State of Washington v. Jacob L. Cunningham ( 2016 )

FILED
JANUARY 5, 2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32809-I-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
lC.,t )
)
Appellant. )
LAWRENCE-BERREY, 1. This case requires this court to interpret and apply
RCW 13.50.260(4)(a)(v), which concerns sealing juvenile records. That subsection
prohibits sealing when a person's juvenile court record contains an adjudication for
indecent liberties that was "actually committed" with forcible compulsion.
As a juvenile, lC. pleaded guilty to an amended charge of indecent liberties by
forcible compulsion. As an adult, he unsuccessfully moved to seal his juvenile conviction
file. He contends the trial court erred because the evidence shows that he did not
"actually" use forcible compulsion in committing indecent liberties.
t For purposes ofthis opinion, the minor's initials are used in place of his name.
No. 32809-1-III
State v. J.C
We resolve two questions: (1) whether RCW 13.50.260(4)(a)(v) required the trial
court to determine whether lC. actually used forcible compulsion, and (2) whether it is
appropriate for this court to render an ultimate decision at this juncture. We answer the
first question yes, and the second question no. We, therefore, reverse the trial court's
order, and remand for the trial court to conduct a hearing and enter findings of fact and
conclusions oflaw.
FACTS!
When J.C. was 13 years old he volunteered at a "Mothers of Preschool Children"
(MOPS) program. While the mothers met in a separate part of the building, J.e. sat at a
classroom table with M.B.C., a five-year-old girl, and W.A.B., a five-year-old boy, and
exposed himself to both of them. He asked M.B.C. and W.A.B. to do the same. M.B.C.
'" told him no because Mom said not to, '" but J.C. said, '" show me anyway.'" Clerk's
Papers at 1. Both M.B.C. and W.A.B. then exposed themselves to J.C. He then asked
W.A.B. to touch his penis, and W.A.B. complied. J.C. told M.B.C. and W.A.B. not to tell
anyone what they had done. When later questioned by Detective Kevin Bechtold, J.e.
I These facts come from the police reports that supported the initial probable cause
determination. In the statement of plea of guilty form, lC. admitted to the facts in these
reports.
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State v. 1. C.
admitted he had exposed himselfto W.A.B. on two prior occasions, and had asked
W.A.B. to expose his penis once prior.
The State charged lC. with child molestation in the first degree and indecent
exposure. A negotiated settlement resulted in the State amending the charge to indecent
liberties by forcible compulsion, and lC. pleading guilty to the amended charge. 2 The
trial court ordered J.C. into the special sex offender disposition alternative (SSODA)
program. J.C. completed the SSODA program and all other court-imposed requirements.
The Juvenile Rehabilitation Administration released J.C. from supervision, and in 2012,
he no longer was required to register as a sex offender.
In August 2014, J.C. moved to seal his juvenile record under RCW 13.50.260(3).
Due to the legislature's reworking of chapter 13.50 RCW in 2011, juvenile records
containing sex offenses-including class A felony sex offenses-are required to be
sealed ifsix conditions are met. 3 The State agreed that J.C. met all conditions, except the
2 In what is commonly referred to as a Barr plea, a person pleads guilty to a
substituted charge and a trial court can accept the plea even though there is no factual
basis for it, provided there is a factual basis for the original charge. In re Pers. Restraint
a/Barr, 102 Wash. 2d 265,684 P.2d 712 (1984).
3 The full statute provides:
(4)(a) The court shall grant any motion to seal records for class A
offenses made pursuant to subsection (3) of this section if:
(i) Since the last date of release from confinement, including full­
time residential treatment, if any, or entry of disposition, the person has
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State v. J. C.
fifth: that he had "not been convicted of ... indecent liberties that was actually committed
with forcible compulsion." RCW 13.50.260(4)(a)(v). The trial court agreed with the
State and denied lC.'s motion to seal. This appeal followed.
ANALYSIS
J .C. argues that the trial court erred in denying his motion to seal. He argues that
the statutory provision in question required the trial court to determine whether he
actually used forcible compulsion, and because he did not use forcible compulsion, his
motion to seal should have been granted.
spent five consecutive years in the community without committing any
offense or crime that subsequently results in an adjudication or conviction;
Oi) No proceeding is pending against the moving party seeking the
conviction of a juvenile offense or a criminal offense;
(iii) No proceeding is pending seeking the formation of a diversion
agreement with that person;
(iv) The person is no longer required to regist.er as a sex offender
under RCW 9A.44.l30 or has been relieved of the duty to register under
RCW 9A.44.143 if the person was convicted of a sex offense;
(v) The person has not been convicted of rape in the first degree,
rape in the second degree, or indecent liberties that was actually committed
withforcible compulsion; and
(vi) The person has paid the full amount of restitution owing to the
individual victim named in the restitution order, excluding restitution owed
to any insurance provider authorized under Title 48 RCW.
RCW 13.50.260 (emphasis added).
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State v. J. C.
A. Whether RCW J3.50.260(4)(a)(v) requires the trial court to determine
whether J. C. actually used forcible compulsion
1. Standard of review
The legal standard for sealing or unsealing records is a question of law
reviewed de novo. Rufer v. Abbott Labs., 154 Wn.2d 530,540, 114 P.3d 1182 (2005).
RCW 13.50.260(3) permits a person who is the subject of a filed juvenile offender
complaint and has not had his or her juvenile court record sealed to move the court to
vacate its order and findings and seal the official juvenile court record, except
as to certain persons and for certain purposes as set forth in RCW 13.50.050. In
RCW 13.50.260(4)(a), the legislature removed trial court discretion and directed that trial
courts "shall grant any motion to seal records for class A offenses made pursuant to
subsection (3)" if six conditions are met. Because the legislature removed trial court
discretion, the general abuse of discretion standard otherwise applicable to a trial court's
granting or denying a motion to seal is not appropriate here.
2. Statutory background
RCW 13.50.260 governs sealing juvenile criminal records. 4 Washington has
4 RCW 13.50.050 governed juvenile record sealing until June 2014. In June 2014,
the sections ofRCW 13.50.050 addressing sealing hearings and sealing juvenile offender
records were recodified in a new section, RCW 13.50.260. See LAWS OF 2014, ch. 175,
§§ 3-4.
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State v. J. C.
historically provided a mechanism for juveniles convicted of sex offenses to have their
records sealed. See State v. Webster, 69 Wash. App. 376, 378, 848 P.2d 1300 (1993)
(holding trial court was obligated to seal juvenile's records once statutory requirements
were met, even ifjuvenile was convicted ofa sex offense). However, in July 1997, the
legislature amended former RCW 13.50.050 and prohibited sealing juvenile records
containing sex offenses. See LAWS OF 1997, ch. 338, § 40( 11) ("The court shall grant the
motion to seal records ... if it finds that ... (d) The person has not been convicted of a
class A or sex offense.").
In 2011, the Washington State Senate introduced S.B. 5204, which proposed
reinstating the right for ex-juvenile offenders to have certain juvenile sex offense records
sealed. See S.B. 5204, 62d Leg., Reg. Sess. (Wash. 2011) (deleting the condition, "[t]he
person has not been convicted of a sex offense" and replacing it with, "[t]he person is no
longer required to register as a sex offender"). S.B. 5204, as it was originally introduced,
included a list of five conditions for an ex-juvenile offender to meet before that person's
juvenile record containing a sex offense could be sealed: (1) five consecutive years in the
community without acquiring a new adjudication or conviction, (2) no pending juvenile
or criminal offenses, (3) no pending diversionary agreements, (4) the person is no longer
required to register as a sex offender, and (5) full restitution has been paid. Id.
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State v. Je.
After the original bill had been introduced, the Washington Association of
Prosecuting Attorneys (WAPA) lobbied the sponsors of the bill to categorically prohibit
sealing juvenile records containing adjudications for three crimes: first degree rape,
second degree rape, and forcible indecent liberties. 5 In response, the legislature drafted
RCW 13.50.260(4)(a)(v), inserted the new provision into the Substitute Senate Bill, and
included the provision in the enacted law. 6 See SUBSTITUTE S.B. 5204, at 14, 62d Leg.,
5 WAPA's Tom McBride testified to the Senate Committee on Human Services
and Corrections:
Here to request an amendment on this bill ... the second thing we did in the
sealing statute is we gave the court a specific list of factual findings and
then you should seal the records. Well the problem is, Senator Hargrove, as
you said, there's "sex offenders" and there's sex offenders, and there's three
crimes that we don't think this is a sufficient amount of time to keep track
of, and there's a public safety issue. And those are the crimes of rape in the
first degree, rape in the second degree, and forcible indecent liberties. And
the reason why, is these are as much crimes of violence as they are sex, and
it's that intersection of violence and sex. These are crimes that we think are
pretty serious, they need to be kept track of. Thankfully there's not very
many of them. Most of the sex offenses in the juvenile system are going to
be rape of a child or child molestation-they're not going to be these
violent sexual crimes. So we'd ask you to exempt those three specific
crimes, because we do think that there's a benefit to tracking those crimes.
Hr'g on S.B. 5204 Before the S. Comm. on Human Servo & Corr., 62d Leg., Reg. Sess.
(Jan. 25, 2011), 1:30 p.m. (Wash. 2011), available at
http://www.tvw.orgiindex.php?option=com_tvwplayer&eventID=2011011176 (statement
of Tom McBride, Member, WAPA).
6 Unfortunately, the body oflegislative history for S.B. 5204 is devoid of any
indication why the legislature included the word, "actually." This is available at the
Washington State Legislature's Internet site for "bill information." See Bill Information,
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No. 32809-1-III
State v. J. C.
Reg. Sess. (Wash. 2011); LAWS OF 2011, ch. 338, § 4(12)(a)(v).
3. Legislative intent behind RCW 13.50.260(4)(a)(v)
The fundamental goal of statutory interpretation is to discern and implement the
legislature's intent. State v. J.P., 149 Wn.2d 444,450,69 P.3d 318 (2003). When
interpreting a statute, courts look first to the statute's plain meaning. State v. Armendariz,
160 Wash. 2d 106, 110, 156 P.3d 201 (2007). "Plain meaning is discerned from the
ordinary meaning of the language at issue, the context of the statute in which that
provision is found, related provisions, and the statutory scheme as a whole." Christensen
v. Ellsworth, 162 Wash. 2d 365, 373, 173 P.3d 228 (2007). "If the statutory language is
susceptible to more than one reasonable interpretation, then a court may resort to statutory
construction, legislative history, and relevant case law for assistance in discerning
legislative intent." Id.
Washington courts have established principles of statutory construction. '" [E]ach
word of a statute is to be accorded meaning.'" State v. Roggenkamp, 153 Wash. 2d 614,
624, 106 P.3d 196 (2005) (quoting State ex reI. Schillberg v. Barnett, 79 Wn.2d 578,584,
488 P.2d 255 (1971)). '" [T]he drafters oflegislation ... are presumed to have used no
superfluous words,'" and courts must ascribe meaning to every word in a statute. Id. at
S.B. 5204-2011-12, http://apps.leg.wa.govlbillinfo/summary.aspx?bil1=5204&year=2011
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No. 32809-1-III
State v. Jc.
624-25 (alterations in original) (internal quotation marks omitted) (quoting In re Recall of
Pearsall-Stipek, 141 Wash. 2d 756, 767, 10 P.3d 1034 (2000» ("Isolating 'reckless' from
the phrase 'in a reckless manner,' as petitioners advocate, would render the word
'manner' meaningless and superfluous."). Courts "may not delete language from an
unambiguous statute: [s]tatutes must be interpreted and construed so that all the language
used is given effect, with no portion rendered meaningless or superfluous." JP., 149
Wash. 2d at 450 (emphasis added) (internal quotation marks omitted) (quoting Davis v.
Dep 't ofLicensing, 137 Wash. 2d 957, 963, 977P.2d 554 (1999». Finally, and importantly,
"the legislature is deemed to intend a different meaning when it uses different terms."
Roggenkamp, 153 Wash. 2d at 625.
First, RCW 13.50.260(4)(a)(v)'s plain meaning is evidenced by the ordinary
meaning of the language at issue: the word "actually." "Actually" is synonymous with
"de facto, genuinely, really, truly, veritably." WEBSTER'S COLLEGIATE THESAURUS 12
(1988). Thus, by using the word "actually" in RCW 13.50.260(4)(a)(v), the legislature
signaled its intent for the trial court to consider what "genuinely, really, truly" happened
in fact when determining whether the underlying crime was committed with forcible
compulsion.
(last visited September 18, 2015).
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State v. J. C.
In addition to the ordinary meaning of the word "actually," the context of the
statute, its related provisions, and the statutory scheme as a whole all support
interpreting RCW 13.S0.260(4)(a)(v) in a way that requires trial courts to look past the
pleadings and consider the specific facts of the person's prior adjudication. In addition to
RCW 13.S0.260(4)(a)(v) and the indecent liberties provision itself (RCW 9A.44.100), the
crime of "indecent liberties by forcible compulsion" appears II times in the Revised
Code ofWashington. 7 Every other statutory reference to this crime uses one of three
7 See RCW 9A.28.020(3)(a) (grading an attempt to commit "indecent liberties by
forcible compulsion" as a class A felony); RCW 9.41.0 I 0(3)(a) (defining "crime of
violence" under the firearms and dangerous weapons statute, which includes "indecent
liberties if committed by forcible compulsion"); former RCW 9.94A.030(37)(b)(i) (2012)
(defining the criteria for "persistent offender" under the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW, which can include a conviction for, among other offenses,
"indecent liberties by forcible compulsion"); former RCW 9.94A.030(S4)(a)(v) (2012)
(defining "violent offense" under the SRA, which includes "[i]ndecent liberties if
committed by forcible compulsion"); RCW 9.94A.S07(1)(a)(i) (providing a special
sentencing scheme for persons convicted of a number of sex offenses, including "indecent
liberties by forcible compulsion"); RCW 9.94A.S1S (assigning "Indecent Liberties (with
forcible compulsion)" a seriousness level X, and "Indecent Liberties (without forcible
compulsion)" seriousness level VII); RCW 9.94A.737(S) (requiring that offenders who
violate a condition of community custody by committing a new crime "shall be held in
total confinement pending a sanction hearing" if the underlying offense is enumerated in
the provision, which includes "[i]ndecent liberties with forcible compulsion, as defined in
RCW 9A.44.100(l)(a)"); RCW "9.94A.837(1) (authorizing the prosecutor to file a special
aIiegation "[i]n a prosecution for ... indecent liberties by forcible compulsion" when the
victim of the offense was under IS years of age); RCW 9.94A.838(l) (authorizing the
prosecutor to file a special allegation "[i]n a prosecution for ... indecent liberties with
forcible compulsion" when the victim had diminished capacity); RCW 13.40.21O(3)(a)
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No. 32809-1-III
State v. 1. C.
syntactic permutations: "indecent liberties by forcible compulsion," "indecent liberties
with forcible compulsion," or "indecent liberties if committed by forcible compulsion."
These other statutes all have straightforward applications. The fact that a person was
convicted of forcible indecent liberties operates to categorically qualify or disqualify that
person in the pertinent statutory scheme, full stop-no individualized factual inquiry into
the underlying conviction is needed. See, e.g., State v. Morin, 100 Wash. App. 25, 30, 995
P.2d 113 (2000) (conviction for indecent liberties by forcible compulsion was defendant's
"second strike" and automatically qualified defendant as a "persistent offender."
If the legislature intended RCW 13.50.260(4)(a)(v) to work the same way as the 11
other "forcible indecent liberties" provisions in the Revised Code of Washington, it
would have drafted RCW 13.50.260(4)(a)(v) with the same language: "[t]he person has
not been convicted of rape in the first degree, rape in the second degree, or indecent
liberties by forcible compUlsion." However, because the legislature chose to add the
word "actually," "we must recognize that a different meaning was intended."
Roggenkamp, 153 Wash. 2d at 626. To hold otherwise would render the word "actually"
meaningless and superfluous, in contradiction to well-established principles of statutory
(increasing the length of parole to 24 months for juveniles "sentenced for ... indecent
liberties with forcible compulsion"); RCW 71.09 .020(17) (defining "sexually violent
offense" under the sexually violent predators statute, which includes "indecent liberties
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No. 32809-1-III
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construction.
Finally, the legislature's stated intent behind its 2014 chapter 13.50 RCW
amendments supports interpreting RCW 13.50.260(4)(a)(v) in a way that resolves
ambiguities in favor of the person seeking to have his or her juvenile record sealed:
[I]t is the policy of the state of Washington that the interest in juvenile
rehabilitation and reintegration constitutes compelling circumstances that
outweigh the public interest in continued availability of juvenile court
records.
LAWS OF 2014, ch. 175, § 1(2). The legislature designed the mechanism for sealing
juvenile records specifically so juveniles can overcome prejudice and reintegrate into
society. ld. at § 1(1). Because Washington's goal for its juvenile justice system is
rehabilitation and reintegration rather than punishment, "[t]he legislature has always
treated juvenile court records as distinctive and as deserving of more confidentiality than
other types ofrecords[,] and [Washington] court[s] halve] always given effect to the
legislature's judgment in the unique setting ofjuvenile court records." State v. s.J.c., 183
Wash. 2d 408, 417,352 P.3d 749 (2015).
These goals, in tandem with the ordinary meaning of the word "actually," the
context of the statute and its related provisions, the statutory scheme as a whole, and the
legislature's stated intent behind the 2014 amendments to chapter 13.50 RCW, support
by forcible compulsion").
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No. 32809-I-III
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interpreting RCW 13.50.260(4)(a)(v) as requiring trial courts to inquire whether actual
force was used in the commission of indecent liberties by forcible compulsion. Except in
the instance of a Barr plea, the inquiry will be conclusively answered by the findings of
fact if the case was tried or in the plea statement if disposition was by a plea.
B. Whether it is appropriate for this court to render an ultimate decision at
this juncture or whether remand is appropriate
lC. requests that this court direct the trial court to enter an order sealing his
juvenile conviction file. An appellate court does not make initial findings of fact and,
where the trial court failed to enter sufficient findings, remand is the proper remedy.
State v. Barber, 118 Wn.2d 335,342, 823 P.2d 1068 (1992).
Because this court has clarified the meaning ofRCW l3.50.260(4)(a)(v), we
remand the case to the trial court to determine whether lC. actually used forcible
compUlsion in light of this court's ruling. The parties may stipulate to the police reports
being the facts for the trial court to apply to our ruling. If the parties do not so stipulate,
the trial court should conduct an evidentiary hearing to resolve J.C.'s motion to seal. An
evidentiary hearing is appropriate when there are questions of fact. See Franks v.
Delaware, 438 U.S. 154, 155-56,98 S. Ct. 2674,57 L. Ed. 2d 667 (1978); State v.
Crockett, 118 Wash. App. 853, 857-58, 78 P.3d 658 (2003) (quoting former RCW
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No. 32809-1-111
State v. Jc.
9.94A.530(2) (2002)); State v. Zatkovich, 113 Wash. App. 70, 75-76, 52 P.3d 36 (2002);
State v. Card, 48 Wash. App. 781, 786, 741 P.2d 65 (1987).
Reversed and remanded.
Lawrence-Berrey, J.
1 CONCUR:
Fearing, J.
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32809-I-II1
KORSMO, J. (concurring) - I agree that this matter should be remanded for a new
hearing on the petition to seal the record of the juvenile adjudication. However, I
disagree with the majority's construction of the statute and suggest a different basis for
reaching the same result. The legislature has categorically excluded indecent liberties by
forcible compulsion from the juvenile sealing statute.
My disagreement starts with the word "actually." While clarity of intent would
have been better served by using a different word, there is no significant issue presented
in this circumstance by the novel word choice. As the majority notes, the legislature has
varyingly described the crime of indecent liberties "by/with/if com~itted by" forcible
compulsion. For some reason, the majority has no difficulty determining that all three of
those iterations mean the same thing, but finds that the language used in the sealing
statute ("actually committed with forcible compulsion") must mean something different.
I disagree. If the use of different language means a different legislative intent, then all of
those first three iterations must likewise mean something different. However, the
majority correctly discerns that they mean the same thing. That should likewise be the
case for indecent liberties "actually committed by" forcible compulsion. It is just another
description for the one offense defined by the legislature.
Indecent liberties can be committed in six different manners, five of which are
class B felonies. RCW 9A.44.100(l), (2)(a). Those five offenses all involve victim
No. 32809-1-III
State v. Jc.
vulnerability or a specified offender-victim relationship. RCW 9AA4.1 00(1 )(b)-(f). The
legislature has declared the crime of indecent liberties "by forcible compulsion" to be a
class A felony. RCW 9A.44.l00(1)(a); (2)(b). This is the one version of indecent
liberties focused solely on the offender's conduct. The majority duly notes that the
legislature has defined "forcible compulsion" in terms of "physical force" or threatened
use of force. RCW 9A.44.010(6). As the majority's excellent exposition of the
legislative history reveals, the legislature intended to exempt from the sealing statute the
three necessarily violent sex offenses-first and second degree rape, and indecent
liberties involving forcible compulsion. It did not intend for trial courts (or appellate
courts) to attempt to reconstruct the factual basis for an old indecent liberties
adjudication. The words "actually committed by" simply specified which of the six
versions of indecent liberties the legislature intended not be subject to a sealing order.
The phrase is not any different than the "if committed by" language used in the
definitional statutes cited by the majority. RCW 9.41.010(3)(a) (defining "crime of
violence"); RCW 9.94A.030(54)(a)(v) (defining "violent offense" for the Sentencing
Refonn Act of 1981). It simply described which alternative method of committing the
crime was exempted from the sealing statute.
Accordingly, J.C.'s argument fails on the language of the sealing statute. It also
fails under the definition of the crime of indent liberties "by" forcible compulsion. RCW
9A.44.l 00(1 )(a). By definition, it simply is not legally or logically possible to commit
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No. 32809-1-II1
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indent liberties by forcible compulsion without using forcible compulsion. Id.; RCW
9A.44.010(6). Thus, indecent liberties "actually committed by forcible compulsion" will
always exist whenever a youth has been adjudicated to have committed indecent liberties
by forcible compulsion. With the rare exception exemplified by this case, the majority
approach dooms trial judges to a pointless review of a record to confirm exactly what the
original trial court had to consider in the first instance-whether there was a factual basis
to find that the offender committed indecent liberties. It is essentially an untimely
collateral attack on the evidence supporting the original adjudication, even when, as here,
the offender eschews such a challenge. There is absolutely nothing in the history to
suggest that the legislature intended trial judges engage in this wild goose chase. I
Accordingly, I disagree with the majority's construction of the sealing statute. It is a
strained reading of otherwise clear language.
Nonetheless, I agree that, on these unusual facts, the matter should be remanded
for another hearing. I would get there by focusing on the nature of the guilty plea itself.
I agree with the majority that this case was treated as a Barr plea. In re Pers. Restraint of
Barr, 102 Wash. 2d 265, 684 P.2d 712 (1984). There was a factual basis for the charged
greater offense of first degree child molestation, thus providing a fictional basis for
IThis approach also effectively reverses the burden of proof in this motion. As a
proponent of sealing, J.e. is required to establish that he acted without physical force, so
he has no interest in setting forth any evidence contradicting that burden. The State
would need to show use of physical force to defeat the motion.
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No. 32809-1-111
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accepting the plea to the somewhat 2 lesser offense of indecent liberties by forcible
compulsion.
The legislature intended that the sealing statute would apply to juveniles who
committed first degree child molestation. J.C. having committed this greater offense,
rather than the fictional one to which he entered a guilty plea, 1 would allow the trial
court to enter a sealing order because it was the legislature's intent that this fact pattern
be subject to sealing. Thus, 1 would permit Barr pleas to be subject to sealing when the
charged greater offense was subject to sealing. 3
Since 1 believe a new hearing is appropriate, 1 concur in the majority's disposition
of the case despite my disagreement with the majority's construction of the statute.
I Korlifo 0, J.
2 First degree child molestation is classified as an A- felony under the Juvenile
Justice Act of 1977, while indecent liberties by forcible compulsion is classified as a B+
felony. For someone with no previous adjudications, as in lC. 's case, the difference had
no sentencing consequences, although there would have been a difference in outcome if
there had been prior offenses. See RCW 13.40.0357.
3 1 would permit this approach only when the Barr plea fiction was followed and
would not allow sealing just because the record would have permitted the filing of a
different charge subject to sealing. For example, an offender adjudicated to have
committed first or second degree rape of a youthful victim would not be allowed to argue
for sealing on the basis that the prosecutor could have instead charged first or second
degree child rape, offenses for which sealing is possible.
4