State v. Cyr

• Decision Date: 22 June 2022
• Docket Number: 55274-4-II
• Parties: STATE OF WASHINGTON, Respondent, v. JOHNNY RAY CYR, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
JOHNNY RAY CYR, Appellant.

No. 55274-4-II

Court of Appeals of Washington, Division 2

June 22, 2022

UNPUBLISHED OPINION

LEE, J.

Johnny R. Cyr appeals his sentence for three counts of sale of heroin for profit, arguing that his standard sentencing range should not have been doubled under RCW 69.50.408^[1]because he did not have a qualifying prior conviction. We conclude that the sentencing court properly doubled Cyr's standard sentencing range. Therefore, we affirm Cyr's sentence.

FACTS

On July 24, 2017, Cyr pleaded guilty to three counts of sale of heroin for profit. Cyr's criminal history includes a conviction for possession of marijuana-40 grams or less and attempted

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possession of an imitation controlled substance under RCW 69.52.030.^[2], ^[3] The State argued that Cyr's prior conviction for possession of an imitation controlled substance triggered the doubling provision of RCW 69.50.408.^[4] Cyr disagreed and argued that attempted possession of an imitation controlled substance was not a prior conviction under chapter 69.50 RCW.

The superior court ruled the conviction for attempted possession of an imitation controlled substance was a conviction under any statute of any state relating to narcotic drugs, cannabis, depressant, stimulant, or hallucinogenic drugs as required by RCW 69.50.408(2). Therefore, Cyr's standard sentencing range was 68-100 months. The superior court imposed a standard range sentence of 75 months on each count to be served concurrently.

Cyr appeals.^[5]

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ANALYSIS

A. CONVICTION FOR POSSESSION OF MARIJUANA-40 GRAMS OR LESS

Cyr argues on appeal that his prior conviction for possession of marijuana-40 grams or less under former RCW 69.50.4014 (2003) cannot be a prior offense trigger the doubling provisions of RCW 69.50.408. The State concedes that Cyr's prior conviction for possession of marijuana is facially invalid and, therefore, cannot be a prior offense for the purposes of RCW 69.50.408. We agree.

in A.L.R.H, we held that former RCW 69.50.4014 was unconstitutional based on our Supreme Court's opinion in State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021). State v. A.L.R.H., 20 Wn.App. 2d 384, 387, 500 P.3d 188 (2021). A prior conviction based on a constitutionally invalid statute is invalid on its face and may not be considered during a sentencing proceeding. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). Accordingly, we accept the State's concession that Cyr's prior conviction for possession of marijuana-40 grams or less under former RCW 69.50.4014 may not be used to double the standard range for the purposes of RCW 69.50.408.

B. CONVICTION FOR ATTEMPTED POSSESSION OF AN IMITATION CONTROLLED SUBSTANCE

Cyr next argues that a conviction for attempted possession of an imitation controlled substance cannot be a prior offense triggering the doubling provision of RCW 69.50.408. We disagree.

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We review issues of statutory interpretation de novo. State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015). In interpreting statutes, we must determine the legislature's intent. Id. Legislative intent is determined from the text of the statutory provision in question, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. Id. "'Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.'" State v. Roggenkamp, 153 Wn.2d 614, 624, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). "[W]e presume the legislature does not intend absurd results and, where possible, interpret ambiguous language to avoid such absurdity." State v. Ervin, 169 Wn.2d 815, 823-24, 239 P.3d 354 (2010).

Only if the statute is ambiguous do we use statutory construction, legislative history, and relevant case law to help discern the legislative intent. Id. at 820. A statute is ambiguous if it is susceptible to more than one reasonable interpretation. Id.

RCW 69.50.408(2) doubles an offender's standard range sentence "if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, cannabis, depressant, stimulant, or hallucinogenic drugs." The issue here is whether a conviction for attempted possession of an imitation controlled substance under RCW 69.52.030 is a conviction under "any statute of the United States or of any state...