State v. McGee
| Decision Date | 09 December 1993 |
| Docket Number | No. 59910-6,59910-6 |
| Citation | 864 P.2d 912,122 Wn.2d 783 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Earic McGEE, Petitioner. En Banc |
Washington Appellate Defender's Ass'n, Lorraine Lee, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Michael J. Lang, Deputy, Seattle, for respondent.
Gene M. Grantham, Seattle, amicus curiae, for petitioner on behalf of Washington Ass'n of Crim. Defense Lawyers.
Defendant McGee appeals the 24-month sentence enhancement imposed by the trial court pursuant to RCW 9.94A.310(5), which provides:
An additional twenty-four months shall be added to the presumptive sentence for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.
At the time of the offense here at issue, RCW 69.50.435(a) provided:
Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection to a person in a school ... or within one thousand feet of the perimeter of the school grounds is punishable by a fine of up to twice the fine otherwise authorized ... or by imprisonment of up to twice the imprisonment otherwise authorized ... or by both such fine and imprisonment.
Both the trial court and the Court of Appeals ruled RCW 69.50.435(a) does not require the State to prove the intended delivery site was within 1,000 feet of a school. We affirm.
In May 1990, police arrested McGee in a parking lot adjacent to the China Express Restaurant in Seattle. Just prior to the arrest, police observed three separate transactions in which McGee exchanged white objects for cash. During a search incident to the arrest, police discovered in McGee's possession a pill bottle containing 7.7 grams of rock cocaine and $91 in currency.
At trial, McGee testified he had purchased the cocaine two days before his arrest, using money he and three friends had pooled together. McGee denied selling any of the cocaine to other people, insisting he merely intended to give his friends their shares (presumably at a location outside the school zone). The jury found McGee guilty of possession with intent to deliver a controlled substance in violation of RCW 69.50.401(a). In addition, the jury found McGee was within 1,000 feet of three different schools at the time of the offense.
The trial court assigned McGee an offender score of 1, and calculated the presumptive range, including the schoolyard penalty, as 50-to-58 months. The trial court sentenced McGee to 40 months total confinement, to run concurrently with a second sentence for possession of a controlled substance. The State did not challenge the trial court's imposition of an exceptionally low sentence.
McGee appealed his conviction, raising evidentiary issues and an ineffective assistance of counsel claim, and challenging the trial court's interpretation of RCW 69.50.435(a). In an unpublished decision, the Court of Appeals affirmed both the conviction and the sentence enhancement. In his petition for review, McGee presented only the issue related to the proper interpretation of RCW 69.50.435(a). We granted permission to the Washington Association of Criminal Defense Lawyers (WACDL) to file a brief as amicus curiae, 121 Wash.2d 1001, 848 P.2d 1263.
McGee contends the wording of RCW 69.50.435(a) is ambiguous. According to McGee, the statute does not clearly indicate which terms the phrase "within one thousand feet of the perimeter of the school grounds" modifies. Omitting those words not directly relevant to this case, RCW 69.50.435(a) reads:
Any person who violates RCW 69.50.401(a) by ... possessing with the intent to ... deliver a controlled substance ... to a person ... within one thousand feet of the perimeter of the school grounds is punishable [by twice the otherwise authorized fine or imprisonment or both].
(Italics ours.) McGee argues the phrase "within one thousand feet" modifies either the verb "deliver" or the terms "to a person". McGee bases this contention on the last antecedent rule, which states:
Where no contrary intention appears in a statute, relative and qualifying words and phrases ... refer to the last antecedent.
Boeing Co. v. Department of Licensing, 103 Wash.2d 581, 587, 693 P.2d 104 (1985) (quoting Davis v. Gibbs, 39 Wash.2d 481, 483, 236 P.2d 545 (1951)).
The State, on the other hand, asserts the phrase "within one thousand feet" modifies the two initial words of the statute: "Any person". The State contends RCW 69.50.435(a) targets certain behavior, and thus, the proper antecedent of the phrase "within one thousand feet" is the subject of the sentence, i.e., "any person", and not the object, i.e., "to a person".
With respect to the analogous federal statute, 21 U.S.C. § 860 (formerly section 845a(a)), which provides an enhanced penalty for:
Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a ... school....
(see 21 U.S.C.A. § 860 (Supp.1993)) three federal circuit courts have determined the verb "possessing" serves as the antecedent for the phrase "within one thousand feet". United States v. McDonald, 991 F.2d 866 (D.C.Cir.1993); United States v. Rodriguez, 961 F.2d 1089 (3rd Cir.1992); United States v. Wake, 948 F.2d 1422 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2944, 119 L.Ed.2d 569 (1992).
McGee contends, because RCW 69.50.435(a) is subject to differing interpretations, the statute is ambiguous, and thus, the rule of lenity applies. Under the rule of lenity, the court must adopt the interpretation most favorable to the criminal defendant. State v. Roberts, 117 Wash.2d 576, 586, 817 P.2d 855 (1991). According to McGee, RCW 69.50.435(a) therefore must be read to require the State to prove the intended delivery site was within the school zone.
We disagree. A statute is ambiguous if it is subject to two or more reasonable interpretations. See State v. Garrison, 46 Wash.App. 52, 54, 728 P.2d 1102 (1986); cf. McDonald v. State Farm Fire & Cas. Co., 119 Wash.2d 724, 733, 837 P.2d 1000 (1992) (). We can discern only one reasonable interpretation of the language at issue. We find McGee's alternative constructions unreasonable and therefore conclude RCW 69.50.435(a) is not ambiguous. As a result, we need not apply the rule of lenity.
RCW 69.50.435(a) mandates an enhanced penalty for "[a]ny person who violates RCW 69.50.401(a) ... within one thousand feet of the perimeter of the school grounds". This reading omits the interim phrase "by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection to a person". The preposition "by", which begins the omitted phrase, indicates the succeeding enumerated actions merely constitute the manner in which RCW 69.50.401(a) may be violated. See Webster's Third New International Dictionary 307 (1971) (defining "by" as "through the means or instrumentality of"). Thus, the omitted phrase lacks independent significance.
RCW 69.50.435(a) does not itself criminalize manufacturing, delivering, or possessing a controlled substance; it merely imposes an additional penalty for violating RCW 69.50.401(a) within a school zone. Hence, we conclude the phrase "within one thousand feet of the perimeter of the school grounds" modifies the terms "violates RCW 69.50.401(a)". See Commonwealth v. Roucoulet, 413 Mass. 647, 601 N.E.2d 470 (1992); State v. Ivory, 124 N.J. 582, 592 A.2d 205 (1991). RCW 69.50.401(a) does not require an intent to deliver within a particular area, only an intent to deliver. We therefore hold RCW 69.50.435(a) does not require the State to prove the intended delivery site was within 1,000 feet of the perimeter of a school ground.
We find McGee's alternative interpretations unreasonable. McGee's contention the phrase "within one thousand feet" modifies the infinitive verb "to deliver" lacks merit because it ignores the other verbs in the sentence, i.e., manufacturing, selling, and delivering, thereby rendering the entire provision meaningless. As one commentator explains:
The [last antecedent] rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections the word or phrase will not be restricted to its immediate antecedent.
(Footnote omitted.) 2A N. Singer, Sutherland on Statutory Construction § 47.33, at 270 (5th ed. 1992).
McGee's argument the phrase "within one thousand feet" modifies the phrase "to a person" is likewise flawed. McGee relies on State v. Wimbs, 68 Wash.App. 673, 847 P.2d 8 (1993), in which Division Three held RCW 69.50.435(a) requires proof the intended situs of the prospective drug purchaser was within the protected school zone. Wimbs, 68 Wash.App. at 679, 847 P.2d 8. The Wimbs court reasoned:
[A]s the State points out, RCW 69.50.435 is susceptible to more than one interpretation because to require proof of "manufacture to a person" would be absurd.... The phrase "to a person" is meaningful and not superfluous only if it is included in the phrase "possessing with intent to ... deliver ... to a person". Consistent with the last antecedent rule, ... the phrase "possessing with intent to ... deliver ... to a person" is qualified by the phrase "within one thousand feet of the perimeter of the school grounds". The latter phrase also refers to manufacturing or selling or delivering.
(Citations omitted.) Wimbs, 68 Wash.App. at 678, 847 P.2d 8. We find...
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