Opinion
No. 40207-6-II.
Filed: August 16, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Lewis County, No. 08-1-00235-1, Nelson E. Hunt, J., entered December 9, 2009.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Penoyar, C.J., and Johanson, J.
Amanda Phillips appeals the trial court's denial of her CrR 7.8 motion to withdraw her guilty plea to a charge of failing to register as a sex offender. She argues that (1) her Utah juvenile adjudication, the predicate offense requiring that she register as a sex offender in Washington, was constitutionally invalid and (2) juvenile adjudications are not sex offenses requiring registration under Washington's laws. We affirm the trial court's denial of her motion to withdraw her plea.
FACTS
On September 12, 2006, in a Utah juvenile proceeding, Phillips pleaded guilty to first degree aggravated sexual abuse of a child under the age of 14, a felony. The record on appeal contains the Utah juvenile court's "Minutes, Findings, and Order" reciting that (1) the parties and counsel were present at the hearing; (2) the "[p]etition(s) [we]re read and admitted"; (3) the court "addresse[d] and accept[ed] comments from all parties present"; (4) the juvenile court found the allegations against Phillips were "true and correct"; and (5) the juvenile court imposed various conditions as a result of the adjudication. Clerk's Papers (CP) at 22-23.
It appears that Utah juvenile courts refer to a juvenile guilty plea as an "admission." Clerk's Papers (CP) at 22; State ex rel. K.M., 2007 UT 93, 173 P.3d 1279, 1281. Phillips does not challenge the trial court's conclusion that "Utah's juvenile court is the functional equivalent to a criminal prosecution in Washington State." CP at 36. Thus, we refer to her Utah "admission" as a guilty plea.
On April 16, 2008, Phillips pleaded guilty in Lewis County Superior Court to one count of failure to register as a sex offender on February 14, based on her prior Utah adjudication. On April 10, 2009, Phillips filed a motion for relief from judgment under CrR 7.8(b)(4). Phillips argued that Utah courts treat juvenile proceedings as civil matters, not criminal matters; thus, her Utah adjudication was not a predicate conviction that required her to register as a sex offender in Washington. She cited a Utah Supreme Court decision, State ex rel. K.M., 2007 UT 93, 173 P.3d 1279, arguing that the case established that Utah courts treated juvenile proceedings as civil matters, not as criminal proceedings.
CrR 7.8(b) provides in part:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
. . . .
(4) The judgment is void.
(Boldface omitted.)
During an initial hearing on Phillips's motion, the trial court, after discussing Phillips's claim that her Utah adjudication was a civil matter, commented:
[I]t appears to me the prior adjudication in Utah juvenile court was the result of some form of a guilty plea.
. . . .
. . . [T]hat's a problem because there are a number of cases talking about in terms of what counts as a prior conviction for when it is an element of an offense and I think as well as constitutionally valid to count as a prior for scoring purposes, looks at the constitutionality of [the] guilty plea . . . was the person represented by counsel, is there a written record amounting to a guilty plea form from which we can look and say, ah-ha, this guilty plea process meets the constitutional standard.
Report of Proceedings (RP) at 13-14. The trial court then continued the hearing and requested a response from the State on both the issue Phillips raised on the comparability of Utah and Washington juvenile adjudications and the issue the trial court raised on the constitutional validity of Phillips's Utah guilty plea.
At the subsequent hearing, defense counsel initially described the circumstances surrounding Phillips's Utah guilty plea:
[Phillips] advises she saw her attorney right before the hearing where she entered the plea, that's just what she told me. I don't see anywhere in here on this arraignment thing, your Honor, she said she was never advised she had the right to a trial and she had a right to hear and question the witnesses testifying against her. . . . The paperwork doesn't appear — she's advised me she was not. It doesn't appear from this that she was advised she had the right to trial or to question witnesses, what rights she has in Washington.
RP at 23-24. But Phillips did not file a declaration stating facts relating to the plea hearing, nor did she discuss the procedure followed by the Utah juvenile court in accepting her plea. Moreover, Phillips's counsel made his statements in the context of the comparability argument, concluding, "[W]ith that added, your Honor, I just don't think that the [S]tate has presented sufficient evidence to show that it does become a criminal matter. Under the Utah law it's civil according to the paperwork I submitted." RP at 24.
The trial court concluded that Phillips's Utah juvenile adjudication for first degree aggravated sexual abuse of a child under the age of 14 was equivalent to the Washington crime of second degree rape of a child, that "Utah's juvenile court is the functional equivalent to a criminal prosecution in Washington State," and that her Washington conviction for failure to register was valid; thus, the court denied her motion to withdraw her plea. CP at 35-36. The trial court did not enter findings or conclusions addressing the constitutional validity of her Utah guilty plea and Phillips did not request entry of any such finding or conclusion. She now appeals.
ANALYSIS
I. Error Raised for First Time on Appeal
Phillips argues that the trial court erred in denying her motion to withdraw her Washington guilty plea for failure to register because her predicate Utah adjudication is constitutionally invalid. Citing K.M., she contends that the State failed to prove beyond a reasonable doubt that her guilty plea to the Utah offense was knowing, intelligent, and voluntary. No Washington case has addressed a challenge to the constitutional validity of a predicate conviction or adjudication in the failure to register context.
Initially, we observe that generally a guilty plea "waives or renders irrelevant" any constitutional defects occurring before its entry, "except those related to the circumstances of the plea or the government's legal power to prosecute regardless of factual guilt." In re Pers. Restraint of Bybee, 142 Wn. App. 260, 268, 175 P.3d 589 (2007). Assuming without deciding that the rule applies in this context and that Phillips raises the issue related to the circumstances of her plea in Utah on appeal, we must first address whether Phillips improperly raises the issue of her plea's constitutionality for the first time on appeal. RAP 2.5(a) generally does not allow parties to raise claims for the first time on appeal. But RAP 2.5(a)(3) allows appellants to raise claims for the first time on appeal if such claims constitute manifest constitutional error.
We may affirm the trial court on any ground supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Our Supreme Court has held that a challenge to the constitutional validity of a prior conviction used to establish the elements of a present offense is not a constitutional error that a defendant may raise for the first time on appeal. State v. Smith, 104 Wn.2d 497, 500-01, 506, 707 P.2d 1306 (1985). In such challenges, the defendant must first "place[] at issue" the constitutionality of the prior guilty plea at the trial court so that the State has an opportunity to respond to that specific argument. Smith, 104 Wn.2d at 506; see State v. Swindell, 93 Wn.2d 192, 197, 607 P.2d 852 (1980) ("[O]nce a defendant calls attention to the alleged unconstitutionality of a plea of guilty . . . the State must prove beyond a reasonable doubt, that the plea was made voluntarily."); State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980) ("defendant must first call attention to the inappropriateness of using a . . . plea[;] but once the defendant raises the issue, the State must bear the burden of pro[of]"). Our Supreme Court has further described the defendant's initial burden as "offering a colorable, fact-specific argument supporting the claim of constitutional error in the prior conviction" or "call[ing] attention to" the issue of an invalid predicate conviction. State v. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993); Swindell, 93 Wn.2d at 197.
In Smith, our Supreme Court reasoned that "[t]he nature of the challenge is to the State's proof, not to a violation of constitutional rights" because, "[i]f the State fails to meet [its] burden, it has not proved an essential element of the case: a constitutionally valid prior conviction." 104 Wn.2d at 506. Thus, if the defendant fails to challenge the constitutional validity of a predicate conviction before the trial court, then he "has not suffered a violation of his constitutional rights in the [present] proceeding; he only has missed an opportunity to enlarge the State's burden of proof." Smith, 104 Wn.2d at 506.
Here, the record shows that it was the trial court, not Phillips, that raised the issue of the constitutionality of the Utah juvenile adjudication, even though Phillips had not argued that the Utah plea procedure was unconstitutional. The trial court continued the hearing on Phillips's CrR 7.8 motion and asked the State to address the constitutional validity of Phillips's Utah adjudication. In response, the State distinguished the facts of K.M. from those of Phillips's Utah plea.
In response to the trial court's continuance of the CrR 7.8 hearing and its concern about the Utah adjudication, Phillips's counsel recited facts during the final hearing on her motion to withdraw her plea that were based on Phillips's memory of what transpired and what Phillips told the attorney. Some of these facts were consistent with a constitutional validity challenge. But Phillips's motion and her counsel's arguments at the hearing focused solely on the comparability argument and asserted only that Utah's juvenile adjudications were civil, not criminal, and thus not comparable to Washington juvenile adjudications. Thus, Phillips's argument focused only on whether the Utah juvenile adjudication could serve as a predicate criminal sex offense for purposes of Washington's sex offender registration statute.
Despite the trial court questioning the constitutionality of the Utah adjudication sua sponte and giving Phillips the opportunity to pursue a challenge to the predicate offense on these grounds, it appears that she waived that challenge. Thus, although the trial court raised and "placed at issue" the constitutionality of the Utah adjudication, Phillips failed to meet her initial burden of presenting "a colorable, fact-specific argument supporting [a] claim of constitutional error in the prior conviction." Smith, 104 Wn.2d at 506; Summers, 120 Wn.2d at 812.
Furthermore, when the trial court did not enter a finding or conclusion regarding the constitutional validity of her Utah adjudication, Phillips did not request entry of such a finding or conclusion, nor did she assert that the trial court failed to address an issue she asked it to resolve or ask the trial court to reconsider. As a result, she failed to adequately raise and preserve the issue at the trial court. Because a challenge to a predicate offense is not an error of constitutional magnitude, we do not further consider it for the first time on appeal. Accord Smith, 104 Wn.2d at 500-01, 506. Accordingly, we affirm the trial court's denial of Phillips' motion to withdraw her Washington guilty plea to the failure to register charge.
II. Juvenile Adjudications Qualify as Sex Offenses Requiring Registration
Phillips also argues that, because Washington does not classify juvenile adjudications as felonies and Washington's sex offender registration statutes refer to felonies, those statutes unambiguously establish that her prior Utah juvenile adjudication does not constitute a sex offense requiring her to register. She argues in the alternative that the registration statutes' references to felonies render the phrase "sex offense" ambiguous, requiring us to apply the rule of lenity and interpret them in her favor. Finally, she argues that we should overrule our decision in State v. Acheson, 75 Wn. App. 151, 877 P.2d 217 (1994), in which we rejected similar arguments.
Phillips argues that her Utah juvenile adjudication is not a felony that is a violation of chapter 9A.44 RCW because juvenile adjudications are not felony convictions. State v. Chavez, 163 Wn.2d 262, 272, 180 P.3d 1250 (2008) (juveniles do not have the right to jury trials in juvenile court adjudications); State v. Schaaf, 109 Wn.2d 1, 8, 743 P.2d 240 (1987) (juveniles committing offenses do not commit felonies). Therefore, she argues that she has not committed a "sex offense" within the meaning of former RCW 9.94A.030 (2006) and had no duty to register under former RCW 9A.44.130(1)(a) and RCW 9A.44.130(10)(a) (2006).
We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). When interpreting a statute, we seek to ascertain the legislature's intent. Jacobs, 154 Wn.2d at 600. Where plain on its face, we give effect to that meaning as expressing the legislature's intent. Jacobs, 154 Wn.2d at 600. We determine the plain meaning of a statutory provision from the ordinary meaning of its language; as well as the general context of the statute, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at 600. Whenever possible, we must read statutes in harmony and give each effect. State v. Bays, 90 Wn. App. 731, 735, 954 P.2d 301 (1998). We interpret statutes to give effect to all language in the statute and to render no portion meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). We avoid a reading that produces absurd results because we will not presume that the legislature intended an absurd result. J.P., 149 Wn.2d at 450.
The sex offender registration statutes in effect when Phillips failed to register applied to "[a]ny adult or juvenile . . . who has been found to have committed or has been convicted of any sex offense." Former RCW 9A.44.130(1)(a). Former RCW 9A.44.130(10)(a) defined a "sex offense" as:
(i) Any offense defined as a sex offense by RCW 9.94A.030;
(ii) Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree);
(iii) Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes);
(iv) Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection; and
(v) Any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030 or this subsection.
Former RCW 9.94A.030 (2006), referred to in former RCW 9A.44.130(10)(a)(i), in turn defined "sex offense" as:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080; or
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;
(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection;
(c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or
(d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.
Former RCW 9.94A.030(42).
The trial court concluded that Phillips's juvenile adjudication was equivalent to the Washington crime of second degree rape of a child. Because Phillips's registration requirement arose from her out-of-state Utah juvenile adjudication of first degree aggravated sexual abuse of a child under the age of 14, former RCW 9A.44.130(10)(a)(iv), defining a "sex offense" as "[a]ny federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection," applied to her. In turn, former RCW 9A.44.130(10)(a)(i) referred to former RCW 9.94A.030 (2006)'s definition of "sex offense." Former RCW 9.94A.030(42)(d) (2006) defined out-of-state convictions for felonies classified as sex offenses "under (a) of this subsection" as a "sex offense". Former RCW 9.94A.030(42)(a)(i) (2006) defined felonies that were violations of chapter 9A.44 RCW as sex offenses. Second degree rape of a child is a felony violation of RCW 9A.44.076. Thus, because the State based Phillips's registration requirement on her Utah adjudication, the equivalent of second degree rape of a child in Washington, former RCW 9A.44.130(10)(a)(i) and RCW 9A.44.130(10)(a)(iv) and former RCW 9.94A.030(42)(a)(i) and RCW 9.94A.030(42)(d) (2006) applied to her.
The trial court characterized this as a finding of fact. But the comparability of out-of-state convictions to Washington crimes is a question of law that we review de novo. State v. Werneth, 147 Wn. App. 549, 552, 197 P.3d 1195 (2008). Accordingly, we properly review a conclusion of law mislabeled as a finding fact as a conclusion of law. State v. Gaines, 122 Wn.2d 502, 508, 859 P.2d 36 (1993). Although Phillips assigns error to the trial court's conclusion that her Utah juvenile adjudication was equivalent to the Washington crime of second degree child rape, she does not support this assignment of error with argument; thus, we do not review it. RAP 10.3(a)(6).
We considered and rejected the same argument, i.e., that juvenile sex offense adjudications are not felonies requiring registration, in Acheson, 75 Wn. App. 151 at 153-55. Phillips argues that we should abandon Acheson in light of the 1995 amendment of the definition of "sex offense" in former RCW 9.94A.030 (2006). Before 1995, former RCW 9.94A.030(29)(b) (1993) provided that "sex offense" included "[a] felony with a finding of sexual motivation under [former] RCW 9.94A.127 [(1990)]." In 1995, Division One of this court held that the definition of "sex offense" in former RCW 9.94A.030(29)(b) did not apply to juveniles who committed offenses with sexual motivation because it referred to the adult sexual motivation statute, former RCW 9.94A.127 (1990), but did not refer to the juvenile sexual motivation statute, former RCW 13.40.135 (1990). State v. S.M.H., 76 Wn. App. 550, 554-55, 559, 887 P.2d 903 (1995). Later that year, the legislature corrected this oversight and amended former RCW 9.94A.030 (1993) to add the reference to the juvenile sexual motivation statute to the definition of "sex offense." Former RCW 9.94A.030(33)(b) (1995); Laws of 1995, ch. 268, § 2.
The legislature later recodified former RCW 9.94A.127 as former RCW 9.94A.835 (2001). Laws of 2001, ch. 10, § 6.
Phillips argues that we should adopt the reasoning in S.M.H., particularly because when the legislature amended the definition of "sex offense" to add the reference to the juvenile sexual motivation statute in former RCW 9.94A.030(31)(b) (1995), it did not subsequently modify the reference to "felony" to add "or juvenile adjudication" in former RCW 9.94A.030(42)(a)(i) (2006). See In re Det. of Martin, 163 Wn.2d 501, 512, 182 P.3d 951 (2008) (courts cannot "correct" omissions in statutes unless the omission renders the statute completely ineffectual).
We decline to abandon Acheson. In two cases subsequent to S.M.H., Division One has rejected the general argument that a statutory reference to a "crime" or "felony" per se, renders ambiguous or unambiguously precludes the statute's application to juvenile adjudications. State v. Wright, 88 Wn. App. 683, 687, 946 P.2d 792 (1997); State v. Cheatham, 80 Wn. App. 269, 276, 908 P.2d 381 (1996). In Cheatam, the court observed:
[T]he adult criminal code, the [Juvenile Justice Act of 1977)] and the relevant case law are replete with references to "juvenile felonies" and "misdemeanors." Under [the defendant's] approach, any time the Legislature has referred to a juvenile offense without explaining that it means an offense which, if committed by an adult would be a felony or a misdemeanor, that provision would not apply to juveniles. If we were to accept [defendant]'s argument that a juvenile offense cannot be classified or referred to as a felony or a crime, we would be nullifying countless provisions of both the adult criminal code and the [Juvenile Justice Act of 1977].
80 Wn. App. at 276-77 (citations omitted); see also State v. Wright, 88 Wn. App. at 687 ("If juvenile adjudications do not constitute predicate offenses, then a juvenile could never violate [former RCW 9.41.040(1)(a) (1994)]. Wright's reading of the statute would thus render the 'whether an adult or juvenile' clause [of former RCW 9.41.040(1)(a)] completely superfluous, a result we ordinarily strive to avoid.").
Here, former RCW 9A.44.130(1)(a) provided that "[a]ny adult or juvenile" convicted of a sex offense was required to register. (Emphasis added.) The Juvenile Justice Act of 1977, chapter 13.40 RCW, defined "sex offense" as "an offense defined as a sex offense in [former] RCW 9.94A.030 [(2006)]." Former RCW 13.40.020(25) (2004). See Acheson, 75 Wn. App. at 154. Phillips argues that, because the word "felony" is used in the definition of "sex offense" under former RCW 9.94A.030(42)(a)(i) (2006), it is inapplicable to juveniles, and no juvenile could be adjudicated guilty of a crime defined in chapter 9A.44 RCW.
Phillips failed to register in 2008. Former RCW 13.40.020(25) (2004) was in effect in 2008. It referred to RCW 9.94A.030. Former RCW 9.94A.030 (2006) was in effect in 2008.
But this interpretation renders meaningless the inclusion of sex offenses as defined by former RCW 9.94A.030(42)(a)(i) and RCW 9.94A.030(42)(d) (2006) in the Juvenile Justice Act of 1977, that only refers to felonies. Similarly, it renders meaningless the "[a]ny adult or juvenile" clause in former RCW 9A.44.130(1)(a). Reading these statutes together, this interpretation is contrary to the legislature's unambiguous intent to include juvenile adjudications for crimes that, if committed by an adult, would constitute sex offense felonies requiring registration. Accordingly, we reaffirm the decision in Acheson that all persons adjudicated guilty of sex offenses defined in chapter 9A.44 RCW are required to register under former RCW 9A.44.130(1)(a). Phillips' claim that juvenile adjudications are not felonies that serve as predicate offenses for sex offender registration requirements fails.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
PENOYAR, C.J. and JOHANSON, J., concur.