State of Washington v. K.J.H. ( 2021 )

FILED
MARCH 2, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 36191-8-III
)
Respondent, ) ORDER GRANTING
) MOTION TO RECALL
v. ) MANDATE AND ORDER TO
) GRANT MOTION TO CHANGE
K. J. H., ) CASE TITLE AND USE
) INITIALS FOR THE
Appellant. ) APPELLANT IN THE OPINION
)
THE COURT has considered appellant’s motion to recall the court’s mandate of
June 24, 2020.
IT IS ORDERED, the motion to recall the mandate is hereby granted.
ITt IS ORDERED, the request to change case title and use initials throughout the
opinion for the appellant is being treated as a motion. The motion is granted. RAP 3.4.
PANEL: Judges Fearing, Korsmo, Lawrence-Berrey
BY A MAJORITY:
___________________________________
REBECCA L. PENNELL, Chief Judge
FILED
MARCH 2, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36191-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
K.J.H., )
)
Appellant. )
FEARING, J. — Substitute House Bill 1041, effective July 28, 2019, deleted
language in RCW 9.96.060 that had precluded vacation of a gross misdemeanor
conviction if a court had previously vacated another conviction of the offender. K.J.H.
asks this court to apply Substitute House Bill 1041 to his appeal and requests that we
vacate a gross misdemeanor conviction. We grant his request.
No. 36191-8-III
State v. K.J.H.
FACTS
On February 19, 2008, K.J.H., in this Klickitat County prosecution, pled guilty to
the charge of attempted failure to register as a sex offender under RCW 9A.44.130 and
RCW 9A.28.020, a gross misdemeanor. The trial court sentenced K.J.H. to 365 days of
incarceration and suspended 350 of those days. K.J.H. served fifteen days of
confinement.
In March 2018, the Clark County Superior Court granted K.J.H.’s motion to vacate
a 2002 Clark County felony conviction for possession of child pornography.
PROCEDURE
K.J.H., in April 2018, moved for an order vacating his 2008 gross misdemeanor
conviction, in this Klickitat County proceeding, for failure to register as a sex offender.
On June 4, 2018, the trial court, based on the controlling law at the time, denied the
motion because K.J.H.’s vacation of the 2002 Clark County felony conviction precluded
his request. On July 2, 2018, the trial court again denied K.J.H.’s motion.
LAW AND ANALYSIS
K.J.H. appeals denial of his motion to vacate his 2008 gross misdemeanor
conviction for attempted failure to register. After K.J.H. filed his opening brief, this court
asked the parties to file supplemental briefing on the application of Substitute House Bill
2
No. 36191-8-III
State v. K.J.H.
1041. The parties agree that the bill applies.
This appeal concerns RCW 9.96.060 that governs the vacation of misdemeanor
and gross misdemeanor offenses. Before the legislature enacted the 2019 amendments,
former RCW 9.96.060 provided that a court had discretion to vacate a record of
conviction “[i]f the court finds the applicant meets the tests prescribed in subsection (2)
of this section.” Former RCW 9.96.060(1) (2017). Subsection 2 then indicated that an
applicant failed to meet the requirements for vacation if “[t]he applicant has ever had the
record of another conviction vacated.” Former RCW 9.96.060(2)(h). But under another
statute, RCW 9.94A.640, an offender could procure a vacation of a felony despite
previously gaining a vacation of another conviction. The statutory scheme unreasonably
rendered vacation of a gross misdemeanor more difficult than vacation of a felony.
Nevertheless, K.J.H.’s trial court correctly followed the dictates of RCW 9.96.060 when
K.J.H. sought vacation of his Klickitat County gross misdemeanor conviction.
Effective July 28, 2019, the legislature amended RCW 9.96.060 and deleted the
blanket provision stating that the vacation of another conviction barred vacation of a
gross misdemeanor. LAWS OF 2019, ch. 331, § 4(2)(d). The amended statutory language
now bars vacation in narrower circumstances:
3
No. 36191-8-III
State v. K.J.H.
[A]n applicant may not have the record of conviction for
misdemeanor or gross misdemeanor offense vacated if any one of the
following is present:
....
(e) The offense was any misdemeanor or gross misdemeanor
violation, including attempt, of chapter 9.68 RCW (obscenity and
pornography), chapter 9.68A RCW (sexual exploitation of children), or
chapter 9A.44 RCW (sex offenses), except for failure to register as a sex
offender under RCW 9A.44.132.
RCW 9.96.060(2)(e) (emphasis added).
The 2008 court convicted K.J.H. with attempted failure to register as a sex
offender. The amended statutory language now permits vacation of this conviction
notwithstanding the former vacation of a felony.
The State of Washington graciously concedes that the 2019 statutory amendment
to RCW 9.96.060 applies to K.J.H.’s application for vacation, since his appeal was
pending at the time of the effective date of the amendment. State v. Ramirez, 191 Wn.2d
732, 747, 426 P.3d 714 (2018). The State asks that this court dismiss this appeal and that
K.J.H. move the trial court anew for vacation of the gross misdemeanor conviction. We
conclude the better and more efficient remedy is a direction to the superior court to vacate
the 2008 gross misdemeanor conviction.
4
No. 36191-8-III
State v. K.J.H.
CONCLUSION
We grant K.J.H.’s request and remand to the trial court for vacation of his 2008
conviction of attempted failure to register as a sex offender.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Fearing, J.
WE CONCUR:
Lawrence-Berrey, J.
Kormso, J. 1
1 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time
argument was held on this matter. He is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150
5