State v. Kane

• Decision Date: 24 July 2000
• Docket Number: No. 45176-6-I.,45176-6-I.
• Citation: 5 P.3d 741,101 Wash.App. 607
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. David KANE, Respondent.

5 P.3d 741

101 Wash.App. 607

STATE of Washington, Appellant, v. David KANE, Respondent.

No. 45176-6-I.

Court of Appeals of Washington, Division 1.

July 24, 2000.

As Amended August 4, 2000.

Brian Martin McDonald, William M. Berg, King County Deputy Pros. Atty's, Seattle, for Appellant.

Dana M. Nelson, Nielsen, Broman & Associates, Seattle, for Respondent.

BECKER, A.C.J.

A 1901 saving statute provides that a prosecution for a criminal offense must proceed under the criminal and penal statutes in effect at the time the offense was committed, unless the Legislature expresses a different intent in an amendatory or repealing act. Intending to increase the use of a treatment-oriented sentencing alternative for drug offenders, the Legislature amended the eligibility criteria with a statute that became effective on July 25, 1999. Because the 1999 amendment does not express legislative intent to avoid the presumption of the saving statute, its effect is prospective only. We reverse the alternative sentence imposed on appellant Kane, and remand for resentencing under provisions in effect in June 1999 when he committed his offense.

The police discovered heroin and other contraband when they searched David Kane's residence on June 4, 1999. The State charged Kane on June 10 with possession of heroin with intent to deliver. Kane pleaded guilty to the charge against him on July 17, 1999. His standard sentence range was 43 to 57 months. At the sentencing hearing on August 17, 1999, the State recommended 43 months of total confinement, the low end of the standard range. Kane requested an alternative sentence under RCW 9.94A.120(6), the Drug Offender Sentencing Alternative (DOSA).

The Legislature enacted the Drug Offender Sentencing Alternative five years ago as a treatment-oriented alternative to a standard range sentence of confinement. Laws of 1995, ch. 108. When an offender meets the statutory eligibility criteria for an alternative sentence, the trial court may impose a period of prison confinement that is only one-half of the standard range sentence, and allow the offender to serve the other half in community custody while obtaining treatment for substance abuse. RCW 9.94A.120(6)(b). An offender who fails to complete the treatment program must return to total confinement to serve the other half of his sentence. RCW 9.94A.120(6)(c).

Under the DOSA statute as it existed when he committed his offense, Kane was not eligible for an alternative sentence because he had prior felony convictions. See former RCW 9.94A.120(6). But the Legislature amended the eligibility requirements for a DOSA sentence with a new statute having an effective date of July 25, 1999. Laws of 1999, ch. 197 § 4. Under the new statute, offenders with prior felony convictions are eligible to be considered for the alternative sentence if the prior convictions were not for violent or sex offenses. Kane was eligible for the alternative sentence if the new statute applied to him.

The State objected to Kane's request for an alternative sentence on the basis that the new statute did not apply to an offender whose crime was committed before the new statute's effective date. The trial court, however, determined that the new statute did apply to Kane, and imposed an alternative sentence consisting of a prison term of 25 months, to be followed by 25 months of community custody in compliance with a treatment program. The State appeals.

The central issue is the effect to be given to the general criminal prosecution saving statute, RCW 10.01.040. The saving statute presumptively saves all offenses already committed, and all penalties or forfeitures already incurred, from being affected by the amendment or repeal of a criminal or penal statute:

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, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, 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.

RCW 10.01.040.

The saving statute, enacted in 1901, departs from the common law. The common law regards a repealed statute as if it had never existed except as to matters and transactions past and closed. Under the common law rule, all pending cases 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), overruled on other grounds in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). In derogation of the common law, the saving statute preserves a potential or pending prosecution from being abated, perhaps inadvertently, by the Legislature's later act of repealing or amending the substantive law defining the offense or fixing its penalty. "Unless the later statutes clearly manifest a different intention, this general saving clause is deemed a part of every repealing statute as if expressly inserted therein, and hence renders unnecessary the incorporation of an individual saving clause in each statute which amends or repeals an existing penal statute." State v. Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938); see also State v. Walker, 7 Wash.App. 878, 882, 503 P.2d 128 (1972). In the absence of a contrary expression from the Legislature, all crimes are to be prosecuted under the law existing at the time of their commission. State v. Lorenzy, 59 Wash. 308, 309, 109 P. 1064 (1910). It is not "essential to the life of the charge" that a criminal prosecution be already pending at the time a new amendatory or repealing act is enacted. Lorenzy, 59 Wash. at 309, 109 P. 1064.

An example of the saving statute's early application in Washington is found in State v. Hanover, 55 Wash. 403, 104 P. 624 (1909). There, the State prosecuted the appellant for practicing medicine without a license. Between the date the offense was allegedly committed and the date of trial, the legislature passed a new act regulating the practice of medicine, and repealing prior acts. The new act did not contain a saving clause. The Supreme Court at first found the prosecution barred by the common law rule and issued an opinion reversing the conviction. Later, upon its own motion, the court reconsidered its decision in light of the saving statute, and affirmed the conviction. Hanover, 55 Wash. 403, 406-07, 107 P. 388 (1910).

The statute saves only the substantive rights and liabilities of a repealed statute. State v. Hodgson, 108 Wash.2d 662, 669-70, 740 P.2d 848 (1987). Through the years, our appellate courts have consistently applied the saving statute to preserve prosecutions carried on under a repealed statute where the new statute does not indicate a contrary intent. See, e.g., State v. Fenter, 89 Wash.2d 57, 61-62, 569 P.2d 67 (1977); State v. Hernandez, 20 Wash.App. 225, 226, 581 P.2d 157 (1978); State v. Lombardo, 32 Wash.App. 681, 649 P.2d 151 (1982); State v. Weber, 99 Wash.2d 158, 162-63, 659 P.2d 1102 (1983).

Because RCW 10.01.040 is in derogation of the common law, it is strictly construed. Zornes, 78 Wash.2d at 13,475 P.2d 109. The saving force of the statute is applied narrowly and its exception—"unless a contrary intention is expressly declared in the amendatory or repealing act"—is interpreted broadly. Thus, our Supreme Court has not insisted that a legislative intent to affect pending litigation be declared in express terms in a new statute. Rather, such intent need only be expressed in "words that fairly convey that intention." State v. Zornes, 78 Wash.2d at 13, 475 P.2d 109; State v. Grant, 89 Wash.2d 678, 683, 575 P.2d 210 (1978). The Court has twice used the exception in the saving statute to allow new legislation to control pending criminal cases. In State v. Zornes, the court reversed and dismissed the defendants' convictions under the Narcotic Drug Act for possession of marijuana. While the appeals were pending, an amendment to the Act became effective stating that "the provisions of this chapter shall not ever be applicable to any form of cannabis." Zornes, 78 Wash.2d at 11,475 P.2d 109 (italics in original). From the words "not ever" preceding the words "be applicable", the Court found it could be reasonably inferred that the Legislature intended the amendment to apply to pending cases as well as those arising in the future. Zornes, 78 Wash.2d at 13-14, 26,475 P.2d 109. In State v. Grant, a new act provided that "intoxicated persons may not be subjected to criminal prosecution solely because of their consumption of alcoholic beverages". Grant, 89 Wash.2d at 682,575 P.2d 210. Finding this language to be a fair expression of legislative intent so as to avoid the default rule of the saving statute, the Supreme Court dismissed a charge of being intoxicated upon a public highway in a case that was pending before the new statute became effective. State v. Grant, 89 Wash.2d at 684, 575 P.2d 210.

As a general rule, a statutory amendment, if it is clearly curative or remedial, will be applied...