State Of Washington v. Alexis O. Hernandez ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 79943-6-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ALEXIS OLGUIN HERNANDEZ,
Appellant.
HAZELRIGG, J. — Alexis O. Hernandez appeals a condition of sentence after
his conviction for unlawful possession of a firearm in the second degree. At
sentencing, the court required him to register as a felony firearm offender pursuant
to RCW 9.41.330(1), which gives a court discretion to impose the registration
requirement based on an offender’s criminal history. Hernandez claims the statute
is void for vagueness because it lacks ascertainable standards for determining
what criminal history justifies imposition of the requirement. Because the statute
does not define criminal conduct or fix a sentence, it is not subject to a vagueness
challenge. Accordingly, we affirm.
FACTS
Alexis Hernandez entered a guilty plea to unlawful possession of a firearm
in the second degree for an offense that occurred on April 3, 2018. Hernandez
had five prior felony convictions, including a 2017 conviction for unlawful
possession of a firearm in the second degree and a 2015 conviction for attempting
Citations and pin cites are based on the Westlaw online version of the cited material.
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to elude a police officer. At sentencing, the State recommended the court order
Hernandez to register as a felony firearm offender under RCW 9.41.330(1).
Hernandez opposed the request. The court ordered Hernandez to comply with the
registration requirement based on his criminal history, noting that this was his
second conviction for unlawful possession of a firearm. Hernandez timely
appealed.
DISCUSSION
Hernandez claims that RCW 9.41.330, which gives courts discretion to
require a person convicted of a felony firearm offense to comply with registration
requirements, is unconstitutionally vague because it lacks sufficient standards to
guide the court’s discretion to impose it based on criminal history. The State
contends that because the statute is a sentencing guideline, it is not subject to a
vagueness challenge.
A vagueness analysis encompasses two due process concerns: (1) a
criminal statute must be specific enough to give citizens fair notice of what conduct
is proscribed, and (2) laws must provide ascertainable standards of guilt to protect
against arbitrary arrest and prosecution. State v. Baldwin, 150 Wash. 2d 448, 458,
78 P.3d 1005 (2003). Both prongs of the analysis focus on laws that prohibit or
require conduct. Id. In Baldwin, the court held that sentencing guideline statutes
that give courts discretion to impose an exceptional sentence were not subject to
a vagueness challenge, concluding that the due process concerns underlying such
a challenge “have no application in the context of sentencing guidelines.” Baldwin,
150 Wash. 2d at 459. The court recognized that “[f]undamental to both statutes being
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challenged is the notion that a court is free to exercise discretion in fashioning a
sentence,” and “[t]he guidelines are intended only to structure discretionary
decisions affecting sentences; they do not specify that a particular sentence must
be imposed.” Baldwin, 150 Wash. 2d at 460-61. Thus, the court concluded: “[s]ince
nothing in these guideline statutes requires a certain outcome, the statutes create
no constitutionally protectable liberty interest.” Id. at 461.
RCW 9.41.330 permits a trial court to order persons convicted of a felony
firearm offense to comply with the registration requirements in RCW 9.41.333. The
statute requires that a person subject to the registration requirement must provide
certain basic information for their identification and location, as well as information
about the registerable offense, to the local sheriff’s office in the county where they
reside. RCW 9.41.333. The statute further allows the sheriff to seek additional
documentation and photograph or fingerprint the registrant, imposes time limits on
registration upon release from custody or sentencing, establishes annual renewal
of registration up to a maximum of four years, and sets out procedures for change
of residence during the period of registration. Id. RCW 9.41.330 provides in
relevant part:
(1) On or after June 9, 2016, except as provided in subsection (3) of
this section, whenever a defendant in this state is convicted of a
felony firearm offense or found not guilty by reason of insanity of
any felony firearm offense, the court must consider whether to
impose a requirement that the person comply with the registration
requirements of RCW 9.41.333 and may, in its discretion, impose
such a requirement.
(2) In determining whether to require the person to register, the court
shall consider all relevant factors including, but not limited to:
(a) The person's criminal history;
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(b) Whether the person has previously been found not guilty by
reason of insanity of any offense in this state or elsewhere;
and
(c) Evidence of the person's propensity for violence that would
likely endanger persons.
Hernandez contends that the statute provides no standards to guide its
discretion to impose the requirement based on criminal history. He argues that
“[a] trial court may decide a particular criminal history may warrant registration or
the trial court may not, all within its own arbitrary whims.” Hernandez points out
that the trial court here relied on the fact that he had a prior conviction for felony
possession of a firearm in the second degree even though nothing in his criminal
history suggested a propensity for violence.
We agree with the State that RCW 9.41.330 is a sentencing guideline and
is not subject to a vagueness challenge. The statute does not specify that a
particular sentence must be imposed or require a certain outcome. Rather, it
provides a sentencing court discretion to impose the registration requirement when
one is convicted of a felony firearm offense: it directs the court to consider whether
to impose the registration requirement “whenever a defendant in this state is
convicted of a felony firearm offense,” and provides that the court “may, in its
discretion, impose such a requirement.” RCW 9.41.330 (1). Thus, under Baldwin,
it is not subject to a vagueness challenge. 150 Wash. 2d at 461.
We similarly rejected a vagueness challenge to RCW 9.41.330 in an
unpublished decision in State v. Miller, noted at 195 Wash. App. 1026, 2016 WL
4087307 (August 1, 2016), and concluded:
As with the sentencing guideline statutes at issue in Baldwin, the
statute herein grants a court discretion in determining whether to
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impose the registration requirement on felony firearm offenders. See
RCW 9.41.330. Our Supreme Court has never indicated a need to
revisit its holding in Baldwin. The Baldwin decision controls our
analysis. The sentencing statute at issue is not subject to a facial
void for vagueness challenge.
We adopt and apply that reasoning here.1 See also State v. Brush, 5 Wash. App. 2d
40, 63, 425 P.3d 545 (2018) (holding that “Baldwin remains good law,” and
rejecting vagueness challenge to statutory aggravating factors).
Nonetheless Hernandez contends that Baldwin conflicts with United States
Supreme Court precedent, citing Johnson v. United States, where the Court held
that the vagueness doctrine applies “not only to statutes defining elements of
crimes, but also to statutes fixing sentences.” __U.S.__, 135 S. Ct. 2551, 2556-
57, 192 L. Ed. 2d 569 (2015). In Johnson, the Court considered a vagueness
challenge to a provision of the Armed Career Criminal Act (ACCA) that imposes
an increased prison term when a defendant has three prior convictions for a
“violent felony,” a term defined by the statute’s residual clause to include any felony
that “involves conduct that presents a serious potential risk of physical injury to
another.” 135 S. Ct. at 2555-56. The district court concluded that a conviction for
unlawful possession of short-barreled shotgun qualified as a violent felony. The
Court reversed, concluding:
We are convinced that the indeterminacy of the wide-ranging inquiry
required by the residual clause both denies fair notice to defendants
and invites arbitrary enforcement by judges. Increasing a defendant's
sentence under the clause denies due process of law.
135 S. Ct. at 2557.
1 Miller addressed the former version of RCW 9.41.330, which did not include the
mandatory provision in sections (3) and (4) of the current statute. Hernandez’s challenge is to RCW
9.41.330(1) and (2), which is virtually identical to the former version of the statute.
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But in a later case, Beckles v. United States, __ U.S. __,137 S. Ct. 886, 197
L. Ed. 2d 145 (2017), the Court rejected a vagueness challenge to a United States
Sentencing Guideline containing a residual clause identical to the ACCA’s residual
clause at issue in Johnson. The Court reiterated that two kinds of laws are subject
to vagueness challenges: ones that define criminal offenses and ones that fix the
permissible sentences for criminal offenses. 137 S. Ct. at 892. The Court then
distinguished the ACCA, which required sentencing courts to increase the term
beyond the statutory maximum, from the Sentencing Guidelines, which “merely
guide the exercise of a court’s discretion in choosing an appropriate sentence
within the statutory range.” Id. As the Court pointed out, “no party to this case
suggests that a system of purely discretionary sentencing could be subject to a
vagueness challenge,” and “if a system of unfettered discretion is not
unconstitutionally vague, then it is difficult to see how the present system of guided
discretion could be.” 137 S. Ct. at 893-94. Thus, the Court concluded, “[b]ecause
they merely guide the district courts’ discretion, the Guidelines are not amenable
to a vagueness challenge.” Id.
Likewise here, RCW 9.41.330 does not fix the permissible sentences for
felony firearm offenses. Rather, it merely guides a sentencing court in exercising
its discretion to impose the registration requirement upon conviction of a felony
firearm offense. Accordingly, it is not subject to a vagueness challenge. See also
State v. DeVore, 2 Wash. App. 2d 651, 664-65, 413 P.3d 58 (2018) (rejecting
vagueness challenge to statutory aggravating factor, citing Beckles and
distinguishing Johnson).
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Citing Baldwin, Hernandez further contends that RCW 9.41.330(3) is
subject to a vagueness challenge because it “proscribe[s] or prescribe[s] conduct”
by requiring one to register and maintain registration for a four year period. See
Baldwin, 150 Wash. 2d at 458. Thus, he contends the statute is more like other
sentencing conditions that are subject to vagueness challenges. But unlike
vagueness challenges to sentencing conditions, Hernandez’s attack is not focused
on the registration requirement itself. Instead, he challenges the statute that gives
the sentencing court discretion to impose this requirement. As discussed above,
because this statute simply guides a sentencing court in deciding whether to
impose this requirement, it is not subject to a vagueness challenge. We affirm.
WE CONCUR:
_
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