State v. McCraw ( 1995 )

Talmadge, J.

(dissenting) — I dissent. The majority’s opinion ignores the unambiguous legislative history of RCW 9.94A.360(6)(a), and adopts a strained analysis resulting in consequences that run completely counter to the specific purposes of the statute. Under the majority’s opinion, trial courts will now have unfettered discretion, subject to no standard, to group prior sentences for purposes of scoring criminal histories. The anomalous result will be that offenders may be sentenced for current offenses at a criminal history level less than that mandated for their earlier sentences under the Sentencing Reform Act of 1981 (SRA).

The Statute

RCW 9.94A.360(6) reads, in pertinent part:

In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

(a) Prior adult offenses which were found, under RCW 9.94A.400(l)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently whether those offenses shall be counted as one offense or as separate offenses, and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used;

(b) Juvenile 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; and

(c) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.

(Italics mine). The central statutory imperative is to "count all convictions separately”, with the exceptions stated in subsections (a), (b), and (c).

The exception under subsection (a), which deals with prior adult convictions, is at issue here. That exception is divided into two classes. The first class, in sentence one of (a), consists of prior adult offenses that a previous sentencing court had determined encompassed the same criminal conduct. RCW 9.94A.400(l)(a). For this exception, the current sentencing court must treat prior offenses as one offense, using the offense that yields the highest offender score.

The second class under (a), sentence two, consists of "other prior adult offenses for which sentences were served concurrently”.⁸ The meaning of this phrase is the crux of this dispute. The majority reads the phrase "other prior adult offenses” to mean all prior adult offenses except those coming under the first sentence of subsection (a). For these prior adult offenses, the current sentencing court "shall determine . . . whether those offenses shall be counted as one offense or as separate offenses”. The majority reads this to mean that for all prior adult offenses that are not covered by the first sentence of (a), the current sentencing court shall make a present determination whether the prior adult offenses "shall be counted as one offense or as separate offenses”.

Thus, the majority holds that the current sentencing court has absolute discretion to rescore a prior court’s offender score determination in any manner it wishes and for any reason it wishes, without regard to the SRA. Other than applying the limitation of sentence two to prior concurrent sentences, "the statute provides no other standards restricting the current sentencing court’s discretion”. Majority, at 290.⁹

Problems With the Majority’s Reading of the Statute

1. The Majority’s Reading Creates a Glaring Internal Inconsistency in the Statute

The majority’s reading of RCW 9.94A.360 extinguishes the general rule subsection (6) enunciates. That general rule, appearing in the first sentence of subsection (6), is to "count all convictions separately”. The exception set forth in subsection (a) for prior adult convictions, however, under the majority’s reading, entirely engulfs the general rule.

Sentence one under subsection (a) concerns prior adult offenses that a previous court had determined encompassed the same criminal conduct. Sentence two, under the majority’s interpretation, includes every other possible prior adult offense. That is to say, it includes prior adult offenses for which a previous court determined that the criminal conduct was not the same, plus prior adult offenses for which no previous court had made a determination one way or the other. Sentence one and sentence two of subsection (a), as the majority reads them, exhaust all the possibilities. Nothing is left of the general rule. The exceptions occupy the entire field.

Such a result is contrary both to our ordinary understanding of how we use language, and to well-established rules of statutory construction. "An exception, like a proviso, operates to restrict the generality of legislative language”. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 641, 497 P.2d 166 (1972). "Generally an exception is considered as a limitation . . . upon the matter which directly precedes it”. Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 457, 536 P.2d 157 (1975) (quoting C. Dallas Sands, Statutes and Statutory Construction § 47.11, at 90 (4th ed. 1973)).

While the majority may prefer to confer substantial discretion on trial courts in sentencing, the Legislature intended to limit judicial discretion in the adoption of the SRA. State v. Barnes, 117 Wn.2d 701, 711-12, 818 P.2d 1088 (1991). This court cannot, by statutory construction, ignore the direction of the Legislature and the Sentencing Guidelines Commission, and turn the clock back to the time when all prior convictions involving concurrent sentences counted as a single conviction for an offender’s criminal history.

2. The Consequences of the Majority’s Reading Are Anomalous

The majority’s reading of the statute does violence to the plain legislative purpose of the 1986 amendments to the SRA. I think it highly unlikely that in the guise of an exception to an act whose general rule is to "count all convictions separately”, the Legislature would give courts unfettered discretion to do precisely the opposite.

As all of the courts writing on this issue concede, the majority’s reading gives trial courts complete discretion to calculate the offender’s criminal history:

We recognize that the statute provides no criteria or standards to guide the trial court in making this determination and that it may have to rely on arguments of counsel to decide what is equitable and comports with the purposes of the Sentencing Reform Act of 1981. By remanding, we express no opinion as to how the trial court should exercise its discretion under RCW 9.94A.360(6)(a).

Wright, at 829 n.15; see also footnote 9 herein.¹⁰

I find it even less likely that this purported unfettered discretion is to be exercised in the total absence of statutory guidelines. Under the majority’s reading, courts may now calculate offender scores for prior adult convictions without the necessity of following the statutory scheme in the SRA.¹¹ A reading of subsection (6)(a) that would create for trial courts the opportunity to ignore the SRA only five years after its enactment stands on its head our historical deference to the Legislature in matters affecting criminal punishments. See State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986).

I cannot conclude, in view of the Legislature’s historical role in fixing criminal punishments, that in the fifth year of the SRA, the Legislature would, sub silentio, without debate, without announcement, and without even separately articulating an exception to a specific general rule, convey authority to the courts to calculate offender scores under subsection (6) without statutory constraints of any sort.

In short, the majority’s reading creates unlikely and untenable results. To determine the correct reading, resort to statutory construction is necessary.¹²

Statutory Construction Analysis

1. Principles of Statutory Construction

Statutory interpretation discerns the intent of the Legislature and furthers the legislative purpose in enacting the statute. State v. McGee, 122 Wn.2d 783, 864 P.2d 912 (1993); State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957). In ascertaining legislative intent, we must look to the sequence of all statutes relating to the same subject matter. Ravsten v. Department of Labor & Indus., 108 Wn.2d 143, 150, 736 P.2d 265 (1987). We presume the Legislature is aware of its prior enactments and judicial construction of them. Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). We also presume that the Legislature does not engage in meaningless or unnecessary acts. State v. Wanrow, 88 Wn.2d 221, 228, 559 P.2d 548 (1977). Thus, when the Legislature amends an unambiguous law, we presume that the Legislature intended to change the law. State v. Standifer, 110 Wn.2d 90, 94, 750 P.2d 258 (1988).

Ultimately, this court must look to the purpose or policy goals of the Legislature to effectuate its intent and to avoid absurd results. State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). The purpose or policy of the enactment should prevail even over express, but inept, wording. State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992). "Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes, or in the known temper of legislative opinion”. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539 (1947). In the words of Chancellor Kent:

"In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context; from the occasion and necessity of the law; from the mischief felt and the remedy in view; and the intention should be taken or presumed according to what is consistent with reason and good discretion.”

2A Norman J. Singer, Statutes and Statutory Construction § 46.05, at 105 (5th ed. 1992) (quoting Kent’s Commentaries 462 (13th ed. 1884)).

2. Legislative History of RCW 9.94A.360(6)

Before the 1986 amendments to the SRA incorporated in RCW 9.94A.360(6), all offenses served concurrently counted as one offense in calculating the criminal history portion of an offender score. Laws of 1983, ch. 115, § 7; Laws of 1984, ch. 209, § 19. Also before 1986, the Legislature attempted to deal with the question of crimes arising out of the same criminal conduct. In 1984, the Legislature adopted the so-called "encompassing rule”. In Laws of 1984, ch. 209, § 25, the Legislature stated: "Separate crimes encompassing the same criminal conduct shall be counted as one crime in determining criminal history”.

In 1986, however, at the request of the Sentencing Guidelines Commission, the Legislature changed the methodology for calculating criminal history. For purposes of calculating an offender’s criminal history, the Sentencing Guidelines Commission recommended adoption of the "everything counts” rule as the general policy for sentencing and a clearer definition of the "encompassing” rule. The 1986 Legislature agreed with the Commission and enacted Substitute House Bill 1399, codified as RCW 9.94A.360(5), which set forth the "everything counts” rule: "In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately . . .”. (Italics mine). Thus, for purposes of calculating an offender’s criminal history, all offenses counted as separate offenses, with limited exceptions.

For purposes of the exception in RCW 9.94A.360(6)(a), the Legislature referenced RCW 9.94A.400(l)(a). By enacting Laws of 1986, ch. 257, § 28, the 1986 Legislature amended the 1984 version of that statute and made even clearer the workings of the "encompassing” rule:

Except as provided in (b) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.120 and 9.94A.390(2)(e) or any other provision of RCW 9.94A.390.

The Legislature’s final bill report on Substitute House Bill 1399 confirms this analysis of legislative intent:

Several changes are made to the process of counting prior offenses as part of determining the "offender score”. With two exceptions, all prior felonies, even those for which sentences were served concurrently, are counted separately. Multiple prior convictions found to encompass the same conduct are counted as one prior conviction. Multiple prior juvenile convictions for which sentences ran concurrently continue to be counted as one prior conviction.

(Italics mine). Further, Donna Schram, the Chair of the Sentencing Guidelines Commission, testified before the Senate Judiciary Committee on February 19, 1986, and provided written materials for that committee’s deliberations. She stated that Substitute House Bill 1399 changed the treatment of prior convictions in calculating criminal history:

Include in the offender score all prior convictions for crimes committed after July 1, 1986; (exceptions: multiple prior convictions found to encompass the same criminal conduct and multiple prior juvenile adjudications entered or sentenced on the same date).

Neither in the Legislature’s bill report nor in Ms. Schram’s testimony is it possible to detect a third exception to the "everything counts” rule. The majority’s opinion ignores this entire legislative history and reads a further exception to the "everything counts” rule into the statute by treating the second sentence of RCW 9.94A.360(6)(a) as an additional exception, where an exception was not created. Indeed, the exception now created by the majority does not even appear in a separately articulated subsection of subsection (6) of RCW 9.94A.360.

In adopting SHB 1399, the Legislature intended to change the law regarding calculation of criminal history in cases of multiple prior convictions.¹³ Each offense, regardless of whether the sentences were served consecutively or concurrently, is counted as a separate offense. RCW 9.94A.360(6). An exception is created for juvenile offenses. RCW 9.94A.360(6)(b). A further exception is created for prior adult offenses which encompassed the same criminal conduct, as defined in RCW 9.94A.400(l)(a). RCW 9.94A.360(6)(a). Where the former sentencing court had not addressed the issue of whether the offenses encompassed the same criminal conduct within the meaning of RCW 9.94A.400(l)(a), but sentences were served concurrently, the second sentence of RCW 9.94A.360(6)(a) allowed the current sentencing court to make such a determination.

Conclusion

A more natural and less strained reading of the statute that comports with its context and with the legislative history of the SRA is possible if one allows the first phrase of the first sentence to modify the second sentence of subsection (6)(a). That is, where the first sentence refers to prior adult offenses that were scored under RCW 9.94A .400(l)(a), sentence two, in referring to "other adult offenses”, means simply those "other adult offenses” that were not scored under RCW 9.94A.400(l)(a). In context, this reading makes perfect sense and totally avoids the troubles the majority opinion creates.

This reading preserves the internal consistency of subsection (6) because it provides for a true limitation of the general rule, one which does not engulf the general rule. This reading is in keeping with the legislative intent to provide for higher offender scores by counting offenses separately, and does not create the anomalous result of giving trial courts the discretion to score offenses without reference to the SRA. In every respect, it is the more reasonable interpretation of the subsection (6)(a).

"[I]f an act is subject to two interpretations, that which best advances the legislative purpose should be adopted”. In re R., 97 Wn.2d 182, 187, 641 P.2d 704 (1982). "Where the manifest object of a statute can be ascertained and the statute is susceptible of two constructions, that construction should be given which will carry out the intent of the legislature”. Anderson v. O’Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974). In this case, the majority can point to no hint of legislative purpose to give trial courts the discretion to calculate offender scores without reference to the SRA. The analysis set forth above is a more reasonable interpretation of RCW 9.94A.360(6).

I would reverse the sentence of the trial court and remand for resentencing consistent with this opinion. I would overrule State v. Lara, 66 Wn. App. 927, 834 P.2d 70 (1992) and State v. Wright, 76 Wn. App. 811, 888 P.2d 1214 (1995), to the extent they are inconsistent.

Smith, J., concurs with Talmadge, J.

8 The statute treats only concurrent sentences because with consecutive sentences there is no opportunity to separate the offender score and count each offense separately. The statute’s distinction between concurrent and consecutive sentences tends to weaken the majority’s assertion that one purpose of the act is to permit a current sentencing court to regroup prior offenses to calculate a lower offender score. If that were the case, the statute would surely have included consecutive sentences in its purview. Prior concurrent sentences that were not scored give the current sentencing court the opportunity to determine an increased offender score; prior consecutive sentences do not (unless, of course, they were part of the "same criminal conduct”, and came under sentence one of subsection (a)).

9 This was the holding of Division Three in State v. Lara, 66 Wn. App. 927, 931, 834 P.2d 70 (1992) (“The statute does not restrict the current sentencing court to the previous sentencing court’s determination or to the application of the same criminal conduct standard imposed pursuant to RCW 9.94A.400(1)(a)”); and of Division One in State v. Wright, 76 Wn. App. 811, 829, 888 P.2d 1214 (1995) ("Thus, the current sentencing court is not bound by an earlier determination of whether to count the offenses as one offense or separate offenses, nor is it required to find that the offenses constituted the same criminal conduct under RCW 9.94A.400 in order to count them as one offense”).

10 It is not difficult to discern why the Legislature chose not to provide guidance to the trial courts in exercising such alleged discretion. The Legislature never granted such discretion to trial courts. The Legislature intended that the "everything counts” rule apply and that any question with respect to the treatment of concurrent or consecutive sentences would be subject to the "all encompassing” rule of RCW 9.94A.400(1)(a).

11 The stated legislative purpose of the SRA "is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences”. (Italics mine.) RCW 9.94A.010.

12 The majority asserts that its reading of the second sentence of subsection (6)(a) is the only possible interpretation, and declines to employ the customary tools of statutory construction: "We find it unnecessary to engage in such statutory construction where, as here, the language of a statute is not ambiguous”. Majority, at 288. I believe the majority’s reading is incorrect, based on the legislative history of the statute, the policy adopted by the Legislature, and the practical consequences of the majority’s interpretation.

13 The intent to change is made clear by the Legislature’s express adoption of its old rule for criminal history for prior adult and juvenile convictions for offenses committed prior to July 1, 1986. RCW 9.94A.360(6)(c).