State v. AllenState v. Allen
¶ 1 Leif Allen appeals his two convictions of violating a no-contact order, arguing that reversal is required because his offenses did not include acts or threats of violence and because his two convictions violated his double jeopardy rights. He also argues that the trial court miscalculated his offender score and sentenced him beyond the statutory maximum. We affirm Allen‘s convictions but remand for resentencing.
Facts
¶ 2 On March 4, 2007, Aletta Foley checked her e-mail for the first time in about three weeks and found two messages from Allen. One was sent on February 12 and was the return of an e-mail she had sent him while they were dating, and the other was sent on February 14 and was an invitation to join a social networking website. At the time, there was a court order in place prohibiting Allen from having direct or indirect contact with Foley.
¶ 3 After Foley reported these contacts to the police, the State charged Allen by amended information with two counts of violating a no-contact order (domestic violence). These were felony charges due to Allen‘s prior no-contact order violations. Before trial, Allen stipulated that he had two prior convictions for violating a no-contact order.
¶ 4 Allen admitted at trial that he had sent the February 12 e-mail but explained that he had inadvertently clicked the reply or forward button instead of deleting Foley‘s prior e-mail to him. With reference to the February 14 e-mail, Allen said that he had nothing to do with the invitation that Foley received.
I‘d gone through—there‘s a portion that you can go through your contact list at the Yahoo account and send an invitation to each member on there, not realizing that I still had Ms. Foley‘s contact information in there. Several other people also received the same message.
Report of Proceedings (RP) at 46. Allen admitted sending an e-mail on February 17 to Foley‘s current boyfriend in which he wrote, “Never turn your back on a Foley.” Ex. 7; RP at 41. He explained that he sent this message because he was upset with Foley‘s family.
¶ 5 After the jury found Allen guilty as charged, the State submitted a statement of criminal history showing that he had five prior Thurston County felony convictions. The State also filed a sentencing manual worksheet showing the sentencing range that corresponded with Allen‘s offender score. Based on Allen‘s sentencing range of 41 to 54 months, and the prior offenses that the prosecuting attorney described to the court, the State recommended a 54-month sentence. Defense counsel recognized that a low-end sentence of 41 months would be inappropriate and noted that “with Mr. Allen‘s criminal history, it would be real easy for the Court to say 54 months,” but requested a sentence somewhere between 41 months and the middle of the sentencing range. RP at 80-81. The court found Allen‘s criminal history “kind of shocking,” especially in terms of his three prior convictions of violating protection orders, and imposed concurrent sentences of 50 months in prison and 9 to 18 months of community custody. RP at 81-82; Clerk‘s Papers (CP) at 52.
¶ 6 Allen now appeals both his convictions and his sentences.
Analysis
I. Interpretation of Former RCW 26.50.110(1) (2006)
¶ 7 Allen first contends that his convictions should be reversed because they did
¶ 8 Allen contends that former
¶ 9 Former
Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.
Former
¶ 10
¶ 11 As we recognized in Wofford, it is unclear which provision of former
¶ 12 In 2000, the legislature added the
¶ 13 The legislature amended
Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace, school, or day care;
(iii) A provision excluding a person from knowingly coming within, or knowingly remaining within, a specified distance of a location; or
(iv) A provision of a foreign protection order specifically indicating that a violation will be a crime.
¶ 14 As we further explained in Wofford, principles of statutory construction also show that conduct for which an arrest is required is not necessary to sustain a conviction under former
¶ 15 Furthermore,
¶ 16 Allen‘s interpretation also would lead to illogical results, as we explained in Wofford:
Wofford maintains that a no-contact order violation is criminal only when RCW 10.31.100 requires arrest because of an act or threat of violence or an intrusion into a prohibited location. Under RCW 10.31.100(2)(a), an arrest is required if the restrained person commits acts or threats of violence or enters a residence or other place from which he or she is restrained. But an arrest is not required if the restrained person physically contacts a protected person who is outside the protected area. Thus, if Wofford‘s interpretation is correct, a restrained person who enters a prohibited place but has no contact with the victim commits a crime, but a person who has nonviolent contact with a protected person outside the protected place does not. The legislature could not have intended such an anomalous result.
¶ 17 Finally, we reject Allen‘s request to apply the rule of lenity to reach his interpretation of former
¶ 18 The legislature amended
II. Double Jeopardy
¶ 19 Allen next argues that his two convictions violate double jeopardy. Allen did not raise this argument at trial, but he may raise it for the first time on appeal because it implicates a manifest error affecting a constitutional right. State v. Turner, 102 Wash. App. 202, 206, 6 P.3d 1226 (2000).
¶ 20 The double jeopardy provisions of the state and federal constitutions protect a defendant from being punished multiple times for the same offense. State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998);
¶ 21 If a defendant is charged with violating the same statutory provision more than once, multiple convictions can withstand a double jeopardy challenge only if each is a separate “unit of prosecution.” Turner, 102 Wash.App. at 206, 6 P.3d 1226. The unit of prosecution for a crime may be an act or a course of conduct. State v. Root, 141 Wash.2d 701, 710, 9 P.3d 214 (2000). The first step in the unit of prosecution inquiry is to analyze the criminal statute. In re Pers. Restraint of Davis, 142 Wash.2d 165, 172, 12 P.3d 603 (2000). We review statutory construction de novo. State v. Berry, 129 Wash. App. 59, 69, 117 P.3d 1162 (2005).
¶ 22 Both the former and current versions of
¶ 23 The State responds that a knowing violation under the statute rests on the defendant‘s rather than the victim‘s actions. We agree, noting that a defendant‘s three charges for violating a no-contact order were based on three different letters to the victim in State v. Parmelee, 108 Wash.App. 702, 705-06, 32 P.3d 1029 (2001). When the victim received or read the letters was not at issue; the facts showed that she did not even open some of them. Parmelee, 108 Wash. App. at 705, 32 P.3d 1029. Under less analogous facts, the defendant‘s action in setting a fire, rather than the damage that resulted, formed the unit of prosecution in State v. Westling, 145 Wash.2d 607, 612, 40 P.3d 669 (2002). “Because he set only one fire that damaged three vehicles, there is factually only one unit of prosecution.” Westling, 145 Wash.2d at 612, 40 P.3d 669; see also Davis, 142 Wash.2d at 174, 12 P.3d 603 (when defendant‘s two drug manufacturing operations were differentiated by time, location, or intended purpose, defendant could be convicted twice for possession with intent to manufacture without violating double jeopardy).
¶ 24 Here, Allen sent Foley different e-mail messages on different days. The no-contact order prohibited him from contacting her in this manner, and his punishment for those violations should not depend on when Foley happened to read her e-mail. Allen‘s two convictions for violating a domestic violence no-contact order did not violate double jeopardy.
III. Offender Score
¶ 25 Allen raises two challenges to his offender score. He contends that the trial court erred in including three of his five prior convictions in his offender score because the State provided insufficient proof of those prior convictions, and he also argues that the trial court erred in counting his two current offenses separately.2
A. Prior Convictions
¶ 26 Allen may raise this offender score challenge for the first time on appeal. Ford, 137 Wash.2d at 477-78, 973 P.2d 452. We review a sentencing court‘s calculation of an offender score de novo. State v. Bergstrom, 162 Wash.2d 87, 92, 169 P.3d 816 (2007). Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions.
¶ 27 Allen argues that the State failed to offer any proof of the three prior convictions at issue, and that his failure to object to the offender score it submitted did not constitute acknowledgement on his part. See Ford, 137 Wash.2d at 483, 973 P.2d 452 (acknowledgement does not encompass bare assertions by the State unsupported by the evidence). The State responds that Allen acknowledged his criminal history by failing to object to the statement of criminal history and sentencing manual worksheet it filed with the court, and by failing to object when the prosecuting attorney described his criminal history to the court at sentencing. See Former
¶ 28 The Washington Supreme Court recently decided, however, that a defendant‘s tacit acceptance of his criminal history does not constitute the acknowledgement needed to relieve the State of its obligation to establish criminal history by a preponderance of the evidence. State v. Mendoza, 165 Wash.2d 913, 205 P.3d 113, 120 (2009). If a defendant does not affirmatively acknowledge his criminal history and the State does not provide facts or information establishing that history, resentencing is required. Mendoza, 205 P.3d at 120.
¶ 29 Here, Allen did not affirmatively acknowledge his criminal history and the State did not provide sufficient evidence to establish that its description of that history was accurate. See Mendoza, 205 P.3d at 120 (bare assertions as to criminal history do not substitute for the facts and information a sentencing court requires). Consequently, we must remand for resentencing, during which the State may submit additional evidence to prove Allen‘s criminal history. See Mendoza, 205 P.3d at 120 (where the defendant does not object at sentencing and the State has not had the opportunity to put on its evidence, it is appropriate to allow additional evidence at resentencing).
B. Current Convictions
¶ 30 Allen also argues that his offender score is incorrect because his two current offenses should have counted as one under the same criminal conduct rule. Allen‘s acceptance of the sentencing range based on the separate scoring of his offenses waives this argument on appeal. See State v. Nitsch, 100 Wash.App. 512, 519, 997 P.2d 1000 (2000). But, because he argues in the alternative that he received ineffective assistance of counsel when his attorney failed to raise the same criminal conduct issue during sentencing, we address the relevant law. See State v. Thomas, 109 Wash.2d 222, 225, 743 P.2d 816 (1987) (to prove ineffective assistance of counsel, defendant must show that his attorney‘s performance was deficient and that the deficiency prejudiced him).
¶ 31 If two current offenses encompass the same criminal conduct, they count as one point in calculating the defendant‘s offender score.
¶ 32 Allen‘s two convictions for violating a no-contact order involved the same criminal intent and the same victim. He contends that because Foley opened his e-mail messages at the same time and place, the third element of the same criminal conduct rule is satisfied as well.
¶ 33 But, having already held that Allen‘s offenses occurred when he sent the e-mails on different dates, we reject his current argument that they occurred when Foley read her e-mail. Consequently, Allen‘s two offenses did not involve the same time and place and do not constitute the same criminal conduct. He did not receive ineffective assistance when his attorney failed to raise this argument during sentencing.3
IV. Statutory Maximum Sentence
¶ 34 Allen argues here that the trial court unlawfully sentenced him beyond the statutory maximum when it imposed sentences of 50 months plus 9 to 18 months of community custody for each of his convictions. Because Mendoza requires us to remand for resentencing, we do not address this issue.
HOUGHTON, P.J.
¶ 35 I concur but write separately to explain my departure from my agreement with State v. Madrid, 145 Wash.App. 106, 192 P.3d 909 (2008). As the majority notes, “different panels of our court have held that former
HUNT, J. (concurring).
¶ 36 I concur. But I write separately to explain my departure from my previous concurrences with contrary holdings in State v. Madrid, 145 Wash.App. 106, 192 P.3d 909 (2008), and State v. Hogan, 145 Wash.App. 210, 192 P.3d 915 (2008). Unlike Judge Houghton, also writing a separate concurrence, I did not sit on the panel that recently decided State v. Wofford, 148 Wash.App. 870, 201 P.3d 389 (2009), in which she similarly departed from her previous contrary position in Madrid.
¶ 37 Judge Armstrong‘s majority opinions in both Wofford and the instant case, Allen, together with Division One‘s decision in Bunker,4 persuade me (1) to consider the effect of the legislature‘s 2007 amendment and its accompanying findings on the meaning of former
I. Madrid
¶ 38 Unlike the panels in Wofford and Allen, the panel in Madrid did not consider whether the 2007 amendment shed light on the legislature‘s intent for former
¶ 39 But neither party argued, nor did we consider, that these 2007 amendment findings were an expression of the legislature‘s intent to depart from the general rule of applying the criminal statute in effect at the
whether the legislature‘s addition of the cross reference to RCW 10.31.100(2) in 2000 made RCW 26.50.110(1) ambiguous such that we should (1) apply the rule of lenity, or (2) look outside the statute‘s plain meaning for legislative intent.
Madrid, 145 Wash.App. at 114, 192 P.3d 909. Although both parties in Madrid argued that former
¶ 40 We then held:
A careful reading of former RCW 26.50.110(1) shows that it is not ambiguous. According to the amended statute‘s plain language, the State could not convict an individual of a gross misdemeanor violation of a protection order under chapter 26.50 RCW unless the violation warranted an arrest under RCW 10.31.100(2)(a) or (b).
Madrid, 145 Wash.App. at 114, 192 P.3d 909. As I have already noted, however, we did not address in Madrid the pivotal issue that undergirds the contrary holdings in Wofford, Bunker, and Allen.
II. Hogan
¶ 41 In Hogan, decided about the same time as Madrid, we focused on the “corollary to the last antecedent rule” of statutory construction based on Hogan‘s following argument:
[F]ormer RCW 26.50.110(1) criminalized only violations “for which an arrest is required under RCW 10.31.100(2)(a) or (b).” CP at 30. Hogan based his argument on the legislature‘s placement of the comma immediately preceding this phrase. Referencing the corollary to the last antecedent rule and legislative history, Hogan convinced the trial court that the State failed to prove his violations were crimes under former RCW 26.50.110(1).
Hogan, 145 Wash.App. at 214, 192 P.3d 915. Hogan persuaded us, too.
¶ 42 Both parties in Hogan filed their briefs before the effective date of the 2007 amendment. Thus, as in Madrid, in Hogan the State did not argue that the legislature‘s 2007 amendment shed light on its intended meaning of the interplay between former
III. Bunker and Wofford
¶ 43 Like Judge Quinn-Brintnall, who expressly agreed with Bunker in her dissent in Hogan, 145 Wash.App. at 221, 223, 192 P.3d 915,10 I now also find persuasive the following
[T]raditional principles of statutory construction also demonstrate that the legislature always intended to criminalize violations of domestic violence no-contact orders. Contending that this is not the case, Bunker and Williams make much of the “last antecedent rule” and the rule of lenity (albeit without ever articulating precisely how those rules apply to former RCW 26.50.110). In basing their statutory interpretation argument solely on these rules, however, Bunker and Williams ignore more fundamental principles of statutory construction.
The last antecedent rule states that “unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent. . . . Yet the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one.” City of Spokane v. Spokane County, 158 Wash.2d 661, 673, 146 P.3d 893 (2006) (internal citations and quotation marks omitted) (quoting Berrocal v. Fernandez, 155 Wash.2d 585, 593, 121 P.3d 82 (2005)). Thus, as applied to former RCW 26.50.110, this rule would appear to support Bunker‘s and Williams‘s contention that the phrase “for which an arrest is required under RCW 10.31.100(2)(a) or (b)” modifies every preceding clause, up to and including the phrase “violation of the restraint provisions.” Moreover, if the last antecedent rule were the sole principle of statutory construction[12] applicable to former RCW 26.50.110, the statute would indeed appear to allow the imposition of criminal penalties for only those no-contact order violations for which the legislature has made arrest mandatory.
By urging us to rely exclusively on the last antecedent rule, however, Bunker and Williams effectively encourage us to disregard the principle that “[a]n act must be construed as a whole, considering all provisions in relation to one another and harmonizing all rather than rendering any superfluous.” State v. George, 160 Wash.2d 727, 738, 158 P.3d 1169 (2007). This we will not do.
Even a cursory examination of former RCW 26.50.110‘s other subsections reveals that the legislature did not intend for contempt of court sanctions to be the primary penalty for domestic violence no-contact order violations. See former RCW 26.50.110(3)[2000] (“violation of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, shall also constitute contempt of court“) (emphasis added). Moreover, Bunker and Williams fail to explain why, if the legislature had not intended to impose criminal penalties for violations of domestic violence no-contact orders, it has required that each and every no-contact order issued by a court proclaim that “[v]iolation of this order is a criminal offense.” RCW 10.99.040(4)(b). An appellate court “may not interpret any part of a statute as meaningless or superfluous.” State v. Lilyblad, 163 Wash.2d 1, 11, 177 P.3d 686 (2008). To give RCW 26.50.110(1) the construction that Bunker and Williams seek would be to do precisely that with respect to these provisions. Notwithstanding the last antecedent rule, the structure of the statute as a whole indicates that the legislature intended the phrase “for which an arrest is required under RCW 10.31.100(2)(a) or (b)” to modify the previous two complete clauses, respectively. That is, “RCW 10.31.100(2)(a)” refers to the clause “or of a provision excluding the person from a residence,
workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location,” while “RCW 10.31.100(2) . . . (b)” refers to “or of a provision of a foreign protection order specifically indicating that a violation will be a crime.” Former RCW 26.50.110 [2000].[13] . . . .
The legislature has amended RCW 26.50.110 explicitly to clarify that the construction of the statute that Bunker and Williams seek is incorrect. That amendment applies retroactively to Bunker and Williams because it was for the sole purpose of removing a statutory ambiguity, and changed no substantive law.
Bunker, 144 Wash.App. at 418-420, 183 P.3d 1086.14 In Wofford, we relied heavily on the above analysis in Bunker. In turn, we rely heavily on Wofford here in Allen.
IV. 2007 Amendment
¶ 44 As we noted in Wofford, as long as there has not been an intervening contradictory judicial construction of a statute, we may look to a statute‘s subsequent history to help determine the legislature‘s intent where, as here, the legislature has indicated in the subsequent legislation that the new legislation was intended to clarify the previous version of the statute. Wofford, 148 Wash. App. at 879, 201 P.3d 389 (citing Woods v. Bailet, 116 Wash.App. 658, 665, 67 P.3d 511 (2003)); see also Rozner v. City of Bellevue, 116 Wash.2d 342, 349, 804 P.2d 24 (1991); State v. Posey, 130 Wash.App. 262, 274, 122 P.3d 914 (2005), aff‘d in relevant part, reversed in part on other grounds, 161 Wash.2d 638, 167 P.3d 560 (2007); Littlejohn Constr. Co. v. Dep‘t of Labor & Indus., 74 Wash.App. 420, 427, 873 P.2d 583 (1994).
¶ 45 We filed our decisions in Madrid and Hogan after, not before, the 2007 amendments; thus, the 2007 amendments did not contravene any appellate decisions of which I am aware. Therefore, under Posey, (1) in Madrid, we should have considered the legislature‘s 2007 amendment to the statute if the parties had asserted its removal of the cross-reference to
¶ 46 Accordingly, I now depart from Madrid and Hogan, concur in Judge Armstrong‘s analysis here, join him in holding that under
Notes
We noted in Hogan:
Our Supreme Court interpreted an even earlier version of RCW 26.50.110 (1996) in State v. Chapman, 140 Wash.2d 436, 448, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000); but the legislature amended RCW 25.50.110 in 2000. Before this amendment, violation of a domestic violence no-contact order under former RCW 10.99.050(2) (1997) was a gross misdemeanor and a third violation was a felony. But in 2000, the legislature amended the statute, moving most of the language to RCW 26.50.110 and adding the “for which an arrest is required under RCW 10.31.100(2)(a) or (b)” language at issue in this case. Laws of 2000, ch. 119 § 24. Accordingly, Chapman, is no longer binding precedent on this court.
Before we continue our analysis, we note that the legislature unanimously amended RCW 26.50.110(1) during the 2007 session. See Laws of 2007, ch. 173. The legislature removed the cross-reference to RCW 10.31.100(2), which Hogan relies on here. See Laws of 2007, ch. 173, § 2. The legislature also stated in its findings that it meant “to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and should be enforced accordingly to preserve the integrity and intent of the domestic violence act.” Laws of 2007, ch. 173, § 1.
Hogan, 145 Wash.App. at 215, 192 P.3d 915 (footnote omitted).
Holding that the rule of lenity did not apply, the Bunker court ruled:
The rule of lenity is similarly unavailing to the argument advanced by Bunker and Williams. “[U]nder the rule of lenity, where two possible statutory constructions are permissible, we construe the statute strictly against the State in favor of a criminal defendant.” State v. B.E.K., 141 Wash.App. 742, 745, 172 P.3d 365 (2007) (citing State v. Gore, 101 Wash.2d 481, 485-86, 681 P.2d 227 (1984)). “But the rule of lenity does not apply where statutes can be reconciled in a way that reflects the legislature‘s clear intent.” State v. R.J., 121 Wash. App. 215, 217 n. 2, 88 P.3d 411 (2004). Here, every indication is that former RCW 26.50.110 was merely awkwardly drafted, and that the legislature always intended to criminalize violations of domestic violence no-contact orders. This being the case, we will not apply the rule of lenity in frustration of the legislature‘s intent.