State v. Soto

• Decision Date: 22 August 2013
• Docket Number: No. 30121–4–III.,30121–4–III.
• Citation: 309 P.3d 596
• Parties: STATE of Washington, Respondent, v. David Aaron SOTO, Appellant.
• Court: Washington Court of Appeals

309 P.3d 596

STATE of Washington, Respondent,

v.David Aaron SOTO, Appellant.

No. 30121–4–III.

Court of Appeals of Washington, Division 3.

Aug. 22, 2013.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.

James Patrick Hagarty, Yakima County Prosecuting Attorney's Off., Yakima, WA, David Brian Trefry, Attorney at Law, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

SIDDOWAY, A.C.J.

¶ 1 This case presents a statutory construction issue of first impression: whether a sentencing court has the statutory authority to impose a firearm sentence enhancement on a defendant's sentence for conviction of an unranked felony. We conclude that RCW 9.94A.533, which provides for firearm and other sentence enhancements, applies only to ranked offenses.

¶ 2 We therefore reverse the firearm sentence enhancement and remand to the trial court for resentencing. With respect to the second issue raised by Mr. Soto, we direct the court to exclude from the judgment and sentence any finding of Mr. Soto's present or future ability to pay legal financial obligations and other expenses, since the record lacked support for such findings.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 David Soto was found guilty following a bench trial of animal cruelty in the first degree and unlawful possession of a firearm in the first degree. The court found that in committing the animal cruelty offense, Mr. Soto was armed with a firearm. It imposed an 18–month firearm enhancement to run consecutive to its concurrent sentences of 12 months for the animal cruelty conviction and 48 months for the firearm possession conviction.

¶ 4 Mr. Soto challenged the trial court's authority to impose a firearm enhancement on a conviction for animal cruelty, which is an unranked crime. The trial court rejected his argument, construing RCW 9.94A.533, which provides for the enhancement, as applying to all felonies, ranked or unranked.

¶ 5 The judgment and sentence imposed legal financial obligations in the amount of $3,700. The court found that Mr. Soto had the present or likely future ability to pay the financial obligations imposed and the means to pay for the costs of incarceration and any costs of medical care incurred while incarcerated. Mr. Soto appeals.

ANALYSIS

I

¶ 6 We first address the statutory construction issue raised by Mr. Soto in the trial court: Must the sentence for an unranked offense be increased based upon a finding that the offender was armed with a firearm in committing the offense?

¶ 7 The statute at issue is RCW 9.94A.533, entitled “Adjustments to standard sentences.” It provides for additional time to be added to the standard sentence ranges for certain crimes in the event of aggravating circumstances identified by the statute. Subsection (3) of the statute addresses additional time to be added to the standard sentence range for felony crimes if the offender was armed with a firearm.

¶ 8 The first subsection of RCW 9.94A.533 provides that “[t]he provisions of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or 9.94A.517.” RCW 9.94A.510 is the “Table 1” sentencing grid. Using the grid, a sentencing court determines the sentencing range and sentencing midpoints for an offender's conviction of a crime by finding the intersection of the offender's “offender score” (based on criminal history) and the “seriousness level” of his or her crime (from I to XVI). The “seriousness level” for most crimes recognized by Washington statutes is set forth in “Table 2,” codified at RCW 9.94A.515.

¶ 9 RCW 9.94A.517 is the drug offense sentencing grid. It similarly identifies the sentencing range for an offender's conviction of a drug offense based on an offender's offender score and the seriousness level of the drug offense.

¶ 10 The offense of animal cruelty in the first degree is defined by RCW 16.52.205(1)-(3). It is a class C felony. RCW 16.52.205(4). Mr. Soto was charged with animal cruelty by intentionally inflicting substantial pain on an animal, causing physical injury to an animal, and/or killing an animal by a means that caused undue suffering, a violation of RCW 16.52.205(1). No seriousness level has been assigned to that means of committing first degree animal cruelty. SeeRCW 9.94A.515. A standard sentence range therefore cannot be determined for that means of committing the offense from RCW 9.94A.510, the Table 1 sentencing grid, or from RCW 9.94A.517, the drug offense sentencing grid.¹

¶ 11 Where no seriousness level has been assigned to an offense the court determines the sentence by applying RCW 9.94A.505(2)(b), which provides:

If a standard sentence range has not been established for the offender's crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; a term of community custody under RCW 9.94A.702 not to exceed one year; and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement and a community custody term under RCW 9.94A.701 if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535.

¶ 12 “Unranked offense” is the term commonly applied to offenses that have not been assigned a seriousness level and whose standard sentencing range therefore cannot be determined on the Table 1 sentencing grid or drug offense sentencing grid. As observed by Division One of the Court of Appeals, “[t]he Sentencing Guidelines Commission recommends rankings to the legislature and does not recommend that all offenses be ranked: ‘The Commission decided not to rank certain felonies which seldom occur.... If, in the future, a significant number of persons are convicted of offenses not included in the Seriousness Level Table, the Commission will recommend appropriate seriousness levels to the Legislature for those crimes,’ ” In re Pers. Restraint of Acron, 122 Wash.App. 886, 890, 95 P.3d 1272 (2004) (quoting Wash. State Sentencing Guidelines Comm'n, Adult Sentencing Guidelines ManualL at 11–57 (1993)). Several hundredcrimes are presently unranked. Most are class C felonies. SeeWash. State Caseload Forecast Council, 2012 Washington State Adult Sentencing Guidelines ManualL § 5, at 92–101 (version 20121231).

¶ 13 Mr. Soto, relying on the expressly limited scope of RCW 9.94A.533 provided by its subsection (1), argues that the statute has no application to unranked offenses. Looking solely at subsection (1), he appears to be correct. The State successfully argued below and argues on appeal, however, that language appearing elsewhere in the statute creates an ambiguity that we should resolve by deferring to what it argues was legislative intent to increase the penalty for firearm use by an offender committing any felony.

¶ 14 The State points to subsection (3) of the statute, which deals in particular with firearm enhancements. It states in pertinent part:

(3) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm ...

(a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection;

(b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection;

(c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection.

RCW 9.94A.533 (emphasis added). The State argues that these repeated references to “any felony defined under any law as a ... felony” compels the conclusion that the legislature intended the enhancements to apply to all felonies, ranked or unranked.

¶ 15 The State next points out that a few crimes are exempted from the mandatory application of RCW 9.94A.533(3) by paragraph (3)(f), which provides:

(f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony.[[²

(Emphasis added.) Here again, the State argues, the statutory language “all felony crimes” must be read to apply uniformly to felonies.

¶ 16 The State finally points to subsection (6) of the statute, which provides increased time for controlled substances offenses that take place in the presence of children or near schools, public parks, or on or in certain public transit vehicles or facilities. Subsection (6) provides that additional time “shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.827.” RCW 9.94A.533(6) (emphasis added). The State argues that the reference to “ranked offense” would be superfluous if the scope of the statute was already limited to ranked offenses.

¶ 17 Sentencing is a legislative power, not a judicial power. State v. Bryan, 93 Wash.2d 177, 181, 606 P.2d 1228 (1980). A trial court's discretion to impose sentence is limited to that granted by the legislature. State v. Ammons, 105 Wash.2d 175, 713 P.2d 719, 718 P.2d 796 (1986). If the trial court exceeds its sentencing authority, its actions are void. State v. Phelps, 113 Wash.App. 347, 354–55, 57 P.3d 624 (2002). Statutory construction is a question of law and reviewed de novo. State v. Elmore, 154 Wash.App. 885, 904–05, 228 P.3d 760 (2010).

¶ 18 When interpreting a statute, “if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9–10, 43...