State v. Acrey

• Decision Date: 13 November 2006
• Docket Number: No. 56759-4-I.,56759-4-I.
• Citation: 146 P.3d 1215,135 Wn. App. 938
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Sonia A. ACREY, aka Sonia Arlene Robinson, aka Sonia A. Alexander, aka Cynthia L. Acrey, aka Sonia C. Hall, aka Sonia A. Phillips, Appellant.

146 P.3d 1215

135 Wn. App. 938

STATE of Washington, Respondent, v. Sonia A. ACREY, aka Sonia Arlene Robinson, aka Sonia A. Alexander, aka Cynthia L. Acrey, aka Sonia C. Hall, aka Sonia A. Phillips, Appellant.

No. 56759-4-I.

Court of Appeals of Washington, Division 1.

November 13, 2006.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, for Appellants.

David M Seaver, King County Prosecuting Attorneys Office, Seattle, for Respondents.

ELLINGTON, J.

¶ 1 Sonia Acrey drained the retirement savings of an elderly man and accumulated more than $83,000 of debt in his name. She pleaded guilty to theft, identity theft and perjury. As part of her sentence, the judge prohibited her from working as a caretaker for elderly or disabled individuals. Acrey contends the court was without authority to impose the prohibition, and that the prohibition was not crime-related and was unconstitutionally vague. We hold that RCW 9.94A.505(8) authorizes judges to impose crime-related prohibitions as part of any sentence, and that the prohibition in Acrey's sentence is neither an abuse of discretion nor unconstitutionally vague. We therefore affirm.

FACTS

¶ 2 As summer waned in 2003, a 43-year-old woman named Sonia Acrey came to visit 71-year-old Samuel Alexander at his home in a senior citizen center. She introduced herself as Sonia Robinson and claimed she knew Mr. Alexander because they had "partied together" in Canada years before. Mr. Alexander later said he did not know Acrey, but spoke to her because he did not want to hurt her feelings. She began regular visits and drove him on errands.

¶ 3 Gradually Acrey gained Mr. Alexander's trust. She repeatedly suggested that they marry. Mr. Alexander finally acquiesced in April 2004. Despite Acrey's promise that they would live together, Mr. Alexander never moved out of the senior center. Instead, after the wedding, Acrey stopped visiting Mr. Alexander and commenced transferring his assets into her name and taking out loans in his name.

¶ 4 Within four months, Mr. Alexander was penniless. Acrey withdrew more than $130,000 from Mr. Alexander's retirement accounts and incurred more than $83,000 of debt in his name, all without Mr. Alexander's knowledge or permission.

¶ 5 Acrey pled guilty to one count of first degree theft, five counts of first degree identity theft, and one count of second degree perjury. The judge imposed a standard range sentence, which did not require supervision, and added the following crime-related prohibition: "Defendant shall not work for or without pay as a caretaker for any elderly or disabled persons, except her mother." Clerk's Papers at 47.

¶ 6 The parties agree the court acted under RCW 9.94A.505(8). Acrey contends this section permits crime-related prohibitions only where explicitly authorized by other statutes, and that no such other statutes apply to her. In the alternative, she contends the prohibition is unsupported by the evidence and therefore an abuse of discretion, and is unconstitutionally vague.¹

ANALYSIS

¶ 7 Crime-Related Prohibitions. A trial court only possesses the power to impose sentences provided by law. In re Petition of Carle, 93 Wash.2d 31, 33, 604 P.2d 1293 (1980). RCW 9.94A.505(8) authorizes crime-related prohibitions: "As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter."

¶ 8 Acrey argues that the phrase "as provided in this chapter" means that imposition of crime-related prohibitions must be authorized by some other provision of the Sentencing Reform Act (SRA), such as RCW 9.94A.650 (first-time offenders) or RCW 9.94A.720 (supervision of offenders). Because no other provision applies, she contends the court lacked the authority to impose a crime-related prohibition.

¶ 9 The State responds that the phrase "as provided in this chapter" refers to the definition of crime-related prohibitions and affirmative conditions, and does not limit the circumstances under which prohibitions may be imposed. The State contends that Acrey's reading makes the statute meaningless, because it would provide only that the court could impose conditions so long as they are authorized elsewhere. The State also points to the last antecedent rule of statutory interpretation, under which the qualifying words or phrases refer to the last antecedent (here, affirmative conditions, not crime-related prohibitions). See Boeing Co. v. State, Dep't of Licensing, 103 Wash.2d 581, 587, 693 P.2d 104 (1985).

¶ 10 No case has directly addressed whether a court must rely on a statutory provision besides RCW 9.94A.505(8) to impose crime-related prohibitions, but the State points to several cases reflecting an underlying assumption that RCW 9.94A.505(8), standing alone, authorizes judges to impose crime-related prohibitions as part of any sentence. See, e.g., State v. Warren, 134 Wash.App. 44, 70, 138 P.3d 1081 (2006); State v. Hearn, 131 Wash.App. 601, 607, 128 P.3d 139 (2006).

¶ 11 When interpreting statutes, we first attempt to effectuate the plain meaning of the words. We examine each provision in relation to others and seek a consistent construction of the whole. State v. Sommerville, 111 Wash.2d 524, 531, 760 P.2d 932 (1988). We examine sources beyond the statute and apply the rules of statutory interpretation only if the statute is ambiguous. State Dep't of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458, 645 P.2d 1076 (1982).

¶ 12 We see no ambiguity in the phrase "as part of any sentence." "Any" means "one, no matter what one: EVERY . . . without restriction or limitation in choice." Webster's Third New International Dictionary 97 (3d ed.1993). RCW 9.94A.030(12) controls imposition of sentence conditions:

"Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.

As this definition makes clear, the legislature drew a sharp distinction between prohibitions on the one hand and affirmative conduct conditions on the other. Crime-related conduct may be prohibited in any sentence, so long as the prohibition is directly related to the crime.

¶ 13 Acrey points to other statutes mentioning crime-related prohibitions such as first offender and drug alternative sentencing statutes, but none supports her argument. For example, the first-time offender statute, RCW 9.94A.650(2), allows the court to impose a term of community custody

which, in addition to crime-related prohibitions, may include [affirmative conduct] requirements that the offender perform any one of more of the following:

(a) Devote time to a specific employment or occupation;

(b) Undergo available outpatient treatment for up to the period specified in subsection (3) of this section, or inpatient treatment not to exceed the standard range of confinement for that offense;

(c) Pursue a prescribed, secular course of study or vocational training.

(Emphasis added). The drug offender sentencing alternative, RCW 9.94A.660(5)(c), requires the court to impose certain prohibitions ("shall also impose . . . [c]rime-related prohibitions including a condition not to use illegal controlled substances"), but allows affirmative conduct requirements only in certain categories such as community restitution work and employment or training. RCW 9.94A.660(7)(a), (e). Neither of these statutes, nor any of the others Acrey cites, authorizes crime-related prohibitions as a separate category of sentence condition.

¶ 14 The distinction between crime-related prohibitions and affirmative conduct requirements reflects the legislature's retreat from rehabilitation in favor of determinate punishment: "`Persons may be punished for their crimes and they may be prohibited from doing things which are directly related to their crimes, but they may not be coerced into doing things which are believed will rehabilitate them.'" State v. Parramore, 53 Wash.App. 527, 530, 768 P.2d 530 (1989) (quoting DAVID BOERNER, SENTENCING IN WASHINGTON § 4.5 (1985)).

¶ 15 Cases considering crime-related prohibitions have chiefly examined the prohibition to see whether it is a disguised affirmative conduct requirement. "The main concern that arises when reviewing crime-related prohibitions is thus the prevention of coerced rehabilitation. Otherwise, the assignment of crime-related prohibitions has `traditionally been left to the discretion of the sentencing judge.'" State v. Riley, 121 Wash.2d 22, 37, 846 P.2d 1365 (1993) (quoting Parramore, 53 Wash.App. at 530, 768 P.2d 530) (emphasis added).

¶ 16 We hold that RCW 9.94A.505(8) authorizes crime-related prohibitions in every sentence.

¶ 17 Acrey also argues, however, that allowing crime-related prohibitions in any sentence does not make sense when construed with RCW 9.94A.634, which empowers the department of corrections to sanction offenders who violate conditions or requirements of their sentences. She claims that her crime-related prohibition is unenforceable because she was not sentenced to community custody and thus will not be supervised by the department of corrections.

¶ 18 The court's jurisdiction to enter and enforce its sentence does not depend upon the authority given the department of corrections. "If an offender violates any condition or requirement of a sentence, the court may modify its order of judgment and sentence and impose further punishment in accordance with this section." RCW 9.94A.634(1) (emphasis added); State v. Johnson, 54 Wash.App. 489, 491-92, 774 P.2d 526 (1989) (court's jurisdiction to sanction an offender for violating the conditions of his sentence does not expire...