State v. Delgado , 148 Wash. 2d 723 ( 2003 )

Johnson, J.

The issue in this case is whether the Persistent Offender Accountability Act (the two-strike statute), chapter 9.94A RCW, for sex offenders includes prior convictions (strikes) which were not specifically listed when Delgado was tried and sentenced for his current offense. We hold that the two-strike statute was unambiguous and did not include any offenses other than those specifically listed. We reverse the Court of Appeals and affirm the sentence imposed on Delgado by the superior court.

FACTUAL AND PROCEDURAL HISTORY

In October 1999, Dumas Augustin Delgado was found guilty of first degree rape of a child¹ and first degree child molestation.² At sentencing, the trial court counted Delgado’s two offenses as one because they encompassed the same criminal conduct. The trial court declined to count a prior statutory rape conviction from September 1986 as a “strike” under the then existing two-strike statute because statutory rape was not specifically listed as one of the offenses to be counted as a strike under the version of the statute in effect at the time of Delgado’s current offense.³

The State appealed the trial court’s failure to sentence Delgado as a two-strike persistent offender. The Court of Appeals reversed Delgado’s sentence and remanded for resentencing, holding Delgado’s 1986 statutory rape conviction counted as a strike. State v. Delgado, 109 Wn. App. 61, 33 P.3d 753 (2001).

Delgado petitioned for review, and this court granted review on the sole issue of whether Delgado should be sentenced as a persistent offender.⁴ State v. Delgado, 146 Wn.2d 1008, 52 P.3d 520 (2002).

ANALYSIS

To resolve this issue, we look to the statute in effect at the time Delgado committed the crimes. At the time of Delgado’s offense, an offender could be sentenced as a persistent offender with only one previous conviction if the offender

(b)(i) Ha[d] been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree, with a finding of sexual motivation;. . . and

(ii) Ha[d], before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection.

Former RCW 9.94A.030(27) (1998).

We first analyze whether this language is ambiguous. Language is unambiguous when it is not susceptible to two or more interpretations. State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993). This statute is unambiguous because there is only one interpretation we can draw from it. The statute expressly lists those qualifying prior convictions which expose an offender to a sentence of life without parole as a two-strike persistent offender. The statute ends with the limiting language “of an offense listed in (b)(i) of this subsection.” Statutory rape is not listed. We conclude this list of predicate strike offenses is exclusive, and we can find no basis to add any offenses not listed.

The State argues we should look for a latent ambiguity despite the statute’s unambiguous language. A latent ambiguity is apparent only when the language is applied to the facts as they exist and is not apparent on the face of the language. See In re Estate of Bergau, 103 Wn.2d 431, 436, 693 P.2d 703 (1985). The State contends a latent ambiguity exists because two offenders with prior convictions involving similar conduct can be sentenced differently under this statute. As in Delgado’s case, an offender whose prior offense is factually similar to a strike offense is not sentenced as a persistent offender if that prior crime is not listed by the statute. Br. of Resp’t at 19-20. The State argues this requires us to construe the statute to include a comparability clause. This would allow offenses that are factually comparable to the ones listed also to count as strikes. Br. of Resp’t at 18. Similarly, the dissent outlines a comparability analysis it would have us adopt.

We disagree that a comparability analysis is warranted. When statutory language is unambiguous, we look only to that language to determine the legislative intent without considering outside sources. “Plain language does not require construction.” State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). When we interpret a criminal statute, we give it a literal and strict interpretation. Wilson, 125 Wn.2d at 217. We cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language. We assume the legislature “means exactly what it says.” Davis v. Dep’t of Licensing, 137 Wn.2d 957, 964, 977 P.2d 554 (1999). Here, the legislature unambiguously did not include a comparability clause in the two-strike statute in effect when Delgado committed his offense. Former RCW 9.94A.030(27)(b)(i) (1998). Our inquiry, thus, ends with the plain language before us.

This conclusion is in accord with our prior cases. E.g., State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997) (statute defining “sexual exploitation of a minor” not subject to construction beyond plain language); State v. Mollichi, 132 Wn.2d 80, 87-88, 936 P.2d 408 (1997) (statute requiring restitution to be given at juvenile’s disposition hearing is unambiguous and not subject to construction beyond the plain language); State v. Smith, 117 Wn.2d 263, 814 P.2d 652 (1991) (plain language of statute allows any party of interest to seek a revision of a juvenile court commissioner’s ruling).

Our conclusion is further supported by a comparison of the two-strike statute in effect at the time of Delgado’s offense with the immediately preceding three-strike statute. Significantly, the legislature included a comparability clause in the three-strike offender definition. To be sentenced as a three-strike persistent offender, an offender must be convicted of a most serious offense and have “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.” Former RCW 9.94A.030(27)(a)(i)-(ii) (1998). “Most serious offenses” include, in relevant part,

Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection ....

Former RCW 9.94A.030(23)(u) (1998). Thus, the legislature knew how to include comparable offenses in the definition of a persistent offender. Yet, the legislature neither directly included a comparability clause, nor incorporated the definition of “most serious offense,” into the definition of two-strike persistent offenders directly following the three-strike definition. “Under expressio unius est exclusio alterius, a canon of statutory construction, to express one thing in a statute implies the exclusion of the other.” In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002). We therefore presume the absence of such language in the two-strike scheme was intentional.

We find further confirmation of this intentional omission in the addition of a comparability clause in the legislature’s recent amendment to the two-strike definition. RCW 9.94A.030(31)(b)(ii) (Laws of 2001, ch. 7, § 2). The amendment is an acknowledgment that, at the time of Delgado’s current offense, such a clause did not exist, nor can it be read in.

The Court of Appeals and the dissent err by going beyond the plain language of the statute to find an implied comparability clause.⁵ Delgado, 109 Wn. App. at 67. The Court of Appeals reasoned this result was consistent with its decision in State v. Lawrence, 108 Wn. App. 226, 241, 31 P.3d 1198 (2001), in which it held that an out-of-state conviction counted as a strike if it was factually equivalent to one listed in the statute. Delgado, 109 Wn. App. at 66-67. Because we go no further than the plain language of the statute at the time of Delgado’s offense, however, we do not look for such a clause where it is not expressly written.

Although the dissent maintains it uses a plain meaning analysis of the statutory language, it outlines a comparability analysis it would have us undertake, despite the conspicuous absence of a comparability clause. Inferring a comparability clause from a legislative omission would make express comparability clauses, like the one in the immediately preceding former three-strike statute, superfluous. As we explained above, we must derive our understanding of the legislature’s intent from the plain language before us, especially in matters of criminal sentencing.

The State and the dissent list what they argue are absurd results that stem from our analysis and argue we should correct what they perceive as a legislative error. Again, we disagree. If the omission of a comparability clause for two-strike persistent offenders was a legislative error, any resulting inconsistencies in sentencing do not rise to the level of error this court will correct by inserting statutory language. “This court has exhibited a long history of restraint in compensating for legislative omissions.” State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982).

We have noted three broad types of cases in which we find legislative errors. Taylor, 97 Wn.2d at 728-29. In the first type, a statute contains an omission or mistake, but the court is able to guess why the legislature intended a literal reading of the statute. The court does not correct this type of perceived legislative error. Taylor, 97 Wn.2d at 729.

In the second type, we will not correct perceived errors if an omission or mistake creates some inconsistencies, but the statute remains rational on the whole. Taylor, 97 Wn.2d at 729. We will not “arrogate to ourselves the power to make legislative schemes more perfect, more comprehensive and more consistent.” Taylor, 97 Wn.2d at 729. For example, in State v. Niemann, the Court of Appeals declined to change an effective date of an amendment to a sentencing statute, despite evidence of a legislative error. State v. Niemann, 35 Wn. App. 89, 93-94, 665 P.2d 906 (1983).

Another example of this second type of perceived error is found in State v. S.M.H., 76 Wn. App. 550, 887 P.2d 903 (1995). In S.M.H., the legislature unintentionally omitted the juvenile sexual motivation statute from the definition of sex offense in former RCW 9.94A.030(31) (1995). Nevertheless, the omission did not require judicial correction because it did not undermine the effectiveness of the registration statute or the statute defining sex offenses. S.M.H., 76 Wn. App. at 558-59. “[Ajdding the juvenile sexual motivation statute to the definition of sex offense is not imperatively required to make any of the statutes rational.” S.M.H., 76 Wn. App. at 559. Nor did the omission make the registration statute ambiguous, even though as a result the requirement that S.M.H. register as a sex offender was deleted from his adjudication. S.M.H., 76 Wn. App. at 558, 559-60.

Here, if inconsistencies exist between the two-strike and three-strike provisions, and if they reflect a legislative error, they belong to this second type of case. Reading the two-strike statute to require only those prior offenses listed does not render the act meaningless. Despite potentially inconsistent sentences for those with prior convictions of rape of a child and the former offense of statutory rape, the act still functions to severely punish most recidivist sex offenders.

The third type of legislative omission, an omission making a statute entirely meaningless, is the only type we will correct. Taylor, 97 Wn.2d at 730. For example, an omission creating a statute that simultaneously qualifies a person for commitment and release is meaningless. Taylor, 97 Wn.2d at 730 (citing State v. Brasel, 28 Wn. App. 303, 309, 623 P.2d 696 (1981)). In such a case, the statute is not functional without judicial correction because it is completely ineffective in achieving its purpose. Taylor, 97 Wn.2d at 730.

No such absurdity occurs here. Any inconsistency in sentencing flowing from the lack of a comparability clause in the former two-strike statute must be addressed by the legislature, which has already acted to add such a clause. By arguing we should make more perfect this statutory scheme, the State and the dissent ask us to impermissibly transgress on the province of the legislature. We decline to do so.

CONCLUSION

In sum, we must interpret the plain meaning of the language the legislature gives us. Because the meaning of language of the former two-strike statute is unambiguous, we will not read into it a clause the legislature omitted. Any resulting sentencing inconsistencies do not rise to the level of those we must correct. Because Delgado’s previous conviction for statutory rape is not listed as a strike offense in the former two-strike statute, Delgado was correctly sentenced by the trial court. We reverse the Court of Appeals and affirm Delgado’s sentence.

Alexander, C.J.; Sanders, Chambers, and Owens, JJ.; and Smith, J. Pro Tem., concur.

1 In violation of RCW 9A.44.073.

2 In violation of RCW 9A.44.083.

3 The legislature has since amended this statute to include a comparability clause. The two-strike statute now requires the sex offender to have,

before the commission of the offense [listed above], been convicted as an offender on a least one occasion, whether in this state or elsewhere, of an offense listed [above] or any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed [above],

RCW 9.94A.030(32)(b)(ii) (Laws of 2001, ch. 7, § 2) (emphasis added).

4 Delgado had also appealed his conviction for first degree rape of a child, but this court declined to review that issue.

5 The Court of Appeals further erred when it essentially applied the amendment retroactively. It held the amendment controlled its decision because “it is clear that the Legislature amended the statute to address potential ambiguity regarding cases such as the one presently before the court.” Delgado, 109 Wn. App. at 68. This reasoning ignores the strong presumption against retroactive application of statutory amendments that is deeply rooted in our jurisprudence and “ ‘is an essential thread in the mantle of protection that the law affords the individual citizen.’ ” State v. Smith, 144 Wn.2d 665, 673, 30 P.3d 1245 (2001) (quoting State v. Cruz, 139 Wn.2d 186, 190, 985 P.2d 384 (1999)).