State v. Smith

• Decision Date: 06 September 2001
• Docket Number: No. 70685-9., No. 70683-2, No. 70610-7
• Citation: 144 Wash.2d 665,30 P.3d 1245
• Parties: STATE of Washington, Respondent, v. Rodney A. SMITH, Appellant. State of Washington, Respondent, v. Devaughn C. Dorsey, Appellant. STATE of Washington, Respondent, v. Michael W. Lowe, Petitioner. State of Washington, Respondent, v. George A. Hendricks, Petitioner.
• Court: Washington Supreme Court

30 P.3d 1245

144 Wash.2d 665

STATE of Washington, Respondent, v. Rodney A. SMITH, Appellant.

State of Washington, Respondent, v. Devaughn C. Dorsey, Appellant.

STATE of Washington, Respondent, v. Michael W. Lowe, Petitioner.

State of Washington, Respondent, v. George A. Hendricks, Petitioner.

Nos. 70683-2, 70610-7, 70685-9.

Supreme Court of Washington, En Banc.

Argued May 24, 2001.

Decided September 6, 2001.

Nielsen, Broman & Associates, James Robert Dixon, Eric Broman, Kevin R. Cole, Kathryn Allison Russell, Washington Appellate Project, Gregory Charles Link, Seattle, Crawford, McGilliard, Joanne E. Dantonio, Port Orchard, for Appellant.

George Hendricks, Shelton, pro se.

Russell Hauge, Kipsap County Prosecutor, Randall Avery Sutton, Deputy County Prosecutor, Gerald Home, Pierce County Prosecutor, Kathleen Proctor, Deputy County Prosecutor, Norm Maleng, King County Prosecutor, Douglas Koons Young, Deputy County Prosecutor, James Morrissey Whisman, Deputy County Prosecutor, Erin Elisabeth Ehlert, Deputy County Prosecutor, for Respondent.

JOHNSON, J.

The principal issue in this consolidated case is whether the 1997 amendment to juvenile "wash-out" provisions of the Sentencing Reform Act of 1981 (SRA)¹ applies retroactively so as to revive appellants' previously "washed out" juvenile felony adjudications for purposes of calculating offender scores for their current offenses. We find the 1997 amendment is not retroactive and remand all four individual cases for resentencing. Additionally, Dorsey raises several unrelated challenges to his conviction. We find no merit in these additional challenges.

I. RETROACTIVITY

Facts

On February 18, 1999, Rodney Smith (Smith) pleaded guilty to one count of unlawful possession of cocaine. When calculating his offender score for this crime, the sentencing court included five prior juvenile felony adjudications that had washed out in 1991 when he reached age 23.

On August 19, 1999, Devaughn Dorsey (Dorsey) was convicted of attempting to elude a police officer and driving with a suspended license. When calculating his offender score, the sentencing court included four prior juvenile felony adjudications that had washed out in 1996 when he reached age 23.

On November 18, 1998, Michael Lowe (Lowe) pleaded guilty to one count of taking a motor vehicle without the owner's permission, one count of attempting to elude police, and two counts of third degree assault. When calculating his offender score, the sentencing court included four prior juvenile felony adjudications that had previously washed out because they occurred before he reached age 15.

On July 12, 1999, George Hendricks (Hendricks) pleaded guilty to attempted assault in the second degree. When calculating his offender score, the sentencing court added points for four prior juvenile adjudications that had previously washed out because they occurred before he reached age 15.

Each appellant independently appealed his sentence on the grounds the washed out convictions should not have been counted when calculating the offender score for the current offense(s). The Court of Appeals, Division One, consolidated Smith's and Dorsey's cases and transferred the appeals to this court for review of the following issue:

The principle [sic] issue in these cases concerns the proper computation of offender scores based upon subsequent legislative amendments to juvenile felony "wash-out" provisions. After the decision in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), the Washington State Legislature amended chapter 9.94A RCW, effective June 8, 2000, in response to the Cruz decision. Should that amendment be given retroactive effect in these cases?

Order Consolidating Cases and Order of Certification at 1 (Wash.Ct.App. Jan. 31, 2001). This court accepted review.

Meanwhile, the Court of Appeals, Division Two, consolidated Lowe's and Hendricks' cases and heard argument. The Court of Appeals affirmed appellants' sentences. State v. Hendricks, 103 WasLApp. 728, 14 P.3d 811 (2000). Lowe and Hendricks petitioned this court for review. We accepted review and consolidated all four cases.

Analysis

In general, when sentencing a defendant under the SRA, the court must calculate a defendant's "offender score" in part based on his or her "criminal history." RCW 9.94A.360; RCW 9.94A.030. Since the enactment of the SRA in 1981, the Legislature has amended the definition of "criminal history" several times regarding the use of prior juvenile adjudications at sentencing. Prior to 1997, "criminal history" was defined as including: a defendant's other prior convictions in juvenile court if: (i) The conviction was for an offense which is a felony or a serious traffic offense and is criminal history as defined in RCW 13.40.020(9); (ii) the defendant was fifteen years of age or older at the time the offense was committed; and (iii) with respect to prior juvenile class B or C felonies or serious traffic offenses, the defendant was less than twenty-three years of age at the time the offense for which he or she is being sentenced was committed.

Former RCW 9.94A.030(12)(b) (1996). This meant juvenile felonies washed out after an offender reached age 23, and juvenile felonies committed when a defendant was less than age 15 were not included in calculating a subsequent offender score.

In 1997, the Legislature amended former RCW 9.94A.030(12)(b) (1996) to include all prior juvenile adjudications in a defendant's criminal history. Laws of 1997, ch. 338, § 2 (1997 amendment). The appellants here argue the 1997 amendment does not apply retroactively and the previously washed out juvenile adjudications cannot be revived for purposes of calculating offender scores for their current offenses. The State counters that the 1997 amendment does apply retroactively because in 2000 the Legislature amended the SRA to make the sentencing provisions retroactive.

While we have not specifically reviewed the 1997 amendment as it pertains to the juvenile wash-out provisions, we reviewed a similar issue in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999). At issue in Cruz was whether the 1990 SRA amendments to the juvenile wash-out provision for sex offenders applied retroactively. Prior to 1990, juvenile sex offenses washed out if an offender spent 10 years in the community without another felony conviction. See former RCW 9.94A.360(4) (1988). In 1990, this provision was deleted from the statute. The effect of the 1990 amendments was significant in Cruz' case because his criminal record included a juvenile adjudication for a sex offense that had washed out prior to 1990. In 1994, when Cruz was sentenced for the new offense, the sentencing court included Cruz' prior adjudication as part of his criminal history even though it had washed out. Cruz challenged his sentence on the grounds the 1990 amendments were not retroactive and, therefore, the sentencing court could not factor in his prior adjudication when calculating his offender score. We agreed.

Using standard rules of statutory construction, we explained the 1990 amendments could apply retroactively only if: (1) the Legislature so intended; (2) the amendments were "curative"; or (3) the amendments were remedial. Cruz, 139 Wash.2d at 191, 985 P.2d 384. After determining none of these factors existed, we concluded the 1990 amendments applied prospectively only. Therefore, Cruz' previously washed out adjudication could not be factored into his offender score for the 1994 offense. Cruz, 139 Wash.2d at 193, 985 P.2d 384.

In 2000, the Legislature responded to our decision in Cruz by enacting RCW 9.94A.345. Laws of 2000, ch. 26, § 2. This statute states: "Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.345. On its face, this language does not implicate Cruz. However, the Legislature also included the following statement in the statutory note:

"RCW 9.94A.345 is intended to cure any ambiguity that might have led to the Washington supreme court's decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual's offender Score should be determined by the law in effect on the day the current offense was committed. RCW 9.94A.345 is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives."

RCW 9.94A.345 Intent—2000 c 26. The State asks us to find in this language a clear legislative intent that the 1997 amendment applies retroactively. We cannot. Although this statement perhaps indicates a general legislative discontent with our holding in Cruz, there is nothing demonstrating an intent for the retroactive application of the 1997 amendment.

RCW 9.94A.345 does not contain an explicit legislative command that the 1997 amendment applies retroactively. As we stated in Cruz, any legislative intent that a statute applies retroactively must be in the form of an explicit legislative command. Cruz, 139 Wash.2d at 193,985 P.2d 384. Had the Legislature intended to make the 1997 amendment retroactive, it should have stated that intention directly and unambiguously. It did not. RCW 9.94A.345 merely directs us to apply "the law in effect when the current offense was committed." The issue in Cruz, and in this case, is whether the law in effect when the current offense was committed is retroactive or prospective. RCW 9.94A.345 offers no guidance in answering this. Therefore, we look to the language of RCW 9.94A.030 alone to determine whether the 1997 amendment applies retroactively to revive appellants' previously washed out juvenile adjudications.

We begin our statutory analysis with a presumption an amendment is prospective. The presumption against retroactive application of a statute or amendment "`is an essential thread in the mantle of protection that the...