State v. Varga
| Decision Date | 18 March 2004 |
| Docket Number | No. 74375-4.,74375-4. |
| Citation | 86 P.3d 139,151 Wash.2d 179 |
| Parties | STATE of Washington, Respondent, v. Leslie VARGA; Jeffrey Cleator; Jason Castle; Nicholas Rafvino; Frederick Tucker; Raven Brealan; James Foy; Christopher Straub, Appellants. State of Washington, Appellant, v. William Dennis, Respondent. |
| Court | Washington Supreme Court |
Washington Appellate Project, Thomas Kummerow, Maureen Cyr, Sharon Blackford, Cheryl Aza, Gregory Link, Nancy Collins, Jennifer L. Dobson, Seattle, for appellants.
Jennifer L. Dobson, Seattle, for the respondent William Dennis.
Janice Ellis, Snohomish County Prosecutor, Seth Fine, Charles Blackman, Everett, Norm Maleng, King County Prosecutor, Deric Martin, James Morrissey Whisman, Seattle, for the State.
Pursuant to RAP 4.4, this court transferred the above captioned appeals from Division One of the Court of Appeals to address the question whether in light of this court's decisions in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999) and State v. Smith, 144 Wash.2d 665, 30 P.3d 1245, 39 P.2d 294 (2001), the 2002 amendments to RCW 9.94A.525 and RCW 9.94A.030 of the Sentencing Reform Act (SRA) of 1981 may require sentencing courts to include previously "washed out" convictions when determining defendants' criminal histories and offender scores for crimes committed after the amendments' effective date, June 13, 2002. We hold that the 2002 SRA amendments properly and unambiguously require that sentencing courts include defendants' previously "washed out" prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.
During the 2002 regular session, the legislature enacted amendments to the SRA in response to this court's decisions in Cruz, 139 Wash.2d at 193, 985 P.2d 384 and Smith, 144 Wash.2d at 672-74, 30 P.3d 1245. Laws of 2002, ch. 107, § 1. The amendments' "Finding" states:
The legislature considers the majority opinions in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999) and State v. Smith, Cause No. 70683-2 [144 Wash.2d 665, 30 P.3d 1245] (September 6, 2001), to be wrongly decided, since neither properly interpreted legislative intent. When the legislature enacted the sentencing reform act, chapter 9.94A RCW, and each time the legislature has amended the act, the legislature intended that an offender's criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed.
Although certain prior convictions previously were not counted in the offender score or included in the criminal history pursuant to former versions of RCW 9.94A.525, or RCW 9.94A.030, those prior convictions need not be "revived" because they were never vacated. As noted in the minority opinions in Cruz and Smith, such application of the law does not involve retroactive application or violate ex postfacto prohibitions. Additionally, the Washington state supreme court has repeatedly held in the past that the provisions of the sentencing reform act act upon and punish only current conduct; the sentencing reform act does not act upon or alter the punishment for prior convictions. See In re Personal Restraint Petition of Williams, 111 Wash.2d 353, (1988). The legislature has never intended to create in an offender a vested right with respect to whether a prior conviction is excluded when calculating an offender score or with respect to how a prior conviction is counted in the offender score for a current offense.
Laws of 2002, ch. 107, § 1. The amendments go on to clarify the definition of "criminal history" under the SRA:
"Criminal history" means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.
Laws of 2002, ch. 107, § 2(13) (emphasis added). Additionally, the amendments provide that:
The fact that a prior conviction was not included in an offender's offender score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions.
Laws of 2002, ch. 107, § 3(18) (emphasis added). Lastly, the legislature stated that the 2002 SRA amendments apply Laws of 2002, ch. 107, § 4. The amendments went into effect on June 13, 2002. RCW 9.94A.525, .030.
On July 19, 2002, Leslie Varga pleaded guilty to two felonies, second degree theft, and attempting to elude a pursuing police vehicle, which arose from events that occurred on June 13, 2002. At sentencing, the trial court calculated Varga's offender score as an eight for his attempting to elude offense and a six for his second degree theft offense. The court included Varga's previously "washed out" 1990 class C felony conviction when calculating his offender score.
On December 30, 2002, Jeffrey Cleator pleaded guilty to two counts of third degree assault, which arose from events that occurred on November 1, 2002. At sentencing, the trial court calculated Cleator's offender score as a six for each offense. The court included Cleator's three previously "washed out" 1983 and 1984 class B and C felony convictions when calculating his offender score.
On February 13, 2003, Jason Castle pleaded guilty to unlawful storage of anhydrous ammonia and possession of stolen property in the second degree, which arose from events that occurred on September 4, 2002. At sentencing, the court calculated Castle's offender score as a seven for each offense. The court included Castle's three previously "washed out" 1991 and 1994 juvenile felony convictions when calculating his offender score.
On February 4, 2003, Nicholas Rafvino pleaded guilty to two counts of custodial assault, which arose from events that occurred on December 16, 2002. At sentencing, the trial court calculated Rafvino's offender score as a 12 for each offense. The court included Rafvino's three previously "washed out" 1995 juvenile felony convictions when calculating his offender score.
On December 16, 2002, after a stipulated facts bench trial, the trial court convicted Frederick Tucker of unlawful possession of a controlled substance, which arose from events that occurred on October 1, 2002. The trial court calculated Tucker's offender score as a five. The court included Tucker's previously "washed out" 1975 and 1981 class B felony convictions when calculating his offender score.
On January 10, 2003, Raven Brealan pleaded guilty to taking a motor vehicle without permission in the second degree, which arose from events that occurred on July 25, 2002. At sentencing, the trial court calculated Brealan's offender score as a nine. The court included Brealan's four previously "washed out" 1991 juvenile felony convictions when calculating his offender score.
On October 8, 2002, a jury found James Foy guilty of second degree burglary, which arose from events that occurred on August 2, 2002. At sentencing, the trial court calculated Foy's offender score as an eight. The court included Foy's three previously "washed out" 1988 and 1989 juvenile felony convictions when calculating Foy's offender score.1
On January 22, 2003, a jury found William Dennis guilty of possession of stolen property in the first degree, which arose from events that occurred on December 4, 2002. At sentencing, the trial court calculated Dennis's score as a five although the State argued that his score should be a seven. The court declined to include Dennis's four previously "washed out" 1995 juvenile felony convictions.
On October 21, 2002, Christopher Straub pleaded guilty to one count of attempting to elude a police officer, which arose from events that occurred on July 14, 2002. At sentencing, the trial court calculated Straub's offender score as an eight. The court included Straub's six previously "washed out" 1985 juvenile felony convictions when calculating Straub's offender score.
Varga, Cleator, Castle, Rafvino, Tucker, Brealan, Foy, and Straub (hereinafter Varga) appealed the trial courts' rulings that the 2002 SRA amendments require courts to include previously "washed out" prior convictions when determining criminal histories and offender scores at sentencing for crimes committed after the amendments' effective date. The State appealed Dennis's trial court's ruling that the 2002 SRA amendments impermissibly contravened this court's decisions in Smith and Cruz.
Division One of the Court of Appeals consolidated and certified Varga's and the State's appeals requesting that this...
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