State v. Walsh, 50972-5-II
| Decision Date | 21 May 2019 |
| Docket Number | No. 50972-5-II,50972-5-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TIMOTHY PATRICK WALSH, Appellant. |
WORSWICK, J. — Timothy Patrick Walsh appeals his sentence for felony driving while under the influence (DUI) following a guilty plea. Walsh argues that the sentencing court erred by determining his standard sentence range using the seriousness level in effect at the time he committed the crime instead of the one in effect at the time he was sentenced. He argues that the legislature's 2017 amendment to the seriousness-level table should be retroactively applied to crimes committed before the amendment was in effect. We disagree, and affirm Walsh's sentence.
On April 20, 2017, the legislature approved Senate Bill 5037, which, in part, reenacted and amended former RCW 9.94A.515 (2016). RCW 9.94A.515 provides the seriousness level of various crimes. LAWS OF 2017, ch. 335, § 4. In relevant part, Senate Bill 5037 downgraded the seriousness level of the crime of felony DUI1 from a seriousness level V to a seriousness levelIV. LAWS OF 2017, ch. 335, § 4. RCW 9.94A.515 is titled "Table 2—Crimes included within each seriousness level." (Capitalization omitted.) This statute is merely a list that categorizes crimes by seriousness level. Former RCW 9.94A.515 listed felony DUI as a seriousness level V. Senate Bill 5037, as relevant here, reads as follows:
Driving While Under the Influence (RCW
LAWS OF 2017, ch. 335, § 4 (at 1468-80). Felony DUI was classified as a class B felony under former RCW 46.61.502(6) (2016), and remained a class B felony under the legislature's amendments. LAWS OF 2017, ch. 335, § 1.
On May 7, Walsh was arrested for driving under the influence. On May 16, the governor signed Senate Bill 5037. LAWS OF 2017, ch. 335 § 5. On May 18, the State charged Walsh withfelony DUI under RCW 46.61.502(6)(b)(ii).2 On July 23, Senate Bill 5037 became effective. LAWS OF 2017, at 5. On August 9, Walsh pleaded guilty. And on October 5, Walsh was sentenced.
Based on Walsh's offender score of 7,3 and the crime's seriousness level V, which was in effect at the time of the offense, Walsh's standard range was 51 to 68 months.4 The superior court sentenced Walsh to 68 months. Walsh appeals.
Walsh argues that because the 2017 amendment to former RCW 9.94A.515 should be applied retroactively, the trial court erred by sentencing him based on the seriousness level of felony DUI in effect on the date of the offense, instead of the level in effect on the date of sentencing.5 Specifically, he argues that (1) both the saving statute and RCW 9.94A.345 are inapplicable, (2) the Washington Supreme Court has "consistently recognized" that legislation that reduces culpability of criminal offenses must be applied retroactively to pending prosecutions, and (3) the amendment is remedial, and therefore it applies retroactively. Br. of App. at 5. We disagree.
Whether the legislature's 2017 amendment of former RCW 9.94A.515 applies retroactively to crimes committed before its effective date is a question of law. State v. Schenck, 169 Wn. App. 633, 642, 281 P.3d 321 (2012). We review questions of law de novo. Schenck, 169 Wn. App. at 642.
The superior court's authority to impose a sentence is derived from the Sentencing Reform Act (SRA) of 1981 and its amendments, codified at chapter 9.94A RCW. The standard sentencing range is set forth in a sentencing grid. RCW 9.94A.505, .510. The standard range is based on the offender score, which is calculated from the offender's prior and current criminal history, and the seriousness level of the offense, which is set by the legislature. See RCW 9.94A.510, .515. The standard sentencing range increases as the seriousness level and offender score increase. See RCW 9.94A.510. The 2017 amendment to former RCW 9.94A.515 decreased the seriousness level of felony DUI from V to IV. LAWS OF 2017, ch. 335, § 4.
The legislature has expressed its intent for individuals to be prosecuted and sentenced based on the law in effect at the time the offense was committed. State v. McCarthy, 112 Wn. App. 231, 238 n.20, 48 P.3d 1014 (2002), review denied, 148 Wn.2d 1011 (2003); State v. Kane, 101 Wn. App. 607, 618, 5 P.3d 741 (2000). RCW 10.01.040, commonly referred to as the saving statute states:
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act . . . . 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, notwithstanding such amendment or repeal, unless a contrary intention is expresslydeclared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
(Emphasis added.) And RCW 9.94A.345 states, "Any sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was committed."
The saving statute and RCW 9.94A.345 demonstrate the legislature's general intent for prospective application of amendments to the SRA. State v. Ross, 152 Wn.2d 220, 239 n.10, 95 P.3d 1225 (2004); Kane, 101 Wn. App. at 618. And the Supreme Court has "repeatedly held that sentencing courts must 'look to the statute in effect at the time [the defendant] committed the [current] crimes' when determining defendants' sentences." State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004) (alteration in original) (quoting State v. Delgado, 148 Wn.2d 723, 726, 63 P.3d 792 (2003)).
Accordingly, we presume that a statutory amendment to a penal statute applies prospectively, absent statutory language that demonstrates contrary legislative intent. Ross, 152 Wn.2d at 236-38; Kane, 101 Wn. App. at 611, 613. If a statutory amendment to a penal statute is silent as to intent for retroactive application, it will be given prospective application only. Kane, 101 Wn. App. at 611, 613. The pertinent question is whether the "new statute's express language" fairly conveys a legislative intent to depart from the saving statute's presumption. Kane, 101 Wn. App. at 614.
The 2017 amendment to former RCW 9.94A.515 contains no language demonstrating a legislative intent to apply the new seriousness-level table to crimes committed before the effective date. Thus, unless Walsh demonstrates some exception, the application of RCW10.01.040 and RCW 9.94A.345 compel the conclusion that the 2017 amendment to former RCW 9.94A.515 does not apply to crimes committed prior to its effective date. Kane, 101 Wn. App. at 618; see Ross, 152 Wn.2d at 238-40; McCarthy, 112 Wn. App. at 237.
Walsh argues that RCW 9.94A.515 applies prospectively, and that neither the saving statute, nor RCW 9.94A.345 apply. We disagree.
Walsh argues that the saving statute does not apply when the legislature downgrades the punishment for an offense or when the legislature enacts patently remedial legislation. Specifically, Walsh contends that our Supreme Court has recognized many "exceptions and contours" to this statute. Br. of App. at 14. Walsh's argument fails.
The saving statute presumptively saves offenses already committed from being affected by the amendment of criminal or penal statutes, unless a contrary intention is expressed in the amendatory act. Kane, 101 Wn. App. at 610, 613. "Through the years, our appellate courts have consistently applied the saving statute to preserve prosecutions carried on under a repealed statute where the new statute does not indicate a contrary intent." Kane, 101 Wn. App. at 612. Because the saving statute is in derogation of the common law, it is strictly construed and its exception is interpreted broadly. Kane, 101 Wn. App. at 612. But because it is so easy for the legislature to provide in express terms that legislation applies to pending litigation, Washington courts have found the exception to apply only three times.
In State v. Zornes, the court reversed and dismissed the defendants' convictions for possession of marijuana under RCW 69.33.410, the Uniform Narcotic Drug Act. 78 Wn.2d 9, 10, 26, 475 P.2d 109 (1970). While the appeals were pending, an amendment to the Act became effective stating that "the provisions of this chapter shall not ever be applicable to any form of cannabis." Zornes, 78 Wn.2d at 11. The court held that the amendment allowed a reasonable inference that the legislature intended the amendment to apply to pending cases as well as those arising in the future based on the words "not ever" preceding the words "be applicable." Zornes, 78 Wn.2d at 13-14.
In State v. Grant, the defendants were convicted of being intoxicated on a public highway. 89 Wn.2d 678, 681, 575 P.2d 210 (1978). After the date of the offense, but prior to being convicted, a new act became effective that provided that "intoxicated persons may not be subjected to criminal prosecution solely because of their consumption of alcoholic beverages." Grant, 89 Wn.2d at 682, 684. The court held that the act's language was a fair expression of legislative intent, sufficient to overcome the presumption of the...
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