Opinion
No. 57532-9-II
04-09-2024
STATE of Washington, Respondent, v. Michael John TESTER, Jr., Appellant.
Richard Wayne Lechich, Washington Appellate Project 1511 3rd Ave Ste 610 Seattle, WA, 98101-1683, for Appellant. Anthony Charles Carlow, Cowlitz County Prosecutor’s Office, 312 Sw. 1st Ave Rm 105, Kelso, WA, 98626-1799, for Respondent.
Appeal from Cowlitz Superior Court, Docket No: 22-1-00559-6, Honorable Patricia M Fassett, Judge.
Richard Wayne Lechich, Washington Appellate Project 1511 3rd Ave Ste 610 Seattle, WA, 98101-1683, for Appellant.
Anthony Charles Carlow, Cowlitz County Prosecutor’s Office, 312 Sw. 1st Ave Rm 105, Kelso, WA, 98626-1799, for Respondent.
PART PUBLISHED OPINION
Maxa, P.J.
¶1 Michael Tester appeals his third degree theft and residential burglary convictions and his sentence.
¶2 When Tester was sentenced, his offender score included juvenile adjudications. At the time, former RCW 9.94A.525(1) (2021) contained no provision precluding prior juvenile adjudications from being counted when calculating an offender score. But in 2023, the legislature amended RCW 9.94A.525(1) by requiring that "adjudications of guilt pursuant to Title 13 RCW [Juvenile Courts and Juvenile Offenders] which are not murder in the first or second degree or class A felony sex offenses may not be included in the offender score." RCW 9.94A.525(1)(b). This amendment became effective on July 23, 2023. Laws of 2023, ch. 415, § 2.
¶3 Tester argues that we should remand for resentencing based on an offender score that does not include his previous juvenile adjudications because RCW 9.94A.525(1)(b) should be applied prospectively on appeal.
¶4 We hold that RCW 9.94A.345 and RCW 10.01.040 require that Tester be sentenced based on the law in effect when he committed his offenses, and RCW 9.94A.525(1)(b) does not apply prospectively to Tester’s offender score calculation. In the unpublished portion of this opinion, we address and reject Tester’s other arguments except for the State’s concession that the crime victim penalty assessment (VPA) must be stricken from the judgment and sentence.
¶5 Accordingly, we affirm Tester’s convictions and sentence, but we remand for the trial court to strike the VPA from the judgment and sentence.
FACTS
¶6 A jury found Tester guilty of third degree theft and residential burglary based on an incident that occurred in May 2022. Sentencing occurred in October 2022.
¶7 At sentencing, the trial court determined Tester’s offender score, which included six juvenile adjudications. The court sentenced Tester to 364 days of confinement with 364 days suspended for the third degree theft conviction and 45 months of confinement for the residential burglary conviction.
¶8 Tester appeals his convictions and sentence.
ANALYSIS
¶9 Tester argues that we should remand for resentencing based on an offender score that does not include his previous juvenile adjudications because RCW 9.94A.525(1)(b) should be applied prospectively on appeal. We disagree.
A. Standard of Review
[1, 2] ¶10 We review questions of statutory interpretation and law de novo. State v. Jenks, 197 Wash.2d 708, 713, 487 P.3d 482 (2021). Statutes are construed based on their plain language. Id. at 714, 487 P.3d 482. If the plain language is unambiguous, the analysis ends and we apply the statute’s plain language. Id " ‘Language is unambiguous when it is not susceptible to two or more interpretations.’ " Id. (quoting State v. Delgado, 148 Wash.2d 723, 726, 63 P.3d 792 (2003)).
B. Amendment to RCW 9.94A.525(1)
¶11 In 2022, when Tester was convicted and sentenced, former RCW 9.94A.525(1) contained no provision precluding prior juvenile convictions from being counted when calculating an offender score. The trial court sentenced Tester using an offender score that included his prior juvenile adjudications.
¶12 But in 2023, the legislature amended RCW 9.94A.525(1) by requiring that "adjudications of guilt pursuant to Title 13 RCW [Juvenile Courts and Juvenile Offenders] which are not murder in the first or second degree or class A felony sex offenses may not be included in the offender score." RCW 9.94A.525(1)(b). This amendment became effective on July 23, 2023. Laws of 2023, ch. 415, § 2.
C. Legal Principles
¶13 Generally, both RCW 9.94A.345 and RCW 10.01.040 control the effect of amendments to penal statutes on sentencing. Jenks, 197 Wash.2d at 713, 487 P.3d 482. RCW 9.94A.345 states, "Except as otherwise provided in [the SRA ], any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.525(1)(b) is part of the SRA. The Supreme Court has stated that RCW 9.94A.345 commands trial courts to look to the law in effect at the time of the crime when imposing a sentence. Jenks, 197 Wash.2d at 716, 487 P.3d 482.
Sentencing Reform Act of 1981, ch 9 94A RCW
[3] ¶14 RCW 10.01.040, the general savings clause statute, states in part,
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 ex
pressly 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.
(Emphasis added.) To avoid application of RCW 10.01.040, the legislature must express its intent " ‘in words that fairly convey that intention.’ " Jenks, 197 Wash.2d at 720, 487 P.3d 482 (quoting State v. Ross, 152 Wash.2d 220, 238, 95 P.3d 1225 (2004)).
[4] ¶15 "Under these statutes sentences imposed under the SRA are generally meted out in accordance with the law in effect at the time of the offense." Jenks, 197 Wash.2d at 714, 487 P.3d 482. This is because it is a legislative function, and not a judiciary function, to fix legal punishments for criminal offenses and to alter the sentencing process. Id. at 713, 487 P.3d 482.
[5, 6] ¶16 In addition, statutes are presumed to apply prospectively rather than retroactively. State v. Brake, 15 Wash. App. 2d 740, 744, 476 P.3d 1094 (2020). However, under some circumstances a prospective statutory amendment may apply to a case pending on direct appeal even though the offense occurred before enactment of the statute. See State v. Ramirez, 191 Wash.2d 732, 747, 426 P.3d 714 (2018) (holding that a statutory amendment pertaining to costs that are imposed on defendants following conviction applied prospectively to a case pending on direct review). An amendment applies to a pending appeal "‘if the precipitating event under the statute occurred after the date of enactment.’ " Jenks, 197 Wash.2d at 722, 487 P.3d 482 (quoting In re Pers. Restraint of Carrier, 173 Wash.2d 791, 809, 272 P.3d 209 (2012)). We look to the subject matter that the statute regulates to determine the precipitating event for application of the statute. Jenks, 197 Wash.2d at 722, 487 P.3d 482.
¶17 In Jenks, the defendant was convicted of first degree robbery in 2017. Id. at 711, 487 P.3d 482. The trial court determined that he had three strike offenses and was a persistent offender under the Persistent Offender Accountability Act (POAA) of the SRA, and sentenced him to life without parole. Id. One of his previous strike offenses was second degree robbery. Id. Two years after the defendant was sentenced as a persistent offender, and while his case was pending on direct appeal, the legislature enacted Engrossed Substitute Senate Bill (ESSB) 5288, which removed second degree robbery from the list of "most serious offenses" in RCW 9.94A.030(32). Id. Therefore, second degree robbery no longer counted as a strike under the POAA. Id.
¶18 The Supreme Court held that the change in law did not apply to the defendant’s case because of RCW 9.94A.345 and RCW 10.01.040. Id. at 715, 487 P.3d 482. The court also held that the change in law did not apply prospectively to the case on direct appeal because "the triggering event for determining who qualifies as a persistent offender occurs when someone has been convicted of a most serious offense and was also, in the past, convicted of two other most serious offenses on separate occasions." Id. at 722, 487 P.3d 482. Therefore, the defendant’s triggering event was his 2017 conviction for first degree robbery, which occurred before the enactment of ESSB 5288. Id. at 722-23, 487 P.3d 482.
D. Application of Amendment to RCW 9.94A525(1)
[7] ¶19 Here, former RCW 9.94A.525(1) – which did not preclude prior juvenile adjudications from being counted in an offender score – was in effect at the time of Tester’s conviction. The legislature did not express an intent that the 2023 amendment would apply to pending prosecutions for offenses committed before its effective date. Therefore, both RCW 9.94A.345 and RCW 10.01.040 require that Tester be sentenced based on the former version of RCW 9.94A.525(1), rather than based on RCW 9.94A.525(1)(b).
[8] ¶20 However, Tester argues that even if RCW 9.94A.525(1)(b) only applies prospectively, it must be applied to his case because it still is pending on direct appeal. He contends that the termination of his appeal is the applicable triggering event. He cites to Ramirez, 191 Wash.2d 732, 426 P.3d 714 and State v. Jefferson, 192 Wash.2d 225, 429 P.3d 467 (2018) to support his argument.
¶21 But Tester’s case is similar to Jenks. RCW 9.94A.525(1) regulates which prior convictions count when calculating an offender score. The triggering event for determining a defendant’s offender score is the defendant’s sentencing for a conviction, at which the offender score is calculated. Therefore, the triggering event here was when Tester was sentenced for his 2022 convictions for third degree theft and residential burglary, which occurred before the enactment of RCW 9.94A.525(1)(b).
¶22 Neither Ramirez nor Jefferson compel a different result. In Ramirez, the Supreme Court addressed statutory amendments modifying the imposition of discretionary legal financial obligations (LFOs) that were enacted while the defendant’s case was pending on direct appeal. 191 Wash.2d at 747, 426 P.3d 714. The court noted that it previously had "concluded that the ‘precipitating event’ for a statute ‘concerning attorney fees and costs of litigation’ was the termination of the defendant’s case." Id. at 749, 426 P.3d 714 (quoting State v. Blank, 131 Wash.2d 230, 249, 930 P.2d 1213 (1997)). Therefore, the court held that the statutory amendments applied to the defendant’s case because it was pending on direct appeal and was not yet final. Ramirez, 191 Wash,2d at 749, 426 P.3d 714.
¶23 However, the Supreme Court in Jenks expressly declined to expand Ramirez to all cases. Jenks, 197 Wash.2d at 723, 487 P.3d 482. The court stated that the statute in Ramirez "dealt with the narrow subject matter of ‘costs imposed upon conviction,’ " and was not analogous to the sentencing statute at issue. Jenks, 197 Wash.2d at 723, 487 P.3d 482 (quoting Ramirez, 191 Wash.2d at 749, 426 P.3d 714). Similarly here, the LFO statute at issue in Ramirez is not analogous to RCW 9.94A.525(1)(b).
¶24 In Jefferson, the Supreme Court considered whether GR 37, a court rule involving discriminatory use of peremptory strikes that was adopted after the defendant’s trial, applied to the defendant's case on direct appeal. Id. at 243, 429 P.3d 467. The court determined that the precipitating event in that case was voir dire, so GR 37 did not apply. Id. at 248, 429 P.3d 467.
¶25 In discussing the issue, the Supreme Court stated,
We generally hold that when the new statute concerns a postjudgment matter like the sentence or revocation of release, … 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.
Id. at 247, 429 P.3d 467. But Jefferson did not involve amendments to a sentencing statute, and therefore this statement was dicta. And in making this statement, the court cited to Blank, 131 Wash.2d 230, 930 P.2d 1213 and In re Personal Restraint of Flint, 174 Wash.2d 539, 277 P.3d 657 (2012), neither of which involved amendments to sentencing statutes. Finally, the court in Jenks did not reference this statement in analyzing the prospective application of statutory amendments. Therefore, we conclude that the statements regarding postjudgment matters in Jefferson do not apply here. See State v. Molia, 12 Wash. App. 2d 895, 902, 460 P.3d 1086 (2020) (concluding that the statement in Jefferson does not control when addressing a statutory amendment that affects sentencing).
[9–11] ¶26 Tester also argues that RCW 9.94A.525(1)(b) is a remedial statute, and "remedial statutes are generally enforced as soon as they are effective, even if they relate to transactions predating their enactment." State v. Pillatos, 159 Wash.2d 459, 473, 150 P.3d 1130 (2007). Remedial statutes generally involve procedural matters rather than substantive matters. Id. Tester claims that RCW 9.94A525(1)(b) applies to his case on appeal because it involves a procedural change.
[12, 13] ¶27 But "changes to criminal punishments are substantive, not procedural." Jenks, 197 Wash.2d at 721, 487 P.3d 482. Regardless, the remedial nature of an amendment is irrelevant when the statute is subject to RCW 10.01.040. See State v. Kane, 101 Wash. App. 607, 613, 5 P.3d 741 (2000). ¶28 Therefore, we hold that RCW 9.94A.525(1)(b) does not apply to Tester’s offender score calculation and sentencing for his 2022 conviction.
CONCLUSION
¶29 We affirm Tester’s convictions and sentence, but we remand for the trial court to strike the VPA from the judgment and sentence.
¶30 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
PRICE, J.
CHE, J.