State v. Schwartz ( 2019 )

rrcEx
IN CLERKS OFFICE \
This opinion was
filed for record
COURT,81XIE OF VMSHBiOTON
atw^on
I DATE OCT 1 n ?nrq
Susan L. Carlson
GMG^JUSnCE
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Petitioner, No. 96643-5
En Banc
MATTHEW T. SCHWARTZ,
Filed OCT 1 0 2019
Respondent.
OWENS,J. — Matthew T. Schwartz pleaded guilty to felony failure to register
as a sex offender. At sentencing, Schwartz and the State disputed whether two of
Schwartz's prior class C felony convictions had "washed out"—^that is, whether
Schwartz's prior convictions should not have been included in his offender score—
under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Specifically,
the parties disagreed as to whether time spent in jail as a sanction for failing to pay
legal financial obligations(LFOs)ordered on a felony conviction resets the five-year
washout period under RCW 9.94A.525(2)(c).
We hold that the legislature did not intend that time spent in jail as a sanction
State V. Schwartz, No. 96643-5
for failing to pay LFOs ordered on a felony conviction reset the five-year washout
period and precluded a prior class C felony conviction from washing out. Reading
RCW 9.94A.525(2)(c) as resetting the washout period when a defendant spends time
in jail for failing to pay LFOs leads to absurd results and is contrary to the SRA and
its legislative history. Accordingly, both Schwartz's 1997 and 2001 convictions wash
out under RCW 9.94A.525(2)(c) and should not have been included in his offender
score. Thus, we affirm the Court of Appeals.
FACTS
Schwartz was convicted of a felony sex offense and required by law to register
as a sex offender. In 2017, a Klickitat County sheriffs deputy learned that Schwartz
had moved from his last reported residence nearly three months prior and had failed to
provide notice ofthe address change. The State subsequently charged Schwartz with
felony failure to register as a sex offender.
Schwartz pleaded guilty as charged. Prior to sentencing, both the State and
Schwartz reported the following criminal history for Schwartz:
Crime Violation Date Sentence Date Crime Type
Second Degree Assault 09/01/1993 07/10/1998 FA
(with Sexual Motivation) [felony class A]
Forgery 07/02/1997 07/22/1997 FC
[felony class C]
Failure to Register as a Sex 05/04/2001 09/04/2001 FC
Offender
VUCSA [violation ofthe 03/13/2013 11/03/2014 FC
Uniform Controlled
Substances Act]-Possession
of Methamphetamine
State V. Schwartz, No. 96643-5
See Clerk's Papers at 28.
Schwartz stipulated that both his 1998 second degree assault conviction and his
2014 possession of methamphetamine conviction counted toward his offender score.
Accordingly, Schwartz's 1998 second degree assault conviction counted as three
points toward his offender score, and his 2014 possession of methamphetamine
conviction counted as one point. RCW 9.94A.525(2)(a),(17),(7).
Schwartz argued, however, that neither his 1997 forgery conviction nor his
2001 failure to register as a sex offender conviction should be included in his offender
score. Schwartz asserted that he spent over 5 years in the community without
committing any crime that resulted in a conviction between the date of release from
confinement for his 2001 failure to register as a sex offender conviction and his 2014
possession of methamphetamine conviction.' Schwartz reasoned that because he had
spent over 5 years in the community without a conviction, his 1997 and 2001 class C
felony convictions washed out under the SRA. Schwartz calculated his offender score
as a 4, resulting in a standard range sentence of 12 to 14 months in confinement.
RCW9.94A.510.
The State disagreed with Schwartz's offender score calculation, contending that
his 1997 forgery and 2001 failure to register as a sex offender convictions counted as
'The parties do not provide the dates on which Schwartz was released from confinement for
any of his prior convictions.
3
State V. Schwartz, No. 96643-5
one point each. RCW 9.94A.525(7),(18). The State noted that the trial court had
entered three separate orders between 2014 and 2015 modifying the judgment and
sentence for Schwartz's 2001 failure to register as a sex offender conviction and
imposing additional jail time as sanctions due to Schwartz's failure to pay LFOs
ordered on his 2001 conviction.^ The State argued that because Schwartz was
confined in jail for failing to pay the LFOs ordered on his 2001 conviction, Schwartz
had been confined pursuant to a felony conviction. The State further reasoned that
due to Schwartz's time in jail pursuant to his 2001 felony conviction, the SRA's
washout period was not triggered until his release in 2015. Accordingly, the State
asserted that Schwartz had not spent 5 years in the community without a conviction
and calculated his offender score as a 6, leading to a standard range sentence of 17 to
22 months. RCW 9.94A.510.
The trial court determined that Schwartz's offender score was a 6 and imposed
a sentence of 17 months in confinement. The trial court concluded that the three
orders modifying Schwartz's judgment and sentence and imposing sanctions for his
failure to pay LFOs "exclude[d] any washout ofthe forgery and the failing to register
^ In 2014 and 2015, Washington law permitted a court to imprison a defendant as a sanction
for failing to pay LFOs ordered on a sentence if the defendant was capable of paying the
LFOs and willfully refused to pay or if the defendant did not make a sufficient bona fide
effort to seek employment or borrow money to pay the LFOs. State v. Nason, 168 Wash. 2d
936, 945, 233 P.3d 848 (2010); see former RCW 9.94A.6333 (2008). In 2018, this law was
amended by House Bill 1783 to provide that a court may sanction a defendant for failure to
pay LFOs only when the failure to pay is willful. State v. Ramirez, 191 Wash. 2d 732, 747, 426
P.3d 714(2018). House Bill 1783 "address[ed] some ofthe worst facets ofthe system that
prevent offenders from rebuilding their lives after conviction." Id.
State V. Schwartz, No. 96643-5
as a sex offender crimes." Transcript ofProceedings at 28. The court reasoned that
"the time of any service of any sentence [related to a felony conviction]," id., counted
as "confinement. . . pursuant to a felony conviction" under RCW 9.94A.525(2)(c) of
the SRA.
Schwartz appealed, and Division Three ofthe Court of Appeals reversed his
sentence and remanded for resentencing within the appropriate standard range. State
V. Schwartz,6 Wn. App. 2d 151, 160,429 P.3d 1080 (2018). The Court of Appeals
held that "the language 'the last date of release from confinement. . . pursuant to a
felony conviction' in RCW 9.94A.525(2)(c) does not include confinement imposed
for a failure to make a payment toward LFOs." Id. at 153 (alteration in original). The
court reasoned that the legislature did not intend that financial conditions on a
criminal sentence be included in an offender score because a condition requiring the
payment ofLFOs is not directly related to public safety and because the obligation to
pay LFOs can continue well beyond the statutory maximum term for the convicted
offense. Id. The State petitioned this court for review, which we granted. 192Wn.2d
1023 (2019).
ISSUE
Does serving jail time as a sanction for failing to pay LFOs ordered as part of a
felony conviction constitute "confmement . . . pursuant to a felony conviction" under
RCW 9.94A.525(2)(c) such that the statute's washout period would not trigger until the
last date of release from such confmement?
State V. Schwartz, No. 96643-5
ANALYSIS
The State argues that neither Schwartz's 1997 forgery conviction nor his 2001
failure to register as a sex offender conviction wash out under the SRA because
Schwartz spent time in jail as a sanction for failing to pay LFOs ordered on a felony
conviction. Specifically, the State argues that time spent in jail for failing to pay
LFOs qualifies as "confinement. . . pursuant to a felony conviction" under the plain
language of ROW 9.94A.525(2)(c) and resets the start ofthe five-year washout
period. We disagree. We hold that the legislature did not intend that time spent in jail
as a sanction for failing to pay LFOs ordered on a felony conviction reset the five-year
washout period and precluded a prior class C felony conviction from washing out.^
Accordingly, Schwartz's 1997 and 2001 convictions wash out under ROW
9.94A.525(2)(c) and should not have been included in his offender score.
We review a trial court's offender score calculation de novo. State v. Tili, 148
Wash. 2d 350, 358,60 P.3d 1192(2003). To properly calculate a defendant's offender
score, trial courts must determine a defendant's criminal history based on his or her
prior convictions under the statutory formula ofRCW 9.94A.525. State v. Ross, 152
^ Nothing in this opinion should be read as expressing any view as to whether a prior
conviction may wash out when a defendant has spent time in jail as a sanction for violating a
condition of his or her sentence. We answer only the narrow question of whether
confinement pursuant to a sanction for failing to pay LFOs precludes a prior felony
conviction from washing out under the SRA.
State V. Schwartz, No. 96643-5
Wn.2d 220,229, 95 P.3d 1225 (2004). When a trial court miscalculates a defendant's
offender score, we remand the case to the trial court for resentencing. Id.
To determine whether the trial court properly calculated Schwartz's offender
score by counting his 1997 forgery and 2001 failure to register as a sex offender
convictions toward his score, we must interpret RCW 9.94A.525(2)(c). We review
questions of statutory interpretation de novo. State v. Ervin, 169 Wash. 2d 815, 820, 239
P.3d 354(2010). The primary goal of statutory interpretation is to discern and
implement the legislature's intent in enacting the statute. Id. In interpreting a statute,
we first look to the plain meaning of the statute. State v. Roggenkamp, 153 Wash. 2d
614, 621, 106 P.3d 196(2005). To determine a statute's plain meaning, we look to
the text ofthe statute itself, as well as the context ofthe statute, related statutory
provisions, and the statutory scheme as a whole. Ervin, 169 Wash. 2d at 820.
If the meaning ofthe statute is plain on its face, we must give effect to that
plain meaning. Id. If, however, the statute is susceptible to more than one reasonable
interpretation, the statute is ambiguous. Roggenkamp, 153 Wash. 2d at 621.
"Legislative history, principles of statutory construction, and relevant case law may
provide guidance in construing the meaning of an ambiguous statute." Id.
RCW 9.94A.525(2)(c) directs whether class C felony convictions are to be
included in a defendant's offender score. "[0]ffenses which 'shall not be included in
the offender score' ... are said to have 'washed out.'" State v. Keller, 143 Wash. 2d
267, 284, 19 P.3d 1030(2001)(quoting former RCW 9.94A.360(2)(1996), reeodified
1
State V. Schwartz, No. 96643-5
as RCW 9.94A.525(2)(c)). RCW 9.94A.525(2)(c) provides:
[CJlass 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 ofjudgment and sentence, the offender
had spent five consecutive years in the community without committing
any crime that subsequently results in a conviction.
The statute is split into two separate clauses: a trigger clause,"which identifies the
beginning ofthe five-year [washout] period," and a continuity/interruption clause,
"which sets forth the substantive requirements an offender must satisfy during the
five-year period." Ervin, 169 Wash. 2d at 821. Accordingly, the plain language of
RCW 9.94A.525(2)(c) provides that the washout period on certain prior convictions
will trigger when five years have elapsed between the last date of release from
confinement pursuant to a felony conviction and a subsequent conviction.
At issue in this case is the meaning of the phrase "the last date of release from
confinement... pursuant to a felony conviction." RCW 9.94A.525(2)(c). The State
relies on State v. Mehrabian, a decision from Division One ofthe Court of Appeals, in
arguing that time spent in jail for the failure to pay LFOs is confinement pursuant to a
felony conviction under the plain language of RCW 9.94A.525(2)(c). 175 Wash. App.
678, 716, 308 P.3d 660(2013). In Mehrabian, the Court of Appeals reasoned that
confinement results from both an original conviction, which includes any ordered
LFOs, and the failure to pay LFOs ordered on that conviction. M at 715. The court
also noted that the term "'pursuant to'" is defined as "'in the course of carrying out'"
8
State V. Schwartz, No. 96643-5
and "'according to.'" Id. at 716 (internal quotation marks omitted)(quoting State v.
Blair, 57 Wash. App. 512, 515-16, 789 P.2d 104(1990)). As a result, the court held that
under the plain language ofRCW 9.94A.525(2)(c), confinement pursuant to a felony
conviction "includes confinement due to [the failure to pay LFOs] since this
confinement results 'in the course of carrying out and according to a felony
conviction.'" Id.(internal quotation marks omitted)(quoting Blair, 57 Wash. App. at
515-16).
The degree to which the legislature intended the phrase "the last date of release
from confinement. . . pursuant to a felony convietion" to extend is unclear from the
face ofthe statute. Although the State's broad interpretation ofRCW 9.94A.525(2)(c)
is reasonable, it is also reasonable to interpret the statute as referring only to
incarceration ordered on a felony conviction and not jail time served for failing to pay
LFOs after a defendant has been released from that term of incarceration. The SRA
consistently uses the term "release from confinement" to refer to release from
incarceration for the sentenced felony conviction. RCW 9.94A.728(1)("No person
serving a sentence imposed pursuant to [the SRA]... shall leave the confines ofthe
correctional facility or be released prior to the expiration of the sentence ...."),
.760(5)("All other [LFOs]for an offense committed prior to July 1, 2000, may be
enforced at any time during the ten-year period following the offender's release from
total confinement."). Accordingly, RCW 9.94A.525(2)(c) is subject to more than one
reasonable interpretation and is ambiguous.
9
State V. Schwartz, No. 96643-5
Because RCW 9.94A.525(2)(c) is ambiguous, we may engage in statutory
construction to ascertain its meaning. We do not attempt to ascertain the statute s
meaning for all purposes because this case asks only the narrow question of how it
applies to confinement for failure to pay LFOs. Therefore, we may assume without
deciding that RCW 9.94A.525(2)(c) does reset the washout period when a person is
jailed as a sanction for violating sentence conditions generally. Nevertheless, based
on several factors unique to LFOs, we hold that such a reading is not what the
legislature intended when a person is jailed for failure to pay.
In effect, the State argues that the five-year washout period can continue to
reset until a defendant has paid all LFOs ordered on a felony conviction. However,
the State's interpretation ofRCW 9.94A.525(2)(c) is contrary to the meaning ofthe
different terms used by the legislature. A "fundamental rule of statutory construction
is that the legislature is deemed to intend a different meaning when it uses different
terms." Roggenkamp, 153 Wash. 2d at 625.
The SRA originally provided that "[cjlass C prior felony convictions ... are
not included [in an offender score] if the offender has spent five years in the
community and has not been convicted of any felonies." LAWS OF 1983, ch. 115, § 7
{recodified as RCW 9.94A.525(2)(c)). The legislature added the trigger clause at
issue in this case pursuant to a recommendation by the Washington Sentencing
Guidelines Commission (Commission). Amend. 1247-S WASH.SENTENCING
Guidelines Comm'n to Substitute H.B. 1247, at 3,48th Leg., Reg. Sess.(Wash.
10
State V. Schwartz, No. 96643-5
1984). Before making its final recommendation to the legislature, the Commission
considered, yet rejected, amending the washout period to state that "the washout
period starts from the date of dischargefrom confinement and ends at the date ofthe
new offense," so that the washout statute would be more consistent with the SRA's
vacation statute. WASH.SENTENCING GUIDELINES COMM'N,Meeting Minutes
(Dec. 9, 1983) at 10(emphasis added). The SRA permits the vacation of a
defendant's record of conviction for a class C felony when "five years have passed
since the date the [defendant] was discharged" from confinement for that felony.
Former ROW 9.94A.640(2)(f)(2012). A defendant can be discharged from
confinement when the defendant "has completed all requirements of the sentence,
including any and all [LFOs]." RCW 9.94A.637(l)(a).
Here,the legislature chose to use the term "release" in the washout statute and
the term "discharge" in the vacation statute. Because the legislature chose to use
different terms, we recognize that the legislature intended a different meaning by each
term. By choosing the term "release from confinement," instead of"discharge from
confinement," both the Commission and the legislature intended that defendants not
be required to pay all LFOs ordered on a felony conviction in order to be "release[d]
from confinement. . . pursuant to a felony." Relatedly, the legislature did not intend
that a defendant pay all LFOs before the five-year washout period could trigger and
allow a prior felony conviction to wash out. Accordingly, the legislature's use ofthe
term "release from confinement" in RCW 9.94A.525(2)(c) indicates that the
11
State V. Schwartz, No. 96643-5
legislature did not intend that the five-year washout period continue to reset until a
defendant paid all LFOs ordered on a felony conviction.
It is also absurd to read RCW 9.94A.525(2)(c) as resetting the five-year
washout period any time a defendant has failed to pay his or her LFOs. "[W]e
presume the legislature does not intend absurd results and, where possible, interpret
ambiguous language to avoid such absurdity." Ervin, 169 Wash. 2d at 823-24.
Class C felony convictions are intended to "eventually 'wash out' and be
eliminated from the Offender Score." WASH. SENTENCING GUIDELINES COMM'N,
Adult Felony Sentencing Manual 1984, at 11-34. However, LFOs are "[o]ne of
the most serious long-term consequences of a conviction." Travis Steams,Intimately
Related to the Criminal Process: Examining the Consequences ofa Conviction After
Padilla v. Kentucky and State v. Sandoval,9 SEATTLE J. FOR SOC. JuST. 855, 874
(2011). Many defendants cannot afford the LFOs ordered as part oftheir convictions
and either pay only a small sum each month or do not pay their LFOs at all. State v.
Blazina, 182 Wash. 2d 827, 836, 344 P.3d 680(2015). As a result, a defendant may owe
LFOs for decades after he or she has been released from incarceration—sometimes
even long after the statutory maximum sentence for the convicted offense has expired.
Cf id. at 836-37; see KATHERINE A.BECKETT ET AL., WASH. St. MINORITY & JUST.
CoMM'N, The Assessment and Consequences of Legal Financial
Obligations in Washington State 22(2008)("[E]ven those who make regular
monthly payments of $25 toward an average[LFO] will still possess legal debt after
12
State V. Schwartz, No. 96643-5
30 years."). Given that class C felony convictions are intended to eventually wash out
and a defendant's LFOs may never be satisfied, it is absurd to read RCW
9.94A.525(2)(c) as precluding a conviction from washing out when a defendant
spends time in jail for failing to pay LFOs ordered on that conviction. If convictions
could not wash out under the SRA unless a defendant has paid all LFOs, many felony
convictions would never wash out. We presume that the legislature did not intend
such a result.
Even further, it is absurd to read RCW 9.94A.525(2)(c) as precluding a
conviction from washing out due to a defendant's failure to pay LFOs because such a
reading would permit varying treatment of similarly situated defendants. For
example, a defendant who was conviction-ffee for five years and who paid all LFOs
owed in that time frame would face a lower standard sentence range because any
eligible prior class C felony convictions would wash out and not be counted toward
his or her offender score. However, a defendant with the exact same criminal history
would be subject to a greater standard sentence range simply because he or she spent
time in jail for failing to pay LFOs. See In re Pers. Restraint ofLaChapelle, 153
Wash. 2d 1, 6, 100 P.3d 805 (2004)("The difference of a single point may add or
subtract three years to an offender's sentence."). Such an outcome is contrary to the
SRA, as the SRA applies "equally to offenders in all parts ofthe state, without
discrimination as to any element that does not relate to the crime or the previous
record ofthe defendant." RCW 9.94A.340. Precluding a conviction from washing
13
State V. Schwartz, No. 96643-5
out due to a defendant's failure to pay LFOs permits discrimination based on a
defendant's ability to pay court ordered fees rather than on his or her criminal history.
We presume that the legislature did not intend that defendants who have failed to pay
LFOs ordered on a felony conviction spend even more time in confinement on a
subsequent felony conviction than other similarly situated defendants.
The dissent contends that such unequal treatment is not an issue in this case
because a person can be jailed only for willful nonpayment, not inability to pay.
However, our own cases show that people who are unable to pay are not consistently
protected from serving jail time. For instance, in one case we were called on to strike
down an "auto-jail provision," which was preprinted on LFO agreement forms and
required a defendant to report to jail for failing to make an LFO payment "without a
contemporaneous inquiry into his ability to pay." State v. Nason, 168 Wash. 2d 936,
946,233 P.3d 848 (2010). More recently, we were required to reverse a district court
for "disregard[ing] whether [the defendant] could currently meet her own basic needs
when evaluating her ability to pay." CityofRichlandv. Wakefield, 186 Wn.2d596,
606, 380 P.3d 459(2016). Thus, although we cannot presume that any particular
defendant was unconstitutionally jailed for inability to pay, we know that many have
been. This reality, in addition to the other unique features ofLFOs described above,
leads us to conclude that jail time for failure to pay LFOs is not "confinement. . .
pursuant to a felony conviction" for purposes of ROW 9.94A.525(2)(c).
Notwithstanding its statutory interpretation argument, the State argues that
14
State V. Schwartz, No. 96643-5
neither Schwartz's 1997 forgery conviction nor his 2001 failure to register as a sex
offender conviction should wash out under RCW 9.94A.525(2)(c) because Schwartz's
2014 conviction for possession of methamphetamine reset the five-year washout
period. The State appears to misunderstand the SRA's washout statute. RCW
9.94A.525(2)(c) requires only that a defendant spend five consecutive crime-free
years in the community. State v. Hall, 45 Wash. App. 766, 769, 728 P.2d 616 (1986).
The washout period is not required to immediately follow the prior conviction. See id.
The parties do not appear to dispute that Schwartz was crime-free in the community
for at least six and a half years. Schwartz,6 Wn. App. 2d at 157. Because Schwartz
spent over five consecutive years in the community without being convicted of a
crime, his later 2014 conviction did not reset the five-year washout period under RCW
9.94A.525(2)(c).
We hold that the legislature did not intend that time spent in jail as a sanction
for failing to pay LFOs ordered on a felony conviction reset the five-year washout
period and precluded a prior class C felony conviction from washing out under RCW
9.94A.525(2)(c). Stated another way,jail time for failing to pay LFOs does not
constitute "confinement... pursuant to a felony conviction," and a prior class C
felony conviction should not be included in a defendant's offender score when he or
she has been sanctioned for failing to pay LFOs but has nonetheless been in the
community for five years without committing an offense resulting in a conviction.
Because Schwartz spent over five years in the community without committing any
15
State V. Schwartz, No. 96643-5
crime that resulted in a conviction between the date of release from confinement for
his 2001 failure to register as a sex offender conviction and his 2014 possession of
methamphetamine conviction, both his 1997 forgery conviction and his 2001 failure
to register as a sex offender conviction wash out under RCW 9.94A.525(2)(c) and
should not have been included in his offender score.
CONCLUSION
We hold that the legislature did not intend that time spent in jail as a sanction
for failing to pay LFOs ordered on a felony conviction reset the five-year washout
period and preclude a prior class C felony conviction from washing out. Reading
RCW 9.94A.525(2)(c) as precluding a conviction from washing out when a defendant
spends time in jail for failing to pay LFOs ordered on that conviction leads to absurd
results and is contrary to the SRA and its legislative history. Accordingly, both
Schwartz's 1997 and 2001 convictions wash out under RCW 9.94A.525(2)(c) and
should not have been included in his offender score. We affirm the Court of Appeals.
16
State V. Schwartz, No. 96643-5
WE CONCUR;
-hUAlaUVii- M
zh
17
State V. Schwartz
No. 96643-5
Gonzalez, J.(dissenting)—Dissatisfied with what it believed to be
inconsistent sentences handed down by judges under our old indeterrhinate sentencing
system, our legislature replaced that system with a determinate sentencing system.
Under this determinate system, sentences are based on the seriousness of the offense
and the offender score of the defendant. The offender score is based on the offender's
prior criminal history. Recognizing that people do reform themselves, some of that
criminal history can "wash out" of a score in time, but only if the person meets certain
criteria. Among those criteria is not willfully failing to pay legal financial obligations
(LFOs). Matthew T. Schwartz willfully failed to pay his LFOs and, less than five
years later, pleaded guilty to failure to register as a sex offender. I agree with the
majority that the failure to pay LFOs because of inability to do so should not keep a
prior offense from washing out. See United States v. Parks, 89 F.3d 570, 573 (9th Cir.
1996)(imposing a longer sentence,"based solely on nonpayment, would be
'fundamentally unfair'"(quoting Bearden v. Georgia, 461 U.S. 660, 668, 103 S. Ct.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)
2064, 76 L. Ed. 2d 221 (1983))). But the record contains the court orders confining
Schwartz for willfully failing to pay his LFOs. He is not entitled to the relief the
majority gives him today. I respectfully dissent.
I recognize that there was confusion at oral argument about whether Schwartz
was indigent at the time he was Jailed for willful failure to pay his LFOs.' But it
would have been serious constitutional error to jail an indigent person for failure to
pay LFOs. The record leaves no doubt that Schwartz was jailed because his "failure
to make timely payment was willful or intentional." See, e.g.. Clerk's Papers at 33.
We cannot instead assume he was jailed for being unable to pay his LFOs. Cf. State v.
Yancey, 193 Wash. 2d 26, 34, 434 P.3d 518(2019)(remanding for full resentencing
because the thai court's reasoning was unclear from the record).
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A ROW,is clear. A
prior felony conviction does not count toward a defendant's offender score, i.e., will
"wash out," if five years have passed "since the last date of release from confinement.
. . pursuant to [that] felony conviction." ROW 9.94A.525(2)(c). Plainly, the
legislature intended for "confinement. . . pursuant to a felony conviction" to include
confinement for subsequent violations of conditions in the judgment and sentence.
RCW 9.94A.525(2)(c). LFOs are conditions of a sentence, and a willful failure to
'Schwartz's counsel said that she was not responsible for preserving the record and that she
"assume[d][Schwartz] was" indigent when he was found to willfully fail to pay his LFOs. See
Wash. Supreme Court oral argument, State v. Schwartz, No. 96643-5 (June 25, 2019), at 23 min.,
22 sec., video recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)
comply with these conditions may result in modification of the judgment and sentence
and further confinement. E.g., RCW 9.94A.760(10),.6333. In State v. Mehrabian,
the Court of Appeals held that under the plain language of RCW 9.94A.525(2)(c),
confinement pursuant to a felony conviction '"includes confinement due to [the
failure to pay LFOs] since this confinement results in the course of carrying out and
according to a felony conviction.'" 175 Wash. App. 678, 716, 308 P.3d 660(2013)
(internal quotation marks omitted)(quoting State v. Blair, 57 Wash. App. 512, 515-16,
789 P.2d 104 (1990)). 1 agree.
1 would reverse because the plain language of RCW 9.94A.525(2)(c) does not
make a distinction between financial and nonfmancial conditions. As a policy matter,
1 agree with the majority that the long-term burden imposed by LFOs should not haunt
people in perpetuity. See majority at 11-12. But, assuming the majority is correct that
felony convictions are intended to eventually wash out, holding that they do not wash
out when a defendant willfully failed to pay them does not undermine that intent. A
failure to pay is willful only if the defendant has the current ability to pay but refuses
to do so. RCW 10.01.180(3)(a). A prior felony conviction will wash out if a
defendant is not confined for willfully failing to pay the LFOs on that prior
conviction.
Before imposing LFOs, courts must consider "incarceration,job status, debts,
or other indicators of ability to pay." State v. Malone, 193 Wash. App. 762, 766, 376
P.3d 443 (2016); see also State v. Blazina, 182 Wash. 2d 827, 838, 344 P.3d 680(2015).
3
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)
And we have cautioned that confmement for willfully failing to pay LFOs should
occur only if"'no reasonable or effective alternatives are available.'" Smith v.
Whatcom County Dist. Court, 147 Wash. 2d 98, 113,52 P.3d485(2002)(internal
quotation marks omitted)(quoting In re Pers. Restraint ofKing, 110 Wash. 2d 793, 802,
756 P.2d 1303 (1988)); see also Bearden,461 U.S. at 672?
The majority's decision to treat RCW 9.94A.525(2)(c) as ambiguous and give
it a narrow construction is a dramatic change in the law with additional consequences.
The majority holds RCW 9.94A.525(2)(c) is ambiguous because "it is also reasonable
to interpret the statute as referring only to incarceration ordered on a felony
conviction." Majority at 9. While confmement conceivably refers only to
incarceration ordered on the felony conviction, this narrow construction ofRCW
9.94A.525(2)(c) is not reasonable. See Five Corners Family Farmers v. State, 173
Wash. 2d 296, 305,268 P.3d 892(2011)("The fact that two or more interpretations are
conceivable does not render a statute ambiguous."(citing Burton v. Lehman, 153
Wn.2d 416,423,103 P.3d 1230 (2005))).
^ The majority finds,"Precluding a convietion from washing out due to a defendant's failure to
pay LFOs permits discrimination based on a defendant's ability to pay court ordered fees rather
than on his or her criminal history." Majority at 13. A prior conviction would be precluded from
washing out only if a defendant had the ability to pay and was jailed for willfully failing to do so.
If I understand the majority correctly, the same reasoning would preclude anyone from being
jailed for willful failure to pay LFOs because "the SRA applies 'equally to offenders in all parts
ofthe state, without discrimination as to any element that does not relate to the crime or the
previous record ofthe defendant.'" Id.(quoting RCW 9.94A.340). The SRA speeifieally
provides for LFOs; it is not a discriminatory application of the SRA to jail someone for willful
refusal to pay their LFOs.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)
Even though the majority cautions that it is not expressing a view on
confinement for violation of other conditions of a sentence, it necessarily does so by
narrowly construing RCW 9.94A.525(2)(c). While the policy surrounding LFOs
factors into the majority's interpretation of the legislature's intent, nothing about the
difference between financial and nonfmancial conditions created the ambiguity
necessitating the statute's narrow construction. By limiting "confinement. . .
pursuant to a felony conviction" in RCW 9.94A.525(2)(c) to specifically mean
incarceration ordered on a felony conviction, confinement for violating any condition
will not inteiTupt the washout period. Contra Blair, 57 Wash. App. at 515-16; State v.
Perencevic, 54 Wash. App. 585, 589,11A P.2d 558 (1989). Such a result is an
unfortunate consequence of the majority's interpretation and is not what the
legislature intended.
Under RCW 9.94A.525(2)(c), defendants who do not have the ability to pay
LFOs get the benefit of the washout statute. Defendants who willfully fail to pay their
LFOs within five years of the current crime do not get the benefit of the washout
statute. The majority not only gives defendants who had willfully failed to pay their
LFOs the benefit of the washout statute but also potentially gives anyone who is
confined for violating any other condition of their sentence the same benefit. I
respectfully dissent.
State V. Schwartz, No. 96643-5 (Gonzalez, J., dissenting)