State v. DeanState v. Dean
Jodie Lee Dean appeals from his sentence on a conviction of possession of a controlled substance with intent to deliver. He argues that his prior juvenile adjudications “washed out” and should not have been used to calculate his offender score at sentencing. We agree, vacate the sentence, and remand for resentencing.
FACTS
Dean turned 23 years old on May 27, 1992. On November 21, 2000, when he was 31 years old, he committed the crime of possession of a controlled substance with intent to deliver. He pleaded guilty.
Dean had a prior criminal history: (1) a 1984 juvenile adjudication of third degree assault; (2) a 1987 juvenile adjudication of unlawful delivery of a controlled substance; (3) a 1987 adult conviction of eluding; (4) a 1990 adult conviction of possession of stolen
When the superior court sentenced Dean, it used the 1984 and 1987 juvenile adjudications in calculating his offender score. Without the juvenile adjudications, his offender score would have been four, with them it was six. The trial court imposed a 67-month standard range sentence. Dean appeals.
ANALYSIS
Dean contends that his juvenile adjudications automatically washed out on his twenty-third birthday in May 1992 because the sentencing laws then in effect provided that when sentencing an offender for a crime committed after his or her twenty-third birthday, juvenile adjudications are not to be used to calculate the offender score.
This issue has been the subject of numerous Court of Appeals opinions, state Supreme Court opinions, and legislative amendments to the Sentencing Reform Act of 1981(SRA).1 Therefore, an understanding of this issue requires a brief recounting of these developments.
1997 SRA Amendment
Before 1997, when a sentencing court calculated an offender score, it counted juvenile class B or C felonies only if the offender committed the current offense when less than 23 years old. Former
Then, in 1997, the Legislature amended
But it remained an open question whether elimination of the juvenile wash out provision applied to juvenile adjudications occurring before the 1997 Amendment when a trial court sentenced a defendant for an offense committed after the 1997 Amendment.
State v. Cruz
In 1999, our Supreme Court held that amendments to the SRA were not retroactive. State v. Cruz, 139 Wash.2d 186, 190, 985 P.2d 384 (1999). Cruz addressed an SRA amendment similar to the one in this case, enacted in 1990, that excepted sex offenses from wash out provisions. Laws of 1990, ch. 3, § 706; Cruz, 139 Wash.2d at 190, 985 P.2d 384.
Cruz committed his current offense in 1994. Cruz, 139 Wash.2d at 187, 985 P.2d 384. But he had two prior convictions: a 1975 sex offense and a 1989 felony. Cruz, 139 Wash.2d at 188, 985 P.2d 384. When Cruz was sentenced for the 1989 felony, his 1975 offense washed out under the law in effect at the time. Cruz, 139 Wash.2d at 189, 985 P.2d 384. But when he was sentenced in 1994, after the 1990 amendment, the trial court used the 1975 sex offense to calculate his offender score. Cruz, 139 Wash.2d at 190, 985 P.2d 384.
Our Supreme Court reversed, holding that because the 1990 amendment was not retroactive,
The Court of Appeals reasoned [that] a statute is not applied retroactively where the previously washed out offense is used only to calculate the offender score for the crime committed after the amendment. Cruz, 91 Wash.App. at 399, [959 P.2d 670]. However, the issue here is not the calculation of Cruz‘s offender score in 1994, but whether or not his washed out 1975 conviction could figure into that calculation. Absent revival it could not.
Cruz, 139 Wash.2d at 193, 985 P.2d 384 (emphasis added).
Under the Supreme Court‘s Cruz holding, when the 1989 court determined that Cruz‘s 1975 conviction washed out, this permanently affected the status of the 1975 conviction for all future sentencing. The Court considered a washed out conviction virtually expunged for future sentencing purposes. Cruz, 139 Wash.2d at 196, 985 P.2d 384 (Talmadge, J., dissenting). For a later enacted statutory amendment to change the legal status of that conviction for sentencing purposes, it must operate retroactively to resurrect or “revive” the washed out conviction. Cruz, 139 Wash.2d at 193, 985 P.2d 384. Because the Court determined that the 1990 Amendment was not retroactive, it did not resurrect the 1975 conviction. Cruz, 139 Wash.2d at 193, 985 P.2d 384.
The Legislature Responds to Cruz
In response to the Supreme Court‘s holding in Cruz, in June 2000, the Legislature enacted
In an accompanying statutory note, the Legislature made clear that
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, [139 Wash.2d 186, 985 P.2d 384] (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.
With this, the Legislature stated its disapproval of our Supreme Court‘s holding in Cruz, seemingly in favor of the Court of Appeals analysis. If the offender score, including whether prior convictions wash out, is determined according to the law in effect at the time of the commission of the current offense, it is not necessary to apply the law retroactively. In other words, the use of a previously washed out offense to calculate the offender score for a new offense does not affect the status of the prior offense.
State v. Hendricks
In Hendricks, we held that the Timing Statute is curative and “expressly intended to apply retroactively.” State v. Hendricks, 103 Wash.App. 728, 739, 14 P.3d 811 (2000), rev‘d sub nom., Smith, 144 Wash.2d 665, 30 P.3d 1245. But the Supreme Court accepted review of our decision, consolidated it with three other cases, and reversed it. Smith, 144 Wash.2d 665, 30 P.3d 1245.
State v. Smith
In Smith, the Supreme Court reasserted its interpretation that washed out prior convictions are virtually expunged for future sentencing purposes. Smith, 144 Wash.2d at 674-75, 30 P.3d 1245. The Court held that the 1997 Amendment does not operate retroactively to resurrect or revive previously washed out juvenile adjudications for purposes of calculating a defendant‘s current offender score. Smith, 144 Wash.2d at 668-69, 30 P.3d 1245.
For each of the four defendants, the Smith court stated that the felony convictions “washed out ... when he reached age 23” or “because they occurred before he reached
Citing Cruz, our Supreme Court again determined that any future legislative amendment would have to operate retroactively to change the washed out (quasi-expunged) status of prior convictions. Smith, 144 Wash.2d at 671-72, 30 P.3d 1245. The Court then examined the Timing Statute and its comment. The Court found no clear legislative intent for the 1997 Amendment to apply retroactively. Smith, 144 Wash.2d at 672, 30 P.3d 1245. Therefore, the Court held that the defendants’ prior juvenile adjudications remained washed out.4 Smith, 144 Wash.2d at 674-75, 30 P.3d 1245.
The Legislature Responds to Smith
During its 2002 Regular Session, the Legislature enacted Substitute Senate Bill 6423 (SSB 6423). This new legislation, effective on June 13, 2002, appears to supplant the Court‘s interpretation that “washed out” juvenile sentences are virtually expunged. The Legislature stated that it
considers the majority opinions in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), and State v. Smith, 144 Wash.2d 665, 30 P.3d 1245, (2001), to be wrongly decided, since neither properly interpreted legislative intent. When the legislature enacted the sentencing reform act,
Although certain prior convictions previously were not counted in the offender score or included in the criminal history pursuant to former versions of
RCW 9.94A.525 , orRCW 9.94A.030 , those prior convictions need not be “revived” because they were never vacated. As noted in the minority opinions in Cruz and Smith, such application of the law does not involve retroactive application or violate ex post facto prohibitions. Additionally, the Washington state supreme court has repeatedly held in the past that the provisions of the sentencing reform act act upon and punish only current conduct; the sentencing reform act does not act upon or alter the punishment for prior convictions. See In re Personal Restraint Petition of Williams, 111 Wash.2d 353, 759 P.2d 436, (1988). The legislature has never intended to create in an offender a vested right with respect to whether a prior conviction is excluded when calculating an offender score or with respect to how a prior conviction is counted in the offender score for a current offense.
Laws of 2002, ch. 107, § 1.
Application to the Present Case
SSB 6423 is the latest volley in the match between the Legislature and our Supreme Court on this issue and a clarification of the Legislature‘s intent in passing the 1997 Amendment.5 But for us to apply it to Dean‘s offense, we would have to apply it retroactively, which, according to well-established precedent, we cannot do.
Thus, because SSB 6423 by its own terms contravenes the judicial construction of the 1997 Amendment, we cannot apply it retroactively in sentencing Dean‘s current offense, which he committed in 2000.
The State argues that because Dean‘s current offense was committed after the Timing Statute went into effect on June 8, 2000, that is the law to be applied when calculating Dean‘s sentence. As noted above, that statute states “[a]ny sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.”
The law in effect in November 2000 regarding calculating offender scores was our Supreme Court‘s interpretation of the 1997 Amendment articulated in Smith. It is a well-settled rule of statutory construction that when the highest court in the state has interpreted a statute, that interpretation operates as if it were originally written into it. Johnson, 87 Wash.2d at 927, 557 P.2d 1299. Therefore, we must apply the reasoning in Smith to the 1997 Amendment as if it were written into it.
And, under the reasoning of Smith, Dean‘s juvenile adjudications washed out for all future sentencing purposes when Dean turned 23 years old, on May 23, 1992. See Smith, 144 Wash.2d at 669, 30 P.3d 1245. Because the Timing Statute does not specifically provide for a retroactive revival of the washed out convictions, the 1997 Amendment does not revive Dean‘s juvenile adjudications. See In re the Personal Restraint Petition of Goodwin, 146 Wash.2d 861, 866-67, 50 P.3d 618 (2002) (under former
The sentence is vacated and the matter is remanded to the trial court for resentencing.
We concur: SEINFELD, J., and HUNT, C.J.
Notes
That statute now reads simply that “`[c]riminal history’ means the list of a defendant‘s prior convictions and juvenile adjudications, whether in this statute, in federal court, or elsewhere. The history shall include, where known, for each conviction ... (b) whether the defendant has been incarcerated and the length of incarceration.”
We note, although not applicable here, the Legislature added a new, final section to this statute, effective June 13, 2002: ”