State v. SmithState v. Smith
The principal issue in this consolidated case is whether the 1997 amendment to juvenile “wash-out” provisions of the Sentencing Reform Act of 1981 (SRA)1 applies retroactively so as to revive appellants’ previously “washed out” juvenile felony adjudications for purposes of calculating offender scores for their current offenses. We find the 1997 amendment is not retroactive and remand all four individual cases for resentencing. Additionally, Dorsey raises several unrelated challenges to his conviction. We find no merit in these additional challenges.
I. RETROACTIVITY
Facts
On February 18, 1999, Rodney Smith (Smith) pleaded guilty to one count of unlawful possession of cocaine. When calculating his offender score for this crime, the sentencing court included five prior juvenile felony adjudications that had washed out in 1991 when he reached age 23.
On August 19, 1999, Devaughn Dorsey (Dorsey) was convicted of attempting to elude a police officer and driving with a suspended license. When calculating his offender score, the sentencing court included four prior juvenile felony adjudications that had washed out in 1996 when he reached age 23.
On November 18, 1998, Michael Lowe (Lowe) pleaded guilty to one count of taking a motor vehicle without the owner‘s permission, one count of attempting to elude police, and two counts of third degree assault. When calculating his offender score, the sentencing court included four prior juvenile felony adjudications that had previously washed out because they occurred before he reached age 15.
On July 12, 1999, George Hendricks (Hendricks) pleaded guilty to attempted assault in the second degree. When calculating his offender score, the sentencing court added points for four prior juvenile adjudications that had previously washed out because they occurred before he reached age 15.
Each appellant independently appealed his sentence on the grounds the washed out convictions should not have been counted when calculating the offender score for the current offense(s). The Court of Appeals, Division One, consolidated Smith‘s and Dorsey‘s cases and transferred the appeals to this court for review of the following issue:
The principle [sic] issue in these cases concerns the proper computation of offender scores based upon subsequent legislative amendments to juvenile felony “wash-out” provisions. After the decision in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), the Washington State Legislature amended
Order Consolidating Cases and Order of Certification at 1 (Wash.Ct.App. Jan. 31, 2001). This court accepted review.
Meanwhile, the Court of Appeals, Division Two, consolidated Lowe‘s and Hendricks’ cases and heard argument. The Court of Appeals affirmed appellants’ sentences. State v. Hendricks, 103 WasLApp. 728, 14 P.3d 811 (2000). Lowe and Hendricks petitioned this court for review. We accepted review and consolidated all four cases.
Analysis
In general, when sentencing a defendant under the SRA, the court must calculate a defendant‘s “offender score” in part based on his or her “criminal history.”
Former
In 1997, the Legislature amended former
While we have not specifically reviewed the 1997 amendment as it pertains to the juvenile wash-out provisions, we reviewed a similar issue in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999). At issue in Cruz was whether the 1990 SRA amendments to the juvenile wash-out provision for sex offenders applied retroactively. Prior to 1990, juvenile sex offenses washed out if an offender spent 10 years in the community without another felony conviction. See former
Using standard rules of statutory construction, we explained the 1990 amendments could apply retroactively only if: (1) the Legislature so intended; (2) the amendments were “curative“; or (3) the amendments were remedial. Cruz, 139 Wash.2d at 191, 985 P.2d 384. After determining none of these factors existed, we concluded the 1990 amendments applied prospectively only. Therefore, Cruz’ previously washed out adjudication could not be factored into his offender score for the 1994 offense. Cruz, 139 Wash.2d at 193, 985 P.2d 384.
In 2000, the Legislature responded to our decision in Cruz by enacting
”
We begin our statutory analysis with a presumption an amendment is prospective. The presumption against retroactive application of a statute or amendment “‘is an essential thread in the mantle of protection that the law affords the individual citizen.‘” Cruz, 139 Wash.2d at 190, 985 P.2d 384 (quoting Lynce v. Mathis, 519 U.S. 433, 439, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)). This presumption “‘\“is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.\“‘” Cruz, 139 Wash.2d at 190, 985 P.2d 384 (quoting Lynce, 519 U.S. at 439, 117 S.Ct. 891). Although this presumption can be overcome in certain circumstances, generally courts disfavor retroactivity. In re Estate of Burns, 131 Wash.2d 104, 110, 928 P.2d 1094 (1997). The State can overcome the presumption of prospective application in this case only if it shows: (1) the Legislature intended the 1997 amendment to apply retroactively; (2) the 1997 amendment is “curative“; or (3) the 1997 amendment is remedial.2 Cruz, 139 Wash.2d at 190-93, 985 P.2d 384; In re F.D. Processing, Inc., 119 Wash.2d 452, 460, 832 P.2d 1303 (1992). In this case, none of these factors exist.
The SRA contains no language showing the Legislature intended the 1997 amendment to apply retroactively. Legislative intent for retroactivity must be clearly found within the statute‘s language. Landgraf v. USI Film Prods., 511 U.S. 244, 268-69, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); State v. Douty, 92 Wash.2d 930, 935, 603 P.2d 373 (1979). The 1997 amendment changed the definition of “criminal history” to read as follows:
“Criminal history” means the list of a defendant‘s prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere. The history shall include, where known, for each conviction (a) whether the defendant has been placed on probation and the length and terms thereof; and (b) whether the defendant has been incarcerated and the length of incarceration.
The 1997 amendment also is not curative. A curative amendment clarifies or technically corrects an ambiguous statute. F.D. Processing, 119 Wash.2d at 461, 832 P.2d 1303. The 1997 amendment was not a clarification of the prior definition of “criminal history.” Nor was it a technical correction. Instead, it substantively changed the meaning of “criminal history” so as to eliminate the juvenile wash-out provisions previously in place. This type of substantive change is not curative.
Further, the 1997 amendment is not remedial. A remedial change is one that relates to practice, procedures, or remedies and does not affect a substantial or vested right. Cruz, 139 Wash.2d at 192, 985 P.2d 384. In Cruz, we explained the 1990 amendments were substantive changes because they imposed an affirmative disability, they promoted a retributive aim of punishment, and there was no nonrational basis or nonpunitive
Because the SRA contains no explicit legislative intent for retroactivity, and the 1997 amendment is neither curative nor remedial, we hold the 1997 amendment cannot be applied retroactively. Accordingly, we find the sentencing courts erred by reviving appellants’ previously washed out juvenile adjudications and calculating them into their offender scores. The Court of Appeals decision in State v. Hendricks, 103 Wash.App. 728, 14 P.3d 811 is reversed. We remand all four individual cases for resentencing.
II. DUE PROCESS AND PROSECTORIAL MISCONDUCT CLAIMS
Facts
Dorsey raises several unrelated challenges to his sentence; these issues are addressed in this section of the opinion.3
Officer Aaron Sausman (Sausman) of the Seattle Police Department (SPD) was in a patrol car unit in south Seattle just after midnight on May 10, 1999, when he saw a red car driven by Dorsey speed by. Sausman followed the car, paced it, and determined it was speeding. After the car turned right without signaling, Sausman turned on his emergency lights to pull the car over.
When Sausman came into the driver‘s view at the back of the car, Dorsey suddenly drove away. SPD detective Daniel Betse (Betse) joined Sausman and an eight-minute chase ensued. Dorsey‘s car finally stopped after two of its tires drove over a planting strip. Dorsey exited the car and started running. Sausman chased Dorsey on foot; Betse pursued by car. Sausman overpowered Dorsey and physically forced him to the ground; Dorsey was taken into custody.
Dorsey was charged with one count of attempting to elude a pursuing police vehicle and one count of driving with a revoked license. A trial was held in superior court on August 18-19, 1999.
In making its case against Dorsey for driving with a revoked license, the prosecutor introduced several documents: (1) an order of license revocation dated July 5, 1995 (which included a certification under penalty of perjury the document was sent to Dorsey‘s last known address); (2) an habitual traffic offender hearing request form; (3) an envelope addressed to Dorsey but stamped “return to sender;” and (4) a letter from Department of Licensing‘s (DOL) records custodian attesting to the authenticity of the documents. Dorsey‘s counsel objected to the introduction of these documents and the court reserved ruling. Later, when the jury was removed and the matter was discussed, Dorsey‘s counsel noted the envelope addressed to Dorsey, containing the revocation notice, had been returned to DOL. Counsel argued no foundation had been laid to show the revocation was sent to the proper address or to show proper notice of a hearing was given. Dorsey‘s counsel never asserted the notice was sent to the wrong address. The trial judge overruled the objections, instructing Dorsey‘s counsel that it had to make a threshold allegation that due process was violated.
After the State presented its case, Dorsey again raised the due process issue and moved for a dismissal but, again, made no colorable claim. The motion was denied. On August 19, 1999, a jury found Dorsey guilty on both counts.
On September 7, 1999, the date originally scheduled for sentencing, the parties briefly addressed the due process issue. Dorsey‘s counsel argued the State had not met its burden of showing due process had been complied with in the revocation of Dorsey‘s license. The trial judge expressed doubt the defense had made the necessary threshold allegation. Nonetheless, the court instructed the prosecutor to obtain from DOL the necessary documents showing the notice was in fact sent to an address provided by Dorsey. The matter was set over for further briefing and argument before sentencing.
At the next hearing on September 24, 1999, the prosecutor produced an address
Analysis
Due process requires that the State give an habitual traffic offender notice and the opportunity to be heard prior to revoking that person‘s driver‘s license. State v. Rogers, 127 Wash.2d 270, 275, 898 P.2d 294 (1995). A revocation that does not comply with due process is void. State v. Dolson, 138 Wash.2d 773, 777, 982 P.2d 100 (1999). The Legislature has codified constitutional due process requirements that provide in relevant part:
(1) Whenever a person‘s driving record, as maintained by the department, brings him or her within the definition of an habitual traffic offender, as defined in
When prosecuting a person for driving with a revoked license, the State has the burden of proving the revocation of the defendant‘s license complies with due process. State v. Storhoff, 133 Wash.2d 523, 527, 946 P.2d 783 (1997). However, to establish a violation of due process, the defendant must at least allege DOL failed to comply with the statute and this failure deprived the defendant of notice or the opportunity to be heard. Storhoff, 133 Wash.2d at 528, 946 P.2d 783.
In this case, Dorsey argues the State had the burden of producing evidence at trial that DOL sent a revocation notice to an address provided by Dorsey. Dorsey asserts, “[w]ithout evidence that the ‘address of record’ to which the notice was sent was provided by Dorsey as required under the law in 1995, there is no way to prove that due process was met.” Appellant‘s Br. (Dorsey) at 19.
Dorsey did not allege that DOL sent the revocation notice to an address other than that of record. Dorsey‘s only argument was that the State had not met its burden. Dorsey needed to allege at least that DOL failed to comply with the statute by sending the notice to an address other than Dorsey‘s address of record. Because Dorsey‘s counsel did not properly articulate a due process challenge, it was not necessary to require the State to provide more evidence than it did at trial.
Nonetheless, during sentencing, the trial judge asked the prosecutor to provide additional evidence showing the address of record was indeed provided by Dorsey. While this additional evidence was unnecessary, its admittance in no way prejudiced Dorsey or had any bearing on the outcome of the case. We find Dorsey‘s due process rights were not violated.4
Mere appeals to a jury‘s passion and prejudice are inappropriate. State v. Belgarde, 110 Wash.2d 504, 507, 755 P.2d 174 (1988). If defense counsel fails to object to comments made at trial, the issue on appeal becomes whether any curative instruction would have effectively erased the prejudice. Belgarde, 110 Wash.2d at 507, 755 P.2d 174. If the misconduct was so flagrant and ill intentioned that no curative instruction could obviate the prejudice engendered by the misconduct, then the conviction is overturned. Belgarde, 110 Wash.2d at 507, 755 P.2d 174. Some improper prosecutorial remarks can touch on a constitutional right but still be curable by a proper instruction. While it may be improper to comment on a defendant‘s demeanor so as to invite a jury to draw a negative inference about the defendant‘s character, the prejudice flowing from such comments is not necessarily incurable by instruction. State v. Klok, 99 Wash.App. 81, 85, 992 P.2d 1039 (2000).
The comments made by the prosecutor about Dorsey‘s demeanor were likely improper. However, if defense counsel had objected at the time, the trial judge could have cured the impropriety with an instruction for the jury to disregard the improper comments and decide the case based on the evidence and not on the defendant‘s character. Instead of objecting and asking for a cure, defense counsel appears to have made the tactical decision to use the improper comments to support Dorsey‘s theory of systematic retaliation and harassment by law enforcement officials.
We find the improper comments made by the prosecutor were not so flagrant they could not have been cured by an instruction. Dorsey‘s convictions are affirmed.
ALEXANDER, C.J., and SMITH, SANDERS, CHAMBERS, and OWENS, JJ., concur.
MADSEN, J. (dissenting).
Following this court‘s decision in State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), the Legislature amended
It is, of course, the court‘s province and duty to declare what the law is. Overton v. State Econ. Assistance Autk, 96 Wash.2d 552, 637 P.2d 652 (1981). However, it is equally true, when there has been no prior judicial construction of a statute, that “[c]ourts are not at liberty to speculate on legislative intent when the legislature itself has subsequently placed its own construction on prior enactments.” Anderson v. City of Seattle, 78 Wash.2d 201, 203, 471 P.2d 87 (1970); see also Carpenter v. Butler, 32 Wash.2d 371, 377, 201 P.2d 704 (1949). I cannot join the majority‘s disregard of express legislative intent and its encroachment on legislative powers.
In Cruz, the court construed the 1990 version of
“[
Laws of 2000, ch. 26, § 1.
The Legislature‘s clarification of its intent eliminates any need to question whether the 1997 versions of
The only retroactivity question in this case is whether the 2000 legislative clarification itself,
The argument is advanced that ex post facto prohibitions preclude use of the 1997 statutes in effect when the current offenses were committed because using the 1997 version of
This court has already determined that no ex post facto violation occurs under such circumstances. In Williams, 111 Wash.2d 353, 759 P.2d 436, the court was faced with the argument that use of the defendant‘s pre-SRA convictions to determine his offender score under the SRA violated the ex post facto clauses of the state and federal constitutions. Applying the analysis in State v. Randle, 47 Wash.App. 232, 734 P.2d 51 (1987), the Williams court concluded that the SRA does not increase punishment for the defendant‘s prior offenses, but instead provides for calculation of the sentence for the post-SRA conviction only. Williams, 111 Wash.2d at 363, 759 P.2d 436. Therefore, no ex post facto violation occurred.
The court‘s reliance on Randle is telling. In Randle, the defendant argued that use of pre-SRA juvenile convictions to calculate an offender score for a post-SRA adult offense violated ex post facto prohibitions. Randle, 47 Wash.App. at 240, 734 P.2d 51. The argument, however, rested on a flawed premise—“that the use of juvenile offenses to determine or enhance sentences for subsequent adult crimes constitutes additional punishment for the prior conduct.” Williams, 111 Wash.2d at 363, 759 P.2d 436 (discussing Randle, 47 WashApp. at 241, 734 P.2d 51). Rejecting defendant‘s argument, the court held that the usejof the juvenile offenses in calculating the offender score did not change the legal consequences or the underlying nature of the prior juvenile offenses, and the defendant was sentenced only for his post-SRA adult conduct. No ex post facto violation occurred. Randle, 47 Wash.App. at 243, 734 P.2d 51; Williams, 111 Wash.2d at 363, 759 P.2d 436. The same analysis applies here.
Next, the argument is made that applying the 1997 statutes violates due process because such application would retroactively affect a vested right, i.e., the “right” to “wash out” of juvenile offenses according to the terms of prior versions of the sentencing statutes. Once the “conditions” for meeting “wash-out” provisions of prior statutes are “satisfied,” the argument goes, a statutory right to “wash out” of juvenile convictions arises, and subsequent amendments cannot deprive the defendant of that right.
The difficulty with the argument is that no vested right arose under the prior sentencing statutes. Generally, an individual has no vested right in continuation of existing laws. See State v. Shultz, 138 Wash.2d 638, 646, 980 P.2d 1265 (1999) (citing State v. Hennings, 129 Wash.2d 512, 528, 919 P.2d 580 (1996)) (a legal right is not vested by a mere expectation based on an anticipated continuation of existing law). An offender has no reasonable expectation, much less a vested right, in continuation of sentencing laws in effect when a juvenile offense is committed or application of those laws to future offenses and future sentences.
State v. T.K, 139 Wash.2d 320, 987 P.2d 63 (1999) is not to the contrary. First, the 1997 amendments concerning sealing of records which were at issue in T.K. were unclear as to whether they applied to requests to seal records made after the July 1, 1997, effective date. T.K, 139 Wash.2d at 329, 987 P.2d 63. Here, the Legislature has made it very clear that the SRA‘s 1997 amendments apply to determine sentences for offenses committed when the amendments were in effect. Second, the triggering event in T.K. was completing conditions of the sealing statute, which the defendant had completed prior to the effective date of the new amendments. Here, the calculations for determining an offender score cannot be applied until a
Nor is there any merit to the argument that due process is violated by including prior juvenile offenses in calculating offender scores for current offenses because “plea agreements” entered into at the time that the juvenile offenses were committed were entered into in part in reliance on then existing “wash-out” provisions. Initially, the Court of Appeals in Hendricks questioned whether statements of juveniles on plea of guilty are truly plea agreements. Hendricks, 103 Wash.App. at 748, 14 P.3d 811. Assuming they are plea agreements, I agree with the Court of Appeals decision in State v. McRae, 96 Wash.App. 298, 979 P.2d 911 (1999), review denied 139 Wash.2d 1021, 994 P.2d 849 (2000). There, the Court of Appeals rejected the argument that a defendant has a substantive right stemming from prior sentencing laws referenced in a plea agreement. The court reasoned that a plea agreement does not entitle a defendant to any exemption from the sentencing laws, where the agreement accurately informs the offender of the current law respecting sentencing. The court also noted that the State‘s obligation is to act in good faith and not contravene any reasonable expectations of the defendant that arise from the agreement. McRae, 96 Wash. App. at 305, 979 P.2d 911. The court said that a defendant does not have any reasonable expectation that the sentencing laws will not change. Id.
Conclusion
When this court decided Cruz, it did not have the benefit of the Legislature‘s expression of how it intended the 1990 version of
I would affirm the Court of Appeals decision in Hendricks‘s and Lowe‘s cases, and would affirm the trial court decisions in Smith‘s and Dorsey‘s cases.
BROWN, J.P.T., and IRELAND, J., concur.