Opinion
No. 36917-6-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00142-9, Anne Hirsch, J., entered October 29, 2007.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
Arthur Deckman Watson, III was convicted in a bench trial of one count of felony violation of sex offender registration. He challenges his offender score calculation and seeks resentencing. We vacate and remand for resentencing.
Facts
Watson was convicted of second degree rape in 1989, and as a result is required to register as a sex offender under the provisions of RCW 9A.44.130. The Thurston County Sheriff's Office has designated Watson as a Level II sex offender. Watson received notice from the sheriff's office that he was required to report in person for registration on January 8, 2007, at the Thurston County Fairgrounds. Watson failed to report on January 8, and was arrested on January 22, 2007, for failure to register. He later explained to police that he knew about the reporting requirement, but he confused the date with another court appearance that he had on another matter.
The State charged Watson with felony violation of sex offender registration as required by RCW 9A.44.130(11)(a). Following a bench trial, the court found Watson guilty as charged, and sentenced him to a low end standard range sentence of 43 months based on an offender score of 9. Watson filed a timely notice of appeal.
Discussion
Watson does not challenge his conviction for violation of the sex offender registration requirements of RCW 9A.44.130(11)(a). Instead, he challenges only the calculation of his offender score. He seeks remand for resentencing, asserting that "this court cannot tell based on this record what Watson's proper offender score in fact is." Br. of Appellant at 8. We agree.
Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). "The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence." Bergstrom, 162 Wn.2d at 93 (citing In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005); State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002)). "The best evidence to establish a defendant's prior conviction is the production of a certified copy of the prior judgment and sentence." Bergstrom, 162 Wn.2d at 93. See also Lopez, 147 Wn.2d at 519; State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). However, sentencing courts can rely on defense acknowledgment of prior convictions without further proof. Bergstrom, 162 Wn.2d at 94.
Former RCW 9.94A.525 (2006) provides in relevant part:
Class A and sex prior felony convictions shall always be included in the offender score. . . . Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
Former RCW 9.94A.525(2). See Laws of 2006, ch. 128, § 6. The statute also assigned point values to certain prior convictions. "If the present conviction is for failure to register as a sex offender . . . count three points for each adult and juvenile prior sex offense conviction, excluding prior convictions for failure to register as a sex offender . . ., which shall count as one point." Former RCW 9.94A.525(17) (2006).
Generally, where a statute has been amended, the version of the statute in effect on the date the offense was committed will be applied. See State v. Ross, 152 Wn.2d 220, 236-38, 95 P.3d 1225 (2004). Accordingly, the relevant statutes as to the present offense are those in effect on January 8, 2007. The legislature may also direct how prior convictions are to be treated. See e.g. former RCW 9.94A.525(17) and (19) (2006) (directing which prior convictions are to be included and how they are to be counted in the present circumstances).
The judgment and sentence lists Watson's criminal history as including five felony convictions, i.e., two sex crimes and three convictions for violation of sex offender registration statutes. The sex crimes are a 1977 conviction for indecent liberties, and a 1989 conviction for second degree rape. The convictions for registration violations occurred in 1993, 1994, and 2003. Applying the point values as directed in the above statute yielded an offender score of 9.
Three points for each of the two sex offenses, plus one point each for the three registration violations, for a total offender score of nine points. See former RCW 9.94A.525(17).
Watson argued in his opening brief that the 1993 and 1994 convictions for failure to register are class C felonies, and because of the nine-year time break between the 1994 conviction and the 2003 conviction, the 1993 and the 1994 convictions wash out. See former RCW 9.94A.525(2). In response, the State agreed that the record is not clear and that the wash-out provision would apply if a five-year-crime-free period could be established. The State contends that the record suggests that Watson had a DUI conviction in 1999; and, if so, that misdemeanor crime would likely make the wash-out provision inapplicable, depending upon Watson's release date from incarceration for any prior felony conviction.
The record contains a confidential forensic mental health report that indicates Watson self-reported to the examiner that he had two DUI convictions, one in 2006 and one "in approximately 1999." CP at 34.
The State argued that under Bergstrom it should be permitted to present evidence on remand regarding whether Watson had a 1999 DUI, because defense counsel agreed at sentencing that the State's statement of criminal history was "accurate." See RP (Oct. 29, 2007) at 5. But Bergstrom is distinguishable. Because that case presented the "unique" circumstance of defense counsel agreeing with the State's offender score, and defendant objecting to the offender score, the court permitted both parties to present evidence on remand. Bergstrom, 162 Wn.2d at 98. That is not the circumstance here.
Bergstrom discusses the three typical approaches identified in case law addressing challenges to offender score calculations based on insufficient evidence of prior convictions. In the first instance, where the State alleges prior convictions and the defense fails to object before sentence is imposed, the case is remanded for resentencing and the State is allowed to introduce new evidence. In the second instance, where the defense specifically objects, but the State fails to produce any evidence of the defendant's prior convictions, the State may not produce new evidence at resentencing. In the third instance, where the defense agrees with the State's depiction of the defendant's criminal history, the defendant waives the right to challenge the criminal history after sentence is imposed. See Bergstrom, 162 Wn.2d at 93-94.
More like the present case is In re Personal Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005). There, as here, a wash out on the face of the judgment and sentence purportedly affected the offender score. Cadwallader explained that "there is a difference between a stipulation to facts, such as the comparability of an out-of-state offense, which can constitute waiver, and a stipulation to a legal conclusion, which cannot." Cadwallader, 155 Wn.2d at 875. Because a defendant "cannot agree to a sentence in excess of that which is statutorily authorized," the fact that the defendant had acknowledged his criminal history "does not prevent him from challenging his sentence where the judgment and sentence shows that one of the prior convictions used to determine his sentence washed out." Cadwallader, 155 Wn.2d at 874. The Cadwallader court did not permit the State to present additional evidence on remand because the State had failed to meet its burden at sentencing of proving the defendant's prior convictions by providing evidence of an intervening conviction that would have shown that a wash out provision had not been triggered. See Cadwallader, 155 Wn.2d at 875-78. Cadwallader directs that in the event of a remand, the State may not present new evidence regarding a 1999 DUI conviction because it failed to offer such evidence at sentencing.
Notably, Bergstrom distinguished Cadwallader as follows:
In Cadwallader, the State failed to allege the existence of defendant's out-of-state conviction, which was necessary to establish that his Washington conviction had not "washed out," so the State was precluded from introducing that out-of-state conviction at resentencing. In Bergstrom's case, the State did allege his prior convictions and reasonably relied on defense counsel's agreement with the State's
offender score calculation. See Bergstrom, 162 Wn.2d at 97. Because this case is more like Cadwallader than Bergstrom, Cadwallader applies here.
The parties' initial contentions are not dispositive of this case, however. As noted, both parties assumed that the 1993 and 1994 convictions for violation of the sex offender registration statute were class C felonies subject to the wash-out provision of former RCW 9.94A.525(2). Based on the record presented with this appeal, we cannot verify that fact. The record that was presented to the trial court contains no charging documents, no judgment and sentence, and no other information verifying the 1993 and 1994 convictions or how they were classified. We do note, however, that while a failure to register as a sex offender, premised on the predicate crime of second degree rape, would qualify as a class C felony under the current registration statute, that is not the case for the 1993 and 1994 failure to register violations. Notably, the current statute designates a failure to comply with the registration requirements as a class C felony where the underlying crime was a "felony sex offense." See RCW 9A.44.130(11)(a) (2006). But the version of the registration statute in effect when the 1993 and 1994 violations were committed provided:
This subsection of the statute is further amended by Laws of 2008, chapter 230, section 1, effective 90 days after adjournment sine die of the 2010 legislative session, changing the felony classification for violation of the registration provisions to a class B felony.
A person who knowingly fails to register as required by this section is guilty of a class C felony if the crime for which the individual was convicted was a class A felony. . . . If the crime was other than a class A felony . . ., violation of this section is a gross misdemeanor.
Former RCW 9A.44.130(7) (1991) (Laws of 1991, ch. 274, § 2) (emphasis added). See also former RCW 9A.44.130(7) (1994) (Laws of 1994, ch. 84, § 2). Here neither the 1977 indecent liberties conviction, nor the 1989 second degree rape conviction was classified as a class A felony when each offense was committed. See former RCW 9A.44.050(2) (1988) (designating second degree rape as a class B felony). See Laws of 1988, ch. 146, § 1. See also former RCW 9A.44.100 (1988). Accordingly, Watson's 1993 and 1994 failure-to-register offenses were gross misdemeanors, and thus not subject to the noted wash-out provision applicable to class C felonies. This designation creates a different question regarding whether the 1993 and 1994 failure to register convictions should be included in Watson's offender score, because generally misdemeanors do not count in the present offender score calculation under the SRA. See RCW 9.94A.505(1); RCW 9.94A.525. See also State v. Snedden, 149 Wn.2d 914, 922, 73 P.3d 995 (2003) (SRA applies only to felonies). See also City of Bremerton v. Bradshaw, 121 Wn. App. 410, 413, 88 P.3d 438 (2004) (same).
Second degree rape was elevated to a class A felony in 1990. See Laws of 1990, ch. 3, § 901.
RCW 9A.44.100 is a recodification of former RCW 9A.88.100. Laws of 1988, ch. 145, § 10 indicates that as enacted in 1975 and subsequently amended in 1986, these statutes provided that indecent liberties was a class B felony. A class A felony enhancement for forcible compulsion was added to this offense in 2001. See Laws of 2001, 2d Spec. Sess., ch. 12, § 359.
In light of the parties' initial assertions and the noted incongruence with the relevant statutes in effect in 1993 and 1994, we requested supplemental briefing addressing the issue of whether Watson's 1993 and 1994 convictions were in fact class C felonies or gross misdemeanors, and the effect of such classification for current sentencing purposes. The State has responded, admitting in its supplemental brief that Watson's 1993 and 1994 convictions were gross misdemeanors, that they should not be counted in his offender score, that as a result Watson's offender score should be seven, and that this case should be remanded for resentencing. In light of the State's concession and for the reasons discussed above, we vacate Watson's sentence and remand for resentencing consistent with this opinion.
In light of our decision to remand for resentencing, we do not reach Watson's remaining contentions that resentencing is warranted because his counsel was ineffective for failing to challenge his offender score, or that the rule of lenity should apply because the sentencing statutes are ambiguous.
Vacated and remanded for resentencing.
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.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.