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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40732-9-II

                             Respondent,

       v.

STEVEN EUGENE ONG,
                                                           UNPUBLISHED OPINION
                             Appellant.

       Worswick, A.C.J.  --  Steven Eugene Ong appeals his life sentence as a persistent offender 

following his jury trial convictions for second degree assault with sexual motivation and fourth 

degree assault.  He argues that the trial court denied his right to a jury trial by finding him to be a 

persistent offender and that his persistent offender sentence violated equal protection. We affirm.

                                            FACTS

       A jury found Ong guilty of second degree assault with sexual motivation and one count of 

fourth degree assault.1  Ong committed both offenses on May 28, 2005.

       At sentencing, the trial court determined that two of Ong's prior felony convictions, a 

second degree assault and a second degree kidnapping, were most serious offenses under former 

1 This was Ong's second trial.  Division One of this court had previously reversed his original 
convictions in an unpublished opinion.  State v. Ong, noted at 153 Wn. App. 1016, 2009 WL 
4024841. 

40732-9-II

RCW 9.94A.030(28)(b) and (i) (2002), and sentenced him to life in prison without the possibility 

of parole as a "persistent offender"2 under RCW 9.94A.570.  Ong appeals his persistent offender 

sentence.3

                                          ANALYSIS

       Ong argues that (1) the trial court violated his federal due process4 and jury trial5 rights in 

sentencing him as a persistent offender because the court, not a jury, determined the existence of 

his prior convictions by a preponderance of the evidence; and (2) treating his prior offenses as 

sentencing factors (which may be found by the trial court) rather than as elements of the offense

(which must be found by a jury) violated his federal and state equal protection6 rights because 

there is no rational basis for the legislature to have classified the existence of some prior offenses 

as elements of certain offenses but as sentencing factors in other circumstances.7 We disagree.

       One week after Ong filed his opening brief, we rejected these identical arguments in State 

v. McKague, 159 Wn. App. 489, 513-19, 246 P.3d 558 (2011) (McKague I) (Armstrong, J., 

2 Former RCW 9.94A.030(32) (2002).

3 Ong does not challenge his convictions or the classification of his prior felony offenses as most 
serious offenses.

4 U.S. Const. amend. XIV, § 1.

5 U.S. Const. amend. VI.

6 U.S. Const. amend. XIV, § 1; Wash. Const. art. I, § 12.

7 Ong also argues that he did not waive these arguments by stipulating at his first trial that the trial 
court was authorized to make these sentencing determinations.  The State does not assert that 
Ong waived these arguments; accordingly, we do not address any possible waiver.

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40732-9-II

dissenting in part and concurring in part) (Quinn-Brintnall, J., concurring in part and dissenting in 

part);8 aff'd, ___ Wn.2d ___, 262 P.3d 1225, (2011) (McKague II).9, 10  Under McKague I, Ong's 

arguments fail.  

8 Although Judge Quinn-Brintnall disagreed with these portions of the lead opinion in McKague I, 
Judge Armstrong concurred in the relevant portions.  McKague I, 159 Wn. App. at 524, 527-35.

9 We note that, although our Supreme Court accepted review of only the sufficiency of the 
evidence issue in McKague II, it commented in a footnote:
              In his petition for review, McKague also challenged the majority's holding 
       that he was not entitled to a jury determination on the fact of his prior convictions 
       for persistent offender sentencing purposes.  But as we have repeatedly held, the 
       right to jury determinations does not extend to the fact of prior convictions for 
       sentencing purposes.  See, e.g., State v. Thiefault, 160 Wn.2d 409, 418, 158 P.3d 
       580 (2007); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256 -- 57, 111 P.3d 
       837 (2005); State v. Smith, 150 Wn.2d 135, 143, 75 P.3d 934 (2003), cert. denied, 
       541 U.S. 909 (2004).  We decline to review the issue again here.
McKague II, 262 P.3d at 1225 fn 1 (citations omitted).

10 See also Thiefault, 160 Wn.2d at 418 ("Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 
2348, 147 L. Ed. 2d 435 (2000)] and its progeny do not require the State to submit a defendant's 
prior convictions to a jury and prove them beyond a reasonable doubt."); Smith, 150 Wn.2d at 
143 (noting that Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 
2d 350 (1998) "expressly held that prior convictions need not be proved to a jury" and that the 
Supreme Court has not held otherwise since); State v. Wheeler, 145 Wn.2d 116, 124, 34 P.3d 799 
(2001) (rejecting defendant's argument that the federal constitution requires recidivism to be 
pleaded and proved to a jury beyond a reasonable doubt), cert. denied, 535 U.S. 996 (2002), and 
cert. denied sub nom Sanford v. Washington, 535 U.S. 1037 (2002); State v. Williams, 156 Wn. 
App. 482, 496-98, 234 P.3d 1174 (Division Three of this court rejecting identical equal protection 
argument), review denied, 170 Wn.2d 1011 (2010); State v. Langstead, 155 Wn. App. 448, 455, 
228 P.3d 799 (Division One of this court rejecting identical equal protection argument), review 
denied, 170 Wn.2d 1009 (2010); State v. Rudolph, 141 Wn. App. 59, 69, 168 P.3d 430 (2007) 
(rejecting similar due process argument), review denied, 163 Wn.2d 1045 (2008); State v. Ball, 
127 Wn. App. 956, 959, 113 P.3d 520 (2005) (rejecting similar due process argument in 
persistent offender context), review denied, 156 Wn.2d 1018 (2006).

                                               3 

40732-9-II

Accordingly, we affirm his persistent offender sentence.

       A majorityofthe panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                                Worswick, A.C.J.
We concur:

Armstrong, J.

Hunt, J.

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