State v. McCarthy
| Decision Date | 03 June 2002 |
| Docket Number | No. 47819-2-I.,47819-2-I. |
| Citation | 112 Wash.App. 231,48 P.3d 1014 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Appellant, v. Dennis Victor McCARTHY, Respondent, John Douglas Hopkins, and Jeffrey James Keys, aka Jeffrey Kyes, and each of them, Defendants. |
Ann Marie Summers, Deborah A. Dwyer, King County Prosecutor's Office, Seattle, for Appellant.
David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, for Respondent.
Following Dennis McCarthy's conviction for delivery of heroin, a dispute arose as to whether his prior conviction for solicitation to deliver heroin should count as one or three points in his offender score. The sentencing court scored the offense as one point, rejecting the State's argument that our decision in State v. Howell1 controlled. The State appeals, arguing that the scoring conflicts with Howell. We reverse and remand for resentencing.
McCarthy pled guilty to delivery of heroin. At sentencing, the parties disagreed on how to score his prior conviction for solicitation to deliver heroin. Citing State v. Howell and the scoring provisions of RCW 9.94A.360, the State argued that the prior conviction should count as three points. McCarthy countered that the conviction should be scored as one point under the Supreme Court's decision in In re Personal Restraint of Hopkins.2 Based on its own interpretation of the scoring statutes, the superior court counted the conviction as one point and imposed a standard range sentence.
The sole issue on appeal is whether the sentencing court erred in counting McCarthy's prior solicitation conviction as one point. We review the court's scoring decision de novo.3
The issue presented turns on the meaning of the scoring statutes we interpreted in Howell. RCW 9.94A.360(12) directs that when, as here, the defendant's "present conviction is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense." (Emphasis added.) When the present conviction "is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense." RCW 9.94A.360(6); see also former RCW 9.94A.410.4 Similarly, if the prior convictions are for felony anticipatory offenses, they are scored "the same as if they were convictions for completed offenses." RCW 9.94A.360(4) (emphasis added); see also former RCW 9.94A.410. McCarthy contends his prior conviction for solicitation to deliver is not a "drug offense," and therefore the tripling statute, RCW 9.94A.360(12), does not apply. We addressed and rejected a similar argument in Howell.
In Howell, the defendants pled guilty to solicitation to deliver cocaine.5 At sentencing, they argued that their prior drug convictions should be scored as one point, not three, because their current offenses were not drug offenses. Noting that a "drug offense" is defined as a "felony violation of [RCW] 69.50,"6 they pointed to the holding in Hopkins that, for purposes of the doubling requirement in RCW 69.50.408(a), a conviction for solicitation to deliver was not a "drug offense" under RCW 69.50.7 If a solicitation conviction was not a "drug offense" under RCW 69.50, they reasoned, then it was not a "drug offense" under RCW 9.94A.360(12) for the purpose of triple scoring a prior drug offense. They further argued that RCW 9.94A.360(12) conflicts with RCW 9.94A.360(6) and that the resulting ambiguity required application of the rule of lenity.
In rejecting those arguments, we first distinguished Hopkins, noting that it only addressed whether solicitation to deliver is a drug offense under RCW 69.50.8 We then stated:
Although the issue in this case is whether a prior, rather than a current, solicitation conviction is "drug offense" under RCW 9.94A.360(12), Howell's reasoning applies equally here. RCW 9.94A.360(4) plainly directs that courts score prior anticipatory offenses "as if they were convictions for completed offenses." Thus, McCarthy's prior conviction for solicitation to deliver must be scored as a completed delivery. Since the latter is a "drug offense,"10 it is subject to the tripling requirement in RCW 9.94A.360(12).
McCarthy challenges Howell's conclusion that the scoring statutes are unambiguous, arguing that they are subject to more than one reasonable interpretation. But he offers no alternative explanation that would give effect to RCW 9.94A.360(6) and former 9.94A.410. We adhere to our holding in Howell.
We also reject McCarthy's contention that Howell conflicts with Hopkins. As we pointed out in Howell, Hopkins involved RCW 69.50.408(a), a part of the Uniform Controlled Substances Act. Howell addressed a completely different issue under the SRA scoring rules in RCW 9.94A.360.
McCarthy argues that Howell also conflicts with this court's decision in State v. Becker.11 He points out that in resolving an analogous statutory conflict, the Becker court considered the comments of the Sentencing Guidelines Commission and applied a rule of statutory construction. Because Howell did not consider the Commission's comments or apply the rule of construction, McCarthy contends it conflicts with Becker. But Becker mentioned those aids in an alternative analysis that assumed the statutes could not be harmonized.12 As discussed above, the statutes at issue in Howell can be harmonized. Becker and Howell do not conflict.
Finally, McCarthy contends in a supplemental filing that a 2002 amendment13 to the tripling provision in RCW 9.94A.525(12) is remedial and applies retroactively.14 But absent language indicating a contrary intent, an amendment to a penal statute—even a patently remedial one—must apply prospectively under RCW 10.01.040.15 The amendment at issue expressly states that it "applies to crimes committed on or after July 1, 2002."16 Nothing in the amendment suggests that the Legislature intended the statute to apply retroactively. Accordingly, the amendment applies prospectively only.
Contrary to McCarthy's assertions, this result does not violate equal protection. Although equal protection problems may arise when a law is applied retroactively to some persons but not to others,17 equal protection is generally not implicated by the prospective application of a new law.18 In addressing equal protection challenges to new criminal sentencing laws, courts have typically applied a rational basis standard and have had little trouble finding rational bases for applying such laws prospectively only.19 Here, the interests of finality and the principles underlying our saving statute, RCW 10.01.040, provide a rational basis for the prospective application of the challenged amendment.20
McCarthy's claim that Grant County Fire Protection District No. 5 v. City of Moses Lake, 145 Wash.2d 702, 42 P.3d 394 (2002), requires heightened scrutiny in this case is meritless. In that case, the majority held that our state constitution provides greater protection than the federal equal protection clause "when the threat is not of majoritarian tyranny but of a special benefit to a minority and when the issue concerns favoritism rather than discrimination." 42 P.3d at 408. The amendment at issue here does not confer a "special benefit" to a minority or amount to favoritism. It is simply a change in the law that applies equally to those who commit crimes after its effective date. Furthermore, the level of scrutiny applied in Grant County is not applicable here because no fundamental right is at stake.21
In conclusion, McCarthy's prior solicitation conviction should have been scored as three points instead of one. Accordingly, we reverse and remand for resentencing.
3. "The question of whether a sentencing court has miscalculated the defendant's offender score is a question of law that is reviewed de novo." Howell, 102 Wash.App. at 292, 6 P.3d 1201.
4. Former RCW 9.94A.410 was effective until July 1, 2001.
6. RCW 9.94A.030(19).
9. Howell, 102 Wash.App. at 295, 6 P.3d 1201 (emphasis omitted).
10. RCW 9.94A.030(19).
12. Becker, 59 Wash.App. at 852-54, 801 P.2d 1015. The rule of construction mentioned in Becker applies only when an apparent conflict between statutes cannot be harmonized. Becker, 59 Wash.App. at 852, 801 P.2d 1015. See also In re Estate of Kerr, 134 Wash.2d 328, 335, 343, 949 P.2d 810 (1998)
.
14. We grant McCarthy's request for permission to file the supplemental brief but deny his motion for oral argument.
15. State v. Kane, 101 Wash.App. 607, 610-15, 5 P.3d 741 (2000). RCW 10.01.040 provides in pertinent part, "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,...
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