## FILED COURT OF

## APPEAL' 

## DIVISION IN THE COURT OF APPEALS OF THE STATE OF WASHIN 

## ISI 3 

## AN 8: 33 DIVISION II ST. 4 ` U' AS 

### GTON STATE OF WASHINGTON, Respondent,

v. WILLIAM H. ELLISON, BY No. 44951 -0 -II PART PUBLISHED OPINION

Appellant. BJORGEN, A.C. J. — 

### Following a bench trial,the trial court found William H. Ellison 

## guilty ofseconddegree rape and seconddegree child molestation based on conductagainstAE,1 the minor granddaughter of Ellison' s formerwife. The court imposed a mandatory life sentence 

### without the possibility ofearly release, based on a finding that Ellison had previously been convicted oftwo crimes defined in RCW 9. 94A.030 as " most serious" offenses under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. Ellison appeals, arguing that 

### the trial court denied him the right ofallocution and thatincreasing his punishment based on the 

### judicial finding, not expressly made beyond a reasonable doubt,that Ellison had two prior qualifying convictions violated his rights to due process oflaw and to equal protection ofthe laws under the federal constitution. Ellison also submits a statement of additional grounds for review (SAG) under RAP 

### 10. 10, claiming that the trial courtviolated his right to a speedytrial and that his attorney denied him the right to participate in his own defense, refused to present exculpatory evidence, and

1 

### Consistently with our court's General Order 2011 -1, we refer to minorvictims bytheir initials to protect their privacy.No. 44951 -0 -II



### denied Ellison his right to ajury trial. Ellison furthercontends in his SAG thatthe trialjudge and the prosecutor committed misconduct. We affirm Ellison' s convictions and sentence. FACTS 

### In January 2011, AE accused Ellison offorcing herto have sexual intercourse on one occasion and fondling her breasts on several occasions. AE alleged thatthe sexual abuse occurred between September 2006 and July 2008, while she lived with her grandmother and 

### legal guardian,Joan Ellison,who was married to William Ellison atthe time.2 Based on AE's accusations, the State filed charges against Ellison in April 2011. The State subsequently notified Ellison that second degree rape qualified as a " most serious offense" under RCW 

### 9.94A.030(37) and that, ifhe had previously been convicted on separate occasions oftwo other such offenses, he would be sentenced to a term oftotal confinement for life without the possibility of release under the POAA. 1 Verbatim Report of Proceedings (VRP) at 8; Clerk' s Papers (CP) at 6.

Ellison remained in custody from April 2011 throughout the proceedings. On October 9, 

### 2012,the day trial was setto begin,the prosecutor requested a continuance, informing the court that she had developed a medical problem that required surgery and rendered her unable to proceed as scheduled. Against Ellison' s wishes, defense counsel did not object. The trial court found good cause and granted the continuance. 

### In November2012, againsthis attorney's wishes, Ellison filed apro se motion to dismiss the charges against him. Ellison based the motion on, among other grounds, violation ofthe

2 The couple divorced in July 2011. 

### For clarity,we referto Joan Ellison by her first name. We intend no disrespect.No. 44951 -0 -II



### time - for - trial rule and his constitutional right to a speedy trial. After reviewing the scheduling orders in the case, the trial court denied the motion.

The parties completed voir dire on 

### January 7, 2013. 

### The next day, following an extensive 

### colloquy, Ellison waived his right to ajury trial. The court began hearing testimony on January 9. 

### The State presented the testimony ofJoan, AE, and David Duralde, M.D., a child abuse expert. Ellison testified on his own behalf,and the defense called no other witnesses. 

### The trial court found Ellison guilty ofone count ofsecond degree rape and one count of child molestation and entered written findings offact and conclusions of law. The State 

### presented certified copies ofthejudgment and sentence evidencing Ellison' s history offelony convictions, as well as an affidavit from a forensic technician stating that Ellison was the same person identified in those documents.

The court concluded that Ellison was a persistent offender based on the current 

### convictions and its findings that Ellison had two robbery convictions from 1994 and 1997. Ellison did not object to these findings, and the record does not reveal what evidentiary standard 

### the court applied in making them. 

### After hearing a statement from Joan and argument from counsel, the sentencing court invited Ellison to allocute. Ellison sang a short religious song and spoke about various topics not clearly related to the sentencing proceeding. 

### After making extensive remarks, Ellison began to 

### protest his innocence and accuse his trial attorney oflying to thecourt. Atthatpoint,the court cut Ellison off,explained that the matters he related were irrelevant to the issues at hand, and pronounced the sentence. Ellison asked for permission to finish his remarks, but the court declined.

3No. 44951 -0 -II



### As required by RCW 9.94A.570, the sentencing court imposed aterm oftotal confinement for life withoutthe possibility ofrelease. Ellison timely appeals. ANALYSIS 

### Because it raises an issue offirst impression in Washington,we begin by addressing in the published portion ofthis opinion Ellison's contention thatthe sentencing court denied him the right of allocution. In the unpublished portion, we turn to Ellison' s constitutional challenges 

### to the sentencing procedure and the claims raised in Ellison' s SAG. I. THE RIGHT OF ALLOCUTION 

### Ellison claims thatthe sentencing courtviolated his rightto meaningful allocution by interrupting his remarks and refusing to allow him to finish. Ellison contends thatthis error 

### requires resentencing before adifferentjudge.3 We hold thatthe sentencing court did notviolate Ellison' s right of allocution.

The right of allocution is guaranteed 

### by RCW 9. 94A.500( 1), which states in relevant part that "[ t]he court [ shall] ... allow ` arguments from ... the offender[] ... as to the sentence to be imposed." ( Alterations in original.) Our Supreme Court has specified that " trial courts should 

### scrupulously follow" this statutory mandate. In re Pers. Restraint ofEcheverria, 141 Wn.2d 323, 336 -

37, 6 P. 3d 573 ( 2000). 

### Offenders subject to a mandatory life sentence enjoy this right . 

### even though the sentencing court has no discretion to exercise. State v. Snow, 110 Wn.App. 667, 669 -

70, 41 P. 3d 1233 ( 2002).



### 3 The State invites us to decline to consider Ellison' s allocution claim, asserting that he failed to 

### timely object. Ellison, however, repeatedly protested the court's termination ofhis remarks, 

### which sufficiently apprised the trial court ofthe claimed error. State v. Moen, 129 Wn.2d 535, 547, 919 P. 2d 69 ( 1996); see United States v. Li, 115 F.3d 125, 132 (2d Cir. 1997) ( rejecting an identical waiver argument on the ground that the defendant' s protestations adequately apprised the trial court ofthe issue). 4No. 44951 -0 -II



### Here,the sentencing court invited Ellison to speak, allowing him to make lengthy 

### remarks before interrupting and pronouncing the sentence. Thus, the issue presented involves the extent to which a court may limit the exercise ofthe right to allocution.

Our state Supreme Court has specified that allocution is the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of sentence. It is the defendant' s opportunity to 

### plead for mercy and present any information in mitigation ofsentence. State v. Canfield, 154 Wn.2d 698, 701, 116 P. 3d 391 ( 2005). It is not, however, intended to

advance or dispute facts. State v. Lord, 117 Wn.2d 829, 897 -98, 822 P. 2d 177 ( 1991); see State 

### v. Curtis, 126 Wn.App. 459, 463, 108 P.3d 1233 ( 2005). 

### The sentencing court allowed Ellison to speak for some time, cutting him offonlywhen he began using the opportunityto testify about the facts ofthe case and complain about the 

### conduct ofhis trial attorney. Under Canfield,those were not legitimate purposes for allocution. Because the court let Ellison speakwithout interruption until itwas clear he was using the allocution for improper purposes, we hold that the trial court did not abuse its discretion in 

## cutting short Ellison's allocution.4 A majority ofthe panel having determined that onlythe foregoing portion ofthis opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2. 06.040, it is so ordered.

4 This conclusion is consistent with United States v. Muniz, 1 F.3d 1018, 1024 - 25 ( 10th Cir. 1993), 

### which held that a sentencing court did notviolate the rightto allocute by cutting the 

### defendant offafter he began rearguing the case and complaining that his trial rights had been violated.

5No. 44951 -0 -II II. CONSTITUTIONAL CHALLENGE TO THE PERSISTENT OFFENDER DETERMINATION 

### Ellison contends that the sentencing court's persistent offender determination violated his constitutional rights for two reasons. First, he argues that the use ofprior convictions to impose a harsher sentence than the law would otherwise authorize violated his right to due process of 

### laws because the sentencing court did not expressly find that the State had proved beyond a reasonable doubt that the convictions ( 1) exist and (2) qualify as most serious offenses. Ellison 

### also argues that increasingthe penalty forthe charged crime on the basis ofprior convictions 

### found by apreponderance ofthe evidence denies defendants equal protection ofthe laws because in other, similar contexts the courts have made such prior convictions " elements" of a greater crime, which elements the State must prove beyond a reasonable doubt. Br. ofAppellant at 8 -14. A. Due Process 

### Ellison' s due process challenge turns on the United States Supreme Court' s holding in Apprendi v. New 

### Jersey that, "[

### o]therthan the fact ofa prior conviction, any factthat increases 

### the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury,

and proved beyond a reasonable doubt." 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 2000). The Apprendi Court based the prior-conviction exception to its general rule on Almendarez -

Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 ( 1998). Apprendi, 530 U.S. at 488 -90. Ellison argues that subsequent decisions have undermined the 

### 5 In his first assignment oferror, Ellison challenges the sentencing court' s persistent offender determination based on the due process provisions of both the Washington and federal 

### constitutions. Ellison, however, presented no analysis under State v. Gunwall, 106 Wn.2d 54, 64 - 69, 720 P. 2d 808 ( 1986), as to whether the state constitutional provision provides greater protection than its federal counterpart. Without that analysis or some other reason why we 

### should interpret the state constitutional provision more broadly, we do not reach the state constitutional issue. Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 538, 936 P.2d 1123 1997). 6No. 44951 -0 -II

validity ofthe relevant 

### holding in Almendarez - Torres, notably Alleyne v. United States, - -- U.S. - 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), on remand, United States v. Alleyne, 539 Fed. Appx. 269 (4th Cir. Sept. 24, 2013). He argues also that even ifthe Almendarez-Torres 

### exception totheApprendi rule remains viable, it does not apply here because the court based Ellison' s sentence not only on the fact of Ellison' s prior convictions, but also on the fact that those convictions qualified as most serious offenses.

Ellison' s challenge to the Almendarez - Torres exception founders on our state Supreme 

### Court' s opinions expressly affirming the continuing validity ofthat exception. See State v. Witherspoon, 180 Wn.2d 875, 891 -94, 329 P. 3d 888 ( 2014); State v. McKague, 172 Wn.2d 802, 803 n. 1, 262 P. 3d 1225 ( 2011); State v. Wheeler, 145 Wn.2d 116, 122 - 24, 34 P.3d 799 (2001). Witherspoon addressed Alleyne and held that it did not require the fact ofprior offenses under the POAA to be proved beyond a reasonable doubt. Witherspoon, 180 Wn.2d at 891 -92. Even more to the point, the Wheeler court rejected due process challenges to the POAA' s persistent offender
procedure indistinguishable from Ellison' s challenges. Wheeler, 145 Wn.2d at 118 -19, 124. Opinions ofour state Supreme Court do not bind us to the extent they conflict with 

### applicable United States Supreme Court precedents. See, e.g.,State v.Anderson, 112 Wn.App. 828, 839, 51 P. 3d 179 ( 2002). The United States Supreme Court has declined to repudiate the Almendarez -

Torres exception in light ofApprendi. Alleyne, 133 S. Ct. at 2160 n. 1. Therefore, its precedents do not conflict with the holdings of our state Supreme Court that the exception remains viable. Those holdings therefore control, State v. Gore, 101 Wn.2d 481, 486 -87, 681 P.2d 227 ( 1984), and compel us to reject Ellison' s argument. Ellison' s attempt to distinguish Almendarez - Torres on the ground that his sentence rests 

### on morethan simply afinding that the prior convictions exist fails forthe same reason: our.

7No. 44951 -0 -II



### Supreme Court expressly rejected his arguments in Wheeler, 145 Wn.2d at 118 -19, 124, and 

### declined to reconsider its holding in Witherspoon, 180 Wn.2d at 891 -94. Accord McKague, 172 Wn.2d at 803 n. 1. 

### Furthermore, because the statute explicitly defines " most serious offense," RCW 9. 94A.030( 32), 

### whether a given conviction qualifies presents an issue ofstatutory interpretation: a question of law for the court, not a question offact. See State v. Ford, 99 Wn. 

### App. 682, 691, 995 P.2d 93 ( 2000). Whether the prior conviction qualifies as a " most serious offense" under RCW 9. 94A.030(32) is not a question that could be submitted to the trier offact and found beyond a reasonable doubt in the first place. Unless our Supreme Court decides to overrule Wheeler and Witherspoon, or the United 

### State Supreme Court expressly repudiates theAlmendarez - Torres exception, those state 

### decisions remain binding precedents. Ellison's due process challenge mustyield to their authority. B. Equal Protection Ellison contends that we should apply strict scrutiny to the persistent offender determination in our equal protection analysis, because it deprives defendants ofa fundamental 

### liberty interest. Ellison further contends thatthe POAA's procedure for designating persistent offenders fails even rational basis review. This is so, Ellison argues, because designating prior

convictions used to increase the penalty for certain crimes as " sentencing factors," requiring only 

### afinding bypreponderance ofthe evidence,while designating priorconvictions usedto increase the penalty for other crimes as " elements," 

### requiring proofbeyond a reasonable doubt, furthers

no legitimate government interest. Br. of Appellant at 9 -14. Stated another way, the government 

### interest in punishing recidivists more severely is the same in both contexts, making the distinction artificial and arbitrary.

8No. 44951 -0 -II These arguments fail for the same reasons that Ellison' s due process claim fails: our 

### courts have already rejected them. Our Supreme Court held that rational basis review applies to the persistent offender determination procedure, which procedure does not offend the equal protection clause. State v. Manussier, 129 Wn.2d 652, 672 - 74, 921 P.2d 473 ( 1996); ; State v. Thorne, 129 Wn.2d 736, 770 - 72, 921 P. 2d 514 ( 1996), 

### abrogated on other grounds by Blakely v. Washington, 542 U.S: 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004). III. SAG In his SAG, Ellison claims that ( 1) his attorney denied him the right to a

### jury trial, (2) the judge committed misconduct, (3) the trial court violated his right to a speedy trial, (4) his 

### attorney refused to present exculpatory evidence and denied him the right to participate in his own defense, and (5) the prosecutor committed misconduct. Except for his claims that his 

### attorney denied him his right to ajurytrial andthatthe trialjudge committed misconduct, which claims the record squarely refutes, all ofthe claims depend on the truth ofEllison's allegations 

### concerning matters outside the record. On direct appeal,we do notaddress claims thatdepend on facts not in the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 ( 1995). A. 

### The Right to a Jury Trial 

### Ellison alleges that his attorney " bullied" him into choosing a bench trial. SAG at 6. The 

### record affirmatively refutes this allegation. Aftervoir dire, when Ellison's attorney informedthe courtthat Ellison had decided to opt for a bench trial,the attorney made clearthat Ellison did so against the advice of counsel. Although Ellison addressed the court at length about his decision, 

### he never disputed his attorney' s statement. The court specifically asked Ellison whether anyone had pressured him, and Ellison denied it:

The Court: 

### Has anybody done anything to force you orcoerce you or otherwise



### tryto make you give up your rightto ajurytrial? 9No. 44951 -0 -II Ellison]: Just 

### by what I feel. Just 

### by what I' ve seen. Just 

### by — no coercing. No one' s threatened me. I just —I know I won' t get a fair trial. I 

### know it. I know I will not get a fairtrial. And I' m hoping I can get one from you. But even from your standpoint, you look like you don't even want to do it. So now you might as welljust convict me. 3 VRP at 45. 

### The record establishes that Ellison waived hisjury trial rights knowingly, voluntarily, and 

### intelligently and, contrary to the allegation in his SAG, againstthe advice ofcounsel. Ellison's claim fails. B. Judicial Misconduct Ellison bases his judicial misconduct claim on the allegation that the trialjudge cut short Ellison' s impeachment of Joan, then reminded Joan that she was under oath. The record shows 

### that Ellison tried extensively to impeach Joan, using allegedly untruthful answers she had given on forms submitted to the state Department of Social and Health Services, and stopped cross - 

### examining her about it after a sidebar discussion. Although the court made a record ofthe sidebar, the transcript shows no reminder from the court that Joan was still under oath. Ellison did not object to the trial court' s termination of his attempt to impeach Joan.

ER 608( b) specifies that "[ s] pecific instances ofthe conduct of a witness, for the purpose 

### ofattacking or supportingthe witness' credibility, otherthan conviction ofcrime as provided in

rule 609, may not be proved 

### by extrinsic evidence." The rule, however, gives trial courts 

### discretion whetherto allow a partyto cross - examine awitness about instances ofconduct probative of truthfulness. ER 608(b). The trial court allowed Ellison to cross - examine Joan about her answers on the forms. Thus, to the extent that the record shows that the matters Ellison 

### alleges occurred, nothing suggests thatthe trial court did anything improper. For these reasons, Ellison' sjudicial misconduct claim fails.

10No. 44951 -0 -II

C. 

### The Right to a Speedy Trial 

### The record shows that Ellison spent well over ayear in custody before commencement of 

### his trial,asserted his right to a speedy trial on at leasttwo occasions, and was clearly not responsible for at least the final delay. Such matters bear on whether a constitutional speedy trial

violation has occurred. State v. 011ivier, 178 Wn.2d 813, 827, 312 P. 3d 1 ( 2013), cert. denied, 135 S. Ct. 72 (2014) (

### holdingthatwhetheraconstitutional speedytrial violation has occurred depends on the length ofthe delay,the reasons forthe delay,the defendant' s assertion ofhis speedytrial right, and prejudice to the defendant). Proper analysis ofthe claim, however, requires consideration ofthe reasons for each 

### delay. 011ivier, 178 Wn.2d at 831 -32 (citing State v. Iniguez, 167 Wn.2d 273, 294, 217 P.3d 768 2009) (

### citing Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 33 L. Ed.2d 101 ( 1972))). 

### The record does not reveal how many continuances the trial court granted. Except forthe continuance to accommodate the deputy prosecutor' s medical issue, the record does not disclose 

### the reasons the court granted any continuances or whether Ellison objected in each instance. Because the record is inadequate for review ofEllison's speedy trial challenge, we decline to address the issue. McFarland, 127 Wn.2d at 335; see also Stuartv. Consol. Foods Corp., 6 Wn. App. 841, 846, 496 P.2d 527 ( 1972) ( " In order to evaluate a trial court' s decision, the basis for the decision must be known. "). D. 

### Ellison' s Remaining SAG Claims The remainder ofthe claims raised in Ellison' s SAG also depend on matters outside the

record. The prosecutorial misconduct claim rests on two allegations: ( 1) that the prosecutor 

### removed Aaron Wilson, AE' s boyfriend, from the State' s witness list after discovering that his version ofAE' s disclosure differed from AE' s, and (2) that the prosecutor coached Joan outside

11No. 44951 -0 -II



### the courtroom to change hertestimony about Ellison's underwear. Because neither Wilson' s description ofAE' s disclosure nor the witness lists appear in the record, we cannot evaluate the 

### first allegation on its merits. Although the record does show that Joan gave slightly different 

### testimony aboutthe underwear at two different points in the trial, nothing in the record suggests that she gave the second description based on coaching bythe prosecutor. Thus, the second allegation also depends on matters outside the record. We therefore decline to address Ellison' s prosecutorial misconduct claim. Ellison bases his misconduct claims against his attorney on allegations that the attorney 

### 1) pressured Ellison into agreeing to continue the trial bythreatening to quit, (2) failed to explain what rights Ellison would waive 

### by agreeing to a continuance, (3) refused to have DNA deoxyribonucleic acid) testing performed on the mattress where the rape allegedly occurred, and 

### 4) failed to procure the testimony ofWilson. All ofthese claims depend on matters outside the

record.

### Nothing in the record supports Ellison' s claim that his attorney failed to inform him of the consequences ofagreeing to a continuance. The only aspect ofthe record suggesting that 

### Ellison's attorneythreatened to quit orotherwise pressured Ellison to agree to any continuance is Ellison's allegation to that effect in a letter he sent to the trial judge pro se. Given the " strong presumption [that] counsel' s representation was effective," McFarland, 127 Wn.2d at 335, Ellison' s bare allegation in the trial court does not suffice to merit review ofthis claim. 

### Similarly, nothing in the record supports Ellison's claim that his attorney refused to have AE' s mattress tested. Further, neither Wilson' s description ofAE' s disclosure ofthe abuse 

### allegations, nor any evidence ofdefense counsel' s efforts to secure Wilson'stestimony appear in

12No. 44951 -0 -II

the record. We decline to address these claims on this record before us. McFarland, 127 Wn.2d at 335. We affirm the trial court in all respects.

We concur:

13