State of Wash. v. ERVIN

• Decision Date: 09 September 2010
• Docket Number: No. 83244-7.,83244-7.
• Citation: 239 P.3d 354
• Parties: STATE of Washington, Respondent, v. James L. ERVIN, Petitioner.
• Court: Washington Supreme Court

239 P.3d 354

STATE of Washington, Respondent,
v.
James L. ERVIN, Petitioner.

No. 83244-7.

Supreme Court of Washington,En Banc.

Argued June 29, 2010.
Decided Sept. 9, 2010.

239 P.3d 355

Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Petitioner.

James Morrissey Whisman, Michael John Pellicciotti, King County Prosecutor's Office, Seattle, WA, for Respondent.

OWENS, J.

¶ 1 James Ervin was convicted in 2006 of felony violation of a protection order. At sentencing, the State and Ervin disputed the proper offender score. This dispute turned upon whether two of Ervin's prior class C felony convictions had “washed out”-that is, whether Ervin had complied with RCW 9.94A.525(2)(c) and the prior felonies should therefore no longer be included in his offender score. Specifically, the parties disagreed about whether the 17 days Ervin spent in jail for violating a term of his probation for a misdemeanor interrupted the requisite “five consecutive years in the community without committing any crime that subsequently results in a conviction.” RCW 9.94A.525(2)(c). Because Ervin committed no crimes for a five-year period and his incarceration was not pursuant to a felony conviction, we conclude that his prior class C felony convictions washed out and may not be included in his offender score. We therefore reverse the Court of Appeals decision and remand the case for resentencing.

FACTS

¶ 2 Ervin's criminal history begins with a 1989 juvenile felony conviction for burglary in the second degree, a class B felony. In 1991, while still a juvenile, Ervin committed a second felony, possession of stolen property, which is a class C felony. Ervin's next class

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C felony occurred in 1994, when he was convicted of rendering criminal assistance in the first degree. Less than five years after his release from confinement on this last charge, Ervin committed misdemeanor criminal trespass on April 15, 1999, and was subsequently convicted. The trial court sentenced Ervin to a 90-day suspended sentence and put him on probation. One requirement of probation was that Ervin attend anger management classes. When Ervin failed to attend these classes, he was jailed for 17 days, from January 25, 2002, until February 11, 2002.

¶ 3 On July 28, 2005, Ervin committed assault in the fourth degree, a misdemeanor, for which he was later convicted. Between September 2005 and January 2006, Ervin was convicted of one controlled substances felony and five misdemeanors relating to violations of court orders.

¶ 4 Ervin violated another protection order in September 2006. Because of his prior convictions for violating court orders, Ervin was convicted of a felony for this violation. At sentencing, Ervin argued that his prior class C felonies had washed out because he went five consecutive years without committing a crime, from his April 15, 1999, commission of misdemeanor criminal trespass until his July 28, 2005, commission of fourth degree assault. The State disagreed, arguing that his 17 days in jail in 2002 interrupted the five-year washout period, even though the violation of probation was not a crime. The trial court agreed with the State's interpretation of the statute.

¶ 5 Ervin appealed his sentence but not his conviction. The Court of Appeals agreed with the trial court's interpretation of the statute, holding that the phrase “in the community” in RCW 9.94A.525(2)(c) means that any time spent in confinement interrupts the washout period. State v. Ervin, 149 Wash.App. 561, 562, 205 P.3d 170 (2009). The Court of Appeals therefore affirmed Ervin's sentence. Id. Ervin timely filed a petition for review, which we granted. State v. Ervin, 167 Wash.2d 1001, 220 P.3d 208 (2009).

ISSUE

¶ 6 Does time spent in jail pursuant to a violation of probation stemming from a misdemeanor interrupt an offender's washout period?

ANALYSIS A. Standard of Review

¶ 7 Resolution of this case turns exclusively on a question of statutory interpretation, which is a question of law reviewed de novo. In re Det. of Williams, 147 Wash.2d 476, 486, 55 P.3d 597 (2002).

B. Ervin's Incarceration Did Not Interrupt the Washout Period

¶ 8 When interpreting a statute, “the court's objective is to determine the legislature's intent.” State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005). The surest indication of legislative intent is the language enacted by the legislature, so if the meaning of a statute is plain on its face, we “ ‘give effect to that plain meaning.’ ” Id. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002)). In determining the plain meaning of a provision, we look to the text of the statutory provision in question, as well as “the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Id. An undefined term is “given its plain and ordinary meaning unless a contrary legislative intent is indicated.” Ravenscroft v. Wash. Water Power Co., 136 Wash.2d 911, 920-21, 969 P.2d 75 (1998). If, after this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous and we “may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.” Christensen v. Ellsworth, 162 Wash.2d 365, 373, 173 P.3d 228 (2007).

¶ 9 This case concerns the proper interpretation of RCW 9.94A.525(2)(c), which governs when class C felony convictions may be included in a person's offender score. That statute provides, in relevant part:

[C]lass C prior felony convictions ... shall not be included in the offender score if,

239 P.3d 357

since the last date of release from confinement ... pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(c). In construing this statute, the Court of Appeals has helpfully broken it down into two clauses: a “trigger” clause, which identifies the beginning of the five-year period, and a “continuity/interruption” clause, which sets forth the substantive requirements an offender must satisfy during the five-year period. In re Pers. Restraint of Nichols, 120 Wash.App. 425, 432, 85 P.3d 955 (2004). We adopt this terminology to assist our discussion of the statute.

¶ 10 In this case, the parties agree that the trigger date occurred sometime in 1994 or 1995 when Ervin was released from confinement pursuant to his 1994 felony conviction. Less than five years after his release, Ervin committed misdemeanor criminal trespass on April 15, 1999. Because Ervin was then convicted, this crime implicated the continuity/interruption clause, effectively resetting the five-year clock. See State v. Hall, 45 Wash.App. 766, 769, 728 P.2d 616 (1986). Both sides also agree that Ervin did not commit any crime resulting in a conviction between April 15, 1999, and July 28, 2005. The sole point of contention is the phrase “in the community” and whether that phrase means that time spent in jail for a violation of probation stemming from a misdemeanor conviction interrupts the five consecutive years required for class C felonies to wash out.

¶ 11 We conclude that both parties advance reasonable interpretations of the plain language and that the statute is therefore ambiguous. The State's argument is that “in the community” is an independent requirement that the offender not be in confinement. This definition comports with one ordinary meaning of the term...