Opinion
30104-4-III
06-14-2012
STATE OF WASHINGTON, Respondent, v. WILLIAM A. PAGE, Appellant.
UNPUBLISHED OPINION
Kulik, J.
William A. Page appeals his sentence for his conviction of six counts of unlawful wildlife trafficking. Mr. Page contends that his Fourteenth Amendment due process rights were violated because he was not fully and accurately informed as to the criminality of his conduct and the severity of the penalty. The State mischarged three of the six offenses as felonies rather than gross misdemeanors. Mr. Page chose to go to trial instead of bail forfeiting as a final disposition of the case. Mr. Page now seeks to bail forfeit his offenses as a final disposition due to the reduction of his felonies to gross misdemeanors.
We agree that under these facts Mr. Page's due process rights were violated. We reverse and remand to allow Mr. Page to forfeit bail.
FACTS
On December 11, 2008, the State charged Mr. Page with nine counts of various wildlife offenses under chapter 77.15 RCW. The charges were amended twice, with a final charge of three felony counts of unlawful wildlife trafficking in the first degree and three misdemeanor counts of unlawful wildlife trafficking in the second degree. A jury convicted Mr. Page on all six counts and the court entered judgment on December 18, 2009. Mr. Page appealed his convictions for all six counts based on prejudicial testimony. In an unpublished opinion, State v. Page, noted at 161 Wn.App. 1036, 2011 WL 1758636, this court affirmed the convictions on the grounds of the appeal. However, this court reduced the felonies to gross misdemeanors based on the improper aggregation of values under the 2010 case of State v. Yon, 159 Wn.App. 195, 246 P.3d 818 (2010). This court remanded the case for resentencing on six misdemeanor counts of unlawful trafficking in the second degree.
At the resentencing hearing, Mr. Page requested bail forfeiture as a final disposition on all six counts in accordance with CrRLJ 3.2(r). During his right of allocution, Mr. Page stated that the only reason he did not bail forfeit on the original charges was to avoid a felony conviction on his record. The court denied bail forfeiture and sentenced Mr. Page to six months' imprisonment on each count, running concurrently. The court also imposed various fees and costs totaling $7, 610. Mr. Page appeals this sentence.
ANALYSIS
Due Process Violation.
Whether a violation of Mr. Page's due process rights occurred is reviewed de novo. See State v. Oppelt, 172 Wn.2d 285, 290, 257 P.3d 653 (2011). If no due process violations exist, the sentence is reviewed for an abuse of discretion. State v. Hunter, 102 Wn.App. 630, 640, 9 P.3d 872 (2000).
Mr. Page contends that the denial of bail forfeiture as a final disposition on remand constitutes a denial of due process. The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. As applicable to Mr. Page, the due process clause has been interpreted to mean that "[c]itizens must have notice not only of what conduct is criminal but also of the severity of the penalty." Hunter, 102 Wn.App. at 638 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)).
Illustrating this principle, Division One of this court in Hunter considered a due process argument for the imposition of a drug fund contribution as part of a sentence. Hunter, 102 Wn.App. at 632-33. The defendant, Mr. Hunter, argued that the mere inclusion of a drug fund contribution as part of the sentencing statute failed to provide adequate notice of when one will be imposed and in what amount. Id. at 637. The court determined that Mr. Hunter knew a drug fund contribution may be exacted because it was provided for in the statute. Id. at 639. Further, a statutory maximum of fines for his crime existed. Id. Therefore, no due process violation resulted. Id. at 641.
Here, however, the State mischarged Mr. Page. And Mr. Page chose not to bail forfeit, to go to trial, and to try to avoid felony convictions. RCW 9A.20.021(2) provides the maximum penalties for conviction of gross misdemeanors. RCW 77.15.060 provides that convictions under chapter 77.15 RCW may be punished in accordance with the Washington State criminal code.
But when a person is not fully and accurately informed of the nature of the crime or the penalties, due process is violated. Because of the State's mischarging of counts 2, 5, and 6, Mr. Page was not fairly apprised of the charges against him. If felonies had not been charged, he would have had the option of bail forfeiture. See former RCW 77.15.050(1) (1998). Taken together, the statute, court rule CrRLJ 3.2(r) allowing for bail forfeit, and State v. Yon, 159 Wn.App. 195 compel us to reverse the convictions and remand to allow Mr. Page the option to forfeit bail on the corrected charges. We reverse and remand.
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.
I CONCUR: Sweeney, J.
Siddoway, A.C.J. (dissenting).
Before we decided State v. Yon, 159 Wn.App. 195, 246 P.3d 818 (2010), it appears—and Mr. Page has not argued otherwise—that the State regularly read and applied RCW 77.15.260(2), which defines unlawful trafficking in fish, shellfish, or wildlife, as creating a unit of prosecution that was a defendant's offering or selling one or more items at a particular place and time. Read in that manner, if a defendant offered or sold more than one item, the value of the items could be aggregated in determining whether their wholesale value exceeded two hundred fifty dollars and therefore supported a charge of first degree trafficking, a class C felony. RCW 77.15.260(2)(b). A wholesale value short of two hundred fifty dollars was chargeable as second degree trafficking, a gross misdemeanor. RCW 77.15.260(3).
In Yon, we construed the unit of prosecution as being the offer or sale of a single fish or wildlife item. As a result, if a defendant offers or sells multiple items each having a value of less than two hundred fifty dollars but aggregating more, he or she can be charged with multiple counts of second degree trafficking, but not first degree trafficking. I note that the legislature recently amended RCW 77.15.260 to allow the State the option in the future of aggregating transactions that "are part of a common scheme or plan" in determining the degree of unlawful trafficking involved. Laws of 2012, ch. 176, § 19 (Substitute S.B. 6135, 62nd Leg., Reg. Sess. (Wash. 2012) (effective June 7, 2012)).
The recent amendments also increase second degree trafficking to a class C felony and first degree trafficking to a class B felony. Laws of 2012, ch. 176, § 19.
Mr. Page was charged pursuant to the State's understanding of the statute at the time. He did not challenge the unit of prosecution. His appeal was pending at the time Yon was filed, and we invited the parties to address its application. State v. Page, noted at 161 Wn.App. 1036, 2011 WL 1758636, at *3. The State conceded that, in light of Yon, the trial court had erred. Id . Relying on our authority to direct the trial court to enter convictions for a lesser included offense as long as the jury made findings sufficient to support those convictions, we affirmed Mr. Page's convictions but remanded with directions that he be resentenced for the crimes as misdemeanors. Id. at *4.
It is against this background that Mr. Page argues that due process required that he be given the option of bail forfeiture when resentenced. He suggests that we look to State v. Hunter, 102 Wn.App. 630, 9 P.3d 872 (2000) for the appropriate due process analysis. Although Hunter found no due process violation itself, it cited the U.S. Supreme Court's decision in BMW of North America, Inc. v. Gore for the proposition that "[c]itizens must have notice not only of what conduct is criminal but also of the severity of the penalty." 102 Wn.App. at 638 (citing 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). But Hunter, BMW, and the cases on which BMW relies all involved cases in which a defendant faced a penalty that proved unknowable in an absolute sense, either because a statute was unconstitutionally vague, as was asserted in Hunter; because state law provided no guideposts for punitive damages as in BMW; or because newly-enacted sentencing guidelines or a newly-construed statute were applied retroactively as in Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) and Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), two decisions relied upon by BMW, 517 U.S. at 574 n.22. Here, any uncertainty Mr. Page faced as to what might prove to be the appropriate penalty in his case was not unknowability in an absolute sense. He knew the crime with which he was charged and knew the penalty provided for the crime. He was on notice of the lesser included offense of misdemeanor trafficking and its penalty. He faced uncertainty, but uncertainty within known parameters: uncertainty whether his attorney would make the best arguments and present the best evidence; the same uncertainty as to the performance of the prosecution; uncertainty as to the court's rulings and the decision-making of the jury; and uncertainty whether, as occurred here, he might benefit from the fortuity of favorable intervening law and a prosecutor's decision to concede a point rather than fight it. This everyday uncertainty is not a deprivation of due process.
It is more appropriate, I believe, to look to our well-settled case law, of which Mr. Page (like all defendants) was on notice, that if the State's evidence falls short of proving the crime charged, the matter is subject to remand for resentencing on any lesser included offense that was necessarily found. State v. Gilbert, 68 Wn.App. 379, 385, 842 P.2d 1029 (1993). In this case, the State's evidence fell short because it misconstrued the statute as to the unit of prosecution and was therefore unable to prove the required wholesale value. In my view it is of no moment that the State's proof fell short because it misread the statute rather than because it misjudged the strength of its evidence. It was within the power of Mr. Page, with counsel, to assess both independently.
Mr. Page credibly contends that had he known he faced only misdemeanor charges, he would have forfeited bail. But any defendant facing resentencing on a lesser included offense following remand could credibly contend that the lesser charge, if originally charged, would have presented more attractive options. Prejudice alone does not establish a due process violation. For these reasons, I respectfully dissent.