State v. Barbee ( 2017 )

This opinion was filed for record
at ?}o~J Lln -5, u n
a``ct.w
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 92771-5
)
v. ) EnBanc
)
SHACON FONTANE BARBEE, )
) Filed ___JA_N_0_5_20_17_ _
Petitioner. )
_________________________ )
OWENS, J. -At issue in this case is whether a pimp can be convicted on
multiple counts of promoting prostitution when multiple prostitutes are involved. We
have not previously considered the unit of prosecution for second degree promoting
prostitution. In light of the statute's plain language and prior decisions of this court,
we affirm the Court of Appeals and hold that the legislature expressed its clear intent
to authorize multiple convictions when one pimp exploits multiple individuals.
Additionally, after the court accepted review of this case, the parties
discovered that the defendant's exceptional sentence for one of his other convictions
State v. Barbee
No. 92771-5
exceeded the statutory maximum. The defendant requests resentencing, and the State
concedes that resentencing is appropriate. We remand for resentencing on that count.
FACTS
Shacon Barbee was a pimp that made money from prostitutes working under
his supervision. Three young women that Barbee "supervised" during 2010 were
SE, BK, and CW.
i. SE
SE met Barbee when she was 13 and began working for him as a prostitute
when she was 16. Along with posting ads on websites such as Backpage.com, SE
would also work "the track" (a slang term for working on the streets) in popular
Seattle-area prostitution locations including Aurora Avenue and Pacific Highway
South. SE thought that Barbee cared about her and that they would spend their
lives together. She testified at trial that she was expected to make $1,000 a day or
stay up at night until she met that quota. All of her earnings went to Barbee.
Barbee required SE to recruit other girls or young women to work for him as
prostitutes. SE would peruse websites like MySpace or Facebook, looking for
attractive girls who might be interested in "escorting." During 2010, two of the
women she recruited on Barbee's behalf were two 18-year-olds, BK and CW.
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No. 92771-5
ii. BK
SE recruited 18-year-old BK to work for Barbee in April2010. While BK was
living with her aunt in Seattle, SE found BK's Facebook page. The two started to
communicate and comment on each other's photos. SE convinced BK to meet her at
a room in the Sutton Suites hotel in SeaTac where they could "hang out and chill."
Verbatim Report of Proceedings (VRP) (Aug. 22, 2013) at 107.
BK met SE at the motel room, where SE introduced her to Barbee. He told
BK that she would be working for him as an escort, that all the money she earned
would go to him, and that he would provide her with everything she needed to make
her life and her daughter's life better. BK soon began working as a prostitute for
Barbee, initially working out of a motel room and later moving to "the track."
On March 25, 2010, police received a complaint of potentially juvenile
prostitutes working out of a room at the Sutton Suites. Police responded and found
SE and BK inside the hotel room, along with prostitution and "pimping"
paraphernalia. After BK was arrested and then released from jail, she went to her
parents' house, intending to stop working for Barbee.
A few months later, Barbee texted BK and convinced her to come to his
apartment in Seattle. BK soon began living in the apartment and worldng for Barbee
again. She testified at trial that Barbee took the keys to her car and refused to return
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State v. Barbee
No. 92771-5
them, would not allow her to leave the apartment during the day, and allowed her to
go shopping or visit her daughter only if he accompanied her.
At some point in late 2010, BK left and stopped working for Barbee
permanently.
iii. cw
Eighteen-year-old CW also worked for Barbee during 2010, but for a
comparatively short time. She was living in Bellingham and working at a nursing
home when SE began communicating with her via MySpace in early May. Excited
about the idea of becoming more independent, CW packed her bags, borrowed a
friend's car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South.
Once she arrived, CW was told that she would be worldng for Barbee as an escort,
that all of her money would go to him, and that he would provide her with clothes,
jewelry, and a place to live.
The next day, CW began working for Barbee as a prostitute. CW would host
"dates" out of a motel room, and Barbee would drive her to "out-calls." Barbee took
photos of CW and set up online advertisements for her on Backpage.com. Again,
any money she earned went to Barbee.
A few weeks later, CW became disillusioned and texted Barbee that she was
quitting. While Barbee was driving SE to a dentist's appointment, CW packed her
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State v. Barbee
No. 92771-5
bags and asked her grandmother to pick her up. She left and never had contact with
Barbee again.
iv. December 3, 2010, Hampton Inn incident and aftermath
That December, SE arranged online to meet a client for an out-call at the
Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she
went inside. The client she had arranged to meet turned out to be an undercover
officer. When SE arrived and agreed to have sex with the detective, she was arrested.
After a short car chase, police officers arrested Barbee as well.
After arresting Barbee, police seized his iPhone as evidence and secured a
warrant to search its contents. The detectives recovered approximately 12,000 text
messages from between May and December 2010, many of which were exchanged
between Barbee and SE, CW, and BK. The police also obtained Backpage.com
records that showed Barbee had paid for numerous prostitution-related ads. They
searched storage units rented to Barbee and found more pimping- and prostitution-
related items, as well as financial records and a safe containing large amounts of
cash.
The State charged Barbee with two counts of promoting sexual abuse of a
minor (SE), one count of first degree promoting prostitution (BK), one count of
second degree promoting prostitution (CW), one count of leading organized crime,
two counts of first degree theft from the Social Security Administration, and one
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State v. Barbee
No. 92771-5
count of second degree theft from the Department of Social and Health Services
(DSHS). 1 The jury found Barbee guilty on all counts, except that they found him
guilty of the lesser included offense of second degree promoting prostitution ofBK.
The jury made a special finding that promoting commercial sexual abuse of SE was
part of a pattern of abuse over a "prolonged period of time," and the court imposed
exceptional sentences of 420 months for the first two promoting commercial sexual
abuse of a minor (PCSAM) convictions. Clerk's Papers (CP) at 308, 332. The Court
of Appeals affirmed all ofBarbee's convictions. State v. Barbee, 192 Wash. App. 1001
(2015).
Barbee petitioned for review on several issues. This court granted review only
as to the unit of prosecution issue in relation to the two promoting prostitution
charges and the issue of the exceptional sentence imposed for the first count of
PCSAM. State v. Barbee, 185 Wash. 2d 1025, 377 P.3d 714 (2016).
1 During the course of the investigation, police discovered that Barbee supplemented his
income with regular payments from the Supplemental Security Income Program and from
DSI-IS based on claimed disabilities and poverty. Not surprisingly, he did not report his
prostitution-related income to these agencies. These charges are not at issue here.
Additionally, the State also charged Barbee with one count of promoting commercial
sexual abuse of a minor, AM, and one count of witness tampering as to AM, but both
charges were dismissed.
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State v. Barbee
No. 92771-5
ISSUES
1. Did Barbee's two counts of second degree promoting prostitution
constitute a single unit of prosecution?
2. Was Barbee entitled to resentencing on the first count ofPCSAM?
ANALYSIS
1. Barbee's Two Counts of Second Degree Promoting Prostitution Constitute Two
Distinct Units of Prosecution
Barbee claims that the two counts of promoting prostitution ofBK and CW
constitute a single unit of prosecution, or that he committed a single "enterprise" of
promoting prostitution that involved two prostitutes. He contends that his two
convictions for promoting prostitution of"different women as part of the same
enterprise over the same period of time" encompassed a single unit of prosecution
in violation of the double jeopardy prohibition clauses of our federal and state
constitutions. See U.S. CoNST. amend. V; WASH. CoNST. art. I,§ 9. We review
double jeopardy claims de novo. State v. Hughes, 166 Wn.2d 675,681,212 P.3d
558 (2009).
Double jeopardy is violated when a person is convicted multiple times for
the same offense. State v. Adel, 136 Wash. 2d 629, 632, 965 P.2d 1072 (1998).
When the convictions are under the same statute, the court must ask what '"unit of
prosecution"' the legislature intended as the punishable act under the specific
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State v. Barbee
No. 92771-5
criminal statute. I d. Both constitutions protect a defendant from being convicted
more than once under the same statute if the defendant commits only one unit of
the crime. State v. Tvedt, 153 Wash. 2d 705, 710, 107 P.3d 728 (2005) (quoting State
v. Westling, 145 Wash. 2d 607, 610, 40 P.3d 669 (2002)). Thus, while a unit of
prosecution inquiry is "one of constitutional magnitude on double jeopardy
grounds, the issue ultimately revolves around a question of statutory interpretation
and legislative intent." Adel, 136 Wash. 2d at 634.
When engaging in statutory interpretation, our goal is to ascertain and carry
out the intent of the legislature. In reMarriage of Schneider, 173 Wash. 2d 353, 363,
268 P.3d 215 (2011 ). To determine legislative intent and thus define the proper
unit of prosecution, we first look to the statute's plain meaning. State v. Varnell,
162 Wash. 2d 165, 168, 170 P.3d 24 (2007); Adel, 136 Wash. 2d at 635. If the plain
meaning ofthe statute is ambiguous, we may also determine legislative intent by
reviewing legislative history. Hughes, 166 Wash. 2d at 684.
Once we have defined the proper unit of prosecution, we perform a factual
analysis to ascertain whether the facts in a particular case reveal that more than one
"unit" is present. Varnell, 162 Wash. 2d at 168. If, however, the legislature failed to
denote the unit of prosecution or if its intent is unclear, the rule of lenity requires
any ambiguity be resolved against turning a single transaction into multiple
offenses. Tvedt, 153 Wash. 2d at 711. We discuss each of these steps below.
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State v. Barbee
No. 92771-5
A. The Plain Language of the Statute Unambiguously Authorizes Multiple
Convictions When an Individual Promotes Prostitution of Multiple
People
First, we look to the plain language of the statute. Barbee was convicted of
two counts of second degree promoting prostitution under RCW 9A.88.080: one
for promoting prostitution ofBK and the other for promoting prostitution of CW.
CP at 246. In Washington, a person is guilty of second degree promoting
prostitution if he or she knowingly "[a]dvances prostitution" or "[p]rofits from
prostitution." RCW 9A.88.080(1)(b), (a).
RCW 9A.88.060 defines both "advances prostitution" and "profits from
prostitution." First,
A person "advances prostitution" if, acting other than as a
prostitute or as a customer thereof, he or she causes or aids a
person to commit or engage in prostitution, procures or solicits
customers for prostitution, provides persons or premises for
prostitution purposes, operates or assists in the operation of a
house of prostitution or a prostitution enterprise, or engages in
any other conduct designed to institute, aid, or facilitate an act or
enterprise of prostitution.
RCW 9A.88.060(1) (emphasis added). Similarly,
A person "profits from prostitution" if, acting other than as a
prostitute receiving compensation for personally rendered
prostitution services, he or she accepts or receives money or
other property pursuant to an agreement or understanding with
any person whereby he or she participates or is to participate in
the proceeds of prostitution activity.
RCW 9A.88.060(2).
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State v. Barbee
No. 92771-5
i. Court of Appeals Split
Divisions One and Two of the Court of Appeals have come to
different conclusions regarding whether the statute evinces a clear legislative
intent to impose multiple punishments when one individual employs two or
more prostitutes in the same time frame.
Division Two concluded that the statute was ambiguous as to the unit
of prosecution and applied the rule of lenity. In State v. Mason, 31 Wash. App.
680, 681, 644 P.2d 710 (1982), an owner of a steam bath was convicted of
three counts of promoting prostitution, each based on a different prostitute
working for the defendant as a "masseuse" at the same massage parlor during
the same two week period. The defendant argued that she committed a single
unit of prosecution, asserting among other things that she was guilty of at most
a general plan to promote prostitution. Jd. at 686. The court did not find a
clear legislative intent to impose multiple punishments on one person's
promotion of prostitution by employing "two or more persons simultaneously
over a period of weeks in the same location." Id. at 687. Thus, the court
applied the rule oflenity, focusing on the "apparent evils" that the legislature
sought to attack and holding that "[a] person is equally guilty of either of those
evils whether he has only one prostitute working for him or several." Jd.
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No. 92771-5
Six years later, Division One disagreed in State v. Tu Nam Song, 50
Wash. App. 325, 748 P.2d 273 (1988), another "masseuse" case. There, the
defendant was convicted of one count of second degree promoting
prostitution and two counts of attempted second degree promoting
prostitution. The massage parlor owner had agreed, on two separate
occasions, to hire undercover police officers posing as prostitutes. The
owner had also accepted money from a massage parlor employee, knowing
that the employee had earned the money by performing an act of prostitution
with a customer. !d. at 326. Relying on Mason, the defendant argued that
she could not be convicted on multiple counts. Id. at 327. The court
disagreed, concluding that the legislature's intent to "'make a person's
simultaneous promotion of prostitution on the part of more than one prostitute
a criminal act as to each'" was clearly expressed in the statute's language. !d.
at 328 (quoting Mason, 31 Wash. App. at 686). While the court did not parse the
language of the statute, it noted that that "[w]e simply see no ambiguity and
therefore no basis upon which to invoke the rule oflenity." Id. at 329.
As explained below, the court's result in Song is more persuasive. The
plain language of the statute and other unit of prosecution cases decided by
this court indicate that the legislature unambiguously intended to allow for
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State v. Barbee
No. 92771-5
multiple convictions when a pimp "promotes" two or more prostitutes
simultaneously.
ii. Singular Language and Use of "a Person"
We have repeatedly interpreted the legislature's use of the word "a" in
criminal statutes as authorizing punishment for each individual instance of
criminal conduct, even if each instance occurred in the same time frame.
See, e.g., State v. Ose, 156 Wash. 2d 140, 147, 124 P.3d 635 (2005). We apply
this same reasoning here.
Most tellingly, in State v. Root, 141 Wash. 2d 701, 710-11, 9 P.3d 214
(2000), we held that the legislature's use of the words "a minor" in the
sexual exploitation of a minor statute, RCW 9.68A.040, indicated that the
defendant "may be charged per child involved." We went on to note that
"[ e]ven if two children were involved in the same session, [the defendant]
may be charged twice for the same session because he violated one unit of
crime for each child involved in the session." !d. Again, in Ose, we
affirmed 25 counts of possessing a stolen access device, noting that "the
legislature, by use of the language 'a stolen access device,' unambiguously
defined the unit of prosecution ... as each access device in a defendant's
possession." 156 Wash. 2d at 148 (quoting RCW 9A.56.160(1)(c)).
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State v. Barbee
No. 92771-5
Especially when criminal statutes reference "a person" or "another
person," we have reached the same result. In State v. Graham, 153 Wn.2d
400,408, 103 P.3d 1238 (2005), this court analyzed the unit of prosecution
for Washington's reckless endangerment statute. See RCW 9A.36.050(1 ).
We held that the legislature authorized the imposition of multiple sentences
when a defendant's act endangers multiple individuals. Interpreting the
statute's plain language ("another person") and characterizing the crime as
one "against the person," this court held that the State was entitled to charge
the defendant with three counts, one per person endangered. Graham, 153
Wash. 2d at 407-08. Again, in Tvedt, we found multiple units of prosecution
when a defendant was convicted of four counts of robbery for robbing two
convenience stores when two individuals were in each store. 153 Wash. 2d at
711. Affirming entry of four counts (one per victim), we noted that robbery
is a property crime and a crime against the person. The fact that the crime
contained multiple "characteristic[s]" did not affect our result. Jd. at 713.
However, in other unit of prosecution cases involving a single "course
of conduct," we have held otherwise. In State v. Hall, 168 Wash. 2d 726, 728,
230 P.3d 1048 (2010), we held that a defendant could not be convicted of
three counts of witness tampering when he made multiple calls to a single
witness in an attempt to persuade that witness not to testify in a single
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No. 92771-5
proceeding. Also, in State v. Leyda, 157 Wash. 2d 335, 138 P.3d 610 (2006),
we held that only one conviction for identity theft was proper when a
defendant used one victim's credit card four times. In Varnell, we held that
only one act of solicitation occurred when a defendant asked one undercover
officer to kill four people during the same conversation. There, we stated
that "[t]he evil the legislature has criminalized is the act of solicitation. The
number of victims is secondary to the statutory aim, which centers on the
agreement on solicitation of a criminal act." Varnell, 162 Wash. 2d at 169.
Here, unlike in Varnell, the number of victims is primary, rather than
secondary, to the statutory aim. Under RCW 9A.88.080 and RCW
9A.88.060, a person '"advances prostitution"' if, among other things, "he or
she causes or aids a person to commit or engage in prostitution." RCW
9A.88.060(1) (emphasis added). The statute's singular language and
reference, first and foremost, to "a person" indicates that the legislature
plainly authorized multiple punishments when multiple individuals are
"promoted."
RCW 9A.88.060(1) also states that a person "'advances prostitution"'
if he or she "operates or assists in the operation of a house of prostitution or
a prostitution enterprise." Barbee draws attention to the words "a
prostitution enterprise," arguing that "[t ]he plain meaning of the statute
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State v. Barbee
No. 92771-5
indicates the Legislature intended ~o punish as a single unit all of a
defendant's conduct that advances 'a prostitution enterprise."' Suppl. Br. of
Pet'r at 10. Barbee also asserts that because the statute uses the indefinite
article "a" preceding "prostitution enterprise," the legislature clearly
intended to make each "enterprise" the unit of prosecution. I d. While it is
true that the statute may allow charges based on individual "enterprises,"
this does not foreclose charges or convictions on a "per person" basis.
Rather, the statute authorizes charges premised on either alternative. So
long as the facts support one ofthese avenues, it is within the prosecutor's
discretion to charge "per person" or "per enterprise."
Our own precedent, State v. Elliott, 114 Wash. 2d 6, 785 P.2d 440
(1990), demands this conclusion. The defendant in that case was charged
with two counts of second degree promoting prostitution, each based on the
activities of a different prostitute working during a different charging period.
Rather than charging the defendant with promoting a prostitution enterprise,
the State charged two separate counts of"promoting the prostitution of two
named women." Id. at 15. The defendant argued that the State was required
to elect whether to charge promoting prostitution by advancing an enterprise
or by advancing several individual acts. Jd. at 12. The court disagreed,
stating that "advancing prostitution may be committed either by assisting or
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State v. Barbee
No. 92771-5
operating an enterprise of prostitution or by causing or aiding a person to
engage in prostitution" and that "[i]n this case, the State charged two
separate continuing offenses-one for each employee whose prostitution
petitioner was accused of promoting at different times and from different
locations. " !d. at 12, 13-14 (emphasis added). While the court did not
squarely address a unit of prosecution issue, Elliott indicates that promoting
prostitution charges may be based on the activities of individual prostitutes
working in different places at different times.
Petitioners note that the charging periods in Elliott are different from
those in this case. In Elliott, the defendant "promoted" the two prostitutes
during entirely different time frames: the first in 1983-84, and the second in
1985. Elliott, 114 Wash. 2d at 9. By contrast, the charging period for CW is
entirely within the charging period for BK. 2 However, the overlapping time
periods do not alter our result, as we explain below.
B. Adoption of Barbee's Proposed Interpretation Would Yield Absurd
Results
When engaging in statutory interpretation, the court must avoid
constructions that "yield unlikely, absurd or strained consequences." Kilian
2BK's charging period is January 1, 2010, through December 31, 2010. CW's charging
period is May 10, 2010, through August 1, 2010.
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No. 92771-5
v. Atkinson, 147 Wash. 2d 16, 21, 50 P.3d 638 (2002) (plurality opinion).
Barbee urges this court to apply the rationale in Mason and Adel, arguing
that the unit of prosecution should be "each continuous prostitution
'enterprise,' regardless of the number of prostitutes employed." Suppl. Br.
ofPet'r at 16. Such an interpretation would yield absurd results. Mason
incorrectly focuses on the "apparent evils" the legislature sought to attack,
and A del addresses an entirely different factual scenario.
In Mason, the court stated that "[t]he apparent evils the legislature
sought to attack were 'advancing prostitution' and 'profiting from
prostitution.' A person is equally guilty of either of those evils whether he
has only one prostitute working for him or several." 31 Wash. App. at 687.
We disagree. While the "evil" of promoting prostitution may be the same
regardless of how many prostitutes are "promoted," it does not follow that a
person is "equally guilty" whether he pimps one prostitute or several.
Rather, in statutes that involve crimes against persons, that guilt compounds
in magnitude depending on the number of lives that are affected. For
example, our kidnapping statute criminalizes a single evil-kidnapping-but
it would be absurd to hold that multiple convictions are inappropriate when a
defendant kidnaps multiple people. See, e.g., State v. Louis, 155 Wash. 2d 563,
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State v. Barbee
No. 92771-5
567, 120 P.3d 936 (2005) (implicitly authorizing two kidnapping
convictions).
A del is not persuasive on this set of facts for similar reasons. There,
we determined the unit of prosecution for possession of marijuana. We held
that although the defendant hid stashes of marijuana in separate locations, he
committed only a single unit of prosecution because "[a] person is equally
guilty of possession whether that person has the drug stashed in one place, or
hidden in several places under the person's dominion and control." Adel,
136 Wash. 2d at 637. This analogy is inappropriate here. Possession of
marijuana is not a crime of exploitation. Its effect on individuals is not
compounded depending on the number of locations where the marijuana is
"stashed."
Further, as the State argues in its brief, under Barbee's proposed
interpretation, a perpetrator would face but a single count for acts of
promoting prostitution that spanned a decade and involved numerous
individuals, so long as there was no gap in time between the courses of
conduct with each individual. At the same time, a perpetrator engaged in the
same acts would face multiple charges where there is a gap in time between
his or her course of promoting the prostitution of multiple individuals.
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No. 92771-5
Suppl. Br. ofResp't at 17. It is highly unlikely that the legislature intended
such consequences.
C. The Statute's Legislative History Further Indicates That Promoting
Prostitution Is Primarily a Crime Committed against "a Person"
As explained above, the text of the statute is clear. The legislature
authorized charges premised on either operating a prostitution enterprise or
promoting individual prostitutes. Although not necessary to resolve the
issue, an examination of the statute's legislative history also confirms that a
defendant may face multiple convictions when he or she "promotes"
multiple prostitutes. The history of Washington's promoting prostitution
statute indicates that the statute is "victim-centered" and focused on
criminalizing the promotion of prostitution as it related to each individual
exploited.
The 1909 Criminal Code contained a section entitled "Placing Female
in House of Prostitution." LAWS OF 1909, ch. 249, § 188, at 944 (codified as
former RCWA 9.79.060). The section contained various provisions that are
analogous to today's second-degree promoting prostitution statute. Its first
subsection criminalized, among other things, placing "a female ... in a
house of prostitution, with intent that she shall live a life of prostitution." I d.
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No. 92771-5
(emphasis added). Thus, the 1909 statute's language centered, first and
foremost, on the placement of individual women in houses of prostitution.
In 1975, the legislature enacted the contemporary version ofthe
statute as part of a comprehensive crime bill. LAws OF 197 5, 1st Ex. Sess.,
ch. 260 (codified as ch. 9A.88 RCW). The acts listed in the 1909law were
replaced with the current "advances prostitution" and "profits from
prostitution" language, as well as the separate offense of "permitting
prostitution." Former RCW 9A.88.070(1)(a), .080(l)(a), .090(2) (LAWS OF
1975, 1st Ex. Sess., ch. 260; 13A SETH A. FINE & DOUGLAS J. ENDE,
WASHINGTON PRACTICE: CRIMINAL LAW§ 2103 (2d ed. 1998)). The second-
degree promoting prostitution provision was amended only once in 2011 to
make "technical corrections." S.B. 5045, at 1, 65th Leg., Reg. Sess. (Wash.
2011 ).
Thus, while the plain language of the statute is unambiguous, the
legislative history also clearly reflects that the legislature intended the crime
to be, in part, a crime against individual persons.
D. Factual Analysis
Finally, we consider whether the "facts in a particular case may reveal
more than one 'unit of prosecution' is present." Varnell, 162 Wash. 2d at 168
(citing State v. Babic, 140 Wash. 2d 250, 263-66, 996 P .2d 610 (2000)). Two
20
State v. Barbee
No. 92771-5
units are clearly proper here: CW and BK are two distinct "persons" who
were both exploited by Barbee.
E. Conclusion
In sum, in light of the plain language of the statute and consistent with
our prior construction of similarly worded statutes, we hold that the
legislature, by use of the language "a person," unambiguously authorized a
unit of prosecution for each person promoted. When a defendant promotes
prostitution of more than one individual, he or she may be prosecuted for
more than one count. Accordingly, we affirm the Court of Appeals'
decision that Barbee's convictions for promoting prostitution ofBK and CW
did not violate prohibitions on double jeopardy.
2. Barbee Is Entitled to a Resentencing Hearing on the First Count ofPromoting
Commercial Sex Abuse of a Minor
In addition to two counts of promoting prostitution, Barbee was also convicted
of two counts ofPCSAM (both of which related to SE). Barbee received a 420-
month exceptional sentence on both counts, running concurrently. Barbee argues,
and respondents concede, that because PCSAM changed from a class B to a class A
felony during the charging period for the first count, his exceptional sentence on
count one exceeded the statutory maximum and that he is entitled to a resentencing
hearing. We agree and remand for resentencing on that count.
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State v. Barbee
No. 92771-5
PC SAM changed from class B to a class A felony within the charging period
for the first count. Before June 10, 2010, PC SAM was a class B felony with a
seriousness level of VIII. A class B felony carries a maximum penalty of 10 years, or
120 months. RCW 9A.20.021. Effective June 10, 2010, the legislature changed
PCSAM from a class B to a class A felony and raised the seriousness level of
promoting commercial sexual abuse of a minor from VIII to XII. ENGROSSED
SUBSTITUTE S.B. 6476, 61st Leg., Reg. Sess. (Wash. 2010). This date falls within the
charging period for the first count.
After the court accepted review of this issue, the parties have come to realize
that due to this change in the law, Barbee's exceptional sentence as to count one
exceeds the statutory maximum. Because a class B felony carries a maximum
penalty of 120 months, the sentencing court may impose no more than 120 months
for count 1. Barbee requests resentencing, and the State concedes that resentencing is
appropriate. Accordingly, this court should reverse the Court of Appeals and remand
for resentencing.
CONCLUSION
We hold that RCW 9A.88.080 and its definitional section, RCW 9A.88.060,
evince a clear legislative intent to authorize multiple punishments when a person
promotes prostitution of multiple individuals. We affirm Barbee's convictions of two
counts of second degree promoting prostitution. However, as for the exceptional
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State v. Barbee
No. 92771-5
sentence issue, because of the elevation ofPCSAM from a class B to a class A felony
during the charging period for the first count, we reverse the Court of Appeals and
remand for resentencing.
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No. 92771-5
WE CONCUR:
24