State v. Keller
| Decision Date | 22 March 2001 |
| Docket Number | No. 68993-8.,68993-8. |
| Citation | 19 P.3d 1030,143 Wash.2d 267 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Lawrence John KELLER, Petitioner. |
Suzanne Lee Elliott, Seattle, amicus curiae on behalf of Washington Ass'n of Criminal Defense Lawyers.
Lawrence J. Keller, Walla Walla, Carney, Badley, Smith & Spellman, Kenneth Scott Kagan, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Stephen Gerard Teply, Deputy, Amy Jean Freedheim, Deputy, James Morrissey Whisman, Deputy, Seattle, for Respondent.
Petitioner Lawrence John Keller seeks review of a decision of the Court of Appeals, Division One, which affirmed his conviction in the King County Superior Court for vehicular assault under former RCW 46.61.522(1)(b) and felony hit and run under RCW 46.52.020.1 Petitioner was determined to be a persistent offender with three "strikes," thus subjecting him to the penalty of life imprisonment under the Persistent Offender Accountability Act (Persistent Offender Act).2 The Court of Appeals concluded the phrase "included in the offender score under [former] RCW 9.94A.360" in former RCW 9.94A.030(25)(b) refers specifically to the "washout" provision in former RCW 9.94A.360(2), and thus Petitioner's two prior felony convictions would be included as "strikes" under the Persistent Offender Act. This court granted review limited to the persistent offender issue. We affirm.
The question presented in this case is whether two prior felony convictions which count as one offense in the calculation of an offender score because the sentences were served concurrently may nevertheless be counted as two prior convictions in determining "strikes" under the Persistent Offender Act.
Petitioner Lawrence John Keller on December 21, 1994 was charged by information in the King County Superior Court with one count of vehicular assault under former RCW 46.61.522(1)(b) and on May 16, 1996 by amended information with one count of vehicular assault under former RCW 46.61.522(1)(b), a class C felony; one count of hit and run—felony under RCW 46.52.020(4), a class C felony; and one count of assault in the second degree under former RCW 9A.36.020(1)(f), repealed by Laws of 1986, ch. 257, § 9, a class B felony. The charges arose out of an automobile collision in Seattle, Washington on October 16, 1994.3
On August 5, 1995 Petitioner was found "guilty" of hit and run—felony and assault in the second degree.4 On August 6, 1995 a mistrial was declared because of prosecutorial misconduct and a new trial was ordered.5 In the retrial, the jury on January 8, 1996 found Petitioner Keller "guilty" of vehicular assault under former RCW 46.61.522(1)(b) and felony hit and run under RCW 46.52.020.6
At the sentencing hearing on February 18, 1997, the trial court, the Honorable Joan E. DuBuque, concluded it was established by the State that Petitioner "had two prior convictions, and that they ... qualify under the Persistent Offender Act...."7 The court then indicated its intention to impose sentence as follows:
In Count I, in accordance with the law, the Court is going to impose the sentence of life imprisonment, without the possibility of parole, or early release .... [and Petitioner] is to be given credit for time served of three hundred seventy days.[8]
Petitioner was previously convicted of second degree assault in Washington in 1979 and convicted of aggravated assault in Arizona in 1983. He served his sentences in those cases concurrently.9 The trial court counted Petitioner's two prior convictions as "two strikes"10 and this vehicular assault conviction as a "third strike" under the Persistent Offender Act. The court on February 18, 1997 signed a judgment and sentence finding that petitioner was a persistent offender and sentencing him to life in prison without early release.11 Petitioner appealed the decision to the Court of Appeals, Division One, on February 21, 1997.12
Under the Persistent Offender Act, former RCW 9.94A.030(25) stated that an offense would be considered a "strike" only if it "would be included in the offender score under RCW 9.94A.360."13 Petitioner claims this phrase refers to the entire statute, including former RCW 9.94A.360(6)(c), which contained language that "[i]n the case of multiple prior convictions committed before July 1, 1986, for the purpose of computing the offender score, [the sentencing court must] count all adult convictions served concurrently as one offense...."14 Petitioner claims that since the sentences for his two prior felony convictions were served concurrently, they should only count as "one strike" under the Persistent Offender Act.15 Respondent State of Washington asserts the phrase in the Act refers only to subsection (2), the "washout" provision of RCW 9.94A.360.16 Respondent argues that Petitioner's two prior felony convictions should count as "two strikes," even though the sentences were served concurrently, because neither of them "washed out" under RCW 9.94A.360(2) which provides, in part, "Class A and sex prior felony convictions shall always be included in the offender score."17
On December 13, 1999, the Court of Appeals, the Honorable Ronald E. Cox writing, affirmed the trial court's decision and held "the phrase `included in the offender score under [former] RCW 9.94A.360' as used in former RCW 9.94A.030(25) refers specifically to the washout provisions set forth in former RCW 9.94A.360(2)"18 and that "[t]he phrase is not interchangeable with the provisions of former RCW 9.94A.360(6)(c)." The Court of Appeals agreed with the trial court and concluded Petitioner Keller's prior felony convictions counted as two strikes and that he was a persistent offender under the Persistent Offender Act.19
On December 30, 1999 Petitioner filed a motion for discretionary review in this court. On June 30, 2000, this court granted review limited to the persistent offender issue.20
Former RCW 9.94A.030(25) provided:
(25) "Persistent offender" is an offender who:
Under RCW 9.94A.120(4) "[a] persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole" unless sentenced to death under RCW 10.95.030.
Petitioner claims the phrase "would be included in the offender score under RCW 9.94A.360" applies to the entire Sentencing Reform Act of 1981, including former RCW 9.94A.360(6)(c), which read:22
In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.
Petitioner claims that since the sentences under his two prior felony convictions were served concurrently and counted as only one conviction for the purpose of computing his offender score, under former RCW 9.94A.360(6)(c) those convictions should count only as one "strike" under the Persistent Offender Act.23 Respondent argues the words "one offense" in subsection (c) refer to the "washout" provision of former RCW 9.94A.360(2).24 Respondent reasons that Petitioner's two prior felony convictions, the sentences for which were served concurrently, should count as two "strikes" under the Persistent Offender Act unless they were "washed out" under subsection (2).25
The "wash out" portion of the offender score statute in former RCW 9.94A.360(2) and the out-of-state conviction section in (3) read:
(2) Except as provided in subsection (4) of this section, class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without being convicted of any felonies. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies. Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without being convicted of any serious traffic or felony traffic offenses. This subsection applies to both adult and juvenile prior convictions.
(3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.
The Court of Appeals affirmed the decision of the trial court, which concluded the "one offense" language in former RCW 9.94A.360(6)(c) refers only to the "wash out" provision of former RCW 9.94A.360 and sentenced Peti...
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