State v. Hogan

• Decision Date: 19 June 2008
• Docket Number: No. 35534-5-II.,35534-5-II.
• Citation: 145 Wash.App. 210,192 P.3d 915
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Dean William HOGAN, Respondent.

192 P.3d 915

145 Wash.App. 210

STATE of Washington, Appellant, v. Dean William HOGAN, Respondent.

No. 35534-5-II.

Court of Appeals of Washington, Division 2.

June 19, 2008.

James C. Powers, Thurston County Prosecuting Attorney Ofc., Olympia, WA, for Appellant.

Robert Mason Quillian, Attorney at Law, Olympia, WA, for Respondent.

BRIDGEWATER, P.J.

¶ 1 The State appeals the trial court's order granting a motion for arrest of judgment in favor of Dean William Hogan (Hogan) after Hogan pleaded guilty to two counts of violating a domestic violence protection order by communicating with the protected person while she visited, him when he was in custody. Although Hogan's contact with the protected person was prohibited, it was not at one of the enumerated prohibited locations nor did it involve acts or threats of violence. Because the statute unambiguously criminalizes contact for which an arrest is required and RCW 10.31.100(2)(a) or (b) only permits an arrest where there is an act or threat of violence or intrusion into a prohibited location, the trial court did not err by holding that Hogan's contact violations were not crimes under former RCW 26.50.110(1)(2000). We affirm.

FACTS

¶ 2 On January 3, 2006, as part of an earlier sentence, the Thurston County Superior Court entered an order prohibiting contact/domestic violence against Hogan. The domestic violence order prohibited Hogan from contacting Lisa Holloway. While Hogan was serving his sentence in the Thurston County jail, Holloway visited him on four separate occasions during the months of January, February, and March 2006.

¶ 3 On May 5, 2006, the Thurston County prosecutor charged Hogan with four counts of violating a no-contact, protection or restraining order/domestic violence — third or subsequent violation of any similar order. Each count was identical in language with the exception of the date of the alleged offense. Count I reads:

COUNT I — VIOLATION OF NO CONTACT, PROTECTION, OR RESTRAINING ORDER/DOMESTIC VIOLENCE — THIRD OR SUBSEQUENT VIOLATION OF ANY SIMILAR ORDER, RCW 26.50.110(1), RCW 10.99.020, RCW 10.99.050(2)(B) — CLASS C FELONY:

In that the defendant, [Hogan], in the State of Washington, on or about January 2, 2006, with knowledge that the Thurston County Superior Court had previously issued a protection order, restraining order, or no contact order, pursuant to Chapter 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW in state law in Cause No. 06-1-0009-2, did violate the order while the order was in effect by knowingly violating the restraint provisions therein by having contact with Lisa Holloway, his girlfriend, and furthermore, the defendant has at least two prior convictions for violating the provisions of a protection order, restraining order, or no-contact order issued under Chapter 10.99, 26.09, 26.10, 26.26, 26.50 26.52, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.

CP at 4. On June 27, 2006, Hogan pleaded guilty to counts I and II in exchange for the State's promise to drop the two remaining counts.

¶ 4 On July 7, 2006, Hogan filed a motion to arrest judgment under CrR 7.4(a).¹ Hogan acknowledged that the State charged him under former RCW 26.50.110(1), RCW 10.99.020, and RCW 10.99.050(2)(b). He also acknowledged that RCW 10.99.050(2)(a) provides that a "[w]illful violation of a court order issued under this section is punishable under RCW 26.50.110." CP at 29. Hogan argued, however, that former RCW 26.50.110(1) criminalized only violations "for which an arrest is required under RCW 10.31.100(2)(a) or (b)." CP at 30. Hogan based his argument on the legislature's placement of the comma immediately preceding this phrase. Referencing the corollary to the last antecedent rule and legislative history, Hogan convinced the trial court that the State failed to prove his violations were crimes under former RCW 26.50.110(1). The trial court dismissed the charges.

ANALYSIS

I. RCW 26.50.110(1)

¶ 5 The State argues that the trial court erred by relying on former RCW 26.50.110(1) to define Hogan's crimes when it should have relied on RCW 10.99.050(2) and former RCW 26.50.110(5). Hogan contends that the trial court: (1) properly applied former RCW 26.50.110(1) to his violations, which arose under RCW 10.99.050; and (2) properly ruled that former RCW 26.50.110(1) was not ambiguous. Hogan is correct; the trial court did not err.

¶ 6 Here, the State charged Hogan with violating former RCW 26.50.110(1), RCW. 10.99.050(2)(b), and RCW 10.99.020. Accordingly, we do not reach the issue of whether Hogan's actions might have satisfied a charge of contempt.²

¶ 7 Our Supreme Court interpreted an even earlier version of RCW 26.50.110 (1996) in State v. Chapman, 140 Wash.2d 436, 448, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000); but the legislature amended RCW 25.50.110 in 2000. Before this amendment, violation of a domestic violence no-contact order under former RCW 10.99.050(2) (1997) was a gross misdemeanor and a third violation was a felony. But in 2000, the legislature amended the statute, moving most of the language to RCW 26.50.110 and adding the "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" language at issue in this case. Laws of 2000, ch. 119 § 24. Accordingly, Chapman, is no longer binding precedent on this court.

¶ 8 Before we continue our analysis, we note that the legislature unanimously amended RCW 26.50.110(1) during the 2007 session. See Laws of 2007, ch. 173. The legislature removed the cross-reference to RCW 10.31.100(2), which Hogan relies on here. See Laws of 2007, ch. 173, § 2. The legislature also stated in its findings that it meant "to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and should be enforced accordingly to preserve the integrity and intent of the domestic violence act." Laws of 2007, ch. 173, § 1.³

¶ 9 We address Hogan's statutory argument under the criminal statutes in effect at time he committed the crime unless the legislature expressed a different intent when subsequently amending the statute. RCW 10.01.040. The legislature expressed no such intent when it amended RCW 26.50.110(1) in 2007.

¶ 10 As amended in 2000, former RCW 26.50.110(1) provided:

Whenever an order is granted under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the. restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.

(Emphasis ours).

¶ 11 We first look to the statute's plain language in order to give effect to legislative intent. State v. Watson, 146 Wash.2d 947, 954, 51 P.3d 66 (2002). If the statute is unambiguous, we derive the legislature's intent from the plain language alone. Watson, 146 Wash.2d at 955, 51 P.3d 66. If the statute is ambiguous, we resort to principles of statutory construction, legislative history, and relevant case law to assist in our interpretation. Watson, 146 Wash.2d at 955-56, 51 P.3d 66. A statute is ambiguous if a reasonable person can interpret it in more than one way. Watson, 146 Wash.2d at 954-55, 51 P.3d 66.

¶ 12 Hogan argued and the trial court agreed that the phrase, "for which an arrest is required under RCW 10.31.100(2)(a) or (b)," applies to a violation of any of the four provisions mentioned in former RCW 26.50.110(1) because a comma precedes the phrase. CP 43, 48. Hogan based this contention on the corollary to the last antecedent rule. Br. of Resp't at 3.

The "last antecedent" rule of statutory construction "provides that, unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent." In re Sehome Park Care Ctr., Inc., 127 Wash.2d 774, 781, 903 P.2d 443 (1995) (emphasis added). A corollary to the rule is that "the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one." Sehome Park, 127 Wash.2d at 781-82, 903 P.2d 443.

In re Smith, 139 Wash.2d 199, 204, 986 P.2d 131 (1999).

¶ 13 Under the corollary to the last antecedent rule, the legislature's insertion of a comma requires us to apply the "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" language to each of the circumstances mentioned in former RCW 26.50.110(1). At oral argument, the State candidly agreed that the last antecedent rule applies. The relevant language in former RCW 26.50.110(1) provides:

[A] violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.

(Emphasis added).

¶ 14 The comma preceding "for which an arrest is required" does not appear to be a scrivener's error because if this court removed the comma, portions of the "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" language would be superfluous. The provision immediately preceding the comma reads, "or of a provision of a foreign protection order...