State v. Jenks
| Decision Date | 03 March 2020 |
| Docket Number | No. 52450-3-II,52450-3-II |
| Citation | 12 Wash.App.2d 588,459 P.3d 389 |
| Parties | STATE of Washington, Respondent, v. Alan Dale JENKS, Appellant. |
| Court | Washington Court of Appeals |
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., 1100 W Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
PART PUBLISHED OPINION
Maxa, C.J. ¶1 Alan Jenks appeals his conviction of first degree robbery, his sentence as a persistent offender to life in prison without the possibility of release under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, and the imposition of certain legal financial obligations (LFOs). The conviction arose from the robbery of a convenience store in Spokane. Jenks was sentenced as a persistent offender based on prior convictions of second degree robbery and first degree robbery.
¶2 When Jenks committed the current offense and when he was sentenced, former RCW 9.94A.030(32)(o) (2012) (now RCW 9.94A.030(33) ) classified second degree robbery as a "most serious offense," which meant that Jenks’s prior second degree robbery conviction was a strike offense under the POAA. But while this appeal was pending, the legislature in 2019 amended RCW 9.94A.030(33) to remove second degree robbery from the list of offenses that qualify as a strike offense. LAWS OF 2019, ch. 187 § 1. Jenks argues that the current version of RCW 9.94A.030(33) applies on appeal, and therefore his sentence as a persistent offender must be vacated.
¶3 We hold that the 2019 amendment to RCW 9.94A.030(33) removing second degree robbery from the list of offenses that qualify as strike offenses under the POAA does not apply to invalidate Jenks’s sentence. In the unpublished portion of this opinion, we address and reject Jenks’s remaining arguments regarding his conviction and sentence. However, we hold that the criminal filing fee and DNA collection fee imposed as LFOs must be reconsidered in light of the 2018 amendments to the LFO statutes.
¶4 Accordingly, we affirm Jenks’s conviction and sentence to life in prison without the possibility of release, but we remand for the trial court to consider imposition of the criminal filing fee and DNA collection fee under the currently applicable statutes.
FACTS
¶5 A jury found Jenks guilty of first degree robbery that occurred on December 8, 2014. Sentencing took place on June 22, 2017. The State presented certified copies of the judgment and sentence for Jenks’s 2004 conviction of second degree robbery and his 2011 conviction for first degree robbery.
¶6 The trial court found that Jenks’s current conviction was a "most serious offense" and that Jenks had been convicted on two separate occasions of most serious felonies. Clerk’s Papers (CP) at 113. The court further found that Jenks’s prior first degree robbery and second degree robbery convictions required that he be sentenced as a persistent offender under RCW 9.94A.570. As a result, the court sentenced Jenks to a term of life in prison without the possibility of release. Jenks appeals his sentence.
ANALYSIS
¶7 Jenks argues that the 2019 amendment to RCW 9.94A.030(33) that removed second degree robbery from the list of offenses that qualify as strike offenses under the POAA should be applied on appeal to invalidate his sentence as a persistent offender to life in prison without the possibility of release. We disagree.
¶8 Under RCW 9.94A.570, a "persistent offender" must be sentenced to total confinement for life without the possibility of release. RCW 9.94A.030(38)(a)1 defines "persistent offender" to include someone who has been convicted of a "most serious offense" and who previously has been convicted at least two separate times for most serious offenses. RCW 9.94A.030(33) defines "most serious offense" to include all class A felonies and a number of other listed felonies.
¶9 In 2014, when Jenks committed the offense for which he was convicted and from which he appeals, former RCW 9.94A.030(32)(o) included second degree robbery on the list of most serious offenses. The trial court sentenced Jenks as a persistent offender in 2017 based in part on his prior second degree robbery conviction under this statute.
¶10 But in 2019, the legislature amended RCW 9.94A.030(33) by removing second degree robbery from that list.
LAWS OF 2019, ch. 187, § 1. This amendment became effective on July 28, 2019. LAWS OF 2019, at ii.
¶11 The question here is whether we must review Jenks’s sentence under the law in effect at the time Jenks committed his current offense or under the law in effect at the time we decide his appeal. We conclude that RCW 9.94A.345 and RCW 10.01.040 both require Jenks to be sentenced under the law in effect when he committed the offense.
¶12 The general rule is that a defendant’s sentence is determined based on the law in effect at the time the defendant committed the crime for which he is being sentenced. State v. Medina , 180 Wash.2d 282, 287, 324 P.3d 682 (2014) ; State v. Ross , 152 Wash.2d 220, 236-37, 95 P.3d 1225 (2004). This rule derives from two sources: (1) RCW 9.94A.345, a provision of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW; and (2) RCW 10.01.040, the general saving statute.
¶13 First, RCW 9.94A.345 states, "Any sentence imposed under this chapter [the SRA] shall be determined in accordance with the law in effect when the current offense was committed." The POAA is part of the SRA. See RCW 9.94A.570 ; State v. Knippling , 166 Wash.2d 93, 98, 206 P.3d 332 (2009). Based on RCW 9.94A.345, the Supreme Court repeatedly has stated that "a defendant must be sentenced in accordance with the law in effect at the time of his or her offense." Medina , 180 Wash.2d at 287, 324 P.3d 682 ; see also In re Pers. Restraint of Carrier , 173 Wash.2d 791, 809, 272 P.3d 209 (2012) ; State v. Varga , 151 Wash.2d 179, 191, 86 P.3d 139 (2004).
¶14 Second, RCW 10.01.040, the general saving statute, states:
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act .... Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
(Emphasis added.) Under the saving statute, "courts must sentence a defendant in accordance with the law in effect on the date he or she committed the crime." Ross , 152 Wash.2d at 236-37, 95 P.3d 1225.
¶15 Here, it is undisputed that former RCW 9.94A.030(32)(o) – listing second degree robbery as a most serious offense – was in effect at the time Jenks committed his current offense. And the 2019 amendment did not express an intent that it would apply to pending prosecutions for offenses committed before its effective date. Therefore, both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be sentenced based on the former version of RCW 9.94A.030(33) rather than based on the 2019 amendment to RCW 9.94A.030(33) unless those statutes are inapplicable or some exception applies under the facts of this case.
¶16 Jenks makes several arguments in an attempt to avoid application of the rule established by RCW 9.94A.345 and RCW 10.01.040. We reject these arguments.
¶17 Jenks argues that State v. Ramirez , 191 Wash.2d 732, 749, 426 P.3d 714 (2018), establishes that the 2019 amendment to RCW 9.94A.030(33) applies to his sentence because the amendment became effective while his case was pending on direct appeal. We disagree.
¶18 In Ramirez , the Supreme Court addressed whether the 2018 legislative amendments to the LFO statutes applied to a case pending on direct appeal. 191 Wash.2d at 747-49, 426 P.3d 714. The court held that the amendments to the LFO statutes applied prospectively to Ramirez because they "pertain to costs imposed on criminal defendants following conviction, and Ramirez’s case was pending on direct review and thus not final when the amendments were enacted." Id. at 747, 426 P.3d 714.
¶19 The defendant in Ramirez appealed the trial court’s imposition of discretionary LFOs, arguing that the court had failed to make an adequate inquiry into his ability to pay. Id. at 736-37, 426 P.3d 714. The Supreme Court concluded that the trial court had erred in imposing the LFOs without an adequate inquiry, which normally would have entitled the defendant to resentencing. Id. at 746, 426 P.3d 714. However, while the appeal was pending the legislature enacted amendments to the LFO statures that prohibited the imposition of discretionary LFOs and the criminal filing fee on indigent defendants. Id. The defendant argued that these amendments applied to his appeal, and therefore the Supreme Court should strike the LFOs because he was indigent rather than remanding for resentencing. Id.
¶20 The court relied on State v. Blank , 131 Wash.2d 230, 249, 930 P.2d 1213 (1997), which applied a statute imposing appellate costs on defendants prospectively to cases on appeal when the statute was enacted. Ramirez , 191 Wash.2d at 748, 426 P.3d 714. The court stated that as in Blank , the 2018 LFO amendments "concern the court’s...
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