Post Sentence Review Of: Michael P. Thompson & Ricky L. Carroll ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
November 6, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the
Postsentence Review of
No. 50767-6-II
MICHAEL PAUL THOMPSON, Consolidated with
Respondent,
In the Matter of the No. 51685-3-II
Postsentence Review of
PUBLISHED OPINION
RICKY LEON CARROLL,
Respondent.
MAXA, C.J. – In this consolidated case, the Department of Corrections (DOC) seeks
postsentence review of the sentences of Michael Thompson and Ricky Carroll. Thompson and
Carroll both pleaded guilty in Clark County to charges of attempted failure to register as a sex
offender, and both were sentenced to terms of community custody in addition to terms of
confinement. DOC argues that community custody is not an authorized sentence for this offense.
Under RCW 9.94A.701(1)(a), the sentence of an offender who commits a “sex offense”
must include community custody. RCW 9.94A.030(47)(a)(v) defines “sex offense” to include
the completed crime of failure to register as a sex offender. The question here is whether
attempted failure to register falls within the definition of “sex offense.”
We hold that based on all of the provisions of RCW 9.94A.030(47)(a), attempted failure
to register as a sex offender is not a sex offense. Accordingly, we remand the Thompson and
Carroll cases to the superior court with instructions to strike the community custody provisions
of their sentences.
No. 50767-6-II / 51685-3-II
FACTS
As part of plea agreements, the State in separate cases charged Thompson and Carroll
with attempted failure to register as a sex offender. Thompson and Carroll both pleaded guilty.
The judgments cited RCW 9A.44.132(1), the offense of failure to register as a sex offender, and
RCW 9A.28.020(3)(c), the criminal attempt statute. The superior court sentenced both
Thompson and Carroll to confinement and community custody.
DOC petitioned this court for postsentence review based on its position that attempted
failure to register as a sex offender does not qualify for community custody under RCW
9.94A.701. DOC certified that it had made all reasonable efforts to resolve the issue at the
superior court level but could not reach an agreement with the State.
ANALYSIS
A. POSTSENTENCE REVIEW PROCEDURE
RCW 9.94A.585(7) authorizes DOC to petition for review of a sentence committing an
offender to DOC’s custody or jurisdiction. The petition must be filed in the Court of Appeals no
later than 90 days after DOC has actual knowledge of the sentence terms and must include
DOC’s certification that all reasonable efforts had been made to resolve the issue at the superior
court level. RCW 9.94A.585(7).
We review DOC’s petition for postsentence review of the trial court’s sentence for legal
error. RCW 9.94A.585(7); In re Postsentence Rev. of Bercier, 178 Wash. App. 148, 150, 313 P.3d
491 (2013). The superior court can only impose a sentence that is authorized by statute. In re
Postsentence Rev. of Leach, 161 Wash. 2d 180, 184, 163 P.3d 782 (2007). This rule applies even if
the sentence is imposed pursuant to a plea agreement. State v. Barber, 170 Wash. 2d 854, 870, 248
P.3d 494 (2011). Whether the trial court exceeded its statutory authority in issuing a particular
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No. 50767-6-II / 51685-3-II
sentence is a question of law that we review de novo. State v. Button, 184 Wash. App. 442, 446,
339 P.3d 182 (2014).
B. ELIGIBILITY OF ATTEMPTED FAILURE TO REGISTER FOR COMMUNITY CUSTODY
DOC argues that RCW 9.94A.701(1)(a) does not authorize community custody for
attempted failure to register as a sex offender because that crime is not a “sex offense” under
RCW 9.94A.030(47)(a). The State argues that attempted failure to register falls within the
statutory definition of “sex offense.” We agree with DOC.
1. Statutory Interpretation
Determining whether attempted failure to register as a sex offender is a sex offense
requires us to engage in statutory interpretation. The purpose of statutory interpretation is to give
effect to the legislature’s intent. State v. Dennis, 191 Wash. 2d 169, 172, 421 P.3d 944 (2018). We
determine the legislature’s intent by examining the plain language of the statute, the context of
the statute and related provisions, and the statutory scheme as a whole. Id. at 172-73. We must
interpret a statute so that no portion of the statutory language is rendered superfluous. Id. at 173.
2. Applicable Statutes
a. Attempted Failure to Register as a Sex Offender
RCW 9A.44.132 defines the crime of failure to register as a sex offender. The crime is a
class B felony if a person has been convicted of felony failure to register on two or more prior
occasions. RCW 9A.44.132(1)(b).
Under RCW 9A.28.020(1), “[a] person is guilty of an attempt to commit a crime if, with
intent to commit a specific crime, he or she does any act which is a substantial step toward the
commission of that crime.” An attempt to commit a crime is a class C felony when the crime
attempted is a class B felony. RCW 9A.28.020(3)(c).
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No. 50767-6-II / 51685-3-II
Thompson initially argued that attempted failure to register as a sex offender was not a
valid crime, but he withdrew that argument. And Thompson and Carroll do not seek to vacate
their convictions. Accordingly, we need not address whether attempted failure to register is a
crime.
b. Authorization to Impose Community Custody
RCW 9.94A.701 states the circumstances under which a sentencing court must impose a
sentence of community custody. RCW 9.94A.701(1) states,
If an offender is sentenced to the custody of the department for one of the following
crimes, the court shall, in addition to the other terms of the sentence, sentence the
offender to community custody for three years:
(a) A sex offense not sentenced under RCW 9.94A.507; or
(b) A serious violent offense.
The other subsections of RCW 9.94A.701 identify additional situations in which the trial court
must impose community custody.1 The parties agree that only RCW 9.94A.701(1)(a) potentially
authorizes community custody for attempted failure to register as a sex offender when, as here,
the offender previously has been convicted of felony failure to register.2
c. Definition of Sex Offense
RCW 9.94A.030(47)(a) defines “sex offense” as:
(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.132;
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080;
1
DOC also argues that attempted failure to register as a sex offender is not a “crime against
persons,” which qualifies for community custody under RCW 9.94A.701(3)(a). But the State
does not claim that attempted failure to register as a sex offender is “crime against persons.”
Therefore, we need not address this issue.
2
RCW 9.94A.701(3)(d) states that a court must impose community custody of one year for a
felony failure to register if that is the offender’s first violation for felony failure to register. Both
Thompson and Carroll had been convicted of felony failure to register before the superior courts
imposed the sentences at issue here.
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No. 50767-6-II / 51685-3-II
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal
solicitation, or criminal conspiracy to commit such crimes; or
(v) A felony violation of RCW 9A.44.132(1) (failure to register as a sex offender)
if the person has been convicted of violating RCW 9A.44.132(1) (failure to register
as a sex offender) . . . on at least one prior occasion.
(Emphasis added.) The parties agree that only subsection (a)(v) potentially applies here.
RCW 9.94A.030(47)(a)(i)-(iii) identify specific crimes that constitute sex offenses.
Subsection (a)(iv) expressly states that a felony that is a criminal attempt to commit “such
crimes” is a sex offense. The State concedes that the term “such crimes” relates only to the
crimes identified in subsections (a)(i)-(iii), and not to the failure to register as a sex offender
identified in subsection (a)(v).
3. Attempted Failure to Register as a Sex Offense
Under RCW 9.94A.030(47)(a)(v), felony failure to register as a sex offender under RCW
9A.44.132(1) is a sex offense if the person has been convicted of violating RCW 9A.44.132(1)
on at least one prior occasion. Both Thompson and Carroll had prior convictions for failure to
register as a sex offender; Thompson twice and Carroll three times. Therefore, there is no
question that if Thompson and Carroll had committed the completed crime of failure to register
as a sex offender under RCW 9A.44.132(1), that crime would have qualified as a sex offense
under RCW 9.94A.030(47)(a)(v).
The question here is whether Thompson and Carroll’s convictions of attempted failure to
register as a sex offender were violations of RCW 9A.44.132(1) and therefore were sex offenses
under RCW 9.94A.030(47)(a)(v).
DOC argues that considering RCW 9.94A.030(47)(a) as a whole precludes including
attempted failure to register as a sex offender in the definition of sex offense. RCW
9.94A.030(47)(a)(i)-(iii) lists certain specific crimes that constitute sex offenses, and subsection
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No. 50767-6-II / 51685-3-II
(iv) expressly states that the criminal attempt to commit such crimes is included in the definition
of sex offense. However, failure to register as a sex offender is not one of the crimes listed in
subsections (a)(i)-(iii). Instead, failure to register is addressed in the separate subsection (a)(v),
which is not subject to (a)(iv).
DOC also relies on two cases: Leach, 161 Wash. 2d 180 and In re Personal Restraint of
Hopkins, 137 Wash. 2d 897, 976 P.2d 616 (1999). In Leach, the court considered whether
attempted second degree assault of a child qualified as a “crime against persons” under RCW
9.94A.701(3)(a) for purposes of imposing community custody. 161 Wash. 2d at 182. RCW
9.94A.411(2)(a) listed many criminal offenses that qualified as crimes against persons. Leach,
161 Wash. 2d at 185. Although second degree assault of a child was included in the list of crimes
against persons under RCW 9.94A.411(2)(a), attempted second degree assault was not included.
Leach, 161 Wash. 2d at 183. The court held that RCW 9.94A.411(2)(a) provided an exclusive and
complete list of crimes against persons, and the court could not add attempt crimes not included
in the list. Id. at 185-86. The court noted that “it is not absurd to treat an ‘attempted’ crime
differently from a completed crime.” Id. at 187.
In Hopkins, the court considered whether the crime of solicitation to deliver cocaine was
an offense under chapter 69.50 RCW for purposes of a statute allowing a sentence to be doubled
for certain convictions under that chapter. 137 Wash. 2d at 899-900. Chapter 69.50 RCW
expressly included two anticipatory offenses – attempt and conspiracy – as specific offenses
under that chapter, but did not include solicitation. Id. at 900-01. The court followed the rule of
“expressio unius est exclusio alterius – specific inclusions exclude implication.” Id. at 901.
Under that rule, the implied inclusion of solicitation in chapter 69.50 RCW was barred because
that chapter expressly included only attempt and conspiracy. Id. The court emphasized chapter
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No. 50767-6-II / 51685-3-II
69.50 RCW’s inclusion of a particular crime as an offense did not mean that solicitation to
commit the crime was an offense under that chapter. Id.
4. Analysis
We hold that attempted failure to register as a sex offender does not constitute a sex
offense under RCW 9.94A.030(47)(a). Considering RCW 9.94A.030(47)(a) as a whole compels
this result. RCW 9.94A.030(47)(a)(iv) expressly includes the attempt to commit the crimes
listed in subsections (a)(i)-(iii) in the definition of sex offense, but does not include attempted
failure to register as a sex offender. Under expressio unius est exclusio alterius, the legislature’s
decision not to include failure to register as a sex offender in the crimes for which RCW
9.94A.030(47)(a)(iv) applies must be considered intentional. See State v. Bacon, 190 Wash. 2d
458, 466-67, 415 P.3d 207 (2018). And holding that attempts to commit all the offenses listed in
RCW 9.94A.030(47) are implicitly included under the definition of sex offense would render
RCW 9.94A.030(47)(a)(iv) superfluous.
Although not directly on point, the reasoning of Hopkins supports this analysis. In
Hopkins, the Supreme Court held that expressly including attempt and conspiracy but not
solicitation as crimes under chapter 69.50 RCW precluded an implication that solicitation was a
crime under that chapter. 137 Wash. 2d at 900-01. Similarly, expressly including attempts to
commit certain specified crimes but not attempted failure to register as a sex offender in the
definition of sex offense precludes an implication that attempted failure to register is a sex
offense.
If the legislature had intended attempted failure to register as a sex offender to be
included in the definition of sex offense, it would have included the failure to register as one of
the crimes in RCW 9.94A.030(47)(a)(i)-(iii) subject to the attempt provision in subsection
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No. 50767-6-II / 51685-3-II
(a)(iv). The fact that the legislature did not shows that the legislature did not intend to include
attempted failure to register as a sex offender in the definition of sex offense.
The State does not attempt to address this analysis. Specifically, the State does not
explain how we can adopt a contrary position without essentially ignoring the distinction the
legislature made in RCW 9.94A.030(47)(a) between attempts to commit certain specified crimes
and attempts to fail to register.
In addition, the State’s arguments supporting its position that attempted failure to register
as a sex offender constitutes a violation of RCW 9A.44.132(1) are not persuasive. The State
notes that RCW 9A.28.020(3) classifies the level of attempt crimes based on the level of the
crimes the defendant was attempting to commit. The State also emphasizes that when
calculating a defendant’s offender score, prior convictions for felony attempts are scored “the
same as if they were convictions for completed offenses.” RCW 9.94A.525(4). And the State
points out that the pattern jury instructions for an attempt crime state that the jury must be
instructed both on the elements of attempt and on the elements of the completed crime. 11A
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.02 note on
use (4th ed. 2016).
However, neither RCW 9A.28.020 nor the statutes defining individual criminal offenses
expressly state whether attempt crimes should be considered violations of the base crime. The
State does not cite any case authority for its position that an attempt to commit a crime should be
treated as a violation of the underlying criminal statute. And the State’s various other arguments
show only that there is a connection between the attempted crime and the completed crime, but
not that an attempted violation of a statute is the same as a completed violation of a statute.
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Although not directly on point, Leach supports the conclusion that attempted failure to
register as a sex offender cannot be treated the same as the completed crime of failure to register
for purposes of imposing community custody. In Leach, the Supreme Court held that including a
completed crime on a list of crimes eligible for community custody did not mean that the attempt
to commit that crime also was eligible. 161 Wash. 2d at 185-87. Similarly, expressly including
failure to register as a sex offender in the definition of sex offense does not mean that attempted
failure to register also is a sex offense.
We hold that attempted failure to register as a sex offender is not a sex offense under
RCW 9.94A.030(47)(a)(v). Therefore, that offense does not qualify for the imposition of
community custody under RCW 9.94A.701(1)(a).
CONCLUSION
We remand the Thompson and Carroll cases to the superior court with instructions to
strike the community custody provisions of their judgments and sentences.
MAXA, C.J.
We concur:
BJORGEN, J.
LEE, J.
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