Summary
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.
Summary of this case from State v. PresteenOpinion
No. 52450-3-II
03-03-2020
STATE of Washington, Respondent, v. Alan Dale JENKS, Appellant.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant. Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., 1100 W Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., 1100 W Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
PART PUBLISHED OPINION
Maxa, C.J.
¶1 Alan Jenks appeals his conviction of first degree robbery, his sentence as a persistent offender to life in prison without the possibility of release under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, and the imposition of certain legal financial obligations (LFOs). The conviction arose from the robbery of a convenience store in Spokane. Jenks was sentenced as a persistent offender based on prior convictions of second degree robbery and first degree robbery. ¶2 When Jenks committed the current offense and when he was sentenced, former RCW 9.94A.030(32)(o) (2012) (now RCW 9.94A.030(33) ) classified second degree robbery as a "most serious offense," which meant that Jenks’s prior second degree robbery conviction was a strike offense under the POAA. But while this appeal was pending, the legislature in 2019 amended RCW 9.94A.030(33) to remove second degree robbery from the list of offenses that qualify as a strike offense. LAWS OF 2019, ch. 187 § 1. Jenks argues that the current version of RCW 9.94A.030(33) applies on appeal, and therefore his sentence as a persistent offender must be vacated.
¶3 We hold that the 2019 amendment to RCW 9.94A.030(33) removing second degree robbery from the list of offenses that qualify as strike offenses under the POAA does not apply to invalidate Jenks’s sentence. In the unpublished portion of this opinion, we address and reject Jenks’s remaining arguments regarding his conviction and sentence. However, we hold that the criminal filing fee and DNA collection fee imposed as LFOs must be reconsidered in light of the 2018 amendments to the LFO statutes.
¶4 Accordingly, we affirm Jenks’s conviction and sentence to life in prison without the possibility of release, but we remand for the trial court to consider imposition of the criminal filing fee and DNA collection fee under the currently applicable statutes.
FACTS
¶5 A jury found Jenks guilty of first degree robbery that occurred on December 8, 2014. Sentencing took place on June 22, 2017. The State presented certified copies of the judgment and sentence for Jenks’s 2004 conviction of second degree robbery and his 2011 conviction for first degree robbery.
¶6 The trial court found that Jenks’s current conviction was a "most serious offense" and that Jenks had been convicted on two separate occasions of most serious felonies. Clerk’s Papers (CP) at 113. The court further found that Jenks’s prior first degree robbery and second degree robbery convictions required that he be sentenced as a persistent offender under RCW 9.94A.570. As a result, the court sentenced Jenks to a term of life in prison without the possibility of release. Jenks appeals his sentence.
ANALYSIS
¶7 Jenks argues that the 2019 amendment to RCW 9.94A.030(33) that removed second degree robbery from the list of offenses that qualify as strike offenses under the POAA should be applied on appeal to invalidate his sentence as a persistent offender to life in prison without the possibility of release. We disagree.
A. DEFINITION OF "MOST SERIOUS OFFENSE"
¶8 Under RCW 9.94A.570, a "persistent offender" must be sentenced to total confinement for life without the possibility of release. RCW 9.94A.030(38)(a) defines "persistent offender" to include someone who has been convicted of a "most serious offense" and who previously has been convicted at least two separate times for most serious offenses. RCW 9.94A.030(33) defines "most serious offense" to include all class A felonies and a number of other listed felonies.
At the time Jenks committed the offense at issue here, this definition was contained in former RCW 9.94A.030(37)(a) (2012).
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¶9 In 2014, when Jenks committed the offense for which he was convicted and from which he appeals, former RCW 9.94A.030(32)(o) included second degree robbery on the list of most serious offenses. The trial court sentenced Jenks as a persistent offender in 2017 based in part on his prior second degree robbery conviction under this statute.
¶10 But in 2019, the legislature amended RCW 9.94A.030(33) by removing second degree robbery from that list. LAWS OF 2019, ch. 187, § 1. This amendment became effective on July 28, 2019. LAWS OF 2019, at ii.
B. EFFECT OF 2019 AMENDMENT TO RCW 9.94A.030(33)
¶11 The question here is whether we must review Jenks’s sentence under the law in effect at the time Jenks committed his current offense or under the law in effect at the time we decide his appeal. We conclude that RCW 9.94A.345 and RCW 10.01.040 both require Jenks to be sentenced under the law in effect when he committed the offense.
1. Legal Principles
¶12 The general rule is that a defendant’s sentence is determined based on the law in effect at the time the defendant committed the crime for which he is being sentenced. State v. Medina , 180 Wash.2d 282, 287, 324 P.3d 682 (2014) ; State v. Ross , 152 Wash.2d 220, 236-37, 95 P.3d 1225 (2004). This rule derives from two sources: (1) RCW 9.94A.345, a provision of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW; and (2) RCW 10.01.040, the general saving statute.
¶13 First, RCW 9.94A.345 states, "Any sentence imposed under this chapter [the SRA] shall be determined in accordance with the law in effect when the current offense was committed." The POAA is part of the SRA. See RCW 9.94A.570 ; State v. Knippling , 166 Wash.2d 93, 98, 206 P.3d 332 (2009). Based on RCW 9.94A.345, the Supreme Court repeatedly has stated that "a defendant must be sentenced in accordance with the law in effect at the time of his or her offense." Medina , 180 Wash.2d at 287, 324 P.3d 682 ; see also In re Pers. Restraint of Carrier , 173 Wash.2d 791, 809, 272 P.3d 209 (2012) ; State v. Varga , 151 Wash.2d 179, 191, 86 P.3d 139 (2004).
¶14 Second, RCW 10.01.040, the general saving statute, states:
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.
(Emphasis added.) Under the saving statute, "courts must sentence a defendant in accordance with the law in effect on the date he or she committed the crime." Ross , 152 Wash.2d at 236-37, 95 P.3d 1225.
¶15 Here, it is undisputed that former RCW 9.94A.030(32)(o) – listing second degree robbery as a most serious offense – was in effect at the time Jenks committed his current offense. And the 2019 amendment did not express an intent that it 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 Jenks be sentenced based on the former version of RCW 9.94A.030(33) rather than based on the 2019 amendment to RCW 9.94A.030(33) unless those statutes are inapplicable or some exception applies under the facts of this case.
2. Jenks’s Attempts to Avoid RCW 9.94A.345 and RCW 10.01.040
¶16 Jenks makes several arguments in an attempt to avoid application of the rule established by RCW 9.94A.345 and RCW 10.01.040. We reject these arguments.
a. Effect of Pending Appeal under Ramirez
¶17 Jenks argues that State v. Ramirez , 191 Wash.2d 732, 749, 426 P.3d 714 (2018), establishes that the 2019 amendment to RCW 9.94A.030(33) applies to his sentence because the amendment became effective while his case was pending on direct appeal. We disagree.
¶18 In Ramirez , the Supreme Court addressed whether the 2018 legislative amendments to the LFO statutes applied to a case pending on direct appeal. 191 Wash.2d at 747-49, 426 P.3d 714. The court held that the amendments to the LFO statutes applied prospectively to Ramirez because they "pertain to costs imposed on criminal defendants following conviction, and Ramirez’s case was pending on direct review and thus not final when the amendments were enacted." Id. at 747, 426 P.3d 714.
¶19 The defendant in Ramirez appealed the trial court’s imposition of discretionary LFOs, arguing that the court had failed to make an adequate inquiry into his ability to pay. Id. at 736-37, 426 P.3d 714. The Supreme Court concluded that the trial court had erred in imposing the LFOs without an adequate inquiry, which normally would have entitled the defendant to resentencing. Id. at 746, 426 P.3d 714. However, while the appeal was pending the legislature enacted amendments to the LFO statures that prohibited the imposition of discretionary LFOs and the criminal filing fee on indigent defendants. Id. The defendant argued that these amendments applied to his appeal, and therefore the Supreme Court should strike the LFOs because he was indigent rather than remanding for resentencing. Id.
¶20 The court relied on State v. Blank , 131 Wash.2d 230, 249, 930 P.2d 1213 (1997), which applied a statute imposing appellate costs on defendants prospectively to cases on appeal when the statute was enacted. Ramirez , 191 Wash.2d at 748, 426 P.3d 714. The court stated that as in Blank , the 2018 LFO amendments "concern the court’s ability to impose costs on a criminal defendant following conviction" and Ramirez’s case was on appeal as a matter of right when the amendments became effective. Id. at 749, 426 P.3d 714. The court concluded that "[b]ecause [the LFO] amendments pertain to costs imposed upon conviction and Ramirez’s case was not yet final when the amendments were enacted, Ramirez is entitled to benefit from this statutory change." Id.
¶21 Jenks suggests that Ramirez adapted a rule of prospective application of statutory amendments to all sentences in cases pending on direct appeal. However, the court in Ramirez clearly limited its holding to "costs imposed on criminal defendants following conviction." Id. at 747, 426 P.3d 714. The court did not state a rule of general application to all sentences. Further, the court did not discuss or even reference RCW 9.94A.345 or RCW 10.01.040. This omission demonstrates that the court was adopting a rule that applied only to LFOs.
¶22 We conclude that Ramirez does not support Jenks’s argument that the 2019 amendment to RCW 9.94A.030(33) must be applied prospectively to his sentence.
b. Heath and Wiley
¶23 Jenks argues that under State v. Heath , 85 Wash.2d 196, 532 P.2d 621 (1975), and State v. Wiley , 124 Wash.2d 679, 880 P.2d 983 (1994), a legislative reduction in the penalty for a crime must be applied retroactively. We disagree.
¶24 In Heath , the defendant was found to be a habitual traffic offender and his license to drive was revoked under the Habitual Traffic Offenders Act, RCW 46.65.060. 85 Wash.2d at 197, 532 P.2d 621. A year later, the Act was amended to allow a revocation order to be stayed if the offenses were the result of alcoholism. Id. The trial court then stayed the revocation order based on the amendment. Id. The Supreme Court held that the amendment applied retroactively because it essentially reduced the penalty for a crime. Id. at 198, 532 P.2d 621. "When this is so, 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." Id.
¶25 However, we conclude that the rule stated in Heath is inapplicable here. First, Heath is a civil case, not a criminal case, and did not involve a criminal sentence. Second, the Supreme Court in Ross subsequently stated that Heath did not implicate RCW 10.01.040 because Heath involved a civil driver’s license revocation. Ross , 152 Wash.2d at 239, 95 P.3d 1225. And other courts have noted that Heath is not controlling regarding the retroactivity of sentencing statutes because the court did not address the effect of RCW 10.01.040. State v. Toney , 103 Wash. App. 862, 865, 14 P.3d 826 (2000) ; State v. Kane , 101 Wash. App. 607, 615-16, 5 P.3d 741 (2000).
¶26 In Wiley , the defendant contested his offender score. The trial court used his multiple convictions of felony larceny, which at that time involved stealing property valued at more than $75, in calculating the offender score. 124 Wash.2d at 680-81, 880 P.2d 983. Subsequent statutory amendments reclassified theft and made it a gross misdemeanor to steal property valued at less than $250. Id. at 681, 880 P.2d 983. The question was whether the trial court erred by determining that the prior convictions constituted felonies instead of misdemeanors. Id. at 682, 880 P.2d 983.
¶27 The Supreme Court held that when a statutory amendment merely changes the elements of a crime – in that case, the dollar amount element – the original classification of the crime must be used in calculating the offender score. Id. at 685-86, 880 P.2d 983. However, the court stated that "the reclassification of an entire crime to a lower level of punishment does apply retroactively to the calculation of an offender score." Id. at 682, 880 P.2d 983. The court stated,
When the Legislature modifies the elements of a crime, it refines its description of the behavior that constitutes the crime. This does not make defendants convicted of the earlier crime any less culpable; instead, it clarifies the evidence required to prove the crime.
On the other hand, when the Legislature downgrades an entire crime, it has judged the specific criminal conduct less culpable. By reclassifying a crime without substantially altering its elements, the Legislature concludes the criminal conduct at issue deserves more lenient treatment. The reclassification of a crime is no mere refinement of elements, but rather a fundamental reappraisal of the value of punishment. It is therefore highly relevant to a sentencing judge’s estimation of a defendant’s overall culpability and dangerousness.
Id. at 687-88, 880 P.2d 983.
¶28 Jenks argues that the removal of second degree robbery from the list of most serious offenses essentially was a reclassification of that crime that should be applied retroactively. However, we conclude that Wiley is inapplicable here. First, as with Heath , Wiley was decided long before the enactment of RCW 9.94A.345, which now unequivocally states that a sentence must be imposed under the law in effect when the offense was committed. Second, as with Heath , the Supreme Court in Ross noted that Wiley did not address the effect of RCW 10.01.040. Ross , 152 Wash.2d at 239, 95 P.3d 1225.
¶29 We conclude that Heath and Wiley do not support Jenks’s argument that the 2019 amendment to RCW 9.94A.030(33) must be applied retroactively to invalidate his sentence.
c. Applicability of RCW 9.94A.345
¶30 Jenks argues that RCW 9.94A.345 does not control because that statute applies only to offender score calculations and eligibility for sentencing alternatives. We disagree.
¶31 Jenks relies on the legislature’s express statement of intent when enacting RCW 9.94A.345 :
[ RCW 9.94A.345 ] is intended to cure any ambiguity that might have led to the Washington supreme court’s decision in State v. Cruz , Cause No. 67147-8 [139 Wash.2d 186, 985 P.2d 384] (October 7, 1999). A decision as to
whether a prior conviction shall be included in an individual’s offender score should be determined by the law in effect on the day the current offense was committed. [ RCW 9.94A.345 ] is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.
LAWS OF 2000, ch. 26, § 1. Jenks claims that this statement of intent shows that the legislature did not intend for RCW 9.94A.345 to apply to a change in statutes that would affect an offender’s status as a persistent offender.
¶32 However, the plain language of RCW 9.94A.345 applies broadly to all sentences: "Any sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was committed." (Emphasis added.) Here, the general statement of legislative intent does not override the plain statutory language.
¶33 In addition, courts repeatedly have cited RCW 9.94A.345 in reference to sentencing issues other than offender score calculation and the availability of sentencing alternatives. See In re Pers. Restraint of Gronquist , 192 Wash.2d 309, 314 n.2, 429 P.3d 804 (2018) (community custody definition); see also State v. Coombes , 191 Wash. App. 241, 250, 361 P.3d 270 (2015) (community custody condition); State v. Munoz-Rivera , 190 Wash. App. 870, 891 n.3, 361 P.3d 182 (2015) ("crime-related prohibitions" conditions); Rivard v. State , 168 Wash.2d 775, 781 n.3, 231 P.3d 186 (2010) (vehicular homicide classification).
¶34 We conclude that RCW 9.94A.345 applies to POAA sentences and precludes the application of the 2019 amendment to RCW 9.94A.030(33) to this appeal.
d. Applicability of RCW 10.01.040
¶35 Jenks argues that RCW 10.01.040 does not control because the Supreme Court has recognized an exception to the saving statute when the legislature downgrades the culpability for an offense. We disagree. ¶36 RCW 9.94A.030(33) involves the punishment for a criminal offense. As a result, it is subject to the saving statute. Kane , 101 Wash. App. at 613, 5 P.3d 741 ; RCW 10.01.040.
¶37 Jenks suggests that Heath , 85 Wash.2d at 198, 532 P.2d 621, and Wiley , 124 Wash.2d at 687-88, 880 P.2d 983, support an exception to RCW 10.01.040. But as noted above, the court in those cases did not even address RCW 10.01.040. Jenks notes that the court referenced these cases in Ross , a case that involved the application of RCW 10.01.040. But Ross expressly distinguished and did not apply Heath and Wiley because those cases did not address RCW 10.01.040. Ross , 152 Wash.2d at 239-40, 95 P.3d 1225.
¶38 Jenks proffers no other argument that RCW 10.01.040 is inapplicable here. And the 2019 amendment to RCW 9.94A.030(33) does not express an intent that it would apply to pending prosecutions for crimes committed before its effective date.
¶39 RCW 10.01.040 "creates an easily administered, bright-line rule." Kane , 101 Wash. App. at 618, 5 P.3d 741. In addition, "there is nothing fundamentally unfair in sentencing offenders in accordance with the law they presumably were aware of at the time they committed their offenses." Id.
¶40 We conclude that RCW 10.01.040 applies to POAA sentences, and precludes the application of the 2019 amendment to RCW 9.94A.030(33) to this appeal.
e. Remedial Nature of Amendment
¶41 Jenks argues that the 2019 amendment to RCW 9.94.030(3) must be applied retroactively because it is a remedial amendment. We disagree.
¶42 Generally, a statutory amendment that is curative or remedial will be applied retroactively even without language showing legislative intent for retroactive application. Kane , 101 Wash. App. at 613, 5 P.3d 741. The Supreme Court in Heath stated that a remedial statute is presumed to apply retroactively. 85 Wash.2d at 198, 532 P.2d 621. However, this general rule does not apply when a statute is subject to RCW 10.01.040. Kane , 101 Wash. App. at 613, 5 P.3d 741. "[A]bsent language indicating a contrary intent, an amendment to a penal statute – even a patently remedial one – must apply prospectively under RCW 10.01.040." State v. McCarthy , 112 Wash. App. 231, 237, 48 P.3d 1014 (2002) ; see also Kane , 101 Wash. App. at 615, 5 P.3d 741.
¶43 Here, RCW 9.94A.030(33) is a penal statute because it involves the punishment for a criminal offense. Therefore, RCW 10.01.040 requires that the version of RCW 9.94A.030(33) in effect when Jenks committed his current offense be applied at sentencing.
¶44 We conclude that the 2019 amendment to RCW 9.94A.030(33) cannot be applied to this appeal regardless of whether the amendment is remedial.
CONCLUSION
¶45 Both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be sentenced based on the version of former RCW 9.94A.030(33) in effect at the time Jenks committed his current crime rather than based on the 2019 amendment to RCW 9.94A.030(33). At the time Jenks committed his current offense, second degree burglary was a most serious offense that constituted a strike under the POAA. Therefore, the trial court did not err in sentencing Jenks to confinement for life without the possibility of release.
¶46 We affirm Jenks’s conviction and sentence, but we remand for the trial court to consider the imposition of the criminal filing fee and DNA collection fee under the currently applicable statutes. ¶47 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:
MELNICK, J.
GLASGOW, J.