Opinion
No. 84054-1-1
04-08-2024
STATE of Washington, Respondent, v. Heather D. TROUTMAN, Appellant.
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant. Whatcom County Prosecutor’s Office, Appellate Division, Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave. Ste. 201, Bellingham, WA, 98225-4038, for Respondent.
Appeal from Whatcom County Superior Court, Docket No: 19-1-00625-3, Honorable David E. Freeman, Judge
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Whatcom County Prosecutor’s Office, Appellate Division, Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave. Ste. 201, Bellingham, WA, 98225-4038, for Respondent.
OPINION PUBLISHED IN PART
Chung, J.
¶1 Heather Troutman was convicted of felony driving under the influence (DUI) following a trial in which the key issue was whether she was the driver of a car that was found off the road. On appeal, she challenges the admission of her statements in violation of the doctrine of corpus delicti, the sufficiency of the evidence to support her conviction, and the admission of evidence that she refused to take a breath test in violation of CrR 3.1 and article I, section 7 of Washington’s Constitution. She also challenges her sentence based on the calculation of her offender score, because it included her juvenile dispositions, and the imposition of supervision fees and the Victim Penalty Assessment (VPA).
¶2 In the published portion of our opinion, we address Troutman’s claim regarding Laws of 2023, ch. 415, § 2 (codified at RCW 9.94A.525(1)(b)), which provides that adjudications of guilt for juvenile offenders by juvenile courts, other than murder in the first or second degree or class A felony sex offenses, may not be included in the calculation of an adult offender score. We conclude that because the plain language of the 2023 amendment conveys no legislative intent that it applies retroactively, under RCW 9.94A.345 and the savings clause, RCW 10.01.040, the law in effect at the time of the offense applies to Troutman’s sentence, so the amendment does not alter the calculation of Troutman’s offender score. Also, the 2023 amendment does not apply prospectively to sentences that are pending on appeal.
¶3 In the unpublished portion of our opinion, we address the remainder of Troutman’s claims. Finding no error, we affirm Troutman’s conviction. However, we remand to the trial court to strike the supervision fees and the VPA from her sentence.
FACTS
¶4 Sometime after 11 p.m. on May 30, 2019, Jennifer Moldver took the North Lake Samish exit off Interstate 5 near Bellingham and encountered a car that had gone "off the off ramp into the brush and woods," still running, with its lights still on. Moldver immediately pulled over, called 911, and walked toward the car, where she watched "one person in the car in the driver’s seat … rummage around a little bit and then climb over to the passenger seat and exit the vehicle." While she was on the phone, the person who had exited the car, Troutman, approached her and "begg[ed]" Moldver not to call 911. Moldver testified that "the alcohol smell coming off her was very, very powerful."
¶5 An emergency medical technician (EMT) who responded to the scene two minutes later could smell alcohol on Troutman. Troutman told the EMT "I wasn’t driving," "I’m not supposed to be driving," and "Please don’t tell them I was driving."
¶6 A Washington State Patrol trooper, Officer Lipton, responded to the scene approximately ten or fifteen minutes after the 911 call was made. It appeared to Lipton that the car had skidded off the roadway, slid though grass, and ended up in roadside brush. Lipton testified that when he asked her what happened, Troutman immediately told him "she wasn’t driving." Lipton further testified that Troutman failed seventeen of eighteen field sobriety test clues, and she told him that she thought if she took a breath test, her score would be "very high." Lipton placed Troutman under arrest and apprised her of her Miranda rights at the scene.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
¶7 The accident occurred in a "fairly remote" part of the county with "no houses in the immediate area" and only a park and ride lot and a gas station on the other side of the freeway. Moldver, the EMT, and Lipton did not see anyone else at the scene. The keys were still in the car’s ignition, and Lipton observed the driver’s seat was in a position consistent with a driver of Troutman’s height, which was five feet, four inches.
¶8 After transporting her to jail, Lipton began the breath test procedure, but Troutman said she did not want to answer any further questions and asked for an attorney. After Lipton attempted to put her in touch with an attorney, he resumed the breath test procedure. Troutman refused to take the test.
¶9 In June 2019, the State charged Troutman with several crimes, including felony DUI. Later that year, her first trial ended in a mistrial.
¶10 In February 2022, the State amended the information to a single count of felony DUI. Before her second trial, Troutman stipulated to prior convictions that would elevate the charge to felony DUI. See RCW 46.61.5055. The State moved to admit several statements by Troutman under CrR 3.5. Following the CrR 3.5 hearing, the court entered a written order admitting Troutman’s statements to the EMT and Lipton prior to her arrest, but excluding her statements at jail except for the fact of her refusal to take a breath test.
The court’s written findings of fact and conclusions of law from the CrR 3.5 hearing were not filed until after the trial, the same day as the judgment and sentence, on March 23, 2022.
¶11 At trial, after the State rested, Troutman moved to dismiss the charges against her based on the insufficiency of its evidence against her and the corpus delicti doctrine. The court denied the motion.
¶12 The jury found Troutman guilty as charged. Troutman timely appealed.
DISCUSSION
Inclusion of Juvenile Dispositions in Offender Score Calculation
¶13 Troutman’s statement of additional grounds states her belief that her "juv[enile] record should not have been counted against me as points." She attaches her criminal history and the court’s sentencing data showing an offender score of six. The standard range for her level IV offense is 33 to 48 months, and the court sentenced her to 35 months. Her juvenile dispositions contributed two points to her offender score. Wash. State Caseload Forecast Council, 2022 Washington State Adult Sentencing Guidelines Manual 311 (2022), https://cfc.wa.gov/sites/default/files/Publications/Adult_Sentencing_Manual_2022.pdf [https://perma.cc/9ZJX-45RC]. Removing her juvenile dispositions would reduce her offender score to four and the standard range to fifteen to twenty months. Id.
¶14 At the time of Troutman’s sentencing, the Sentencing Reform Act (SRA), RCW 9.94A.589(1)(a), required juvenile dispositions to be counted when calculating an offender score subject only to the same limitations that apply to adult convictions. But pursuant to Engrossed House Bill (EHB) 1324, 68th Leg. (Wash. 2023), a new provision effective July 23, 2023, states: "For the purposes of this section, adjudications of guilt pursuant to Title 13 RCW[] which are not murder in the first or second degree or class A felony sex offenses may not be included in the offender score." Laws of 2023, ch. 415, § 2 (codified at RCW 9.94A.525(1)(b)).
The title of Title 13 RCW is "Juvenile Courts and Juvenile Offenders."
[1–3] ¶15 Sentences imposed under the SRA of 1981, ch. 9.94A RCW, "are generally meted out in accordance with the law in effect at the time of the offense. See RCW 9.94A.345 ; RCW 10.01.040." State v. Jenks, 197 Wash.2d 708, 714, 487 P.3d 482 (2021). Because " ‘the fixing of legal punishments for criminal offenses is a legislative function,’ … [i]t is therefore ‘the function of the legislature and not the judiciary to alter the sentencing process.’ " Id. at 713, 487 P.3d 482 (internal quotation marks omitted) (quoting State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719 (1986), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). Thus, to determine whether the newly amended statute relating to Troutman’s sentence applies, we must interpret the statute based on its plain language, including that of the amendments. Jenks, 197 Wash.2d at 714, 487 P.3d 482. If unambiguous, the plain language provides "the beginning and the end of the analysis." Id.
RCW 9.94A.345 states, "Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed."
RCW 10.01.040 states in relevant 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 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.
This "savings clause" was enacted to " 'render[ ] unnecessary the incorporation of an individual saving clause in each statute which amends or repeals an existing penal statute.’ " Jenks, 197 Wash.2d at 719, 487 P.3d 482 (quoting State v. Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938)) (internal quotation marks omitted). Thus, in Jenks, the court held that where the plain language—there, an amendment to the Persistent Offender Accountability Act, LAWS OF 2019, ch. 187, § 1(33)(o), part of the SRA—did not convey the intent for the bill to be retroactive, or to be excluded from the savings clause, the amendment applied only prospectively. Id. at 714, 720, 487 P.3d 482. Similar to the amendment at issue in Jenks, here, where the amendment to the SRA includes no contrary intent, the savings clause applies.
Troutman also argues that the statute is remedial, and thus requires liberal construction to effectuate the remedial purpose of the statute. While the Jenks court did not address this argument, it did nevertheless interpret the statute at issue in that case not to express an intent to apply retroactively. And as the State notes, this court in Jenks at the appellate level rejected a similar argument, holding that the general rule that a remedial statute applies retroactively "does not apply when a statute is subject to RCW 10.01.040," and " ‘[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. Jenks, 12 Wash. App. 2d 588, 600, 459 P.3d 389 (2020) (quoting State v. McCarthy, 112 Wash. App. 231, 237, 48 P.3d 1014 (2002)), aff’d, 197 Wash.2d 708, 487 P.3d 482 (2021).
¶16 The amendment has the effect of removing a person’s prior juvenile dispositions from use when calculating a person’s offender score for any subsequent adult convictions, except for juvenile adjudications of guilt for murder in the first degree, murder in the second degree, and class A felony sex offenses. Troutman points to the intent section of the amending law to support her argument that the plain language "expresses an intent to apply to pending cases that are not final." The intent section states
¶17 The legislature intends to:
(1) Give real effect to the juvenile justice system’s express goals of rehabilitation and reintegration;
(2) Bring Washington in line with the majority of states, which do not consider prior juvenile offenses in sentencing range calculations for adults;
(3) Recognize the expansive body of scientific research on brain development, which show that adolescent’s perception, judgment, and decision making differs significantly from that of adults;
(4) Facilitate the provision of due process by granting the procedural protections of a criminal proceeding in any adjudication which may be used to determine the severity of a criminal sentence; and
(5) Recognize how grave disproportionality within the juvenile legal system may subsequently impact sentencing ranges in adult court.
Laws of 2023, ch. 415, § 1. Troutman argues that this section "uses strong words that convey an intent" for the law to apply to all pending cases. But the plain language says nothing about retroactivity.
[4] ¶18 Because the plain language is unambiguous and does not evince a legislative intent for EHB 1324 to apply retroactively, we conclude that under the SRA, RCW 9.94A.345, and the savings clause, RCW 10.01.040, the law in effect at the time of the offense applies to Troutman’s sentence.
[5, 6] ¶19 Finally, Troutman argues that EHB 1324 should apply prospectively. " ‘[A] statute applies prospectively,’ rather than retroactively, ‘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)). "To determine what event precipitates or triggers application of the statute, we look to the subject matter regulated by the statute." Carrier, 173 Wash.2d at 809, 272 P.3d 209, quoted in Jenks, 197 Wash.2d at 722, 487 P.3d 482.
¶20 In support of her argument, Troutman cites to State v. Ramirez, in which the court held that an amendment to the criminal filing fee statute applied prospectively because the precipitating event was "the termination of all appeals, at which point the costs were finalized. 191 Wash.2d 732, 749, 426 P.3d 714 (2018). But in Ramirez, the subject matter was "costs imposed upon conviction." 191 Wash.2d at 749, 426 P.3d 714. The Jenks court "decline[d] to expand Ramirez" as it was "not analogous to the determination of whether a defendant qualifies as a persistent offender," Jenks, 197 Wash.2d at 723, 487 P.3d 482, a determination that is regulated by the Persistent Offender Accountability Act and the SRA. Id. at 722, 487 P.3d 482.
¶21 Here, the statute at issue regulates which prior offenses are included in an offender score calculation, so the triggering event is sentencing. See State v. Jefferson, 192 Wash.2d 225, 247-49, 429 P.3d 467 (2018). Because Troutman’s sentence is still on direct appeal, the amendment would apply prospectively if the savings clause did not apply. But the plain language of EHB 1324 conveys no intent that it applies retroactively. See Jenks, 197 Wash.2d at 715-19, 487 P.3d 482. Thus, as analyzed above, we hold that the amendment does not apply to the calculation of Troutman’s offender score.
¶22 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 pursuant to RCW 2.06.404, it is so ordered.
WE CONCUR:
Feldman, J.
Diaz, J.