State Of Washington, V Eric S. Barnett ( 2022 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 83434-7-I
)
Respondent, ) DIVISION ONE
)
v. ) PUBLISHED OPINION
)
ERIC BARNETT, )
)
Appellant )
)
ANDRUS, A.C.J. — Eric Barnett appeals the duration of his prison sentence
imposed after a jury convicted him of second degree assault with a firearm, first
degree unlawful possession of a firearm, and possession of a stolen firearm. He
argues the trial violated RCW 9.94A.533(3)(f) when it imposed a 36-month firearm
enhancement to run consecutively to the sentences he received for the firearms
offenses. We disagree and affirm.
FACTS
On April 5, 2019, Barnett assaulted his friend, Dylan Hjelm, with a stolen
.22 caliber revolver. The State charged Barnett with second degree assault with
a firearm enhancement, possession of a stolen firearm, and because he had a
prior serious felony conviction, first degree unlawful possession of a firearm. The
jury found Barnett guilty as charged.
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The trial court imposed a high end standard range sentence of 57 months
for the second degree assault conviction and a high end standard range sentence
of 43 months for each of the two firearm offenses. The court ordered that the
firearm offense sentences be served concurrently to the second degree assault
sentence but, pursuant to RCW 9.94A.589(1)(c), 1 ordered that they be served
consecutively as to each other, for a period of confinement of 86 months. The
court also ordered that the 36-month firearm enhancement, imposed under RCW
9.94A.533(3)(b) as a result of the assault conviction, run consecutive to Barnett’s
total period of confinement, resulting in a total sentence of 122 months. Barnett
appeals the duration of his sentence.
ANALYSIS
Barnett argues that the trial court violated RCW 9.94A.533(3)(f) when it
ordered the firearm enhancement to run consecutive to the firearm possession
offenses. We disagree.
We review issues of statutory interpretation de novo. State v. Dennis, 191
Wn.2d 169, 172, 421 P.3d 944 (2018). The purpose of statutory interpretation is
to give effect to the intent of the legislature. State v. Sweany, 174 Wn.2d 909, 914,
281 P.3d 305 (2012). To derive legislative intent, we look to the “plain language
1 RCW 9.94A.589(1)(c) provides
If an offender is convicted under RCW 9.41.040 for unlawful possession of a
firearm in the first or second degree and for the felony crimes of theft of a firearm
or possession of a stolen firearm, or both, the standard sentence range for each
of these current offenses shall be determined by using all other current and prior
convictions, except other current convictions for the felony crimes listed in this
subjection (1)(c), as if they were prior convictions. The offender shall serve
consecutive sentences for each conviction of the felony crimes listed in this
subjection (1)(c), and for each firearm unlawfully possessed.
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enacted by the legislature, considering the text of the provision in question, the
context of the statute in which the provision is found, related provisions, and the
statutory scheme as a whole.” State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724(2013). If the statute's meaning is unambiguous, our inquiry ends. State v.
Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
We conclude RCW 9.94A.533(3)2 is unambiguous. It provides in pertinent
part:
(3) The following additional times shall be added to the
standard sentence range for felony crimes committed after July 23,
1995, if the offender or an accomplice was armed with a firearm as
defined in RCW 9.41.010 and the offender is being sentenced for
one of the crimes listed in this subsection as eligible for any firearm
enhancements based on the classification of the completed felony
crime. If the offender is being sentenced for more than one offense,
the firearm enhancement or enhancements must be added to the
total period of confinement for all offenses, regardless of which
underlying offense is subject to a firearm enhancement. . . . :
....
(b) Three years for any felony defined under any law as a
class B felony or with a statutory maximum sentence of ten years, or
both, and not covered under (f) of this subsection;
....
(e) Notwithstanding any other provision of law, all firearm
enhancements under this section are mandatory, shall be served in
total confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements,
for all offenses sentenced under this chapter. . . .
(f) The firearm enhancements in this section shall apply to all
felony crimes except the following: Possession of a machine gun or
bump-fire stock, possessing a stolen firearm, drive-by shooting, theft
of a firearm, unlawful possession of a firearm in the first and second
degree, and use of a machine gun or bump-fire stock in a felony . . .
(Emphasis added.)
2RCW 9.94A.533 was amended in 2020. LAWS OF 2020, ch. 330, § 1. These amendments do
not impact the analysis here. Any reference to the statute in this opinion is to the version in effect
at the time.
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Barnett contends that RCW 9.94A.533(3) and (3)(f) conflict, requiring us to
harmonize these provisions in his favor to preserve the legislative intent and avoid
unjust results. We see no conflict. RCW 9.94A.533(3)(f) merely lists crimes which
are exempt from the firearm enhancement. This subsection is silent on how
firearm enhancements should be served when an offender has multiple
convictions, some eligible for an enhancement and some not. RCW 9.94A.533(3),
by contrast, explicitly states how courts should calculate the total period of
confinement in such a situation. Because these provisions address different
operations of the statute, they are not in conflict.
Barnett argues that RCW 9.94A.533(f) is evidence that the legislature did
not intend for any firearm enhancement to run consecutively to a sentence for a
firearm offense. But this argument would require us to add words not present in
the statute. The plain language of RCW 9.94A.533(3) specifies that if any firearm
enhancement is imposed for an eligible crime, it must be added “to the total period
of confinement for all offenses.” (emphasis added). It does not say that the firearm
enhancement is to be added to the total period of confinement for all “eligible
offenses.” Our interpretation is consistent with RCW 9.94A.533(3)(e) which states
that firearms enhancements “shall run consecutively to all other sentencing
provisions.” Again, the legislature did not choose to run the enhancement
consecutively only to “all other sentencing provisions, except those relating to
firearm offenses.” When we interpret statutes, we will not “add words where the
legislature has chosen not to include them.” Rest. Dev., Inc. v. Canawill, Inc., 150
Wn.2d 674, 682, 80 P.3d 598 (2003).
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Barnett’s total period of confinement was 86 months. Thus, the trial court
correctly added the 36-month firearm enhancement to his 86-month sentence.
We affirm.
WE CONCUR:
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