State v. Richter
| Decision Date | 13 December 2022 |
| Docket Number | 55881-5-II |
| Citation | 521 P.3d 303 |
| Parties | STATE of Washington, Respondent, v. Randy Gene RICHTER, Appellant. |
| Court | Washington Court of Appeals |
Gregory Charles Link, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Ryan Paul Jurvakainen, Cowlitz County Prosecutor's Office, 312 Sw 1st Ave., Rm 105, Kelso, WA, 98626-1799, Sean M. Brittain, Cowlitz Co. Prosecutors Office, Hall Of Justice, 312 Sw 1st Ave., Kelso, WA, 98626-1739, for Respondent.
PUBLISHED OPINION
¶1 Randy Gene Richter was convicted of three counts of delivery of a controlled substance within 1,000 feet of a school bus route stop and one count of possession of a controlled substance with intent to deliver. The trial court imposed an exceptional upward sentence of 168 months based in part on former RCW 69.50.435(1)(c) (2003), which allowed the trial court to double statutory maximum sentences for drug offenses that occurred in certain locations.
¶2 Richter appeals his sentence, arguing that under his interpretation of the statutory language, this doubling did not apply to offenses within the school bus route stop zone. He also contends that his sentence violates due process under the reasoning in State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021), and that the former doubling statute was unconstitutionally vague. Finally, Richter argues, and the State concedes, that his offender score was miscalculated and the trial court erroneously imposed community custody supervision fees.
¶3 We reject Richter's statutory interpretation and constitutional arguments, but we agree that his offender score was miscalculated. Accordingly, we remand for the trial court to resentence Richter with a corrected offender score and to strike the supervision fees, but we otherwise affirm.
¶4 In summer 2013, Richter sold methamphetamine to a confidential informant in a series of three controlled buys. Richter was arrested in August 2013, and officers found methamphetamine and drug paraphernalia in his vehicle. The State charged Richter with three counts of delivery of a controlled substance, all with an aggravating factor that the delivery occurred within 1,000 feet of a school bus route stop, and one count of possession of a controlled substance with intent to deliver.
¶5 The transportation manager and district safety officer for the Longview School District testified during Richter's trial. He explained that in order to create school bus route stops, he and other school district staff "determine where needs are for bus stops and then ... create bus stops and assign buses to them." Verbatim Report of Proceedings (VRP) (Apr. 25, 2014) at 48. He also identified two bus stops that were close to the controlled buy location, and another witness identified the locations of the controlled buy and the bus stops on a map.
¶6 A jury convicted Richter of all charges and made special findings that the three deliveries of a controlled substance occurred within 1,000 feet of a school bus route stop.
¶7 The trial court calculated Richter's offender score as 28 due to multiple prior felony convictions and juvenile offenses. Thus, it imposed an exceptional sentence under the free crimes aggravator in RCW 9.94A.535(2)(c), which authorizes exceptional sentences when a defendant's high offender score would allow some of their current offenses to go unpunished. The trial court sentenced Richter to an exceptional upward sentence of 168 months for each of his four convictions, running concurrently.
¶8 The trial court added three 24-month school bus route stop zone enhancements for Richter's three delivery convictions, running consecutively to the other sentences and each other. The total confinement imposed was 240 months, which was double the statutory maximum sentence for each of Richter's crimes. See RCW 69.50.401(2)(b).1 The trial court justified a doubling of the statutory maximum sentence based on former RCW 69.50.408 (2003), which authorized such doubling on drug offenses if there were prior drug-related convictions on a defendant's record. Richter had several drug possession convictions on his record at the time of his first sentencing.
¶9 Richter appealed his sentence, and we held that his three 24-month school bus route stop zone enhancements were not required to run consecutively to one another. State v. Richter , No. 46297-4-II, slip op. at 14, 2016 WL 126402 (Wash. Ct. App. Jan. 12, 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2% 2046297-4-II% 20Unpublished% 20Opinion.pdf; see also State v. Conover , 183 Wash.2d 706, 718-19, 355 P.3d 1093 (2015). We remanded for resentencing. Richter , No. 46297-4-II, slip op. at 23.
¶10 At Richter's first resentencing, the trial court adjusted his three 24-month school bus route stop enhancements to run concurrently to each other. The total confinement imposed was 192 months.
¶11 In 2021, the Washington Supreme Court held in Blake that Washington's strict liability drug possession statute, former RCW 69.50.4013(1) (2017), violated due process and was therefore void. 197 Wash.2d at 174, 481 P.3d 521. As a result of this decision, the trial court vacated Richter's prior simple possession convictions and recalculated his offender score as 24. During resentencing, the State noted that Richter's offender score should be 24 rather than 23 because he "has a prior juvenile sex [offense] that counts as two points on these drug [convictions]." VRP (May 13, 2021) at 53.
¶12 Because Richter no longer had any prior drug convictions on his record, former RCW 69.50.408, which the trial court had previously used to double Richter's statutory maximum sentence, no longer applied. Instead, at this resentencing the trial court relied on former RCW 69.50.435(1)(c), the school bus route stop zone statute, to justify doubling Richter's statutory maximum sentence from 120 months to 240 months. When interpreting former RCW 69.50.435(1), the trial court acknowledged defense counsel's argument that this statute should not be read to allow doubling of the statutory maximum sentence in these circumstances. But the trial court ultimately determined that defense counsel's reading of the statute rendered much of the statutory language meaningless.
¶13 At this second resentencing, the trial court sentenced Richter to another exceptional sentence of 144 months for each of his three delivery convictions and 120 months on his possession with intent to deliver conviction, all running concurrently. In addition, it imposed three 24-month school bus route stop zone enhancements, running concurrently to each other. The total confinement imposed was 168 months. As in Richter's other sentencing hearings, the trial court justified the exceptional sentence under the free crimes aggravator. RCW 9.94A.535(2)(c). The trial court explained that the overall decrease in sentence was due to Richter's now lower offender score of 24 and his demonstrated efforts toward rehabilitation while imprisoned. The trial court also stated that it would "not impos[e] any other fees or costs" outside of the required $500 victim assessment.
¶14 Richter appeals his sentence.
¶15 RCW 69.50.401(1) provides that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." We apply the relevant sentencing statutes in effect at the time Richter committed the offenses at issue. State v. Schmidt , 143 Wash.2d 658, 673-74, 23 P.3d 462 (2001). The version of former RCW 69.50.435(1) in effect in 2013 allowed the statutory maximum sentence for RCW 69.50.401 violations to be doubled if the violations occurred in sufficient proximity to certain places, such as schools and school bus route stops. Specifically, former RCW 69.50.435(1) in effect in 2013 provided:
(Emphasis added.) The italicized language begins on a new line in this version of the statute. Former 69.50.435(1).
¶16 Richter argues that under the plain language of former RCW 69.50.435(1), statutory maximum sentence doubling only applied to the locations listed in (j), and the trial court erred when it doubled the statutory maximum for his sentence based on earlier subsection (c). The State contends that such a reading of the statute would produce an absurd result because grammatically, there would be no purpose to listing locations (a) through (i) if the doubling language did not apply to those subsections. We agree with the State.
¶17 We review questions of statutory interpretation de novo. State v. Wolvelaere , 195 Wash.2d 597, 600, 461 P.3d 1173 (2020). The primary goal of statutory interpretation is to "determine the legislature's intent." State v. Jacobs , 154 Wash.2d 596, 600, 115 P.3d 281 (2005). The plain language of the statute, the context of the statute, and the " ‘statutory scheme as a whole’ " are all the " ‘surest indication’ " of legislative intent. Wolvelaere , 195 Wash.2d at 600, 461 P.3d 1173 (internal quotation marks omitted) (quoti...
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