State Of Washington v. Honolulu Molia ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 78981-3-I
)
Respondent, ) DIVISION ONE
)
v. ) PUBLISHED OPINION
)
HONOLULU MOLIA, )
)
Appellant. )
)
HAZELRIGG, J. — Honolulu Molia seeks resentencing, arguing that his
sentence of life without the possibility of parole is unauthorized because a statutory
amendment enacted after he was sentenced removed second degree robbery
from the list of most serious offenses. Because Molia has not shown that the
subsequent change in the statute applies to his case either prospectively or
retroactively, we affirm.
FACTS
Honolulu Molia was convicted of three counts of rape of a child in the first
degree, domestic violence; five counts of incest in the first degree, domestic
violence; and two counts of incest in the second degree, domestic violence. The
court also found as an aggravating circumstance for eight of the ten counts that
the offenses were part of an ongoing pattern of psychological, physical, or sexual
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abuse of the same victim or multiple victims manifested by multiple incidents over
a prolonged period of time.
At his sentencing in 2018, the court found that Molia’s prior separate
convictions for second degree robbery and second degree assault of a child had
been proven by a preponderance of the evidence. The court found that the prior
convictions and five of his current offenses were most serious offenses and Molia
was therefore a persistent offender. Molia was sentenced to life imprisonment
without the possibility of parole. He appealed.
ANALYSIS
Molia argues that he should be resentenced because a recent legislative
change removing second degree robbery as a most serious offense applies either
prospectively or retroactively to his sentence. We review questions of law de novo.
State v. Pillatos, 159 Wash. 2d 459, 469, 150 P.3d 1130 (2007).
The Sentencing Reform Act (SRA)1 provides that a persistent offender shall
be sentenced to life imprisonment without the possibility of release. RCW
9.94A.570. A “persistent offender” is one who has been convicted in Washington
of a felony considered a most serious offense and who has been convicted on two
or more prior separate occasions of felonies considered most serious offenses.
RCW 9.94A.030(38)(a). The statute contains a list of felonies that are considered
most serious offenses. RCW 9.94A.030(33). This list includes any class A felony
and assault of a child in the second degree, among others. RCW 9.94A.030(33)(a),
(c).
1
Chapter 9.94A RCW.
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When Molia was sentenced in September 2018, robbery in the second
degree was listed as a most serious offense. Former RCW 9.94A.030(33)(o); Laws
of 2018, ch. 166, § 3. In April 2019, the legislature approved an amendment to the
statute that removed robbery in the second degree from the list of most serious
offenses. Laws of 2019, ch. 187, § 1. The amendment became effective on July
28, 2019. Id.
As a preliminary matter, the State argues that Molia’s claim of error is not
justiciable on direct appeal because he does not argue that the trial court erred in
any way. It contends that “[a]ny claim of unlawful restraint that is premised on a
statutory amendment that occurred after sentencing and the filing of the notice of
appeal must be raised in a personal restraint petition.” Assuming without deciding
that this appeal is properly before this court, we will reach the merits of Molia’s
argument.
I. Prospective Application
Molia argues that the change in the law applies prospectively to his case
because it is still pending on direct appeal and not yet final, or, in the alternative,
that the statutory change applies retroactively.
Division Two of this court recently considered a similar argument. State v.
Jenks, No. 52450-3-II, slip op. (Wash. Ct. App. Mar. 3, 2020) (published in part),
https://www.courts.wa.gov/opinions/pdf/D2%2052450-3-
II%20Published%20Opinion.pdf. In 2017, Jenks was sentenced to a term of life in
prison without the possibility of parole as a persistent offender after being
convicted of a third most serious offense. Id. at 2. One of his prior most serious
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offense convictions was for second degree robbery. Id. Like Molia, Jenks argued
that the 2019 amendment to RCW 9.94A.030(33) “should be applied on appeal to
invalidate his sentence.” Id. at 3. Division Two disagreed. Id.
Any sentence imposed under the provisions of the SRA “shall be
determined in accordance with the law in effect when the current offense was
committed.” RCW 9.94A.345. However, “[t]o say that we look to the law in effect
at the time the defendant committed the offense does not answer whether the law
applies retroactively or prospectively.” In re Carrier, 173 Wash. 2d 791, 809, 272 P.3d
209 (2012).
When assessing whether a new statute applies prospectively or
retroactively, we consider “‘whether the new provision attaches new legal
consequences to events completed before its enactment.’” In re Flint, 174 Wash. 2d
539, 548, 277 P.3d 657 (2012) (quoting Pillatos, 159 Wash. 2d at 471). If the
“triggering event” for the application of the statute occurred before the effective
date of the amendment, we analyze whether the change applies retroactively to
this case. Pillatos, 159 Wash. 2d at 471. However, if the triggering event occurred or
will occur after the effective date of the statute, the statute presumptively applies
prospectively to the case. Flint, 174 Wash. 2d at 547. “A statute operates
prospectively when the precipitating event for operation of the statute occurs after
enactment, even when the precipitating event originated in a situation existing prior
to enactment.” Pillatos, 159 Wash. 2d at 471 (emphasis omitted) (quoting In re Estate
of Burns, 131 Wash. 2d 104, 110-11, 928 P.2d 1094 (1997)). “To determine what
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event precipitates or triggers application of the statute, we look to the subject
matter regulated by the statute.” Carrier, 173 Wash. 2d at 809.
RCW 9.94A.030 is a definitional statute, and the amended provision
governs only which felonies are defined as “most serious offenses.” RCW
9.94A.030(33). This term is also used in the definition of a “persistent offender.”
RCW 9.94A.030(38). The court applies these provisions when it determines the
appropriate sentence for a person who falls within these statutory definitions. RCW
9.94A.570.
Molia argues that the triggering event for the operation of the statutory
amendment is the termination of his direct appeal, which has not yet happened.
Molia relies primarily on two relatively recent Supreme Court cases in support of
his argument: State v. Jefferson and State v. Ramirez. 192 Wash. 2d 225, 429 P.3d
467 (2018) (plurality opinion); 191 Wash. 2d 732, 749, 426 P.3d 714 (2018).
Division Two addressed the application of Ramirez to this issue in Jenks.
Jenks, slip op. at 5–7. The Ramirez court concluded that changes to the statutes
concerning permissible legal financial obligations applied prospectively to a
pending appeal because the amendments “pertain[ed] to costs imposed upon
conviction and Ramirez’s case was not yet final when the amendments were
enacted.” 191 Wash. 2d at 749. The Jenks court found that Ramirez “clearly limited
its holding to ‘costs imposed on criminal defendants following conviction[,]’” rather
than stating “a rule of general application to all sentences.” Jenks, slip op. at 6
(quoting Ramirez, 191 Wash. 2d at 747). It concluded that Ramirez did not support
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the argument that the 2019 amendment to RCW 9.94A.030(33) must be applied
prospectively to cases pending on direct appeal. Id. at 7. We agree.
The Jenks court, however, did not consider the application of Jefferson to
this issue. In Jefferson, the Supreme Court considered whether GR 37, a general
court rule adopted to address deficiencies in the Batson2 framework for assessing
discriminatory use of peremptory strikes, applied to Jefferson’s case on appeal.
192 Wash. 2d at 243. The rule did not become effective until after Jefferson’s trial,
voir dire, and Batson challenge had occurred. Id. The Court determined that the
precipitating event in the context of a Batson challenge was the voir dire itself,
which had occurred before the enactment of the rule. Id. at 248. Although
Jefferson did not concern sentencing, the Court summarized its interpretation of
the case law:
[W]e generally hold that when the new statute concerns a
postjudgment matter like the sentence or revocation of release, or a
prejudgment matter that has not yet occurred because of the
interlocutory nature of the appeal, then the triggering event is not a
“past event” but a future event. In such a case, the new statute or
court rule will apply to the sentence or sentence revocation while the
case is pending on direct appeal, even though the charged acts have
already occurred. [See, e.g., Flint, 174 Wash. 2d at 548; State v. Blank,
131 Wash. 2d 230, 249, 930 P.2d 1213 (1997).] In contrast, where the
new statute concerns a problem with the charging document but the
trial and conviction are over, then the triggering event is over—so the
new statute does not apply on appeal to that past event. Pillatos, 159
Wash. 2d at 471, 150 P.3d 1130.
Id. at 247.
Despite the broad phrasing, neither case cited by the Jefferson Court
concerns a change in sentencing statutes. In Flint, the Court found that the
2
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
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triggering event for application of the statute regarding the effect of community
custody violations was the finding that a defendant had “committed violation(s) of
conditions of community custody at a third violation hearing.” 174 Wash. 2d at 548.
In Blank, the Court found that the triggering event for application of a statute
allowing courts to require a convicted offender to pay appellate costs was
termination of the appeal and affirmance of a defendant’s conviction. Blank, 131
Wash. 2d at 249.
Molia argues that Jefferson and Ramirez require us to conclude that the
triggering event for application of the 2019 amendment to RCW 9.94A.030 in this
case is the termination of his direct appeal, rather than the imposition of his
sentence. Although Jefferson contains some expansive language indicating that
“a newly enacted statute or court rule generally applies to all cases pending on
direct appeal and not yet final[,]” it did not involve an amendment to a statute
affecting sentencing. 192 Wash. 2d at 246. Accordingly, the applicability of its
statements on post-judgment matters to the current case is limited.
Likewise, Ramirez does not compel the result that Molia suggests.
Although the Ramirez Court concluded that the newly enacted bill applied
prospectively to Ramirez’s case “because the statutory amendments pertain to
costs imposed on criminal defendants following conviction, and Ramirez’s case
was pending on direct review and thus not final when the amendments were
enacted,” it did so in the context of fashioning an unusual remedy for a Blazina3
error. 191 Wash. 2d at 746–47. The Supreme Court held that the trial court had failed
3
State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015).
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to make an adequate individualized inquiry into Ramirez’s current and future ability
to pay before imposing discretionary legal financial obligations, as required by
Blazina. Id. at 746. Although the usual remedy would have been to remand for
resentencing, the Court concluded that the newly enacted statutory amendment
prohibiting courts from imposing discretionary costs and filing fees on defendants
who were indigent at the time of sentencing would have applied at the
resentencing. Id. Therefore, the Court found resentencing to be unnecessary and
remanded the case to the trial court for amendment of the judgment and sentence
to strike the improperly imposed legal financial obligations. Id. at 746, 750.
Ramirez does not require the triggering event here to be the termination of
Molia’s appeal because of its procedural posture and because it concerned only
costs and fees attendant to a sentence rather than the sentence itself. Molia’s
situation is also distinct from the multitude of appeals that have cited Ramirez to
argue that legal financial obligations, though properly imposed at the time of
sentencing, should be stricken from cases still pending on appeal. We are not
aware of any case in which the State has opposed the striking of these fees where
the record made clear that the fees would not be permitted under the current
statutes, even when remand is not required on any other issue. The State makes
no such concession here.
Molia’s requested remedy also provides some insight. Molia requests
remand for resentencing so that the court can apply the amended statute when
assessing his criminal history. This suggests that the court has already performed
the application of the statute to his case. The triggering event for application of the
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amended statute has already occurred, and the appropriate analysis is whether
the amendment applies retroactively to Molia’s case on appeal.
II. Retroactive Application
Molia argues in the alternative that the change in the law applies
retroactively to his case.
Washington courts have long held that, under the saving clause of RCW
10.01.040, “amendments to criminal statutes (which include reclassification of
crimes) do not apply retroactively to offenses committed before the effective dates
of those amendments.” Rivard v. State, 168 Wash. 2d 775, 781, 231 P.3d 186 (2010).
Accordingly, statutory amendments are presumed to apply only prospectively to
offenses committed on or after the effective date of the amendment unless the
legislature indicates a contrary intent. State v. Humphrey, 139 Wash. 2d 53, 55, 60,
983 P.2d 1118 (1999). An amendment that is curative or remedial applies
retroactively even without language showing legislative intent unless the statute is
subject to RCW 10.01.040. State v. Kane, 101 Wash. App. 607, 613, 5 P.3d 741
(2000).
Molia argues that, by amending the statute, the legislature downgraded the
culpability of second degree robbery for persistent offender sentences, which
retroactively alters the status of prior convictions. He relies primarily on State v.
Wiley in support of this contention. 124 Wash. 2d 679, 880 P.2d 983 (1994). The
Jenks court considered and rejected precisely this same argument. Jenks, slip op.
at 7–9. We agree with that analysis and find that Wiley does not compel retroactive
application of the amendment to Molia’s case.
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The 2019 amendment to RCW 9.94A.030 removing second degree robbery
as a most serious offense did not contain any indication that the legislature
intended the change to apply retroactively. Laws of 2019, ch. 187, § 1; Jenks, slip
op. at 10. The saving statute applies to sentences for persistent offenders. Jenks,
slip op. at 11. Molia did not argue that the amendment was curative or remedial.
Molia has not overcome the presumption that the amendments apply only
prospectively. The 2019 amendment to RCW 9.94A.030(33) removing second
degree robbery from the list of most serious offenses does not apply to his case
on appeal.
Affirmed.
WE CONCUR:
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