The opinion
Madsen, C.J.
(concurring)
¶13 I agree with the majority that the Court of Appeals decision must be reversed and defendant’s conviction reinstated. I also agree with the majority that the determination of whether defendant’s prior convictions were based on qualifying orders as set forth in RCW 26.50.110(5), thereby ultimately increasing his punishment, is a legal question for the trial court, and that in the circumstances of this case, the defendant’s stipulation is sufficient to resolve that inquiry. I write separately to express my view that the method employed by the Court of Appeals and the majority here—splitting the prior convictions inquiry into a legal question for the trial court and a factual question for the jury—is unnecessary and unwarranted. This is so because the provision at issue concerns prior convictions, which are an exception to the general rule that any fact increasing a penalty must be decided by the jury.
¶14 In Apprendi v. New Jersey, 530 U.S. 466 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000), the Supreme Court expressly excluded a defendant’s prior criminal history as a matter for jury deliberation. “Other than 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.” Id. at 490 (emphasis added). Four years later, in Blakely v. Washington, 542 U.S. 296, 301 , 124 S. Ct. 2531 , 159 L. Ed. 2d 403 (2004), the Supreme Court explicitly preserved its prior holding in Apprendi that a sentencing enhancement based on a defendant’s prior conviction does not have to be presented to a jury. See also United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004) (noting the *94 continuing viability of the Apprendi rule and its exception for prior convictions); United States v. Harris, 447 F.3d 1300, 1303 (10th Cir. 2006) (same); Alleyne v. United States, 570 U.S. 99 , 133 S. Ct. 2151 , 2160 n.1, 186 L. Ed. 2d 314 (2013) (plurality opinion) (acknowledging the prior convictions exception expressed in Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 , 118 S. Ct. 1219 , 140 L. Ed. 2d 350 (1998)). Under this precedent, the issue of prior convictions need not be submitted to a jury. 5
¶ 15 I now turn to the plain language of the statute. RCW 26.50.110 is titled “Violation of order—Penalties,” and provides in relevant part as follows:
(l)(a) Whenever an order is granted under this chapter, chapter 7.92, 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, any temporary order for protection granted under chapter 7.40 RCW pursuant to chapter 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace, school, or day care;
(iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location;
*95 (iv) A provision prohibiting interfering with the protected party’s efforts to remove a pet owned, possessed, leased, kept, or held by the petitioner, respondent, or a minor child residing with either the petitioner or the respondent; or
(v) A provision of a foreign protection order specifically indicating that a violation will be a crime.
(4) Any assault that is a violation of an order issued under this chapter, chapter 7.92, 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10,26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation of such an order that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.
(5) A violation of a court order issued under this chapter, chapter 7.92, 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.
(Emphasis added.)
¶16 As can be seen, violations that are designated as gross misdemeanors are set forth in subsection (l)(a). Subsection (4) elevates punishment to felony status when additional conduct is present in the form of “assault... that does not amount to assault in the first or second degree,” and for “reckless” conduct that “creates a substantial risk of death or serious physical injury to another person.” RCW 26.50.110(4). The presence of such additional conduct that would increase a sentence is clearly the type of inquiry that must go to the jury under Apprendi. See Alleyne, 133 S. Ct. 2151 (finding as to whether defendant had brandished, as *96 opposed to merely carried, a firearm in connection with crime of violence that would elevate mandatory minimum term for firearms offense from five to seven years was element of separate, aggravated offense that had to be found by jury). By contrast, subsection (5) does not add any conduct or other element; it simply designates a third or subsequent violation (as described in subsection (1)(a)) as a felony, thereby elevating the punishment for the present violation based on the existence of prior convictions that are unrelated to the current violation. Thus, in my view, because RCW 26.50.110(5) does not add additional conduct but relies only on prior convictions to increase punishment, it operates like a recidivist statute. “[R]ecidivism ‘does not relate to the commission of the offense’ itself.” Apprendi, 530 U.S. at 496 (quoting Almendarez-Torres, 523 U.S. at 230 ).
¶17 In light of the similarity with recidivist statutes, in my view appropriate guidance may be gleaned from our case law interpreting and applying the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981, RCW 9.94A.570. See State v. Witherspoon, 180 Wn.2d 875, 881 , 329 P.3d 888 (2014). We recently addressed the interplay between the POAA and Apprendi in Witherspoon . Under the POAA, adult offenders convicted in Washington of “three ‘most serious offenses’ ” are sentenced to life in prison without the possibility of release. Id. at 888 (internal quotation marks omitted) (quoting State v. Rivers, 129 Wn.2d 697, 713 , 921 P.2d 495 (1996)). The State must prove previous convictions by a preponderance of the evidence, and “the defendant is not entitled to a jury determination on this issue.” Id. at 894. In Witherspoon , we observed 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.” Id. at 892 . We noted in this context, “ ‘[i]n applying Apprendi , we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt.’ ” Id. at 893 (quoting In re Pers. *97 Restraint of Lavery, 154 Wn.2d 249, 256 , 111 P.3d 837 (2005)); see also id. at 892 (“We have repeatedly held that the right to jury determinations does not extend to the fact of prior convictions for sentencing purposes.”)- Under Wi-therspoon, because a jury determination of prior convictions is not required, “a judge may find the fact of a prior conviction by a preponderance of the evidence” for purposes of the POAA. Id. at 892 . In my view, the same should be true for the analogous situation here—a sentencing judge alone should make any determinations regarding prior convictions.
¶18 With these observations, I concur. 6
Johnson, J., concurs with Madsen, C.J.
The rationale for excepting prior convictions from the jury requirement is explained in Apprendi as follows:
[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
530 U.S. at 496 .
The dissent relies on In re Winship, 397 U.S. 358 , 90 S. Ct. 1068 , 25 L. Ed. 2d 368 (1970), and United States v. Gaudin, 515 U.S. 506 , 115 S. Ct. 2310 , 132 L. Ed. 2d 444 (1995), for the proposition that any fact that increases punishment must be submitted to a jury and found beyond a reasonable doubt. Dissent at 97. But Apprendi addressed both of these cases, see Apprendi, 530 U.S. at 471, 477 , and nevertheless concluded as discussed herein that prior convictions are an exception to the general rule that any fact that increases the penalty for a crime must be decided by a jury. As discussed in Apprendi, Winship and Gaudin do not compel the result advocated by the dissent.