In re Smith, No. 67182-6

• Decision Date: 14 October 1999
• Docket Number: No. 67390-0., No. 67182-6
• Citation: 139 Wash.2d 199,986 P.2d 131
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of James A. SMITH, Petitioner. In the Matter of the Personal Restraint Petition of Derek E. Gronquist, Petitioner.

986 P.2d 131

139 Wash.2d 199

In the Matter of the Personal Restraint Petition of James A. SMITH, Petitioner.

In the Matter of the Personal Restraint Petition of Derek E. Gronquist, Petitioner.

Nos. 67182-6, 67390-0.

Supreme Court of Washington, En Banc.

Argued June 10, 1999.

Decided October 14, 1999.

James A. Smith, Derek Gronquist, Airway Heights, Sheryl McCloud, Seattle, for Petitioners.

Jeffrey Sullivan, Yakima County Prosecutor, Bruce Hanify, Deputy, Yakima, Christine Gregoire, Attorney General, John Blonien, Asst., Thomas Young, Asst., Olympia, for Respondent.

JOHNSON, J.

These consolidated personal restraint petitions ask us to determine the applicability of former RCW 9.94A.150(1) (1996) to certain class B offenses. The question is whether the Department of Corrections (DOC) erroneously applied the statute when it capped petitioners'"earned early release time" at 15 percent of their respective sentences. We find DOC was in error and grant the petitions.

FACTS

Petitioner James Smith was convicted of attempted rape in the first degree, burglary in the first degree, and residential burglary. The sentences on the burglary charges have expired but Smith remains incarcerated on the attempted rape conviction. Petitioner Derek Gronquist was convicted of three counts of attempted kidnapping in the first degree and is still serving the sentence imposed for those crimes.

Attempted rape in the first degree constitutes a serious violent offense under RCW 9.94A.030(31)(a). It is a class B felony. RCW 9A.28.020(3)(b); RCW 9A.44.040(2). Similarly, attempted kidnapping in the first degree constitutes a serious violent offense under RCW 9.94A.030(31)(a). It is also a class B felony. RCW 9A.28.020(3)(b); RCW 9A.40.020(2).

ANALYSIS

The only question is whether DOC correctly applied former RCW 9.94A.150(1) (1996) when it capped petitioners' earned early release time at 15 percent of their respective sentences. The relevant statutory language reads:

Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department, may be reduced by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined.... In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned early release time exceed one-third of the total sentence.

Former RCW 9.94A.150(1) (1996) (emphasis added).¹

The dispositive issue is whether, under the language of the statute, an offender must have committed a class A serious violent offense in order for the 15 percent earned early release cap to apply. DOC argues the 15 percent cap applies to all serious violent offenses regardless of their classification, but only to sex offenses that are class A felonies.² Conversely, petitioners argue sex offenses and serious violent offenses must be class A felonies before the 15 percent cap may be imposed. Because petitioners' serious violent offenses are class B felonies, they argue their earned early release time should properly have been capped at one-third of their maximum sentences rather than 15 percent.

In In re Personal Restraint of Mahrle, 88 Wash.App. 410, 945 P.2d 1142 (1997), the Court of Appeals, Division III, squarely addressed the identical issue presented here. Applying the "last antecedent" rule of statutory construction, the Mahrle court concluded the meaning of the statute was susceptible of two reasonable interpretations. Mahrle, 88 Wash.App. at 412-15, 945 P.2d 1142. Under the rule of lenity, therefore, the court construed the statute strictly against DOC and held the 15 percent cap applies only to serious violent offenses that are also class A felonies.³ Mahrle, 88 Wash.App. at 415, 945 P.2d 1142.

Once again, DOC advances the "last antecedent" rule to support its argument that the 15 percent cap is not limited to class A serious violent offenses. Under DOC's theory, the qualifying phrase, "that is a class A felony," was not intended by the Legislature to modify "a serious violent offense," but rather, was intended to modify only the last antecedent, "or a sex offense." We disagree with DOC's interpretation. Proper application of the "last antecedent" rule defeats DOC's position.⁴

The problem before us is one of statutory construction. Our primary objective in construing a statute is to ascertain and give effect to the legislative intent. Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996); In re Kurtzman's Estate, 65 Wash.2d 260, 263, 396 P.2d 786 (1964). In general, the intent of the Legislature is to be deduced from what it said. In re Kurtzman's Estate, 65 Wash.2d at 263, 396 P.2d 786 (citing Lynch v. Department of Labor & Indus., 19 Wash.2d 802, 806, 145 P.2d 265 (1944)); accord In re City of Renton, 79 Wash.2d 374, 376, 485 P.2d 613, 58 A.L.R.3d 196 (1971)

. We avoid interpretations that are forced, unlikely, or strained. State v. Elgin, 118 Wash.2d 551, 555, 825 P.2d 314 (1992); State v. Carter, 89 Wash.2d 236, 242, 570 P.2d 1218 (1977); State v. Rinkes, 49 Wash.2d 664, 667, 306 P.2d 205 (1957).

The "last antecedent" rule of statutory construction "provides that, unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent." In re Sehome Park Care Ctr., Inc., 127 Wash.2d 774, 781, 903 P.2d 443 (1995) (emphasis added). A corollary to the rule is that "the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one." Sehome Park, 127 Wash.2d at 781-82,903 P.2d 443. According to DOC, therefore, the rule requires us to construe the class A felony qualifier as modifying only the immediate antecedent term — sex offense. "This follows from the fact that the [qualifying] phrase comes immediately after the term `sex offense' and there is no comma prior to that term." Supplemental Br. of Resp't (DOC) at 15 (citing State v. Blilie, 132 Wash.2d 484, 492, 939 P.2d 691 (1997) for the proposition that the Legislature is presumed to know the rules of statutory construction).

The problem with DOC's proposed construction is that two qualifying phrases appear within the sentence at issue. The qualifying phrase, "that is a class A felony," is followed immediately by a second qualifying phrase, "committed on or after July 1, 1990." No punctuation separates the two phrases. DOC would have us interpret the statute so the class A felony qualifier modifies only the single antecedent term, "sex offense," but yet have the second, date restriction qualifier modify both antecedent terms, despite the fact it also is not preceded by a comma. This is at odds with DOC's own articulation of the last antecedent rule, would require a forced construction of the relevant language, and simply makes no sense. On the other hand, to properly apply DOC's articulation of the rule (i.e., that both modifiers, since they are not preceded by a comma, restrict only the immediate antecedent term, "sex offense") would lead to the absurd consequence that sex offenses under the statute are restricted by date, whereas serious violent offenses are not.⁵

In In re Kurtzman's Estate, 65 Wash.2d at 264, 396 P.2d 786, we stated the "last antecedent" rule means "the last word, phrase or clause that can be made an antecedent without impairing the meaning of the sentence." (Emphasis added.) Similarly, we have stated:

The [last antecedent] rule is another aid to discovery of intent or meaning and is not inflexible or uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent.

State v. McGee, 122 Wash.2d 783, 788-89, 864 P.2d 912 (1993) (alteration in original) (emphasis added) (quoting 2A Norman J. Singer, Statutory Construction § 47.33, at 270 (5th ed.1992) (footnote omitted)).

Taking the language of the sentence as a whole, the proper application of the "last antecedent" rule in this case is to construe the entire phrase, "a serious violent offense or a sex offense," as a single antecedent which is modified by both qualifying phrases, "that is a class A felony" and "committed on or after July 1, 1990." Cf. Boeing Co. v. Department of Licensing, 103 Wash.2d 581, 587, 693 P.2d 104 (1985)

(treating the phrase, "any air carrier or supplemental air carrier," as a single antecedent in which both subject terms are restricted by the immediately following qualifying phrase, although not preceded with a comma) (emphasis added). This is the only interpretation that leaves the meaning of the whole sentence unimpaired while at the same time preserving the primary intent of the section — to restrict the potential earned early release time of certain, egregious offenders.

Even if we were to find the statute ambiguous and resort to legislative history, the result would be the same. In Mahrle, the Court of Appeals correctly analyzed the legislative history:

[T]he 1990 amendment to RCW 9.94A.150 was passed in response, to recommendations made by Governor Booth Gardner's Task Force on Community Protection.[⁶] Originally, the proposed bill put a 15 percent cap on good time for persons convicted of `a sex offense that is a class A felony.' The Senate amended the act to add the phrase `a serious violent offense,' as it now appears in the statute. The amendment was on Senator Gaspard's motion, who stated on the floor of the Senate: `These are crimes that we should all be very much repulsed by, the murder, the homicide by abuse, assault,...