State v. KellerState v. Keller
STATE of Washington, Respondent,
v.
Lawrence John KELLER, Petitioner.
Supreme Court of Washington, En Banc.
*1032 Suzanne Lee Elliott, Seattle, amicus curiae on behalf of Washington Ass'n of Criminal Defense Lawyers.
Lawrence J. Keller, Walla Walla, Carney, Badley, Smith & Spellman, Kenneth Scott Kagan, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Stephen Gerard Teply, Deputy, Amy Jean Freedheim, Deputy, James Morrissey Whisman, Deputy, Seattle, for Respondent.
*1031 SMITH, J.
Petitioner Lawrence John Keller seeks review of a decision of the Court of Appeals, Division One, which affirmed his conviction in the King County Superior Court for vehicular assault under former
QUESTION PRESENTED
The question presented in this case is whether two prior felony convictions which count as one offense in the calculation of an offender score because the sentences were served concurrently may nevertheless be counted as two prior convictions in determining "strikes" under the Persistent Offender Act.
STATEMENT OF FACTS
Petitioner Lawrence John Keller on December 21, 1994 was charged by information in the King County Superior Court with one count of vehicular assault under former
On August 5, 1995 Petitioner was found "guilty" of hit and runfelony and assault in the second degree.[4] On August 6, 1995 a mistrial was declared because of prosecutorial misconduct and a new trial was ordered.[5] In the retrial, the jury on January 8, 1996 *1033 found Petitioner Keller "guilty" of vehicular assault under former
At the sentencing hearing on February 18, 1997, the trial court, the Honorable Joan E. DuBuque, concluded it was established by the State that Petitioner "had two prior convictions, and that they ... qualify under the Persistent Offender Act...."[7] The court then indicated its intention to impose sentence as follows:
In Count I, in accordance with the law, the Court is going to impose the sentence of life imprisonment, without the possibility of parole, or early release .... [and Petitioner] is to be given credit for time served of three hundred seventy days.[[8]]
Petitioner was previously convicted of second degree assault in Washington in 1979 and convicted of aggravated assault in Arizona in 1983. He served his sentences in those cases concurrently.[9] The trial court counted Petitioner's two prior convictions as "two strikes"[10] and this vehicular assault conviction as a "third strike" under the Persistent Offender Act. The court on February 18, 1997 signed a judgment and sentence finding that petitioner was a persistent offender and sentencing him to life in prison without early release.[11] Petitioner appealed the decision to the Court of Appeals, Division One, on February 21, 1997.[12]
Under the Persistent Offender Act, former
On December 13, 1999, the Court of Appeals, the Honorable Ronald E. Cox writing, affirmed the trial court's decision and held "the phrase `included in the offender score under [former]
On December 30, 1999 Petitioner filed a motion for discretionary review in this court. On June 30, 2000, this court granted review limited to the persistent offender issue.[20]
DISCUSSION
Former
(25) "Persistent offender" is an offender who:
(a) Has been convicted in this state of any felony considered a most serious offense; and
(b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score underRCW 9.94A.360 ; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.[[21]]
Under
Petitioner claims the phrase "would be included in the offender score under
In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.
Petitioner claims that since the sentences under his two prior felony convictions were served concurrently and counted as only one conviction for the purpose of computing his offender score, under former
The "wash out" portion of the offender score statute in former
(2) Except as provided in subsection (4) of this section, class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender *1035 had spent ten consecutive years in the community without being convicted of any felonies. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies. Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without being convicted of any serious traffic or felony traffic offenses. This subsection applies to both adult and juvenile prior convictions.
(3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.
The Court of Appeals affirmed the decision of the trial court, which concluded the "one offense" language in former
Statutory interpretation is a question of law, which this court reviews de novo.[27] Courts should assume the Legislature means exactly what it says.[28] Plain words do not require construction.[29] The courts do not engage in statutory interpretation of a statute that is not ambiguous.[30] If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself.[31] A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.[32] The courts are not "obliged to discern any ambiguity by imagining a variety of alternative interpretations."[33]
In this case the phrase "would be included in the offender score under
When the language of a statute is clear and unambiguous the meaning is derived from the words of the statute itself.[36] When construing a statute we read the statute in its entirety.[37] "Each provision must *1036 be viewed in relation to other provisions and harmonized, if at all possible...."[38] Statutes must be construed so that all language is given effect with no portion rendered meaningless or superfluous.[39] The court must also avoid constructions "that yield unlikely, strange or absurd consequences."[40]
Respondent argues that Petitioner's proposed construction would lead to absurd results, rewarding offenders simply because they committed their second offense while on parole and served their sentences concurrently.[41] Respondent suggests Petitioner's interpretation would render
Under Petitioner's interpretation, even sentences for two or more class A, including prior sex felonies, which were served concurrently would not be separately counted in the offender score. That interpretation is inconsistent with subsection (2) of
Petitioner claims the Legislature intended the words "include" and "count" to have the same meaning because they have historically been used interchangeably and have similar definitions.[45] Respondent answers that the Legislature intentionally used different words in the statute and that it intended "include" and "count" to have different meanings.[46] The Court of Appeals reasoned it could be inferred that the words "include" and "count" were intended to have different meanings because they are two different words used in the same statute.[47] If the Legislature uses "specific language in one instance and dissimilar language in another, a difference in legislative intent may be inferred."[48] When the Legislature uses different words in the same statute, it usually means it intended the words to have different meanings. However, the courts must look at the entire statute and interpret the provisions to give meaning to all parts of it.[49] In reading the entire Sentencing Reform Act of 1981, chapter 0.94A RCW, we conclude the word "included" in
Petitioner argues the Court of Appeals was in error in concluding his two prior felony convictions should be separately counted under the Persistent Offender Act because those convictions are counted as only one offense when calculating his offender score.[50] He cites State v. Cruz to support his assertion that the Persistent Offender Act was *1037 referring to the entire statute, including subsection (6)(c).[51]
In Cruz the court determined whether a rape conviction which was previously washed out could figure into the defendant's offender score when a statutory amendment was later adopted stating sex felonies could never wash out.[52] The court held the new statute applied prospectively only and did not revive the defendant's previously washed out conviction.[53] The court concluded defendant Cruz' criminal history did not include his prior conviction which had washed out,[54] stating that "a conviction for purposes of implementing the [Persistent Offender Act] must also be a conviction that forms part of the defendant's offender score."[55]
Petitioner's reliance on Cruz is misplaced. The court concluded Mr. Cruz' prior conviction washed out, was no longer part of his criminal history, and could not be included in his offender score.[56] It was thus not counted as a "strike" under the Persistent Offender Act.[57] The case did not involve concurrent sentences.
Petitioner cites State v. Morley in which the defendant was sentenced to life imprisonment under the Persistent Offender Act after pleading "guilty" to three counts of second degree child molestation counting as his third "strike."[58] He challenged his second offense, a military general court-martial in which he was found "guilty" of robbery and assault.[59] The court concluded the court-martial conviction should be included in the offender score and then decided it would count as a "strike" under the Persistent Offender Act.[60] The court declared four elements necessary for determining that a person is a persistent offender, the fourth element requiring that prior convictions "be included in the offender score under
Petitioner also cites State v. Berry in which this court interpreted former
Both Petitioner Keller and Respondent State filed supplemental briefs on September 6, 2000. The Washington Association of Criminal Defense Lawyers filed a brief amicus curiae on September 26, 2000. Respondent on September 29, 2000 filed a motion to strike pages 7 through 11 of Petititoner's supplemental brief. The motion was passed to the merits for consideration by the court at the time of oral argument.
Although full oral argument was allowed on all matters referred to in Petitioner's supplemental brief, we nevertheless grant Respondent's motion to strike pages 7 through 11 of Petitioner's supplemental brief relating to classification of Petitioner's 1983 conviction and sentence for aggravated assault under Arizona Revised Statute § 13-1204 *1038 as comparable to a "most serious offense," and consequently a "strike," under Washington's Persistent Offender Accountability Act.[65]
We are satisfied the trial court had before it sufficient certified documents (including the indictment, statement on plea of "guilty," judgment and sentence, and pre-sentence report) from the State of Arizona to establish that Petitioner entered pleas of "guilty" on March 9, 1983 to two counts of an indictment which charged in Count I that:
LAWRENCE JOHN KELLER, on or about the 1st day of MARCH, 1982, using a dangerous weapon or dangerous instrument, to-wit: a shotgun, intentionally placed ROBERT NEIL SNIDER in reasonable apprehension of imminent physical injury, in violation ofA.R.S. §§ 13-1204(A)(2)(B) , 13-1203(A)(2), 13-701, 13-702 and 13-801.[[66]]
The trial court during the sentencing hearing on February 18, 1997 concluded that Petitioner "had two prior convictions, and that they otherwise qualify under the Persistent Offender Act...." and specifically that the plea to aggravated assault "under Arizona law [was] equivalent ... to a Class C Felony, ... [which] makes it count" as a most serious offense under the Persistent Offender Act.[67]
Under
We conclude the trial court properly determined Petitioner's 1983 Arizona conviction for assault, "using a dangerous weapon or dangerous instrument ... a shotgun, ... intentionally [placing] Robert Neil Snider in reasonable apprehension of imminent physical injury," was comparable to assault in the second degree under Washington law and counts as a "strike" under our Persistent Offender Act.
We agree with the Court of Appeals and affirm its conclusion upholding the decision of the King County Superior Court.
SUMMARY AND CONCLUSIONS
The interpretation of a statute is a matter of law. Courts do not engage in statutory construction of a statute that is not ambiguous. Where a statute is unambiguous, the meaning must be derived from the wording of the statute itself. A statute is ambiguous when it can reasonably be interpreted in two or more ways.
The Court of Appeals correctly concluded former
We affirm the decision of the Court of Appeals, Division One, which affirmed the judgment of the King County Superior Court holding that Petitioner Lawrence John Keller's two prior felony convictions counted as two "strikes" under the Persistent Offender Accountability Act, although they counted only as one conviction in calculating his offender score, and sentenced him to life imprisonment without the possibility of parole.
IRELAND, BRIDGE, JJ., and GUY, J.P.T., and TALMADGE, J.P.T., concur.
ALEXANDER, C.J. (dissenting).
The Persistent Offender Accountability Act, commonly referred to as the "three strikes" law was passed by initiative and is subsumed within the Sentencing Reform Act of 1981(SRA). It requires every "persistent offender" to be sentenced to life imprisonment without the possibility of parole.
been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score underRCW 9.94A.360 ; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.
There is no dispute about the fact that Lawrence Keller's current conviction for vehicular assault, as well as his prior conviction in this state for second degree assault, are most serious offenses. I also agree with the majority that Keller's prior Arizona conviction qualifies as a most serious offense. I disagree, though, with the majority's conclusion that Keller falls within the definition of "persistent offender" on the basis that his prior convictions, both of which occurred before July 1, 1986, "would be included in the offender score under
As the above definition of "persistent offender" indicates,
Class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement ... pursuant to a felony conviction ... the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement ... pursuant to a felony conviction ... the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
Under case law, offenses which "shall not be included in the offender score" pursuant to the above provision are said to have "washed out." See State v. Cruz,
Keller argued at the Court of Appeals and here that his prior convictions are subject to another part of
The majority, like the Court of Appeals, has rejected Keller's argument. As noted above, it relies on the fact that only the washout provisions mirror the definition of *1040 "persistent offender" by using the phrase "included in the offender score," whereas
In concluding that the term "persistent offender" unambiguously refers only to the washout provisions, the majority is not swayed by the fact that the terms "count" and "include" have been used interchangeably by this court when discussing offender scores. See State v. Morley,
The majority's decision is problematic and, as I indicated above, I disagree with it. On the last point mentioned above, it seems odd for the majority to devote significant space to analyzing legislative intent only to conclude that the statute is unambiguous. Also, the majority appears to have examined the intent behind the statute from the wrong perspective. The interpretation of the persistent offender statute is not a matter of gleaning the Legislature's intent. The so-called "three strikes" law was enacted by the people as an initiative. Thus, while the basic rules of construction are the same as those applicable to statutes passed by the Legislature, interpretation must focus on the collective intent of the voters. State v. Thorne,
Addressing myself to the merits, the interaction between the persistent offender statute and the offender score provisions of the SRA seems at least ambiguous. Unquestionably, any offense not "included in the offender score" under the washout provisions would not count as a "strike" under the persistent offender statute, since the definition of "persistent offender" uses precisely the same language. It is not entirely clear, however, that the voters intended that only the washout provisions would govern whether a prior offense is "included in the offender score." Although
While one could argue that considering prior concurrently served crimes as one offense is not entirely consistent with the intent expressed in
The majority makes the point that Keller's position is inconsistent with the portion of
In sum, it is my view that it is not at all clear that the definition of "persistent offender" refers to only the washout provisions of
SANDERS, JOHNSON, and MADSEN, JJ., concur.
NOTES
Notes
[1] State v. Keller,
[2] Id. at 390; former
[3] The State of Washington originally charged Petitioner on December 21, 1994 with one count of vehicular assault under former
[4] Clerks Papers at 254-55.
[5] Clerks Papers at 258.
[6] Clerk's Papers at 405.
[7] Report of Proceedings at 2821.
[8] Report of Proceedings at 2826.
[9] Clerk's Papers at 707.
[10] Id.
[11] Id. at 433.
[12] Clerk's Papers at 436.
[13] Former
[14] "Petition for Discretionary Review" at 7, 12. Former
[15] Id. at 10.
[16] Supplemental Br. of Resp't at 5.
[17] Id.
[18] Keller,
[19] Id.
[20] Review was granted only on the persistent offender issue discussed in the published portion of the Court of Appeals opinion.
[21] (Emphasis added.) Former
[22] Pet. for Discretionary Review at 7, 12 (emphasis added). Former
[23] Id. at 7.
[24] The language in the current version of the statute is substantially identical to the language in the former version.
[25] Supplemental Br. of Resp't at 5.
[26] Keller,
[27] W. Telepage, Inc. v. Tacoma Dep't of Financing,
[28] W. Telepage,
[29] Id.
[30] Davis v. Dep't of Licensing,
[31] State v. Tili,
[32] Id.
[33] W. Telepage,
[34] Id.
[35] Id.
[36] Tili,
[37] In re Post Sentencing Review of Charles,
[38] Thorne,
[39] Davis,
[40] State v. Contreras,
[41] Supplemental Br. of Resp't at 14. Petitioner was on parole in Washington when he was convicted in Arizona in 1983.
[42] Id. at 17.
[43]
[44] Davis,
[45] Pet. for Discretionary Review at 10-11.
[46] Supplemental Br. of Resp't at 11-12.
[47] Keller,
[48] In Personal Restraint of Sietz,
[49] Id.
[50] Pet. for Discretionary Review at 10; State v. Cruz,
[51] Supplemental Br. of Pet'r at 19-20.
[52] Cruz,
[53] Id. at 193,
[54] Id.
[55] Id. at 190,
[56] Id. at 193,
[57] Id.
[58] State v. Morley,
[59] Id.
[60] Id. at 602,
[61] Id. at 604,
[62] Id.
[63] State v. Berry,
[64] Id.
[65] Clerk's Papers at 703-59.
[66] Clerk's Papers at 719-21, 753.
[67] Report of Proceedings at 2821, 2825.