State v. Jenks

• Citation: 197 Wash.2d 708,487 P.3d 482
• Decision Date: 27 May 2021
• Docket Number: No. 98496-4,98496-4
• Parties: STATE of Washington, Respondent, v. Alan D. JENKS, Petitioner.
• Court: United States State Supreme Court of Washington

197 Wash.2d 708

487 P.3d 482

STATE of Washington, Respondent,

v.Alan D. JENKS, Petitioner.

No. 98496-4

Supreme Court of Washington.

Argued November 17, 2020

Filed: May 27, 2021

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jan Trasen, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Petitioner.

Larry D. Steinmetz, Brett Ballock Pearce, Spokane County Pros. Attorney's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

Nancy Lynn Talner, Antoinette M. Davis, Jaime Michelle Hawk, ACLU-WA, P.O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae ACLU of Washington.

Jessica Levin, Robert S. Chang, Melissa R. Lee, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Seattle, WA, 98122-4411, for Amicus Curiae Fred T. Korematsu Center for Law and Equality.

Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae Wa Assoc. of Criminal Defense Lawyers.

Cindy Arends Elsberry, Alexandria Marie Hohman, Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae Wa Defender Association.

Nicholas Brian Allen, Attorney at Law, 101 Yesler Way Ste. 300, Seattle, WA, 98104-2528, for Amicus Curiae Columbia Legal Services.

David Ventura Montes, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1765, Katherine Elizabeth Hurley, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amici Curiae King County Department of Public Defense, National Association for the Advancement of Colored People, The Community Passageways, Concerned Lifers Organization, Black Prisoners Caucus At the WA State Reformatory, and Yoga Behind Bars.

WHITENER, J.

¶ 1 Alan Jenks was sentenced to life without parole under the Persistent Offender Accountability Act (POAA), part of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW. One of his strike offenses was second degree robbery, which was removed from the list of most serious offenses in 2019. ENGROSSED SUBSTITUTE S.B. (ESSB) 5288, 66th Leg., Reg. Sess. (Wash. 2019). The amendment came into effect after Jenks’ conviction, when his case was pending before the Court of Appeals. The Court of Appeals held that the amendment did not apply to his case and upheld his sentence.

¶ 2 The sole question before us is whether to apply ESSB 5288 to Jenks’ case. The State argues that it cannot apply due to RCW 9.94A.345 and RCW 10.01.040. We agree with the State and hold that ESSB 5288 does not apply to Jenks’ case. Although this outcome is harsh, the legislature commands this result. We affirm the decision of the Court of Appeals and uphold Jenks’ sentence.

FACTS AND PROCEDURAL HISTORY

¶ 3 Jenks appeals his conviction of first degree robbery, which he committed in December 2014. The sentencing court determined that he had three strikes, and he was sentenced to life without parole under the POAA in June 2017. One of his strikes was second degree robbery. Two years after he was sentenced as a persistent offender, the legislature enacted ESSB 5288, which removed second degree robbery from the list of "most serious offenses"; it no longer counts as a strike under the POAA. LAWS OF 2019, ch. 187, § 1(33)(o).

¶ 4 ESSB 5288 came into effect on July 28, 2019. Id. At that time, Jenks’ case was pending before the Court of Appeals. State v. Jenks , 12 Wash. App. 2d 588, 590, 459 P.3d 389 (2020). Jenks argued that ESSB 5288 should apply to his case because the amendment removed second degree robbery from the statute for "three-strike" sentencing purposes.

Id. The Court of Appeals disagreed, upholding Jenks’ persistent offender sentence to life in prison without possibility of release. Id.

¶ 5 Jenks sought review in this court of that decision and other issues. We granted review only on the issue of whether ESSB 5288, amending RCW 9.94A.030, applies to his case. Order, No. 98496-4 (Wash. Sept. 9, 2020).¹

¶ 6 Several amici briefs have been filed, which the State moved to strike, along with portions of the petitioner's supplemental brief. The motions were granted with respect to arguments concerning the constitutionality of the POAA, arguments not raised in the petition for review, and arguments solely raised by amici. Clerk's Letter Ruling, No. 98496-4 (Wash. Nov. 3, 2020). The motions to strike citations to secondary sources and to strike discussions of racial discrimination were denied. Id.

¶ 7 Nevertheless, Jenks and amici do raise serious concerns about the racially disproportionate impact of the POAA. Black defendants appear to receive life without parole sentences at a far greater rate than white defendants. Suppl. Br. of Pet'r at 1; Amicus Br. of King County Dep't of Pub. Def. et al. at 8-9; Br. of Amici Curiae Fred T. Korematsu Ctr. for Law & Equality et al. at 5. Indeed, the legislature itself acknowledged this in drafting ESSB 5288, noting that "[t]here is racial disparity in how the persistent offender statute is enforced. Four percent of the population [of Washington] is African American yet a disproportionate number have been convicted as persistent offenders." S.B. REP. ON S.B. 5288, 66^th Leg., Reg. Sess. (Wash. 2019). However, these issues are not before the court, as noted above. Such constitutional consideration must await the appropriate case, and Jenks’ case must await a legislative fix.²

STANDARD OF REVIEW

¶ 8 A sentencing court's decision to consider a prior conviction as a strike is reviewed de novo. State v. Thiefault , 160 Wash.2d 409, 414, 158 P.3d 580 (2007). This case primarily involves questions of statutory interpretation; such questions are also subject to de novo review. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002).

ANALYSIS

¶ 9 In Washington, " ‘the fixing of legal punishments for criminal offenses is a legislative function.’ " State v. Hughes , 154 Wash.2d 118, 149, 110 P.3d 192 (2005), (quoting State v. Ammons , 105 Wash.2d 175, 180, 713 P.2d 719 (1986) ), abrogated on other grounds by Washington v. Recuenco , 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). It is therefore " ‘the function of the legislature and not of the judiciary to alter the sentencing process.’ " Id. (internal quotation marks omitted) (quoting Ammons , 105 Wash.2d at 180, 713 P.2d 719 ). Two statutes regarding legislative commandments for punishment are implicated by this case: RCW 9.94A.345 and RCW 10.01.040.

¶ 10 These statutes control the result of amendments to penal statutes in Washington. At common law, the rule was that where "a statute is repealed, it is, as regards its operative effect, considered as if it had never existed, except as to matters and transactions past and closed, and all pending litigation must be decided according to the state of the law at the time of the decision." State v. Zornes , 78 Wash.2d 9, 12, 475 P.2d 109 (1970) (plurality opinion), overruled on other grounds by United States v. Batchelder , 442 U.S. 114, 99 S. Ct. 2198, 60 L.Ed.2d 755 (1979). But the legislature changed that, first, over a century ago with RCW 10.01.040 and, again, decades ago with RCW 9.94A.345. Under these statutes—as discussed in more detail below—sentences imposed under the SRA are generally meted out in accordance with the law in effect at the time of the offense. See RCW 9.94A.345 ; RCW 10.01.040.

¶ 11 Today, we consider ESSB 5288 in light of RCW 9.94A.345 and RCW 10.01.040. ESSB 5288 came into effect in July 2019, while Jenks’ case was pending on appeal. LAWS OF 2019, ch. 187. As a statute, ESSB 5288 is construed based on its plain language, including that of related enactments; if unambiguous, its plain language provides the beginning and the end of the analysis. Campbell & Gwinn , 146 Wash.2d at 9-12, 43 P.3d 4. "Language is unambiguous when it is not susceptible to two or more interpretations." State v. Delgado , 148 Wash.2d 723, 726, 63 P.3d 792 (2003).

¶ 12 ESSB 5288 is unambiguous. The legislature describes the statute as "AN ACT Relating to removing robbery in the second degree from the list of offenses that qualify an individual as a persistent offender; and amending RCW 9.94A.030." ESSB 5288, LAWS OF 2019, ch. 187 pmbl. The amendment removed "[r]obbery in the second degree" from the list of most serious offenses. LAWS OF 2019, ch. 187, § 1(33)(o). RCW 9.94A.030 was otherwise unchanged. Its effects are clear: it simply removes second degree robbery from the list of most serious offenses. While the legislature contemplated making this change retroactive, such that those previously sentenced to life without parole due to a second degree robbery strike could obtain resentencing, this provision was removed from the legislation before the bill was enacted. See Amend. 5288-S AMS PADD S2657.1 to ESSB 5288, at 1, 66th Leg., Reg. Sess. (Wash. 2019). Therefore, this change does not apply to Jenks’ case due to the operation of RCW 9.94A.345 and RCW 10.01.040. The enactments of the legislature demand this result.

I. Both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be sentenced under the statutory scheme in effect at the time of his offense, not the amendment found in ESSB 5288

A. RCW 9.94A.345 precludes the application of ESSB 5288 to Jenks’ case

¶ 13 RCW 9.94A.345 commands, "Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." (Emphasis added.) This plain language is unambiguous. See Delgado , 148 Wash.2d at 726-27, 63 P.3d 792 ("Language is unambiguous when it is not susceptible to two or more interpretations."). RCW 9.94A.345 clearly commands that sentences imposed under "this chapter"—the SRA—be imposed under the law in effect at the time of the crime. We have repeatedly invoked RCW 9.94A.345 for just this purpose. See, e.g. , State v. Medina , 180 Wash.2d 282, 287, ...