State v. Hern

• Decision Date: 09 May 2002
• Docket Number: No. 18464-1-III.,18464-1-III.
• Citation: 111 Wn. App. 649,45 P.3d 1116,111 Wash. App. 649
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ernie Duane HERN, Appellant.

45 P.3d 1116

111 Wn. App. 649

111 Wash. App. 649

STATE of Washington, Respondent, v. Ernie Duane HERN, Appellant.

No. 18464-1-III.

Court of Appeals of Washington, Division 3, Panel Seven.

May 9, 2002.

David N. Gasch, Spokane, for Appellant.

Kevin M. Korsmo, Deputy Prosecuting Attorney, for Respondent.

KURTZ, J.

Ernie Hern was found guilty of first degree burglary, two counts of second degree assault, and first degree unlawful possession of a firearm. Mr. Hern was sentenced to life without the possibility of parole under the Persistent Offender Accountability Act (POAA). Mr. Hern challenges his sentence contending that the 1995 amendment to the Sentencing Reform Act of 1981(SRA) that changed the washout provisions for class C felonies to require that a defendant spend five years in the community without being convicted of any crime, not just felonies, should not apply retroactively under State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999) and State v. Smith, 144 Wash.2d 665, 30 P.3d 1245 (2001); 39 P.3d 294. Additionally, Mr. Hern contends the court erred by giving an accomplice liability instruction. Pro se, he contends the court made several evidentiary errors and claims his counsel was ineffective. We affirm Mr. Hern's convictions but we conclude his 1980 conviction cannot be counted as a "strike" in calculating his offender score. For that reason, we remand for resentencing.

FACTS

On the evening of February 6, 1998, Linda Rawley was at home in the house she shared with her friend Kevin Conwell and his girlfriend, Tamia Kimball. Another friend, Darlene Straughen, was visiting. Around midnight, a woman knocked at the door and asked if she could come in and use the phone because her car had broken down. When Ms. Straughen opened the door, a man in a ski mask pushed through the door and struck Ms. Straughen on the head knocking her to the floor. While another man guarded Ms. Straughen, the man in the ski mask kicked down the bathroom door and found Ms. Rawley where she had run and hidden in the bathtub. He pointed a gun at Ms. Rawley and told her to get down. The man in the ski mask then kicked down the bedroom door where Ms. Kimball and Mr. Conwell had locked themselves in. Mr. Conwell, who pulled out his gun when he heard the commotion, shot the masked man three times and the man fell to the floor. The masked man was identified as Ernie Hern.

Mr. Hern was found guilty, following a jury trial, of first degree burglary, two counts of second degree assault and first degree unlawful possession of a firearm.

The court sentenced Mr. Hern as a persistent offender to life without possibility of parole. In doing so, the court found that Mr. Hern had two prior "strikes" under the persistent offender law: a 1980 conviction for attempted second degree robbery and a 1989 conviction for second degree robbery. This appeal follows.

ANALYSIS

Persistent Offender. If a defendant is found to be a "persistent offender" in Washington under the POAA, the court must sentence the defendant to life in prison without the possibility of parole. Former RCW 9.94A.120(4) (1997).¹ A "persistent offender" is defined as (1) someone who has previously been convicted on at least two separate occasions, (2) in this state or elsewhere, (3) of felonies which would be considered most serious offenses under former RCW 9.94A.030(23) (1997), and that (4) would be included in the offender score under RCW 9.94A.360. State v. Morley, 134 Wash.2d 588, 603, 952 P.2d 167 (1998) (citing former RCW 9.94A.030(27)(a)(ii) (1997)).

As a basis for imposing a POAA sentence, the court considered Mr. Hern's following criminal history:

• Attempted second degree robbery (class C felony) (convicted 1/24/80; paroled 6/27/83)

• Third degree assault (class C felony) (convicted 11/19/87)

• Second degree robbery (class B felony) (convicted 8/11/89; paroled 4/27/90)

• Fourth degree assault (gross misdemeanor) (convicted 7/22/91)

• Attempted second degree unlawful possession of a firearm (gross misdemeanor) (offense date 9/1/95; convicted 12/16/96)

The court found that the prior attempted second degree robbery and second degree robbery convictions constituted most serious offenses as defined in the POAA.

Before 1995, Washington's SRA provided that prior class C felony convictions other than a sex offense would not count toward an offender's score for the purpose of sentence determination if, since the last day of release from confinement, the defendant spent five consecutive years in the community without being convicted of any felonies. Former RCW 9.94A.360(2) (1992), amended by Laws of 1995, ch. 316, § 1. In 1995, the language was amended, requiring the defendant to spend five consecutive years in the community without being convicted of any crimes, not just felonies. RCW 9.94A.360(2).

Mr. Hern contends that the 1980 attempted second degree robbery conviction washed out pursuant to former RCW 9.94A.360(2) because there was a five-year period between his release from custody in 1990 and the current offense when he had no felony convictions. Therefore, he argues that he had only one prior "most serious offense" conviction and was not eligible to be sentenced as a persistent offender. Application of the 1995 SRA amendments to revive the 1980 conviction, he argues, would violate the constitutional prohibition against ex post facto legislation, citing State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999).

In Cruz, the defendant was charged in 1994 with first degree rape of a child. Id. at 187, 985 P.2d 384. He had two prior convictions: a 1975 conviction for rape, for which he was paroled in December 1977, and a 1989 conviction of first degree attempted burglary. Id. at 187-88, 985 P.2d 384. Under the pre 1990 washout provisions, Mr. Cruz's 1975 conviction washed out by operation of law in December 1987 because he had been "felony free" for 10 years following his release. Thus, the 1975 conviction was not counted as a prior offense when his offender score was calculated for the 1989 burglary conviction.

In 1990, the washout provisions were amended, excepting sex offenses from the washout provisions of the SRA. Id. at 190, 985 P.2d 384. On review, the Supreme Court held the 1990 amendment to the SRA would apply retroactively (and therefore resurrect the conviction) only if: "(1) the [L]egislature so intended; (2) it is `curative'; or (3) it is remedial, provided, however, such retroactive application does not run afoul of any constitutional prohibition." Id. at 191, 985 P.2d 384 (citing In re F.D. Processing, Inc., 119 Wash.2d 452, 460, 832 P.2d 1303 (1992)). Because none of these factors existed, the court held the 1990 amendment to be prospective only. Therefore, the 1990 amendment did not revive Mr. Cruz's previously washed out conviction and it could not be calculated as part of his offender score. Cruz, 139 Wash.2d at 191-93, 985 P.2d 384.

Prior to Cruz, courts that have looked at scoring issues related to statutory amendment have always looked at the date of the crime for determining whether the "new" law applied. The rule had been that the SRA statute governing at the time of the crime was used to determine a defendant's sentence. State v. Wood, 94 Wash.App. 636, 644-45, 972 P.2d 552 (1999); State v. Angehrn, 90 Wash.App. 339, 343-44, 952 P.2d 195 (1998); State v. Watkins, 86 Wash.App. 852, 855, 939 P.2d 1243 (1997).

In response to Cruz, the Legislature amended chapter 9.94A RCW to add two new sections:

Sec. 1. This act is intended to cure any ambiguity that might have led to the Washington [S]upreme [C]ourt's decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual's offender score should be determined by the law in effect on the day the current offense was committed. This act is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.

Sec. 2. A new section is added to chapter 9.94A RCW to read as follows: Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.

Laws of 2000, ch. 26, §§ 1, 2. These new sections became effective on June 8, 2000. Where an original enactment was ambiguous and a clarifying amendment or technical correction contravenes no judicial construction of the original statute, the amendment may be deemed curative, remedial, and retroactive. State v. Jones, 110 Wash.2d 74, 82, 750 P.2d 620 (1988) (citing State v. Taylor, 47 Wash.App. 118, 123, 734 P.2d 505 (1987)). A curative amendment or one that clarifies or technically corrects an ambiguous statute applies retroactively. Cruz, 139 Wash.2d at 191-92,985 P.2d 384.

In State v. Hendricks, 103 Wash.App. 728, 14 P.3d 811 (2000), rev'd, State v. Smith, 144 Wash.2d 665, 30 P.3d 1245 (2001); 39 P.3d 294, the court affirmed a sentence that applied 1997 amendments to the SRA retroactively. In affirming the inclusion of a previously washed out juvenile conviction, Hendricks held that offender scores were to be calculated under the version of the SRA in effect on the date of the current offense. In Smith, 144 Wash.2d at 672-73, 30 P.3d 1245, the Supreme Court reversed Hendricks and reiterated the holding of `Cruz. Smith held that RCW 9.94A.345 does not contain an explicit legislative comment that a 1997 amendment to the SRA applied retroactively. Smith, 144 Wash.2d at 672-73, 30 P.3d 1245. The Smith court noted that such an explicit command is required. Id. RCW 9.94A.345 merely tells courts to apply the law in effect at the time of sentencing; it does not tell courts whether the law in effect, or an amendment thereto, should be applied prospectively or retroactively. Smith, 144 Wash.2d at 672-73, 30 P.3d 1245.

Except for the 2000 amendment, the SRA contains no language showing the Legislature intended the 1995 amendment to apply...