State v. Conover

• Decision Date: 13 August 2015
• Docket Number: No. 90782–0.,90782–0.
• Parties: STATE of Washington, Petitioner, v. Timothy Allen CONOVER, Respondent.
• Court: Washington Supreme Court

183 Wash.2d 706

355 P.3d 1093

STATE of Washington, Petitioner

v.Timothy Allen CONOVER, Respondent.

No. 90782–0.

Supreme Court of Washington, En Banc.

Argued May 21, 2015.

Decided Aug. 13, 2015.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

David Phelan, Cowlitz County Prosecuting Atty's Office, Longview, WA, for Respondent.

Opinion

GORDON McCLOUD, J.

¶ 1 Timothy Conover was convicted of three counts of delivering heroin within 1,000 feet of a school bus stop, in violation of RCW 69.50.401(1) (delivery) and RCW 69.50.435(1)(c) (school bus stop enhancement). The trial court imposed one 48–month standard-range base sentence on each of the three delivery counts, to run concurrently with each other. It also imposed three 24–month school bus stop enhancements—one for each delivery count—and ran them consecutively to Conover's 48–month base sentence and consecutively to each other. The total sentence was 120 months of confinement.

¶ 2 The single question before us is whether the school bus stop enhancement statute—RCW 9.94A.533(6) —requires the trial court to run such an enhancement consecutively only to the drug crime sentence it enhances or also requires the trial court to run multiple enhancements on different counts consecutively to each other. Our decision in In re Post Sentencing Review of Charles, 135 Wash.2d 239, 955 P.2d 798 (1998), controls our answer to that question. In that case, we held that statutory language virtually identical to the statutory language at issue here was ambiguous about whether the trial court must run multiple enhancements consecutively only to their underlying crimes or also consecutively to each other. Viewing that statute in context and applying other rules of statutory interpretation, we concluded that such language did not require trial courts to run those enhancements consecutively to each other. Instead, “when two or more offenses each carry firearm enhancements, the determination of whether multiple current [weapons enhancements] are to run concurrently or consecutively is determined by resort to the rules in RCW 9.94A.589,” which govern when all other Sentencing Reform Act of 1981(SRA) sentences run concurrently or consecutively. Id. at 254, 955 P.2d 798 ; ch. 9.94A RCW. We now interpret virtually identical language in the school bus stop enhancement in the same way: RCW 9.94A.533(6) does not require trial courts to run school bus stop enhancements on different counts consecutively to each other; instead, when two or more offenses each carry school bus stop enhancements, the determination of whether those enhancements are to run concurrently or consecutively is also determined by resort to the rules in RCW 9.94A.589(1)(a). We therefore reverse and remand for resentencing with instructions to use RCW 9.94A.589 to determine whether the multiple 24–month sentence enhancements run concurrently or consecutively with each other.

FACTS

¶ 3 In 2011, Cowlitz–Wahkiakum County Drug Task Force Detectives Russell Hanson and Michael Meier arranged controlled buys of heroin from Conover using a confidential informant (CI). Clerk's Papers (CP) at 1; Trial Proceedings (TP) (Oct. 12, 2012) at 46. On May 13, the CI agreed to buy a quarter-ounce of heroin from Conover for $400. CP at 1; TP (Oct. 11, 2012) at 35, 69; TP (Oct. 12, 2012) at 18, 51, 133. On that date, the CI met Conover in a motor home that was located within 1,000 feet of a school bus stop for the Longview School District. CP at 2; TP (Oct. 12, 2012) at 85. The CI gave the money to Conover, and Conover gave the CI a clear plastic bag containing tar heroin. CP at 1; TP (Oct. 11, 2012) at 42; TP (Oct. 12, 2012) at 19–20.

¶ 4 On May 31, Meier again worked with the CI to arrange another controlled buy from Conover—a quarter-ounce of heroin for $350. CP at 2; TP (Oct. 11, 2012) at 71; TP (Oct. 12, 2012) at 55, 136. The CI went to Conover's apartment to complete the deal. CP at 2; TP (Oct. 12, 2012) at 22. This controlled buy also took place within 1,000 feet of a school bus stop. CP at 2; TP (Oct. 12, 2012) at 88.

¶ 5 Then, in a July 7 recorded controlled buy, the CI bought a quarter-ounce of heroin from Conover for $350 at Conover's apartment. CP at 2; TP (Oct. 11, 2012) at 79–80; TP (Oct. 12, 2012) at 9, 23, 27, 135. Once again, the CI bought the drugs within 1,000 feet of a school bus stop. CP at 2; TP (Oct. 12, 2012) at 88, 90–91. After this buy, police arrested Conover.

¶ 6 The State charged Conover with three counts of delivery of heroin within 1,000 feet of a school bus stop. CP at 15–17; TP (Oct. 12, 2012) at 119–20, 123–24, 128.

¶ 7 The jury convicted Conover as charged. CP at 49, 52, 55. It also returned special sentencing verdicts on each count, finding that (1) Conover delivered the controlled substances within 1,000 feet of a school bus route stop designated by a school district and (2) Conover's crime was a major violation of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW, involving the attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use. CP at 50–51, 53–54, 56–58; Hr'g Proceedings (HP) (Oct. 24, 2012) at 10–13.

¶ 8 Based on an offender score of five, Conover's standard sentencing range was 20 to 60 months of confinement for each delivery count. CP at 62; HP (Oct. 24, 2012) at 10–11. The trial court sentenced Conover to a total of 120 months: 48 months for each of his three delivery convictions, to run concurrently with each other; plus an additional 24 months for each school bus stop enhancement on each of the three delivery counts, to run consecutively to each 48–month sentence for the underlying convictions and consecutively to each other, under RCW 9.94A.533(6).¹ CP at 65; HP (Oct. 24, 2012) at 20.

¶ 9 Conover appealed. He raised numerous issues, including two challenges to his sentence: (1) that the trial court erroneously calculated his offender score because the State failed to present evidence of his prior criminal history and (2) that the trial court erroneously ran his bus stop enhancements consecutively to each other rather than concurrently under RCW 9.94A.533. State v. Conover, noted at 183 Wash.App. 1011, 2014 WL 4229997, at *1. In an unpublished decision, the Court of Appeals affirmed the convictions but vacated the sentences after accepting the State's concession that it failed to prove Conover's prior convictions. 2014 WL 4229997, at *5, *9. It rejected Conover's argument about running the enhancements concurrently with each other.

¶ 10 We granted Conover's petition for review on whether RCW 9.94A.533 requires trial courts to run bus stop enhancements on one count consecutively or concurrently with bus stop enhancements on other counts. State v. Conover, 182 Wash.2d 1007, 344 P.3d 688 (2015).

ANALYSIS

I. Standard of Review

¶ 11 RCW 9.94A.533(6) states,

An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.827. All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter.^[ [^{2 ]}

(Emphasis added.)

¶ 12 This case requires us to decide whether the italicized language requires a trial court to run school bus stop sentence enhancements on multiple counts consecutively to, or concurrently with, each other.

¶ 13 This is a question of statutory interpretation, which we review de novo. Charles, 135 Wash.2d at 245, 955 P.2d 798. Our primary objective is to determine and to apply the legislature's intent. State v. Donaghe, 172 Wash.2d 253, 261–62, 256 P.3d 1171 (2011) (quoting State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) ). We determine legislative intent from the statute's plain language, “considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole.” Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash.2d 342, 350, 340 P.3d 849 (2015) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002) ).

¶ 14 If, after examining the ordinary meaning of the statute's language and its context in the statutory scheme, more than one reasonable interpretation exists, we treat the statute as ambiguous. Jacobs, 154 Wash.2d at 600–01, 115 P.3d 281. In criminal cases, we apply the rule of lenity to ambiguous statutes and interpret the statute in the defendant's favor. Id. at 601, 115 P.3d 281.

II. Neither the Language Nor the Context of RCW 9.94A.533(6) Require Trial Courts To Run School Bus Stop Enhancements on Multiple Counts Consecutively to Each Other

¶ 15 The statutory context of RCW 9.94A.533(6) informs our analysis of legislative intent. As noted above, RCW 9.94A.533(6) states, “All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter. ” (Emphasis added.) In contrast, another sentence enhancement in the same statute uses different language to describe when it must run consecutively; RCW 9.94A.533(3)(e), which provides for consecutive firearm enhancements, states, “Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.” (Emphasis added.) Similarly, RCW 9.94A.533(4)(e), which provides for consecutive deadly weapon enhancements, states, “Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other...