State v. Hendricks

• Decision Date: 15 December 2000
• Docket Number: No. 25159-1-II., No. 24283-4-II
• Citation: 14 P.3d 811,103 Wash.App. 728
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. George Alex HENDRICKS, Appellant. State of Washington, Respondent, v. Michael W. Lowe, Appellant.

14 P.3d 811

103 Wash.App. 728

STATE of Washington, Respondent, v. George Alex HENDRICKS, Appellant.

State of Washington, Respondent, v. Michael W. Lowe, Appellant.

Nos. 24283-4-II, 25159-1-II.

Court of Appeals of Washington, Division 2.

December 15, 2000.

Kevin R. Cole, Giffith & Cole, Pllc, Seattle, Joanne E. Dantonio, Crawford, McGilliard, Etal, Port Orchard, court appointed, for Appellants.

Randall Avery Sutton, Kitsap County Deputy Prosecuting Atty, Port Orchard, Kathleen Proctor, Pierce County Deputy Prosecuting Atty, Tacoma, for Respondents.

BRIDGEWATER, J.

George Alex Hendricks and Michael W. Lowe, defendants in these linked cases, appeal their sentences claiming their adult offender scores should not have included points for their prior juvenile convictions. These juvenile convictions did not count in calculating an adult score at the time they committed their juvenile offenses. But, because the legislature has clarified its intent that offender scores are to be determined by the law in effect on the day the current offense is committed, Hendricks's and Lowe's juvenile convictions must be counted regardless of our Supreme Court's holding in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999). We hold that Hendricks's score was correctly computed. And, even though Lowe was informed that the law in effect at the time of his sentencing would wash out his juvenile convictions, the wash-out provision was not a part of Lowe's plea bargain. We affirm.

The facts underlying Hendricks's and Lowe's juvenile and adult convictions are irrelevant to the issues raised in their appeals. Both appellants challenge only the calculation of their offender scores at sentencing for their adult convictions. Therefore, we summarize the facts only as they relate to sentencing.

Hendricks

On July 12, 1999, Hendricks pleaded guilty to attempted assault in the second degree. The sentencing court determined that Hendricks's offender score was "9" based on his juvenile and adult criminal history. His juvenile convictions included six convictions for non-violent offenses and one conviction for a violent offense. Hendricks committed four of these crimes before he reached the age of 15.¹ The sentencing court also counted four adult felony convictions. Hendricks objected to the use of three juvenile convictions from 1986, alleging that he had no 1986 convictions.

Lowe

On November 18, 1998, Lowe pleaded guilty to one count of taking a motor vehicle without the owner's permission,² one count of attempting to elude,³ and two counts of third degree assault.⁴ Lowe was 18 years old when he entered these pleas.⁵ At his adult sentencing hearing, Lowe argued that four juvenile convictions could not be used in calculating his offender score for this current adult offense because of representations the State made to him when he entered the juvenile pleas. These juvenile convictions totaled four felony convictions to which Lowe pleaded guilty in 1994 (at the age of 14), and three additional juvenile felony pleas from 1997.

Each 1994 Statement of Juvenile Upon Plea of Guilty included a paragraph stating that any juvenile felony convictions would not count as part of his adult criminal history unless he committed the felony when over age 15, and he was being sentenced for a crime while between the ages of 15-23:

I have been informed, and fully understand, that my plea of guilty and the Court's acceptance of my plea, will become part of my criminal history. I have also been informed and fully understand that if the offense is a felony and I was 15 years of age or older when the offense was committed, then the plea will remain part of my criminal history when I am an adult if I commit another offense prior to my twenty-third birthday.

Clerk's Papers at 28, 35; Br. of Appellant, app. Although the sentencing court found that the SJPG constituted part of the plea agreement, it found that Lowe had no vested constitutional right based on an expectation that the sentencing laws would remain the same, and it counted Lowe's prior juvenile convictions. Lowe also had four adult felony convictions, which added four points to his current offender score. The court calculated his current adult offender score at "7."

Both Hendricks and Lowe challenged the calculations of their offender scores below.⁶ We note, however, that a challenge to an offender score calculation is a sentencing error that a defendant may raise for the first time on appeal. State v. Roche, 75 Wash.App. 500, 513, 878 P.2d 497 (1994). We review a sentencing court's calculation of an offender score de novo. State v. McCraw, 127 Wash.2d 281, 289, 898 P.2d 838 (1995).

I. USE OF JUVENILE CONVICTIONS FOR SENTENCING UNDER THE SRA

A. Statutory Interpretation

1. History of Use of Juvenile Convictions in Calculating Offender Score

In general, when sentencing a defendant under the Sentencing Reform Act (SRA), the court must calculate the defendant's "offender score" in part based on his "criminal history" in order to determine the standard sentencing range. RCW 9.94A.030; RCW 9.94A.360. The SRA assigns a point value to prior and current offenses, and the defendant's total sum of points equals the defendant's "offender score."

Since its enactment of the SRA in 1981,⁷ the legislature has amended the definition of "criminal history" multiple times, significantly affecting the use of prior juvenile convictions at sentencing. Former provisions disallowed the use of juvenile convictions in calculating an adult offender score depending on the crime committed or under specific circumstances. For example, when first enacted, the SRA provided that a defendant's "criminal history" included juvenile convictions only for RCW 13.40.020(6)(a) felonies committed when the defendant was at least 15 and the defendant was less than 23 at the time of the current offense. Former RCW 9.94A.030(8)(b) (1985). This meant that: (1) juvenile felonies "washed out" for purposes of calculating an adult offender score after the offender's 23rd birthday; and (2) juvenile felonies committed when the defendant was less than 15 years old were never included in calculating a subsequent offender score. Former RCW 9.94A.360(4) (1991). With each subsequent amendment, the legislature expanded the scope of juvenile convictions to be included in calculating a defendant's present offender score.⁸ Eventually in 1997, the legislature amended RCW 9.94A.030 to include all prior juvenile adjudications in a defendant's criminal history, regardless of the offender's age at the time of either the original conviction or the current offense. Laws of 1997, ch. 338, § 2 ("1997 SRA amendment").

Consequently, when Lowe entered his juvenile pleas in 1994, his juvenile convictions automatically "washed out" under former RCW 9.94A.030 (1994) for purposes of calculating his adult offender score because he was then under the age of 15. By 1998, however, when Lowe was sentenced for his present crimes, the 1997 SRA amendment to RCW 9.94A.030 required that a sentencing court count Lowe's juvenile convictions in his present adult offender score. Similarly, four of Hendricks's juvenile convictions committed in 1986 and 1987 automatically "washed out" under the former version of the SRA because he was under 15 when he committed the crimes. Former RCW 9.94A.030(12)(b) (1991); Former RCW 9.94A.360(4) (1991). When Hendricks turned 23 in 1996, the version of the SRA then in effect "washed out" his prior juvenile convictions committed after his 15th birthday. Former RCW 9.94A.030(12)(b) (1996); Former RCW 9.94A.360(4) (1996). Under current law, a sentencing court must count all of Hendricks's juvenile convictions in calculating his adult offender score because of the 1997 SRA amendment. Both appellants argue that the Supreme Court's reasoning in State v. Cruz should apply to preclude use of their prior juvenile convictions to calculate their present adult offender scores. Cruz, 139 Wash.2d 186,985 P.2d 384.

2. State v. Cruz

In State v. Cruz, a court convicted the defendant in 1994 of first degree rape of a child. Cruz, 139 Wash.2d at 187, 985 P.2d 384. Cruz had two prior convictions, both from guilty pleas: a 1975 rape conviction and a 1989 conviction of first degree attempted burglary. Cruz, 139 Wash.2d at 188, 985 P.2d 384. Under the pre-1990 "wash out" provisions of the SRA, by the time of Cruz's 1989 conviction, the 1975 conviction had "washed out" by operation of law because Cruz did not commit any felonies within the first ten years following his release. Former RCW 9.94A.360 (1988). Cruz, 139 Wash.2d at 189, 985 P.2d 384. Thus, when being sentenced for his 1989 burglary conviction, the sentencing judge did not count the 1975 conviction as a prior offense when calculating Cruz's offender score, and the court sentenced Cruz as a first time offender. Cruz, 139 Wash.2d at 189, 985 P.2d 384.

In 1990, the legislature amended the wash-out provisions, excepting sex offenses from the wash-out provisions of the SRA. Cruz, 139 Wash.2d at 190, 985 P.2d 384 (citing Laws of 1990, ch. 3, § 706). On review, a 5-4 majority of our Supreme Court held that the 1990 amendment to the SRA would apply retroactively (and resurrect Cruz's rape conviction) if: "(1) the legislature so intended; (2) it is "curative"; or (3) it is remedial, provided, however, such retroactive application does not run afoul of any constitutional prohibition." Cruz, 139 Wash.2d at 191, 985 P.2d 384 (citing In re F.D. Processing, Inc., 119 Wash.2d 452, 460, 832 P.2d 1303 (1992)). Regarding legislative intent, the court specifically found that the legislature had not stated any intention that the 1990 changes regarding sex offenses applied retroactively. Cruz, 139 Wash.2d at 191, 985 P.2d 384. The court also found that the 1990 SRA amendment was a substantive change, and therefore was neither curative nor remedial. Cruz, 139 Wash.2d at 192, 985 P.2d 384. Consequently, because none of the...