State Of Washington, V Franklin Hershel Wilcox

Filed
Washington State
Court of Appeals
Division Two
September 27, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46902-2-II
Respondent,
v.
FRANKLIN H. WILCOX, PUBLISHED OPINION
Appellant.
SUTTON, J. – Frank H. Wilcox appeals the trial court’s order that he register as a sex
offender and serve three years of community custody. He argues that the trial court’s order resulted
from an erroneous ruling that his conviction for failure to register as a sex offender under
RCW 9A.44.1321 qualifies as a “sex offense” under former RCW 9.94A.030(46)(a)(v) (2012).2
Wilcox argues that his current conviction is not for a “sex offense” because his prior convictions
for failure to register were under former RCW 9A.44.130 (2008), not RCW 9A.44.132. We hold
that the unambiguous plain language of former RCW 9.94A.030(46)(a)(v) 3 supports Wilcox’s
1
The legislature amended RCW 9A.44.132 in 2015. Laws of 2015, ch. 261 § 5. Because these
amendments are not relevant here, we cite to the current version of the statute.
2
A defendant found guilty of a “sex offense” is (1) required to register as a sex offender, RCW
9A.44.130(1)(a) and (2) subject to three years of community custody, RCW 9.94A.701(1)(a).
3
Former RCW 9.94A.030(46)(a)(v), the definitional statute in effect when Wilcox committed his
current offense, defined “sex offense” as “[a] felony violation of RCW 9A.44.132(1) (failure to
register) if the person has been convicted of violating RCW 9A.44.132(1) (failure to register) on at
least one prior occasion.” (Emphasis added.)
No. 46902-2-II
argument and that the subsequent amendment to that statute does not apply retroactively. We
reverse and remand this matter to the trial court to strike the sex offender registration requirement
and the three-year community custody term, and to impose the proper term of community custody.
FACTS
The State charged Wilcox with felony failure to register as a sex offender under
RCW 9A.44.132(1)(b) and alleged that this offense occurred between November 5, 2012 and
August 21, 2013. Wilcox waived his right to a jury trial and entered into a stipulated facts bench
trial.
Wilcox stipulated to several prior convictions, including convictions for felony failure to
register as a sex offender in 1999 and 2000 under former RCW 9A.44.130(10).4 The trial court
found Wilcox guilty as charged.
At sentencing, Wilcox argued that his current conviction for failure to register was not a
“sex offense” under former RCW 9.94A.030(46)(a)(v), because his previous convictions for
failure to register were under former RCW 9A.44.130, not under RCW 9A.44.132. If he was
correct, the statutory requirement to register as a sex offender and imposition of three years of
community custody would be inapplicable. The trial court rejected this argument and imposed a
sex offender registration requirement and three years of community custody.
Wilcox appeals the trial court’s determination that his current offense qualifies as a “sex
offense” and the resulting registration requirement and three-year community custody sentence.
4
These prior failure to register convictions were under former RCW 9A.44.130(10) (1999), and
former RCW 9A.44.130(10) (2000). For ease of reference, we refer to these statutes collectively
as former RCW 9A.44.130(10).
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No. 46902-2-II
ANALYSIS
I. UNAMBIGUOUS STATUTE
Wilcox’s prior failure to register offenses involved convictions under former
RCW 9A.44.130. He argues that under the plain language of former RCW 9.94A.030(46)(a)(v),
his current offense is not a “sex offense” because he has no prior convictions under
RCW 9A.44.132. We agree.
A. LEGAL PRINCIPLES
Whether Wilcox’s prior failure to register convictions were “sex offenses” under former
RCW 9.94A.030(46)(a)(v), is an issue of statutory interpretation and one of first impression. We
review issues of statutory interpretation de novo. State v. Armendariz, 160 Wash. 2d 106, 110,
156 P.3d 201 (2007). “‘Our purpose in interpreting the statute is to determine and enforce the
intent of the legislature.’” In re Det. of Coppin, 157 Wash. App. 537, 551, 238 P.3d 1192 (2010)
(quoting Rental Housing Ass’n of Puget Sound v. City of Des Moines, 165 Wash. 2d 525, 536,
199 P.3d 393 (2009)).
In interpreting a statute, we look first to the statute’s plain language. State v. Keller,
143 Wash. 2d 267, 276, 19 P.3d 1030 (2001). To ascertain the plain language, we examine the
statute’s language, other provisions of the same act, and related statutes. Coppin, 157 Wash. App.
at 552. If the statute’s plain language is unambiguous, our inquiry is at an end, and we enforce the
statute “‘in accordance with its plain meaning.’” Coppin, 157 Wash. App. at 552 (quoting
Armendariz, 160 Wash. 2d at 110). But “[w]here the plain language of the statute is subject to more
than one reasonable interpretation, it is ambiguous. . . . [W]e may attempt to discern the legislative
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No. 46902-2-II
intent underlying an ambiguous statute from its legislative history.” Armendariz, 160 Wash. 2d
at 110-11.
B. PLAIN LANGUAGE
Former RCW 9.94A.030(46)(a)(v) defined “sex offense” as “[a] felony violation of
RCW 9A.44.132(1) (failure to register) if the person has been convicted of violating
RCW 9A.44.132(1) (failure to register) on at least one prior occasion.” (Emphasis added.) The
statute specifies that the violation must be a violation of RCW 9A.44.132, not a violation of
RCW 9A.44.130 or any former version of the failure to register statute. Thus, a plain reading of
the statute supports Wilcox’s argument.
The State argues that the inclusion of the parenthetical “(failure to register)” after the
second citation to RCW 9A.44.132(1), supports the conclusion that the legislature intended to
include prior convictions for failure to register under former RCW 9A.44.130 because otherwise
this parenthetical would be superfluous. But this parenthetical reference, on its face, merely
identifies RCW 9A.44.132 as the failure to register statute. It does not suggest the inclusion of
any former statutes or otherwise create any ambiguity.
The State further argues that under RCW 1.12.028, the reference to RCW 9A.44.132 in
former RCW 9.94A.030(46)(a)(v) should be read to include former RCW 9A.44.130 because
RCW 9A.44.132 is essentially an amendment to former RCW 9A.44.130. RCW 1.12.028
provides, “If a statute refers to another statute of this state, the reference includes any amendments
to the referenced statute unless a contrary intent is clearly expressed.” (Emphasis added.) But
this case involves amendments to former RCW 9A.44.130, which is not the “referenced statute.”
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No. 46902-2-II
The “referenced statute” is RCW 9A.44.132. Thus, we do not find this argument persuasive, and
we hold that Wilcox’s current offense is not a sex offense.
II. EFFECT OF SUBSEQUENT AMENDMENT
We next consider the impact of the 2015 amendments. In 2015, our legislature amended
former RCW 9.94A.030(46)(a)(v) to expressly include violations of the previous version of the
failure to register statute:
“Sex offense” means: . . . [a] felony violation of RCW 9A.44.132(1) (failure to
register as a sex offender) if the person has been convicted of violating RCW
9A.44.132(1) (failure to register as a sex offender) or 9A.44.130 prior to June 10,
2010, on at least one prior occasion.
RCW 9.94A.030(47)(a)(v) (emphasis added); Laws of 2015, ch. 261, § 12; see also Laws of 2015,
ch. 287, § 1 (changing subsection numbering from 46 to 47).5 We hold that the amendment has
no effect here.
We presume that a statutory amendment is prospective. State v. Smith, 144 Wash. 2d 665,
673, 30 P.3d 1245, (2001), as corrected, 39 P.3d 294 (2002), superseded by statute, Laws of 2002,
ch. 10, § 1. Court’s generally disfavor retroactive application, but the State can overcome this
presumption if it shows: (1) the legislature intended the amendment to apply retroactively, (2) the
amendment is “curative,” or (3) the amendment is remedial. Smith, 144 Wash. 2d at 673. In this
case, none of these factors exist.
5
The legislature amended RCW 9.94A.030 again in 2016. Laws of 2016, ch. 81, § 16. The 2016
amendments are not relevant here.
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No. 46902-2-II
Generally, if the legislature intends that a statute apply retroactively, the statutory language
must clearly state so. Smith, 144 Wash. 2d at 673. There is nothing in the amended statutory language
that shows the legislature intended the amendments to apply retroactively. Furthermore, the
effective date of the amendment was July 24, 2015, and there is no reference to retroactive
application in the amendment or any related amendments. See generally Laws of 2015, ch. 261.
The amendment also is not curative. “A curative amendment clarifies or technically
corrects an ambiguous statute.” Smith, 144 Wash. 2d at 674. Because we hold that the 2010 version
of the statute was not ambiguous, the amendment is not a clarification or technical correction.
Smith, 144 Wash. 2d at 674. The amendment did not merely clarify the 2010 statute, it substantively
changed the meaning by including prior convictions under former RCW 9A.44.130, which were
previously not included.
Finally, the amendment is not remedial. “A remedial change is one that relates to practice,
procedures, or remedies and does not affect a substantial or vested right.” Smith, 144 Wash. 2d
at 674. The amendment increases the term of community custody. Increasing the term of
community custody clearly has no relation to practice, procedures, or remedies. Thus, we hold
that the 2015 amendment does not apply retroactively.
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No. 46902-2-II
We reverse the trial court and remand this matter for the trial court to strike the sex offender
registration requirement and the three-year community custody term, and to impose the proper
term of community custody.6
SUTTON, J.
We concur:
JOHANSON, P.J.
MELNICK, J.
6
The parties have also addressed whether the imposition of appellate costs against Wilcox is
appropriate. Because the State is not the prevailing party, we need not address appellate costs.
7