State of Washington v. Tommy Austin Ashley ( 2014 )

FILED
OCT 16,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division UJ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31659-9-111
Respondent, )
)
v. )
)
TOMMY AUSTIN ASHLEY, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Tommy Ashley appeals his most recent conviction for failing to
register as a sex offender, arguing that his return to his residence of record cannot violate
the statute. Since the statute required that he reregister upon being released from jail, we
affirm.
FACTS
In 2007, Mr. Ashley was convicted in Yakima County Superior Court of third degree
assault with sexual motivation. That conviction triggered his obligation to register as a sex
offender under RCW 9A.44.130. In 2009, he was twice convicted of failing to register and
sent to prison. After release from prison in 2011, he again was under the supervision of the
Department of Corrections for the 2007 conviction.
No. 3 1659-9-II1
State v. Ashley
Mr. Ashley registered his residence as 2802 Beaudry Road #56A in Yakima on
November 16,2012. Twelve days later, Community Corrections Officer (CCO) Mungia
unsuccessfully attempted to contact Mr. Ashley at that address. The two men spoke the
following day on the telephone and Mungia advised Ashley that he had to report in person
and register. As a result of failing later to appear before CCO Mungia, an arrest warrant
issued in the third degree assault case. Mr. Ashley was incarcerated on that warrant in the
Kittitas County Jail from December 4 to December 19, 2012.
Mr. Ashley did not reregister in Yakima County after his release from the Kittitas .
County Jail. Another warrant issued for his arrest and he eventually was stopped while
driving in the trailer park at the Beaudry Road address. He was charged in Yakima County
with failure to register as a sex offender. The charging document alleged the offense was
committed between December 19 and 30, 2012.
The matter eventually proceeded to bench trial. The State argued that Mr. Ashley
had a duty to again register after his release from the Kittitas County Jail since he had
been incarcerated on the underlying sex offense. Mr. Ashley contended that he had no
duty to reregister since he remained at the same location. The trial court concluded that
Mr. Ashley did have a duty to reregister and convicted him of failure to register.
The court imposed a standard term of 57 months' incarceration. Mr. Ashley then
timely appealed to this court.
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No. 31659-9-III
State v. Ashley
ANALYSIS
Mr. Ashley argues that he had no duty to reregister upon his release from jail and
the evidence is thus insufficient to support his conviction. We agree with the trial court
that the Washington Supreme Court has already rejected his construction of the statute.
Upon conviction of various sexual and kidnapping offenses, a person must
register with the local sheriff after release from custody or moving to a new location.
RCW 9A.44.130(l)(a). With respect to the release from custody reporting requirement,
the statute provides in pertinent part:
(3)(a) Offenders shall register with the county sheriff within the following
deadlines:
(i) OFFENDERS IN CUSTODY. (A) Sex offenders who ... on or after
July 28,1991, are in custody, as a result of that offense, of the state
department of corrections ... or a local jailor juvenile detention facility ...
must register at the time of release from custody with an official designated
by the agency that has jurisdiction over the offender. The agency shall
within three days forward the registration information to the county sheriff
for the county of the offender's anticipated residence. The offender must
also register within three business days from the time of release with the
county sheriff for the county of the person's residence, or if the person is
not a resident of Washington, the county of the person's school, or place of
employment or vocation. The agency that has jurisdiction over the offender
shall provide notice to the offender of the duty to register.
(Emphasis added.)
This court's objective in interpreting a statute is "to ascertain and carry out the
legislature's intent." State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110 (2012). That
interpretation process "begins with a statute's plain meaning." Id. If the statute is
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No. 31659-9-111
State v. Ashley
unambiguous, "the court's inquiry is at an end." Jd at 927. A statute is ambiguous only
when it is subject to more than one reasonable interpretation. Jd.
Mr. Ashley contends that the statute is ambiguous over whether he had a duty
to register again upon his release from the Kittitas County Jail. We disagree in light
of our Supreme Court's interpretation of this statute in State v. Watson, 160 W n.2d 1,
154 P.3d 909 (2007).1
The operative facts in Watson are the same as in this case. There the defendant had
registered as a sex offender upon release from prison. Jd. at 4. Four months later, he was
found to have committed three violations of his community custody and sentenced to
serve an additional 60 days in jail. Jd. He was released from jail at that time and returned
to the residence address he had supplied the sheriff upon release from prison. Jd. at 4-5.
He did not reregister and subsequently was charged with failure to register as a sex
offender. Jd. at 5. After his argument that he had no duty to again register was rejected,
Mr. Watson was convicted and appealed. The Court of Appeals affirmed the conviction
and the Washington Supreme Court granted review. Jd.
The court rejected the argument that the statute was unconstitutionally vague
because it was allegedly unclear about a duty to reregister. Jd. at 4, 12. The defendant
1 Watson involved a prior version of the statute, then codified at
RCW 9A.44.130(4)(a)(i) (2002). That section was recodified by LAWS OF 2011, ch. 337,
§ 3. The language governing the duty to register was unchanged.
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No. 31659-9-111
State v. Ashley
specifically argued that the statute was " ambiguous about whether reregistration is required
when a sex offender was in custody due to violating conditions of his or her community
custody for the sex offense." Jd. at 8. Noting legislative intent and prior rulings on similar
issues, the court rejected the contention. Jd. at 8-11.
Mr. Ashley attempts to distinguish Watson on the basis that it involved a vagueness
argument while he is raising an ambiguity argument. However, as noted above, Watson
involved a claim that the supposed vagueness of the statute arose from an ambiguity. Jd.
at 8. Mr. Ashley ' s case cannot be meaningfully distinguished from Watson on that basis.
Mr. Ashley also argues that since he was living at the address on Beaudry Road 2
after his release from jail, he was still validly registered during the charging period. Those
facts, however, are the same as in Watson where the defendant returned to the same
address he had initially reported to the county sheriff. Jd. at 4-5. Although it may seem
unnecessary to reregister using the same address already on file, the purpose of the
registration statute is fulfilled when the authorities know where the offender currently is
located. Many people lose their residence when incarcerated. The legislature could
reasonably require the offender to confirm his address after release from custody rather
than require that law enforcement check to confirm whether the last address on file was
still accurate .
There was an indication in the record that Mr. Ashley did not actually live at the
2
Beaudry Road address. CP at 2. The trial , however, did not address that issue.
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No. 31659-9-II1
State v. Ashley
On its face, the statute is not ambiguous. It requires an offender to register when
released from custody "as a result of' the sex offense. Here, Mr. Ashley was incarcerated
for violating the conditions of his community custody for the sex offense that also gave rise
to his duty to register. He falls within the clear language of the statute. The statute does
not limit its reach to the initial registration obligation or the initial release from custody,
but applies in each instance where the defendant is incarcerated and released for the sex
offense.
As recognized by the trial court, Watson is indistinguishable. This court is bound
by the Washington Supreme Court's interpretation. State v. Gore, 101 Wn.2d 481,
486-87, 681 P.2d 227 (1984). Accordingly, the conviction for failure to register is
affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, A.C.1. ­ rence-Ben'ey, J.
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