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Defense urges jury must decide key facts underpinning Herndon's persistent-offender sentence; state says judgment suffices
Summary
At oral argument in State v. Herndon, defense counsel argued the jury — not a judge — must find six factual predicates used to impose a Persistent Offender Accountability Act sentence, relying on Apprendi and related U.S. Supreme Court precedent; the state countered that certified judgments and sentencing records supply the required information and Erlanger does not displace Washington's POAA framework.
The Washington State Supreme Court heard argument Thursday in State of Washington v. Terrence Christopher Herndon over whether judges may determine the facts a statute uses to elevate punishment under the state's Persistent Offender Accountability Act (POAA). Defense counsel asked the justices to apply Apprendi v. New Jersey and its line of cases to require a jury to find six specific facts the state uses to impose a POAA sentence.
Greg Link, appearing for Mr. Herndon, told the court those six findings'including sequencing of prior convictions, whether the priors were scorable and committed in adult court, and whether a prior conviction had occurred before a later offense'go beyond the simple "fact of a prior conviction" that a judge may accept under the prior-conviction exception. "Mr. Herndon's sentence requiring that he die in prison doesn't comport with those constitutional standards," Link said, arguing the sentence must be reversed and remanded for a standard-range sentence unless a jury finds those facts beyond a reasonable doubt.
The defense framed the dispute as a narrow constitutional question about who must find facts that increase punishment and at what standard. Link cited Apprendi and related U.S. Supreme Court decisions (including Mathis and DeCamp) to argue that a judge cannot determine means-and-manner facts about prior offenses; instead, the court can only compare statutory elements when applying the prior-conviction exception.
Respondent counsel Angela Osman, identified herself and argued the high court'noting differences between federal statutes at issue in recent U.S. Supreme Court rulings'should interpret Erlanger and related precedent not to disturb Washington's POAA. Osman said the POAA requires a sequencing determination based on dates found in certified judgments and sentences and that those judgments commonly contain the court, conviction date, statute, and defendant information needed to determine whether a prior conviction qualifies under POAA. "Everything that the court needed to sentence Mr. Herndon as a persistent offender was present on the face of his prior judgments and sentences," Osman said.
Justices pressed both sides on practical and doctrinal questions: how juries would be instructed on "comparability" for out-of-state convictions; whether dates of commission or conviction fall inside the prior-conviction exception; how different types of pleas (including Alford pleas and stipulations) affect what a later sentencing court may rely on; and whether harmless-error analysis would govern any constitutional error. Counsel disagreed about whether aspects of comparability and sequencing implicate jury findings or legal determinations for judges.
Link told the court the state's burden under Apprendi is to prove "every fact necessary to support the sentence the state seeks," and that several of the POAA prerequisites "go far beyond the fact of a prior conviction." Osman responded that Erlanger'as the state reads it'permits courts to rely on objective items reflected in certified judgments and that Washington precedent allows judges to make sequencing and jurisdictional determinations where the statute calls for them.
The defense acknowledged that some of the requested relief could require overruling prior Washington decisions such as Olson; Link said he would not disagree that some prior cases might need reconsideration. The justices asked whether harmless error review would apply if the court found a constitutional problem; Osman said harmless-error review would be available and pointed to the court's existing tests in recent decisions.
At the close of argument the defense asked the court to reverse and remand for entry of a standard-range sentence. The bench recessed for a 10-minute break after thanking counsel for their arguments. No decision was announced from the bench at the hearing.
