State of Washington v. Terry Lee Baker , 194 Wash. App. 678 ( 2016 )

I FILED
JUNE 21, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
II STATE OF WASHINGTON,
Respondent,
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No. 33269-1-111
l V.
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TERRY LEE BAKER, ) PUBLISHED OPINION
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Appellant. )
SIDDOWAY, J. - Terry Baker's appeal of the sentence imposed for his conviction
for escape from community custody presents a recurring question of statutory
construction under RCW 9.94A.525: whether, in calculating an escapee's offender score,
the sentencing court should count "only prior escape convictions," as provided by RCW
9.94A.525(14), or should include an additional point because the conviction is for "an
offense committed while the offender was under community custody," as provided by
RCW 9.94A.525(19).
We conclude the statute is susceptible to two reasonable interpretations. Applying
the rule of lenity, we construe it as limiting the offender score to the number of an
offender's prior escape convictions. We remand with instructions to correct Mr. Baker's
offender score.
No. 33269-1-111
State v. Baker
FACTS, PROCEDURAL BACKGROUND, AND ANALYSIS
In February 2015, Terry Baker pleaded guilty to a charge of escape from
community custody. At the plea hearing, the parties disagreed over what his offender
score should be. The defense's position was that Mr. Baker's score was three, based on
his three prior escape convictions. The State's position was that his offender score was
four after adding a point because his present conviction was for an offense he committed
while under community custody. The parties acknowledged that the issue was a
recurring one and that different judges within the county had reached different results.
The sentencing court accepted the State's argument.
Mr. Baker appeals. Despite having been released from custody, he asks us to
address the technically moot issue given that it is a recurring one, has been decided
differently by different sentencing judges, and is of substantial and continuing public
interest. The State joins in the request that we decide the appeal. We agree the case
involves matters of continuing and substantial public interest that justify retaining and
deciding it. See State v. Hunley, 175 Wn.2d 901,907,287 P.3d 584 (2012) (a moot cause
may be retained and decided under such a circumstance).
Plain meaning
Collectively, the portions of RCW 9.94A.525 that either the parties or we deem
relevant to the construction issue state:
[T]he offender score rules are as follows:
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The offender score is the sum of points accrued under this section
rounded down to the nearest whole number.
( 1) A prior conviction is a conviction which exists before the date of
sentencing for the offense for which the offender score is being computed ....
(2)(a) Class A and sex prior felony convictions shall always be
included in the offender score.
[(2)(b)-(d) and (I) deal with convictions that are neither Class A nor
sex prior felony convictions. Such convictions are included unless they
have "washed out" by virtue ofyears of crime-free time in the community
that vary by offense. 2(e) is a special rule where the present conviction is
felony driving while under the influence of intoxicating liquor or any drug
or felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug]
( 14) If the present conviction is for Escape from Community
Custody, RCW 72.09.310, count only prior escape convictions in the
offender score. Count adult prior escape convictions as one point and
juvenile prior escape convictions as 1/2 point.
( 19) If the present conviction is for an offense committed while the
offender was under community custody, add one point. For purposes of this
subsection, community custody includes community placement or
postrelease supervision, as defined in chapter 9.94B RCW.
Although other subsections of the statute provide special rules for counting
convictions or points for specific crimes, subsection ( 14) dealing with escape from
community custody is the only subsection that uses the words "count only."
Mr. Baker focuses on subsection (14), and the word "only" ("count only prior
escape convictions in the offender score") as meaning that nothing counted elsewhere in
RCW 9.94A.525 is included in the offender score when the crime of conviction is escape
from community custody.
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The State focuses on the fact that the statute is structured with an introduction
stating, "The offender score is the sum of points accrued under this section rounded down
to the nearest whole number," followed by 22 enumerated subsections, implying that
each subsection must be reviewed to see if it applies. This is consistent with the reading
of the statute in State v. Moeurn, 170 Wn.2d 169, 175, 240 P.3d 1158 (2010), in which
our Supreme Court held that "[v ]iewing the statutory scheme as a whole, we believe that
the legislature intended the rules for calculating offender score to be applied in the order
in which they appear."
The State also contends that because subsections ofRCW 9.94A.525 either count
convictions or add points, subsection (14) is reasonably read as stating that the sentencing
judge is to "count only prior escape convictions" (not prior convictions for other crimes)
but as telling the judge nothing about adding points. (Emphasis added.) Subsection (19)
then requires that a point be added for any "offense committed while the offender was
under community custody," identifying no exceptions.
Statutory interpretation is a question of law reviewed de novo. State v.
Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Our fundamental purpose in
construing statutes is to ascertain and carry out the intent of the legislature. In re
Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011). "If the statute's meaning is plain
on its face," this court will "give effect to that plain meaning as the expression of what
was intended." Trac/one Wireless, Inc. v. Dep 't of Revenue, 170 Wn.2d 273,281,242
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PJd 810 (2010). Plain meaning is discerned from all that the legislature has said in the
statute and related statutes which disclose legislative intent about the provision in
question. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 PJd 4
(2002).
"For a statute to be ambiguous, two reasonable interpretations must arise from the
language of the statute itself, not from considerations outside the statute." Cerillo v.
Esparza, 158 Wn.2d 194, 203-04, 142 PJd 155 (2006).
The State's argument from the structure of the statute, and which reads "only" as
modifying which convictions get counted, is a reasonable one.
On the other hand, reading RCW 9.94A.525(19) in the context of the entire
statute, its purpose as applied to every subsection other than subsection (14) is to increase
the offender score and thereby enhance punishment because the offender committed the
crime of conviction while under community custody. Where the conviction is for escape
from community custody, however, the offender will always commit it while under
community custody. Read as a whole, a reasonable result is reached by reading "only" as
modifying which things "count ... in the offender score."
Maxims of construction and legislative history
If a statute is susceptible to more than one reasonable interpretation, "then a court
may resort to statutory construction, legislative history, and relevant case law for
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assistance in determining legislative intent." Anthis v. Copland, 173 Wn.2d 752, 756,
270 P.3d 574 (2012).
It is a principal of statutory construction that a specific statute prevails over a
general statute, but only where the statutes conflict. O.S. T. v. BlueShield, 181 Wn.2d
691, 701, 335 P.3d 416 (2014). Here, subsection (14) is the specific statute and
subsection ( 19) is the general statute, but they do not conflict; at issue is only whether
both were intended to apply.
Turning to legislative history, Mr. Baker points out that in the 1992 legislation that
made the crime of escape from community custody a level 2 offense and created the
scoring provision found in RCW 9.94A.525(14), 1 the final bill report states in part that
"the offender gets points only if the offender has previous escape offenses." FINAL BILL
REPORT ON Engrossed Substitute H.B. 2490, at 1, 52nd Leg., Reg. Sess. (1992)
(emphasis added). Elsewhere, however, it states that "[ o]nly prior escape convictions are
counted as criminal history in calculating offender points for an offender's second or
subsequent escape conviction." Id. at 2 (emphasis added). The authors of the bill report
might have been speaking only of the impact of the new legislation on criminal history,2
1
The crime of escape from community custody was created in 1988. LA ws OF
1988, ch. 153, § 6. The 1992 changes were made by Laws of 1992, ch. 75, §§ 3, 4, and 6.
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"Criminal history" was defined then (similar to its current definition) as "the list
of a defendant's prior convictions, whether in this state, in federal court, or elsewhere."
Former RCW 9.94A.030(12)(a) (1991).
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without considering the additional point that was then added by former RCW
9 .94A.360( 18) ( 1990) to all offenses committed while an offender was under community
placement.
After considering the principles of construction and legislative history pointed to
by the parties, both interpretations of RCW 9 .94A.525 remain reasonable. "If after
applying rules of statutory construction we conclude that a statute is ambiguous, 'the rule
oflenity requires us to interpret the statute in favor of the defendant absent legislative
intent to the contrary."' City ofSeattle v. Winebrenner, 167 Wn.2d 451, 462, 219 P.3d
686 (2009) (quoting State v. Jacobs, 154 Wn.2d 596,601, 115 P.3d 281 (2005)). We
therefore construe RCW 9.94A.525 as providing that where an offender's crime of
conviction is escape from community custody, RCW 9.94A.525(19)'s provision for an
additional point does not apply.
We remand with directions to correct Mr. Baker's offender score.
d]dh
J. «'4:)
Siddoway,
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WE CONCUR:
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