State Of Washington v. Christian Adrian Presteen ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80955-5-I
)
Respondent, ) DIVISION ONE
)
v. )
)
PRESTEEN, CHRISTIAN ADRIAN, ) UNPUBLISHED OPINION
DOB: 02/24/1979, )
)
Appellant. )
BOWMAN, J. — Christian Adrian Presteen appeals his life sentence without
parole under the Persistent Offender Accountability Act of the Sentencing Reform
Act of 1981 (POAA), chapter 9.94A RCW, following a conviction for assault in the
second degree. Presteen argues the trial court should not have sentenced him
as a persistent offender because the legislature no longer considers one of his
predicate, or strike, offenses—robbery in the second degree—a most serious
offense under the POAA. Because robbery in the second degree was a strike
offense under the POAA when Presteen committed the assault, and because we
find no reason to depart from statutory authority and precedent requiring the court
to sentence a person under the law in effect when they committed the crime, we
affirm.
FACTS
In December 2002, Presteen was convicted of first degree robbery with a
deadly weapon. In September 2017, he was convicted of second degree
Citations and pin cites are based on the Westlaw online version of the cited material.
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robbery. Both of Presteen’s convictions qualified as strike offenses under the
POAA.1 On January 9, 2018, Presteen attacked a fellow inmate at the Monroe
Correctional Complex. On May 6, 2019, the State charged Presteen with one
count of assault in the second degree for the attack. Assault in the second
degree is also a strike offense under the POAA.2
On July 28, 2019, the legislature amended the POAA to eliminate robbery
in the second degree as a strike offense.3 On November 15, 2019, Presteen
pleaded guilty to the second degree assault charge. The parties disagreed about
whether the amended POAA applied to Presteen’s sentence. The court advised
Presteen that “there is a difference of opinion between the attorneys as to
whether or not this would be a third strike” and that the sentencing judge would
make the ultimate decision, which “could go I gather one way or another.”
Presteen told the court that he understood the dispute and that he wanted to go
forward with his plea.
The court sentenced Presteen on December 6, 2019. Presteen argued
that the court should not sentence him to life in prison without parole because
under the 2019 legislative amendment, his 2017 robbery in the second degree
conviction “is not a most serious offense which would qualify him to be treated as
a persistent offender.” Instead, Presteen urged the court to sentence him to a
standard-range sentence of 63 to 84 months’ confinement. The State argued
that RCW 9.94A.345 “demands this Court look at the laws at the time that the
1
Former RCW 9.94A.030(28)(a) (2001); former RCW 9.94A.030(33)(o) (2016).
2
RCW 9.94A.030(32)(b).
3
LAWS OF 2019, ch. 187, § 1.
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current offense was committed when entering a sentence.” Because the
legislature did not amend the POAA until after Presteen committed the assault,
the State asked the court to “find this to be Mr. Presteen’s third strike offense
rendering him eligible I suppose for the life without possibility of release.”
The trial court agreed with the State and imposed a sentence of life in
prison without the possibility of early release. Presteen appeals.
ANALYSIS
Presteen argues the trial court lacked authority to sentence him as a
persistent offender because “the Legislature removed second degree robbery as
a qualifying offense for persistent offenders” before he was convicted and
sentenced for assault in the second degree. The State contends that the trial
court was bound to apply the POAA as it existed when Presteen committed
assault in the second degree. We agree with the State.
Under RCW 9.94A.570, a court must sentence a “persistent offender” to
life in prison without the possibility of release. A “persistent offender” is someone
who has been convicted of a “most serious offense” and who has previously been
convicted of a most serious, or strike, offense on at least two separate occasions.
RCW 9.94A.030(37)(a); State v. Knippling, 166 Wn.2d 93, 98-99, 206 P.3d 332(2009).
The legislature has determined that individuals must be prosecuted and
sentenced under the law in effect when they committed the offense. RCW
10.01.040; RCW 9.94A.345; State v. McCarthy, 112 Wn. App. 231, 238 n.20, 48
P.3d 1014 (2002), review denied, 148 Wn.2d 1011, 63 P.3d 889 (2003); State v.
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Kane, 101 Wn. App. 607, 618, 5 P.3d 741 (2000). The “saving statute,” RCW
10.01.040, presumptively saves the amendment of a criminal or penal statute
from affecting offenses already committed unless the legislature expresses a
contrary intention in the amendatory act. Kane, 101 Wn. App. at 610, 613. RCW
10.01.040 provides:
No offense committed and no penalty or forfeiture incurred previous
to the time when any statutory provision shall be repealed, whether
such repeal be express or implied, shall be affected by such repeal,
unless a contrary intention is expressly declared in the repealing act
. . . . Whenever any criminal or penal statute shall be amended or
repealed, all offenses committed or penalties or forfeitures
incurred while it was in force shall be punished or enforced as if it
were in force, notwithstanding such amendment or repeal, unless a
contrary intention is expressly declared in the amendatory or
repealing act, and every such amendatory or repealing statute shall
be so construed as to save all criminal and penal proceedings, and
proceedings to recover forfeitures, pending at the time of its
enactment, unless a contrary intention is expressly declared
therein.
The saving statute “ ‘is deemed a part of every repealing statute as if
expressly inserted therein, and hence renders unnecessary the incorporation of
an individual saving clause in each statute which amends or repeals an
existing penal statute.’ ” State v. Ross, 152 Wn.2d 220, 237, 95 P.3d 1225(2004) (quoting State v. Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938)). The
legislature also enacted the “timing statute” in 2000,4 requiring that sentences “be
determined in accordance with the law in effect when the current offense was
committed.” RCW 9.94A.345.
Presteen contends that neither the saving nor the timing statute applies to
him. Citing State v. Wiley, 124 Wn.2d 679, 880 P.2d 983 (1994), he claims that
4
LAWS OF 2000, ch. 25, § 2.
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the saving statute does not apply when the legislature “downgrade[s]” the
punishment for an offense. In Wiley, the defendant pleaded guilty to multiple
counts of felony larceny, which the legislature defined at the time as stealing
property valued over $75. Wiley, 124 Wn.2d at 680-81. The legislature later
reclassified larceny crimes as theft and made it a gross misdemeanor to steal
property valued less than $250. Wiley, 124 Wn.2d at 681. A jury later convicted
Wiley of residential burglary and Wiley contested his offender score, arguing that
the court should have scored his felony larceny convictions as misdemeanors.
Wiley, 124 Wn.2d at 680-81. The Supreme Court affirmed Wiley’s offender score
but stated that “the reclassification of an entire crime to a lower level of
punishment does apply retroactively to the calculation of an offender score.”
Wiley, 124 Wn.2d at 686-88, 682.
Presteen also quotes State v. Heath, 85 Wn.2d 196, 198, 532 P.2d 621(1975), to argue our Supreme Court declared that legislative amendments
reducing criminal penalties should be applied to all pending cases because the
“legislature is presumed to have determined that the new penalty is adequate and
that no purpose would be served by imposing the older, harsher one.” In Heath,
the court revoked the defendant’s driver’s license as a “habitual traffic offender.”
Heath, 85 Wn.2d at 197. The legislature later amended the Washington Habitual
Traffic Offenders Act, chapter 46.65 RCW, to allow courts to stay revocation
orders if the underlying offense resulted from alcoholism and the offender was in
treatment. Heath, 85 Wn.2d at 197. The trial court applied the amendment to
Heath and stayed its prior order revoking his driver’s license. Heath, 85 Wn.2d at
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197. The Supreme Court affirmed the trial court because the amendment, “in
effect, reduced the penalty for a crime.” Heath, 85 Wn.2d at 199, 198.
Division Two of our court recently rejected both of Presteen’s arguments in
State v. Jenks, 12 Wn. App. 2d 588, 459 P.3d 389, review granted, 196 Wn. 2d
1001, 471 P.3d 211 (2020).5 In Jenks, a jury convicted the defendant of robbery
in the first degree and the court sentenced him to life without parole under the
POAA because his criminal history included convictions for two strike offenses—
robbery in the first degree and robbery in the second degree. Jenks, 12 Wn.
App. 2d at 590-91. While Jenks’ appeal was pending, the legislature amended
the POAA to remove robbery in the second degree as a strike offense. Jenks, 12
Wn. App. 2d at 590.
Jenks argued on appeal that Wiley and Heath required us to apply the
amended POAA to his sentence despite the clear language of the saving and
timing statutes. Jenks, 12 Wn. App. 2d at 595-97. Division Two disagreed,
reasoning that neither Wiley nor Heath considered the saving statute. Jenks, 12
Wn. App. 2d at 597. Wiley “did not address the effect of RCW 10.01.040” and
Heath involved a civil license suspension that did not implicate the saving statute
at all. Jenks, 12 Wn. App. 2d at 597, 596 (citing Ross, 152 Wn.2d at 239; Kane,
101 Wn. App. 615-16). It also noted that both Wiley and Heath were decided
before the legislature enacted the timing statute.6 Jenks, 12 Wn. App. 2d at 597.
5
And we recently rejected a similar argument in State v. Molia, 12 Wn. App. 2d 895, 904,
460 P.3d 1086 (2020).
6
Presteen also argues the timing statute “was enacted in 2000 to apply only to the
calculation of offender scores and to determine the eligibility for sentencing alternatives.” But the
plain language of RCW 9.94A.345 mandates its application to “[a]ny sentence.”
6
No. 80955-5-I/7
Division Two concluded that by enacting the timing statute, the legislature clearly
signaled its intent that offenders be sentenced under the law that was in effect at
the time they committed the crime. Jenks, 12 Wn. App. 2d at 598. Because
neither Wiley nor Heath addressed the saving and timing statutes, they did not
compel a different result. Jenks, 12 Wn. App. 2d at 597.
Presteen argues that we should disregard Jenks because it “brushes the
prior decisions of the Supreme Court aside.” But we concur with Division Two
that Wiley and Heath do not compel us to ignore the saving and timing statutes.
As stated, Heath involved only a civil penalty, both Wiley and Heath were
“decided long before the enactment” of the timing statute, and neither addressed
the effect of the saving statute. Jenks, 12 Wn. App. 2d at 596, 597. The remedy
that Presteen seeks is with the legislature.
The trial court did not err in sentencing Presteen as a persistent offender.
We affirm.
WE CONCUR:
7