State Of Washington v. Cory Tash , 413 P.3d 1069 ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
March 27, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50108-2-II
Respondent,
v.
CORY DANIEL TASH, PUBLISHED OPINION
Appellant.
MELNICK, J. — Following a bench trial, the trial court found Cory Daniel Tash guilty of
failure to register as a sex offender. Tash appeals his conviction. He asserts that he was not
required to register because RCW 9A.44.130(4)(a)(i)’s registration requirement applies only to
those released from custody on a sex or kidnapping offense, and he was released from custody on
a Department of Corrections (DOC) violation. Tash also alleges he did not receive notice that he
was required to register. Lastly, Tash argues that the sentencing court erred when it failed to
consider his ability to pay before imposing legal financial obligations (LFOs). We affirm Tash’s
conviction and the sentencing court’s imposition of LFOs.
FACTS
In November 2003, Tash was convicted of indecent liberties with forcible compulsion in
Thurston County and was required to register as a sex offender. In 2014, Tash was convicted of
failure to register as a sex offender. On December 26, 2014, Tash was released from custody after
serving his sentence for failure to register as a sex offender. At that time, Tash signed a sex
offender registration requirement form notifying him that he is required to register as a sex
50108-2-II
offender. The form also notified Tash, “If you change your address within Thurston County, or
have been released from custody, you are required to notify the Thurston County Sheriff’s Office
in person or by mail within three business days.” Clerk’s Papers (CP) at 57
On February 8, 2016, Tash was again convicted of failure to register as a sex offender.
Tash was released on May 13, 2016, and then incarcerated again following a DOC violation. He
was released from custody on June 1, 2016. At that time, he was notified that he must
“immediately contact the Sheriff’s Office to stay in compliance.” CP at 51. Also, on June 3, 2016,
an employee of the Thurston County Sherriff’s Office left Tash a phone message “INSTRUCTING
[TASH] TO SUBMIT A CHANGE OF ADDRESS.” CP at 53.
Tash did not register. On October 6, 2016, the State charged him with felony violation of
sex offender registration.
Tash moved to dismiss the charge, arguing RCW 9A.44.130(4)(a)(i) only requires
registration if Tash was in custody as a result of a sex or kidnapping offense. The trial court denied
his motion, concluding, “The plain language of the statute requires that individuals required to
register as sex offenders must register within three business days of their release from custody
regardless of the reason for their detention.” CP at 104.
Following a bench trial, the trial court found Tash guilty of failure to register as a sex
offender. The sentencing court imposed as LFOs a $500 crime victim assessment fee, a $100
deoxyribonucleic acid (DNA) collection fee, and a $200 court costs fee. Tash appeals.
ANALYSIS
I. FAILURE TO REGISTER
Tash argues that we should reverse his failure to register as a sex offender conviction
because the trial court erred in denying his motion to dismiss when it misconstrued RCW
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9A.44.130 regarding the registration requirement and because Tash did not receive notice of his
duty to register. We disagree.
A. RCW 9A.44.130
We review conclusions of law following a motion to dismiss de novo. State v. Garvin, 166
Wash. 2d 242, 249, 207 P.3d 1266 (2009). Similarly, statutory interpretation is a question of law that
we review de novo. State v. Watson, 146 Wash. 2d 947, 954, 51 P.3d 66 (2002). “In interpreting
statutory provisions, the primary objective is to ascertain and give effect to the intent and purpose
of the Legislature in creating the statute.” Watson, 146 Wash. 2d at 954. “The court discerns
legislative intent from the plain language enacted by the legislature, considering the text of the
provision in question, the context of the statute in which the provision is found, related provisions,
amendments to the provision, and the statutory scheme as a whole.” Fast v. Kennewick Pub. Hosp.
Dist., 187 Wash. 2d 27, 33, 384 P.3d 232 (2016).
RCW 9A.44.130(1)(a) requires any person who “has been convicted of any sex offense or
kidnapping offense” to “register with the county sheriff for the county of the person’s residence.”
This statute also states, “When a person required to register under this section is in custody of . . .
a local jail . . . as a result of a sex offense or kidnapping offense, the person shall also register at
the time of release from custody.” RCW 9A.44.130(1)(a). The registration statute applies
retroactively, so changes made following Tash’s crimes apply to him. In re Pers. Restraint of
Estavillo, 69 Wash. App. 401, 404 n.2, 848 P.2d 1335 (1993).
RCW 9A.44.130(4)(a)(i) sets forth the deadline to register when released from custody.
This statute states in relevant part:
“OFFENDERS IN CUSTODY. Sex offenders or kidnapping offenders who are in
custody of . . . a local jail . . . must register at the time of release from custody with
an official designated by the agency that has jurisdiction over the offender . . . . The
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offender must also register within three business days from the time of release with
the county sheriff for the county of the person’s residence.
RCW 9A.44.130(4)(a)(i). Moreover, “[t]he agency that has jurisdiction over the offender shall
provide notice to the offender of the duty to register.” RCW 9A.44.130(4)(a)(i).
In 2015, our legislature amended RCW 9A.44.130(4)(a)(i) as follows:
OFFENDERS IN CUSTODY. (A) Sex offenders who committed a sex offense on,
before, or after February 28, 1990, and who, on or after July 28, 1991, are in
custody, as a result of that offense, of the state department of corrections, the state
department of social and health services, a local division of youth services, or a
local jail or juvenile detention facility, and (B) or kidnapping offenders who on or
after July 27, 1997, are in custody of the state department of corrections, the state
department of social and health services, a local division of youth services, or a
local jail or juvenile detention facility, must register at the time of release from
custody with an official designated by the agency that has jurisdiction over the
offender.
Former RCW 9A.44.130(4)(a)(i) (2011); LAWS OF 2015, ch. 261, § 3. Tash contends this statute
only applies to individuals in custody for a sex offense. We disagree.
In 2015, the legislature removed the above crossed out language from RCW
9A.44.130(4)(a)(i) regarding when a sex offender in custody must register. LAWS OF 2015. ch.
261, § 3. This change clarified that the sex offender did not have to be in custody as a result of a
sex offense to be required to register. In the same year, the legislature also created a new statute
regarding registration requirements in general, including some of the above language. RCW
9A.44.148; LAWS OF 2015, ch. 261, § 4. Removing language from a statute generally shows the
legislature’s intent that those words not be given the same effect as when initially included.
Watson, 146 Wash. 2d at 955. It is beyond our power and function to add words when the legislature
has chosen not to include them. State v. Larson, 184 Wash. 2d 843, 851, 365 P.3d 740 (2015).
The purpose of the sex offender registration statute is to assist law enforcement agencies
in their efforts to protect their communities against sex offenders who reoffend. State v. Stratton,
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130 Wash. App. 760, 765, 124 P.3d 660 (2005); State v. Pray, 96 Wash. App. 25, 28, 980 P.2d 240
(1999). “Specifically, registration provides law enforcement agencies with an address where they
can contact a sex offender.” Stratton, 130 Wash. App. at 765; Pray, 96 Wash. App. at 28-29. It
furthers the purpose of the sex offender registration statute to require sex offenders in custody to
register when they are released. While Tash points out that the custody may be brief, it also may
be long term. Clearly, the purpose of the sex offender registration statute is better furthered by
requiring registration upon release.
We, therefore, conclude that RCW 9A.44.130(4)(a)(i) requires a sex offender to register
within three days of release from custody with the county sheriff for the county of the person’s
residence. The trial court correctly concluded likewise.
B. Notice
RCW 9A.44.130(4)(a)(i) requires “[t]he agency that has jurisdiction over the offender” to
“provide notice to the offender of the duty to register.” “Lack of notice of the duty to register
constitutes a defense to the crime of knowingly failing to register as a sex offender—but only for
the first such offense; an arrest for failure to register constitutes actual notice of the duty to
register.” State v. Clark, 75 Wash. App. 827, 832, 880 P.2d 562 (1994).
Here, Tash has been convicted of multiple offenses of failure to register. At the time of his
latest release, Tash was notified that he must “immediately contact the Sheriff’s Office to stay in
compliance.” CP at 51. Also, on June 3, 2016, an employee of the Thurston County Sherriff’s
Office left Tash a phone message “INSTRUCTING [TASH] TO SUBMIT A CHANGE OF
ADDRESS.” CP at 53. Additionally, in December 2014, Tash signed a sex offender registration
requirement form, which notified him that he was required to register as a sex offender. The form
also notified Tash, “If you change your address within Thurston County, or have been released
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from custody, you are required to notify the Thurston County Sheriff’s Office in person or by
mail within three business days.” CP at 57
Based on the above, Tash received notice of his duty to register. RCW 9A.44.130(4)(a)(i)’s
notice requirement was satisfied.
II. LFOS
Tash next argues that the sentencing court erred when it failed to consider his ability to pay
before imposing LFOs. But trial courts are not required to inquire into a defendant’s ability to pay
before imposing mandatory LFOs. State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013).
Here, the sentencing court imposed a $500 crime victim assessment fee, a $100 DNA fee, and a
$200 court costs fee. Each of these LFOs are required by statute and thus are mandatory. Lundy,
176 Wash. App. at 102. Because the trial court imposed only mandatory LFOs, Tash’s claim fails.
We affirm.
Melnick, J.
We concur:
Worswick, P.J.
Lee, J.
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