Opinion
No. 21748-5-III.
Filed: April 6, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-1-00384-5. Judgment or order under review. Date filed: 01/06/2003. Judge signing: Hon. Michael E Donohue.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Nicholas Swecker was convicted of first degree murder and second degree burglary in June 2001. His conviction was affirmed by this court in January 2003. During the pendency of that appeal, he moved the trial court for an amended sentence based on alleged errors in counting his offender score. This court gave the trial court permission to enter an amended judgment and sentence nunc pro tunc. Mr. Swecker now appeals the amended sentence, contending the trial court erred in counting multiple prior juvenile offenses separately although they were sentenced on the same date in 1996.
At issue is the retroactive effect of a 1997 amendment to the Sentencing Reform Act of 1981 (SRA) that eliminated a provision treating prior juvenile convictions sentenced on the same date as one offense for the offender score of a subsequent offense. We find that Mr. Swecker had no vested right to have his prior juvenile offenses treated as one, and affirm.
Facts
Mr. Swecker was charged and convicted in a jury trial of the January 2001 second degree burglary of Spokane Indoor Raceway Hobbies and the first degree murder of its owner, David Mapston. Judgment was entered on June 5, 2001. The trial court counted each juvenile offense as .5 pursuant to former RCW 9.94A.360(5)(a), (8), and (9) (1999) and former RCW 9.94A.400(1)(a) (1999). With 15 prior juvenile felony offenses and 1 prior adult felony offense, Mr. Swecker's offender score was calculated to be 8.5 for the murder conviction and 9.5 for the burglary conviction. The resulting sentence was 493 months for the murder and 68 months for the burglary — the high end of each standard range — to run concurrently.
Former RCW 9.94A.360 was recodified as RCW 9.94A.525, and former RCW 9.94A.400 was recodified as RCW 9.94A.589 by Laws of 2001, chapter 10, section 6.
Mr. Swecker timely appealed the judgment and sentence and the appeal was heard November 4, 2002. On that same date, he moved the trial court for an amended sentence. Citing State v. Smith, 144 Wn.2d 665, 30 P.3d 1245, 39 P.3d 294 (2001), he argued that two offenses committed before he turned 15 should have washed out. Additionally, he argued that under the law as it stood at the time of his juvenile offenses — former RCW 9.94A.360(6)(b) (1992) and former RCW 9.94A.360(6)(a)(ii) (1995) — multiple prior juvenile convictions sentenced on the same date should have been counted as one offense. In his case, this meant that 11 sentences entered on June 19, 1996 should have been counted as one conviction, adding only one-half point to his offender score. According to his new calculations, the offender score should have been 3.5 for the murder and 4 for the burglary, giving a range of 271 to 361 months for the murder and 12 to 16 months for the burglary.
These 11 convictions and their dates of offenses are as follows: (1) residential burglary (5/21/95); (2) residential burglary (6/8/95); (3) second degree malicious mischief (10/23/95); (4) theft of a firearm (10/23/95); (5) second degree unlawful possession of a firearm (10/23/95); (6) second degree theft (10/23/95); (7) trafficking stolen property (10/24/95); (8) second degree malicious mischief (1/1/96); (9) second degree theft (3/4/96); (10) possession of a controlled substance: methamphetamine (3/5/96); and (11) possession of a controlled substance: cocaine (3/5/96). All were felonies and all were sentenced on June 19, 1996.
On January 6, 2003, the trial court entered an amended judgment and sentence. Although the court reduced each offender score by one to reflect the washing out of the two juvenile offenses committed before Mr. Swecker turned 15, it did not treat the convictions sentenced in 1996 as one offense. As a result, Mr. Swecker's new sentence was 450 months for the murder, to run concurrently with 57 months for the burglary — the high end of each presumptive range. Mr. Swecker's appeal of the original judgment and sentence was affirmed in an unpublished decision on January 14, 2003. State v. Swecker, noted at 115 Wn. App. 1007 (2003). The notice of appeal of the amended judgment and sentence was filed one week later. Retroactive Effect of the 1997 Amendment to the SRA
When Mr. Swecker's 11 juvenile felonies were sentenced on the same date in June 1996, former RCW 9.94A.360(6)(a)(ii) provided that, in computing the offender score, `[j]uvenile prior convictions entered or sentenced on the same date shall count as one offense, the offense that yields the highest offender score, except for juvenile prior convictions for violent offenses with separate victims, which shall count as separate offenses.' Mr. Swecker turned 18 on September 13, 1996. On July 1, 1997, the legislature enacted Laws of 1997, chapter 338, section 5, which deleted former RCW 9.94A.360(6)(a)(ii). Citing Smith, 144 Wn.2d at 668-69 and State v. Cruz, 139 Wn.2d 186, 191, 985 P.2d 384 (1999), Mr. Swecker contends the 1997 amendment should not apply retroactively because his right to count the multiple 1996 convictions as one vested when he was sentenced for those convictions and when he turned 18. A brief history of the 1997 amendment and its conflicting interpretations by the Washington Supreme Court and the legislature reveal the flaws in Mr. Swecker's arguments.
Before 1997, when an offender older than 23 committed a crime, all prior juvenile class B or C felonies were said to wash out and were not included in the offender score calculation. State v. Dean, 113 Wn. App. 691, 693, 54 P.3d 243 (2002) (citing former RCW 9.94A.030(12)(b) (1996) and Smith, 144 Wn.2d at 670-71), review denied, 149 Wn.2d 1009 (2003). The 1997 amendment eliminated the wash out provision as well as the provision that counted as one all juvenile sentences entered on the same date. Laws of 1997, ch. 338, §§ 2, 5; Dean, 113 Wn. App. at 693. As a consequence, after the 1997 amendment all prior juvenile adjudications were to be used to calculate an offender score. Dean, 113 Wn. App. at 693.
In 1999, Cruz held that amendments to the SRA were not retroactive. Cruz, 139 Wn.2d at 190; Dean, 113 Wn. App. at 694. Discussing a 1990 amendment that excluded sex offenses from wash out provisions, Cruz held that when a 1989 court sentenced the defendant for a felony and treated a 1975 juvenile offense as washed out, the status of the 1975 offense was permanently affected for future sentencing. Cruz, 139 Wn.2d at 193. The 1990 amendment could not retroactively revive a conviction that had washed out. Id. As explained in Dean, 113 Wn. App. at 695, `[t]he court considered a washed-out conviction virtually expunged for future sentencing purposes.'
Responding to Cruz, the legislature in June 2000 enacted RCW 9.94A.345. Laws of 2000, ch. 26, §§ 1, 2; Dean, 113 Wn. App. at 695. This provision simply states that `[a]ny sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.' RCW 9.94A.345. More specifically, the statutory note accompanying the provision indicates that "[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 Intent — 2000 c 26; Dean, 113 Wn. App. at 695.
The ball was now in the Supreme Court. In Smith, 144 Wn.2d at 670-71, the court examined the effect of the 1997 amendment on the juvenile adjudication wash out provisions in former RCW 9.94A.030(12)(b). Noting that RCW 9.94A.345 does not explicitly command that the 1997 amendment apply retroactively, Smith maintained that the issue remained `whether the law in effect when the current offense was committed [was] retroactive or prospective.' 144 Wn.2d at 673. The juvenile felony adjudications of the four defendants in Smith had washed out when the defendants reached age 23, or had washed out because the offenses were committed before age 15. Finding no language that showed a legislative intent for the 1997 amendment to apply retroactively, Smith concluded that the defendants' prior juvenile adjudications remained washed out for the purposes of the current offender scores. Id. at 674-75; Dean, 113 Wn. App. at 697.
The latest legislative volley following Smith was enactment of Substitute Senate Bill 6423, effective June 13, 2002. Dean, 113 Wn. App. at 697. Section 1 of the bill takes the Supreme Court to task:
The legislature considers the majority opinions in State v. Cruz, 139 Wn.2d 186 (1999), and State v. Smith, Cause No. 70683-2 (September 6, 2001), to be wrongly decided, since neither properly interpreted legislative intent. When the legislature enacted the sentencing reform act, chapter 9.94A RCW, and each time the legislature has amended the act, the legislature intended that an offender's criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed.
Although certain prior convictions previously were not counted in the offender score or included in the criminal history pursuant to former versions of RCW 9.94A.525 [former RCW 9.94A.360], or RCW 9.94A.030, those prior convictions need not be `revived' because they were never vacated. . . . The legislature has never intended to create in an offender a vested right with respect to whether a prior conviction is excluded when calculating an offender score or with respect to how a prior conviction is counted in the offender score for a current offense.
Laws of 2002, ch. 107, sec. 1. To that end, the legislature enacted an amendment to RCW 9.94A.525:
(18) The fact that a prior conviction was not included in an offender's score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions.
Laws of 2002, ch. 107, sec. 3.
Dean, which also examined the wash out of juvenile felony adjudications, recognized that Substitute Senate Bill 6423 is a clarification of the legislature's intent in passing the 1997 amendment. 113 Wn. App. at 698. However, Dean also noted that `[c]urative amendments cannot be applied retroactively if they contravene a judicial construction of the original statute.' Id. (citing State v. Jones, 110 Wn.2d 74, 82, 750 P.2d 620 (1988); Johnson v. Morris, 87 Wn.2d 922, 926, 557 P.2d 1299 (1976)). Substitute Senate Bill 6423 contravenes judicial construction of the 1997 amendment; consequently, it applies only to offenses committed after June 13, 2002, its effective date. Id. at 699. Any offense committed before that date is subject to the law in effect when the offense was committed, meaning in this case (as in Dean), the Supreme Court's interpretation of the 1997 amendment as articulated in Smith and Cruz. Id.
The bottom line is that this court is constrained to apply the law in effect at the time of Mr. Swecker's current offenses — January 2001 — to determine his offender score. According to the precedent in Cruz (decided in 1999), the law at the time of Mr. Swecker's current offenses was that the 1997 amendment would not act retroactively to `revive' prior convictions that had washed out. Cruz, 139 Wn.2d at 196. According to State v. Perry, 110 Wn. App. 554, 560-61, 42 P.3d 436 (2002), Cruz and Smith also require that if multiple juvenile adjudications sentenced on the same date were treated as one for offender score purposes before the 1997 amendment, they cannot be treated as separate convictions now. Perry found that the multiple offense provision of former RCW 9.94A.360(6)(b) was directly analogous to the provision that washed out juvenile offenses committed before the age of 15. Id. at 561. Pursuing that analogy, Perry held that if the `precipitating event' for the application of these provisions occurred before 1997, then the washed out convictions (including the additional juvenile adjudications sentenced on the same date) could not be calculated into the current offender score. Id.
Mr. Swecker contends the precipitating event that vested his right to treat the 11 juvenile adjudications sentenced on June 19, 1996 as one was the fact that he turned 18 before the effective date of the 1997 amendment. After his 18th birthday, he argues, he could have been sentenced as an adult and the 11 adjudications would have been treated as one for his offender score. As discussed in Perry, 110 Wn. App. at 560, however, a vested right must be more that a mere expectation that an existing law will remain unchanged. When Mr. Swecker turned 18, for a few months he had a mere expectation that former RCW 9.94A.360(6)(a)(ii) would continue in existence. But that provision was deleted by the July 1997 amendment. No precipitating event called for application of former RCW 9.94A.360(6)(a)(ii) before its deletion.
Finally, the facts in Perry distinguish it from this case. The defendant in Perry was sentenced as an adult in 1996 and five prior juvenile adjudications that had been sentenced on the same date were counted as one offense for his offender score. 110 Wn. App. at 556. Perry held that the 1996 sentence was a precipitating event that vested the defendant's right to count the prior sentences as one in all future offender score calculations. Id. at 560-61. Mr. Swecker, on the other hand, was sentenced in 1998 as an adult for a second degree escape conviction, after the 1997 amendment. At that time, his prior juvenile adjudications were counted separately for his offender score.
To summarize, we find that no precipitating event occurred either before or after the effective date of the 1997 amendment that vested a right to treat Mr. Swecker's prior juvenile adjudications as one pursuant to former RCW 9.94A.360(6)(a)(ii). The trial court properly counted separately the 11 juvenile offenses sentenced on the same date when it calculated the offender score for his current offenses.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN, J., concur.