCir. 2007) (forcrime of 

### illegal reentry, whether defendantwas removedfrom the country afterfelony conviction involvedfinding facts outside ofApprendi): State v. Irbv. 187Wn.App. 183,147 P.3d 1103 (2015) (in determining factual comparability of prioroffenses under POAA, trial court considered facts outside prior convictions and violated Apprendi). 

### Weconclude that Brinkley's overly narrow view of Apprendi is notsupported. Jones and Witherspoon control. To determine whether Brinkley is a persistent offender 

### "involves nothing more than a review of the defendant's status as a repeat offender." Jones. 159 Wn.2d at 241. The court is entitled to consider "facts intimately related to 

### the priorconvictions" such as the dates of conviction,offense dates and the underlying offense. Jones, 159 Wn.2d at 241. These facts all appear on the face ofthe judgments. 

### Indeed, otherjurisdictions addressing Brinkley's specific contention rejected it. InPeople v. Rivera. 362 III. App. 3d 815, 841 N. E. 2d 532 (2005), the court 

### considered a three strikes lawthat, as inWashington, required the trial courtto findthe second felony was committed after conviction for the first, and the third after conviction 

### forthe second. The Rivera court rejected the same argument made by Brinkley:



### 4At oral argument in this court, appellate counsel candidly admitted disagreement with Jones. -6-No. 72852-1-1/7 

### We reject defendant's argument that defendant's age and prior convictions and the timing, degree, number and sequence ofdefendant's prior convictions are 'facts otherthan the fact of a priorconviction' that the State is required to submitto a jury and prove beyond a reasonable doubt. As a result, the exception articulated inApprendi applies to this case and defendant's contention that the circuit court may not rely on the 

### [presentencing investigation] for determining those ancillary elements fails. Rivera, 362 III. App. 3d at 821. 

### In United States v. Grisel, 488 F.3d 844 (9th Cir. 2007), the Ninth Circuit also 

### rejected a similar contention involving prior guiltypleas. The defendant claimed that the dates of his priorconvictions were not part ofthe "fact" of his priorconvictions. The 

### court disagreed, holding thatthe date ofoffense constitutes a part ofthe fact of
conviction: 

### When, as here, the face ofthe document demonstrating Defendant's prior conviction includes the date ofthe offense, the date is just as much a part 

### ofthe plea as is the nature ofthe offense described on the face of the document. Grisel, 488 F.3d at 847.5 

### In sum, the "prior conviction"exception includes not only the fact of the conviction itself but also "facts intimately related to the prior conviction." Jones. 159 Wn.2d at 241. As the Fourth Circuit observed, a prior conviction cannot "be reduced to nothing more 

### than that the defendant was at some prior time convicted ofsome crime" and therefore, should include "other operative facts." United States v. Thompson, 421 F.3d 278, 282 

### (4thCir. 2005). The dates ofBrinkley's priorconvictions, the dates of the prioroffenses,

5The State cites to additional cases from otherjurisdictions holding thatjudicial 

### fact-finding underApprendi mayinclude the date of the offense. See U.S. v. Elliott, 703 F.3d 378, 381-82 (7th Cir.2012) (court couldfind crimes committed overfive days were "committed on occasions different from one another"); Commonwealth v. Gordon, 596 

### Pa. 231, 251, 942 A.2d 174, 186 (2007) (concluding that "logicaland temporal 

### relationship between predicate crimes" is notfact-finding). -7-No. 72852-1-1/8 

### and the offenses resulting inthe prior convictions are allfacts that fall withinthe facts of priorconviction exception. CONCLUSION 

### We affirm Brinkley's judgment and sentence.

WE CONCUR: 

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