State v. French
| Decision Date | 02 May 2022 |
| Docket Number | 82930-1-I |
| Citation | 508 P.3d 1036 |
| Parties | STATE of Washington, Appellant, v. Jarvis Leighton FRENCH, Respondent. |
| Court | Washington Court of Appeals |
Seth Aaron Fine, Snohomish Co. Pros. Ofc. 3000, Rockefeller Ave., Everett, WA, 98201-4060, for Appellant.
Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Respondent.
PUBLISHED OPINION
Dwyer, J. ¶1 The State appeals from the sentence imposed on Jarvis French after a resentencing hearing. The State contends that the superior court erred by declining to add one point to the offender score as a result of French committing his current offense while on community custody. Because the sentence condition of community custody was imposed on French pursuant to a constitutionally invalid conviction, we disagree. Accordingly, we affirm the ruling of the superior court.
¶2 Jarvis French pleaded guilty to one count of possession of a controlled substance with intent to manufacture or deliver in violation of RCW 69.50.401(1). In his guilty plea, French acknowledged that he committed this offense while on community custody.
¶3 On January 13, 2020, the superior court entered judgment and sentenced French to 60 months of incarceration. French had a criminal history of six prior convictions, which included one prior conviction for possession of a controlled substance. Pursuant to this criminal history, French's offender score was 7.1 One of these points resulted from his prior conviction for possession of a controlled substance, while another point resulted from French committing his present offense while he was on community custody. Notably, the term of community custody was imposed pursuant to his prior sentence for possession of a controlled substance.
¶4 On April 28, 2021, following our Supreme Court's decision in State v. Blake, 197 Wash.2d 170, 195, 481 P.3d 521 (2021), French filed a pro se motion in superior court in which he sought relief from the judgment and sentence. In this motion, French asserted that, pursuant to Blake, he was entitled to be resentenced because his prior conviction for possession of a controlled substance was void.
¶5 On May 5, 2021, French's attorney filed a motion wherein he argued that French's offender score should be 5 instead of 7. On July 12, the State filed a memorandum in which the State agreed that French's prior conviction for possession of a controlled substance should not be included in his offender score. However, the State argued that French's offender score should be 6 because French committed his current offense while on community custody.
¶6 On July 14, 2021, the superior court heard argument as to the proper calculation of French's offender score. During the hearing, the superior court reasoned that, pursuant to Blake, "everything coming out of that charge, including community custody, is unconstitutional, so ... I cannot add a point for community custody." That same day, the superior court resentenced French with an offender score of 5. This resulted in a standard range sentence of 20 to 60 months of incarceration. The superior court sentenced French to the low end of the range.
¶7 The State appeals.
¶8 The sole issue on appeal is whether the sentencing court erred by declining to add one point to the offender score as a result of French committing the current offense while on community custody. The condition of community custody was imposed on French pursuant to his sentence for violating RCW 69.50.4013(1) —a statute that, pursuant to Blake, has always been void under both the state and federal constitutions. We hold that the superior court, when calculating French's offender score, properly declined to consider that French committed the current offense while he was on community custody as a direct consequence of an invalid conviction.
¶9 The Sentencing Reform Act of 1981 (the SRA) provides, in pertinent part, "[i]f the present conviction is for an offense committed while the offender was under community custody, add one point." RCW 9.94A.525(19). French committed the current offense—possession of a controlled substance with intent to manufacture or deliver in violation of RCW 69.50.401(1) —while he was serving a sentence that imposed a term of community custody. French was serving this term of community custody pursuant to a prior conviction for possession of a controlled substance in violation of RCW 69.50.4013(1).
¶10 In Blake, our Supreme Court held that Washington's strict liability drug possession statute, RCW 69.50.4013(1), "violates the due process clauses of the state and federal constitutions and is void." 197 Wash.2d at 195, 481 P.3d 521. In so doing, the Blake court explained:
This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature's police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State's police power.
197 Wash.2d at 173, 481 P.3d 521 (footnote omitted).
¶11 It is well established that a prior conviction based on a constitutionally invalid statute may not be considered when a sentencing court calculates an offender score. State v. Ammons, 105 Wash.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986); accord State v. Jennings, 199 Wash.2d 53, 67, 502 P.3d 1255 (2022) ().
State v. Markovich, 19 Wash. App. 2d 157, 172, 492 P.3d 206 (2021) (emphasis added), review denied, 198 Wash.2d 1036, 501 P.3d 141 (2022).2
¶13 Under the SRA, a term of community custody amounts to a penalty that may or must be imposed by a sentencing court. Indeed, "[c]ommunity placement[3 ] primarily furthers the punitive purposes of deterrence and protection." State v. Ross, 129 Wash.2d 279, 286, 916 P.2d 405 (1996) (emphasis added). Additionally, the statutory definition of community custody clarifies that a term of community custody amounts to a portion or part of the sentence imposed upon an offender:
"Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender's movement and activities by the department.
RCW 9.94A.030(5) (emphasis added). Being sentenced to a period of community custody is a direct consequence of a conviction. Ross, 129 Wash.2d at 285-86, 916 P.2d 405.
¶14 There are at least two reasons why the superior court did not err by declining to add one point to French's offender score as a result of his commission of an offense while on community custody. First, the term of community custody that was imposed on French pursuant to his prior conviction for violating RCW 69.50.4013(1) was a penalty imposed pursuant to an unconstitutional law. Therefore, that term of community custody was void. See Markovich, 19 Wash. App. 2d at 172, 492 P.3d 206. Because the term of community custody was void, the superior court properly declined to consider whether French committed an offense while on community custody.
¶15 Second, in Blake, our Supreme Court explained that, as "an issue of first impression," RCW 69.50.4013(1), "violates the due process clauses of the state and federal constitutions and is void." 197 Wash.2d at 173, 195, 481 P.3d 521. As such, Blake announced that courts were never with lawful authority to enter judgment on a conviction for unlawful possession of a controlled substance in violation of RCW 69.50.4013(1). Moreover, because courts were never with lawful authority to enter judgment on a conviction for unlawful possession of a controlled substance, they were also never with lawful authority to impose a sentence pursuant to such a conviction. Had the superior court, under these circumstances, added a point to French's offender score for committing an offense while on community custody, the court would have "renewed" the original constitutional violation. State v. Holsworth, 93 Wash.2d 148, 157, 607 P.2d 845 (1980). Accordingly, the superior court did not err.
¶16 Nevertheless, the State contends that, pursuant to the plain language of the SRA,4 the superior court was required to add one point to French's offender score regardless of whether the term of community custody in question was imposed pursuant to a violation of an unconstitutional statute. This is so, according to the State, because neither RCW 9.94A.525(19) nor RCW 9.94A.030(5) expressly provides that a term of community custody must be imposed pursuant to a constitutionally valid conviction. The State's argument runs counter to prevailing authority.
¶17 Indeed, the SRA itself does not explicitly require a prior conviction to be constitutionally valid in order for a sentencing court to consider such a conviction when calculating an offender score. See RCW 9.94A.525. Nevertheless, it is established beyond debate that a prior conviction based on a constitutionally invalid statute may not be considered in computing an offender score. Ammons, 105 Wash.2d at 187-88, 713 P.2d 719, 718 P.2d 796. Just as we interpret the SRA to require that a prior conviction be valid in order for the conviction to be considered by a sentencing court, we likewise interpret the SRA to require that a term of...
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