In re Jones

• Citation: 121 Wash. App. 859,121 Wn. App. 859,88 P.3d 424
• Decision Date: 23 April 2004
• Docket Number: No. 30232-2-II, No. 31067-8-II.
• Court: Court of Appeals of Washington
• Parties: In re Personal Restraint Petition Of Benjamin Scott JONES, Petitioner. In re Personal Restraint Petition of Skylar Lee Walker, Petitioner.

88 P.3d 424

121 Wn. App. 859

121 Wash. App. 859

In re Personal Restraint Petition Of Benjamin Scott JONES, Petitioner.

In re Personal Restraint Petition of Skylar Lee Walker, Petitioner.

Nos. 30232-2-II, 31067-8-II.

Court of Appeals of Washington, Division 2.

April 23, 2004.

As Amended July 20, 2004.

Arthur David Curtis, Attorney at Law, Clark Co. Prosecuting Atty., Vancouver, WA, Jeremy Richard Randolph, Attorney at Law, Chehalis, WA, for Respondent.

Skylar Lee Walker, Benjamin Scott Jones, Aberdeen, WA, Pro Se Appellants.

MORGAN, J.

In unrelated personal restraint petitions that we have consolidated for purposes of this opinion only, Skylar Lee Walker and Benjamin Scott Jones claim that the trial court should not have counted their prior juvenile adjudications when computing the SRA¹ offender scores for their current adult offenses. We deny both petitions.

Walker was born on August 21, 1983. On November 8, 2001, he committed a third degree assault for which he was convicted and sentenced in adult court. He had previously been convicted and sentenced in juvenile court for second degree burglary committed on November 16, 1995; second degree burglary committed on December 10, 1995; residential burglary committed on April 12, 1998; custodial assault committed on June 24, 1999; custodial assault committed on July 28, 1999; custodial assault committed on December 27, 1999; custodial assault committed on April 5, 2000; custodial assault committed on June 22, 2000; and second degree malicious mischief committed on June 22, 2000. When the adult sentencing court computed his SRA offender score for the current third degree assault, it counted each of his nine prior juvenile adjudications as four points (one-half point each, rounded down to 4 points). After ruling that his standard range was 12+ to 16 months, it sentenced him to 16 months.

Jones was born on August 1, 1981. On December 28, 2002, he committed first degree theft and attempted to elude the police. For both of those offenses, he was convicted and sentenced in adult court. He had previously been convicted and sentenced in juvenile court for second degree assault committed on April 19, 1996; unlawful possession of a firearm committed on April 19, 1996; unlawful possession of a controlled substance committed on October 10, 1997; and unlawful possession of a firearm committed on October 10, 1997. He had previously been convicted and sentenced in adult court for five felonies the nature of which is not pertinent here. When the adult sentencing court computed his SRA offender score for the current first degree theft, it counted his four prior juvenile adjudications as two points (one-half point each), his five adult prior adult felonies as five points (one point each), and his current attempt to elude as one point, making a total score of eight. It similarly computed the offender score for his current attempt to elude. After ruling that his standard ranges were 33 to 43 months on the theft and 17 to 22 months on the attempt to elude, it imposed concurrent sentences of 36 months on the first degree theft and 22 months on the attempt to elude.

Walker and Jones now seek post-conviction relief. Citing State v. Rodney Smith,² they argue that their prior juvenile convictions should not have been included in their SRA offender scores.³

The SRA was enacted in 1981.⁴ Through 2004, it has been amended by 176 session laws,⁵ some of which embody numerous changes. Indeed, "[i]t has become so astoundingly and needlessly complex that it cannot possibly be used both quickly and accurately."⁶ The amendments pertinent here were enacted in 1997,⁷ 2000,⁸ and 2002.⁹

Before 1997, the SRA had provided that the offender score for a current adult offense (other than a sex offense,¹⁰ serious violent offense,¹¹ or Class A felony committed while 15 or older¹²) did not include a prior juvenile adjudication for an offense committed before age 15, or after age 15 if the offender committed the current adult offense while 23 or older.¹³ In 1997, the SRA was amended to provide that the offender score would include all prior juvenile adjudications.¹⁴ According to the legislature's express declaration of intent, the 1997 amendment took effect on July 1, 1997.¹⁵

In State v. Rodney Smith,¹⁶ the Washington Supreme Court addressed four consolidated but otherwise unrelated cases: State v. Rodney Smith, State v. Devaughn Dorsey, State v. Michael Lowe, and State v. George Hendricks. Smith was born on September 30, 1968;¹⁷ committed his current adult offense on June 19, 1998;¹⁸ and had five prior juvenile felony adjudications for offenses committed after age 15.¹⁹ Dorsey was born on December 16, 1973;²⁰ committed his current adult offenses on May 10, 1999;²¹ and had four prior juvenile felony adjudications for offenses committed after age 15.²² Lowe was born on March 19, 1980;²³ committed his current adult offenses on August 2, 1998, and October 24, 1998; and had four prior juvenile felony adjudications for offenses committed in 1994, plus three more for offenses committed in 1997.²⁴ Hendricks was born on January 11, 1973;²⁵ committed his current adult offense on April 29, 1999;²⁶ and had prior juvenile felony adjudications for three offenses committed in 1986, another committed in 1987, a third committed on January 29, 1988, and two others committed in 1989 or later.²⁷ Relying on the 1997 amendment, each trial court counted each defendant's prior juvenile adjudications in his current offender score.

On appeal to the Supreme Court, each defendant argued that his prior juvenile adjudications had "washed out" before July 1, 1997; thus, he said, the trial court should not have included them in his offender score. Accordingly, the questions on appeal were (1) whether a prior juvenile adjudication for an offense committed after age 15 should be counted when computing the offender score for an offense committed after July 1, 1997; and (2) whether a prior juvenile adjudication for an offense committed before age 15 should be counted when computing the offender score for an offense committed after July 1, 1997.

Conflating the two questions, the Rodney Smith court answered both in the negative. It reasoned that under the law in effect before July 1, 1997, a prior juvenile adjudication "washed out" when the offender turned 23; that the 1997 amendment applied prospectively but not retroactively; and that to apply the 1997 amendment to the defendant's 1998 and 1999 offenses was to apply it retroactively. Thus, Smith's and Dorsey's prior juvenile adjudications for offenses committed after age 15 had "washed out" in 1991 and 1996, respectively; had not been "revived" when the 1997 amendment took effect on July 1, 1997; and should not have been included in the offender scores for their current adult offenses.²⁸ Additionally, Lowe's and Hendricks's adjudications for pre-age-15 offenses—which had never counted in the first place—had "washed out," had not been "revived," and should not have been counted.

Even before the Supreme Court decided Rodney Smith, the 2000 legislature amended the SRA to provide as follows:

NEW SECTION. Sec. 1. This act is intended to cure any ambiguity that might have led to the Washington supreme court's decision in State v. Cruz[, 139 Wash.2d 186, 985 P.2d 384 (1999)], Cause no. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual's offender score should be determined by the law in effect on the day the current offense was committed. This act is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.

NEW SECTION. Sec. 2. ... Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.[²⁹]

The Rodney Smith court held that this 2000 amendment did not alter the effects of the 1997 amendment.³⁰ The court said that if the legislature had intended the amendment to apply retroactively, "it should have stated that intention directly and unambiguously."³¹ This result was consistent with the federal view that a later legislature cannot dispositively declare the intent of an earlier legislature,³² although the later legislature's declaration is a factor to be considered.³³

As the United States Supreme Court has said many times:

Subsequent legislation which declares the intent of an earlier law is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction.[³⁴]

About six months after Rodney Smith, the legislature again amended the SRA. Its 2002 amendment stated:

NEW SECTION. Sec. 1. 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 (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 post facto 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...