STATE OF WASHINGTON, Respondent, v. THOMAS LEE WEATHERWAX, Petitioner. STATE OF WASHINGTON, Respondent, v. JAYME L. RODGERS, Petitioner.
NO. 93192-5
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
April 6, 2017
EN BANC
That statute does not, however, specify how the sentencing court should determine the seriousness level of a “serious violent offense[]” subject to
This lack of statutory guidance has produced a conflict in the Court of Appeals. In the consolidated cases before us now, petitioners were each charged with four serious
We accepted review to resolve this conflict. We hold that for purposes of
FACTS
On September 24, 2013, Thomas Weatherwax and Jayme Rodgers verbally threatened an alleged rival gang member, Leroy Bercier, inside a convenience store in Spokane. A little while later, in the parking lot of that store, Weatherwax and Rodgers fired a series of shots at Bercier and two bystanders, Louie Stromberg and Amanda Smith. The State charged each defendant with eight crimes—three counts of drive-by shooting (
The trial court therefore had several serious violent offenses and several nonserious violent offenses before it at sentencing.
Applying
Both young men appealed to Division Three of the Court of Appeals. Among other things, they challenged the trial court‘s calculation of their sentences on the serious violent offenses—specifically, its use of count I (assault) as the starting point, rather than count II (conspiracy, an anticipatory offense).
The State conceded error on this point. Both petitioners and the State relied on the Breaux decision from Division One. Breaux held that
But a divided panel of Division Three disagreed. It rejected the State‘s concession and ruled, instead, that
We granted review and now reverse and remand for resentencing.
ANALYSIS
I. For Purposes of RCW 9.94A.589(1)(b) , the Seriousness Level of an Anticipatory Offense Is the Same as the Seriousness Level of the Target Crime
The legislature clearly intended to include certain anticipatory offenses—conspiracy, attempt, and solicitation to commit a serious violent offense—in the definition of “serious violent offenses” to which
Different divisions of our Court of Appeals have dealt with that problem differently. In Weatherwax, Division Three held, “Conspiracy to commit first degree assault has no seriousness level under
This is a question of first impression for our court. We have noted it only in dicta. See State v. Weber, 159 Wn.2d 252, 268 n.7, 149 P.3d 646 (2006). We now agree with the parties that for purposes of
A. RCW 9.94A.589(1)(b) Assumes That One Offense Will Have a Higher Seriousness Level Than the Others—And That Was Not True in This Case
Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender‘s prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under this subsection (1)(b) shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.
(Emphasis added.)
Under this statute, to determine the length of consecutive sentences, the sentencing court must first identify which of the “serious violent offenses arising from separate and distinct criminal conduct” is “the offense with the highest seriousness level under
That, however, was not the case here. Four of Weatherwax‘s and Rodgers‘s convictions are “serious violent offenses” with arguably equally high seriousness levels potentially subject to
B. RCW 9.94A.589(1)(b) ‘s Plain Language and Underlying Legislative Intent Indicate That Anticipatory Offenses Have the Same Seriousness Level as Their Target Crimes; To Hold Otherwise Would Yield Absurd Results
We review this statutory interpretation issue de novo. State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015). Our “‘fundamental objective ... is to ascertain and carry out the legislature‘s intent.‘” Lake v. Woodcreek Homeowners Ass‘n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)). In interpreting statutes, “we presume the legislature did not intend absurd results” and thus avoid them where possible. State v. Eaton, 168 Wn.2d 476, 480, 229 P.3d 704 (2010) (citing State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)).
The context of
Applying the rules, we see that
Another SRA statute, however, arguably does.
To sum up, then, the SRA requires consecutive sentencing of serious violent offenses based on the serious violent offense “with the highest seriousness level” (including the anticipatory versions of these crimes). The statute that ranks crimes by seriousness level, however, does not explicitly list anticipatory crimes. But
Both petitioners and the State rely on
They also note that if anticipatory crimes were deemed to have no seriousness level, defendants whose serious violent offenses included only anticipatory offenses could not be sentenced in accordance with
In fact, in its supplemental brief, the State includes tables calculating specific examples of sentences that would be higher using the anticipatory offense, and not the completed crime, as the predicate. See id. at 5-7. The Weatherwax court did not have the benefit of these tables prepared by the State, which demonstrate the anomalous results that can occur if anticipatory crimes are excluded from consideration for purposes of
That leaves us with four reasons for adopting the interpretations advanced by the parties. First, as discussed above,
Second, although it seems plain from the language of the statute that the legislature intended to increase sentences overall where multiple serious violent offenses were committed at once, compared to the concurrent
Third, the legislature has arguably acquiesced in Breaux‘s interpretation. As the dissent stated in the court below, the legislature amended
Finally, our holding today avoids absurd results. The legislature expressly designated certain anticipatory offenses as serious violent offenses.
Accordingly, we hold that for purposes of applying
II. RCW 9.94A.589(1)(b) Does Not Specify Which Serious Violent Offense To Start With When Sentencing on Two or More Such Crimes; That Constitutes an Ambiguity That Must Be Resolved Using the Rule of Lenity
This interpretation does, however, leave the question of how the trial court should calculate serious violent offense sentences when a defendant is convicted of two or more such offenses that have the same “highest seriousness level,” but which could produce different possible total sentences. We hold that in such cases, the rule of lenity requires the trial court to base its calculation on the crime that results in the shorter of two possible sentences.
A. RCW 9.94A.589(1)(b) Does Not Say Which of Two or More Identical “Highest Seriousness Levels” Should Be Used To Calculate the Sentence, and It Sometimes Makes a Difference
But that is not always the case. Two offenses can have the same seriousness level even though one will result in a shorter standard range. This can happen for a number of reasons, such as where different serious violent offenses have the same seriousness
In these situations,
B. RCW 9.94A.589(1)(b) ‘s Silence on This Point Is Ambiguous
A statute is ambiguous “[i]f more than one interpretation of the plain language is reasonable.” State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). The fact that different divisions of our Court of Appeals have considered the same statute and arrived at opposite interpretations can indicate such ambiguity. State v. McGee, 122 Wn.2d 783, 797, 864 P.2d 912 (1993) (Johnson, J., dissenting) (“I find this split determinative on the issue this statute can be interpreted two reasonable ways.“).
Using this definition,
We agree.
C. The Rule of Lenity Requires Imposing the Lesser of the Two Possible Sentences in This Case
In this situation, the rule of lenity requires us to interpret the statute strictly in favor of the defendant. Conover, 183 Wn.2d at 712; see also State v. Tvedt, 153 Wn.2d 705, 710-11, 107 P.3d 728 (2005) (“‘[W]hen choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite.‘” (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222, 73 S. Ct. 227, 97 L. Ed. 260 (1952)))). The underlying rationale for the rule of lenity is to place the burden on the legislature to be clear and definite in criminalizing conduct and establishing criminal penalties. See Tvedt, 153 Wn.2d at 710-11; State v. Brown, 145 Wn. App. 62, 80, 184 P.3d 1284 (2008).
Our holding that anticipatory offenses have the same seriousness level as their target crimes does not create ambiguity in every
CONCLUSION
We hold that for purposes of
GORDON McCLOUD, J.
WE CONCUR:
Fairhurst, C.J.
Stephens, J.
Johnson, J.
Gonzalez, J.
Madsen, J.
Wiggins, J.
Owens, J.
Yu, J.