IN RE NICHOLS

• Decision Date: 09 March 2004
• Docket Number: No. 22099-1-III.,22099-1-III.
• Citation: 85 P.3d 955,120 Wash.App. 425
• Parties: In the Matter of the Personal Restraint OF William Joseph NICHOLS, Petitioner.
• Court: Washington Court of Appeals

85 P.3d 955

120 Wash.App. 425

In the Matter of the Personal Restraint OF William Joseph NICHOLS, Petitioner.

No. 22099-1-III.

Court of Appeals of Washington, Division 3, Panel Five.

March 9, 2004.

Janet G. Gemberling, Attorney at Law, Spokane, WA, for Appellant.

Kevin M. Korsmo, Deputy Prosecuting Attorney, Spokane, WA, for Respondent.

KURTZ, J.

William Joseph Nichols seeks relief from personal restraint imposed for his 2001 Spokane County conviction upon plea of guilty to two counts of delivery of a controlled substance—marijuana. The question is whether incarceration for misdemeanor convictions interrupts the class C felony washout provision of former RCW 9.94A.360(2) (1995) for offenders who spent five consecutive years in the community without being convicted of any felonies. We answer "no," vacate the judgment, and remand Mr. Nichols's case for resentencing to exclude three previously washed out class C felony convictions from his offender score.

FACTS

Mr. Nichols committed the current drug crimes on June 29 and October 13, 1999. When he was sentenced for these crimes in 2001, the court counted the following six prior felony convictions as one point each in his offender score: 1982 first degree robbery (class A), 1985 third degree assault (class C), two 1986 second degree burglaries (class B), 1987 failure to return to work release (class C), and 1989 possession of a controlled substance (class C). The court also counted the other current controlled substance delivery as three points, for a total offender score of nine. The court imposed concurrent low-end 51-month sentences.

It is undisputed that Mr. Nichols was released from confinement for the 1989 drug conviction on December 6, 1989; and, that more than five years elapsed before his next felony conviction—the current drug crimes. Meanwhile, however, he spent 20 days jail time for 1992 and 1993 misdemeanor convictions for driving while under the influence and driving while license suspended.

Apparently due to the misdemeanor convictions, the 2001 sentencing court applied the version of former RCW 9.94A.360(2) (now recodified as RCW 9.94A.525(2)) that was in effect in 1999 when Mr. Nichols committed the current crimes, which provided:

Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) 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.

(Emphasis added); see Laws of 1995, ch. 316 § 1 (effective July 23, 1995).

Mr. Nichols filed this petition for resentencing in 2003.¹ He claimed that under State v. Smith, 144 Wash.2d 665, 670-71, 30 P.3d 1245, 39 P.3d 294 (2001) and State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), his five consecutive felony-free years following release from felony confinement on December 6, 1989, vested him with a washout of his three class C felony convictions prior to a 1995 amendment to former RCW 9.94A.360(2). Prior to that amendment, the statute provided:

Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies.

Former RCW 9.94A.360(2) (1990); see Laws of 1990, ch. 3, § 706 (effective July 1, 1990).

ANALYSIS

We note at the outset that the State initially filed a motion to dismiss Mr. Nichols's petition as time barred because he filed it beyond the RCW 10.73.090(1) one-year time limit for collaterally attacking a judgment and sentence. We reject that motion and review the petition because Mr. Nichols's claim invokes consideration of the illegal sentence exception to the time bar. RCW 10.73.100(5); see In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 869, 50 P.3d 618 (2002)

.

On the merits, Mr. Nichols contends that under the 1990 version of former RCW 9.94A.360(2), his jail time for 1992 and 1993 misdemeanor convictions did not interrupt the five-year washout period for his class C felonies. Therefore, under State v. Smith, 144 Wash.2d 665, 30 P.3d 1245; Cruz, 139 Wash.2d 186, 985 P.2d 384; and State v. Hern, 111 Wash.App. 649, 656, 45 P.3d 1116 (2002), his class C felony convictions were vested as washed out from the offender score on December 6, 1994—prior to the 1995 amendment. Mr. Nichols reasons that the language "since the last date of release from confinement ... pursuant to a felony conviction" expresses clear legislative intent that non-felony convictions do not trigger a new start date for the five-year washout period because insertion of just the word "felony" implies exclusion of misdemeanors. In re Det. of Williams, 147 Wash.2d 476, 491, 55 P.3d 597 (2002) (to express one thing in a statute implies exclusion of the other). Moreover, the legislature plainly did not require a defendant to be "free" in the community for five years—just "in the community." His misdemeanor convictions did not preclude his meeting that standard.

The State contends the only reasonable reading of the statute is that washout applies to persons who were not incarcerated for five years and did not commit any felonies. Jail time for a misdemeanor conviction must interrupt the washout period because it is not time spent "in the community." The legislature would not have included the phrase "in the community" had it simply intended that five years pass without a felony conviction. A contrary interpretation renders that phrase meaningless. Since Mr. Nichols's misdemeanor convictions and jail time interrupted his five-year washout period, the court was correct in sentencing him under the 1995 amended version of former RCW 9.94A.360(2). State v. Perry, 110 Wash.App. 554, 560, 42 P.3d 436 (2002). We disagree with the State.

The genesis of Mr. Nichols's claim is Cruz, 139 Wash.2d 186, 985 P.2d 384, which addressed whether previously washed out sex offenses could be revived by a 1990 amendment to former RCW 9.94A.360 eliminating those offenses from washout eligibility. The court held that the amendment was not retroactive. Cruz, 139 Wash.2d at 190, 985 P.2d 384. In 2000, the legislature responded to Cruz by enacting RCW 9.94A.345, which states: "Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." Laws of 2000, ch. 26, § 2. The legislature included a statement in the statutory note that its intent was to cure any ambiguity that might have led to the Cruz decision. RCW 9.94A.345.

In Smith, 144 Wash.2d 665, 30 P.3d 1245, the court relied on Cruz to hold that neither a 1997 nor a 2000 amendment was retroactive so as to revive previously washed-out juvenile adjudications. Id. at 672-75, 30 P.3d 1245. The court in Smith explained that the 2000 amendment and its comment evinced no clear legislative intent for the 1997 amendment to apply retroactively. Id. at 672, 30 P.3d 1245. Thus, the court held that the defendants' prior juvenile adjudications for pre-1997 offenses remained washed out. Id. at 674-75, 30 P.3d 1245.

Most pertinent to Mr. Nichols's case is Hern, 111 Wash.App. 649,45 P.3d 1116, in which this court applied the Cruz/Smith rationale to hold that "[e]xcept for the 2000 amendment, the [Sentencing Reform Act of 1981] contains no language showing the Legislature intended the 1995 amendment [to former RCW 9.94A.360(2) ] to apply retroactively." Hern, 111 Wash.App. at 656,45 P.3d 1116. Thus, in Hern, a 1980 conviction that washed out three months before the effective date of the 1995 amendment could not be revived for offender score purposes. Id.

Cruz, Smith, and Hern thus stand for the proposition that once a washout is vested, the convictions cannot be resurrected for offender score purposes by subsequent statutory amendment. In Perry, however, this court held that a defendant remains subject to legislative changes in scoring rules prior to washout vesting. Perry, 110 Wash.App. at 560, 42 P.3d 436.

The State's position, therefore, is that Perry, and not Cruz/Smith/Hern, controls because Mr. Nichols was never vested with a washout prior to the 1995 amendment due to 1993 misdemeanor jail time taking him out of the community. According to Mr. Nichols, he became vested with a washout of his three class C felonies under Cruz/Smith/Hern on December 9, 1994—after five felony-free years.

Interpretation of a statute is a question of law reviewed de novo. See State v. Bright, 129 Wash.2d 257, 265, 916 P.2d 922 (1996)

. The court's paramount duty in statutory interpretation is to give effect to the legislature's intent. State v. Elgin, 118 Wash.2d 551, 555, 825 P.2d 314 (1992). Statutory terms are given their plain and ordinary meaning. Bright, 129 Wash.2d at 265,

916 P.2d 922. We give effect to every word in a statute and will not adopt an interpretation that renders words useless, superfluous, or ineffectual. City of Seattle v. State, 136 Wash.2d 693, 698, 965 P.2d 619 (1998). When the statute is plain and unambiguous, we derive its meaning and the legislature's intent from its language. See, e.g., In re Parentage of J.H., 112 Wash.App. 486, 498, 49 P.3d 154 (2002),

review denied, 148 Wash.2d 1024, 66 P.3d 637 (2003).

Reduced to the language relevant here, former RCW 9.94A.360(2) states:

Class C prior felony convictions ... shall not be included in the offender score if, since the last date of release from confinement... pursuant to a felony conviction,... the offender had spent five consecutive years in the community without being convicted of any felonies.

(Emphasis added.)

As the State also contends, the non-italicized portion...