G: D
APPEALS
2014 FEB 20 AM 9: 25
IN THE COURT OF APPEALS OF THE STATE OF W. NGTN
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DIVISION II
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STATE OF WASHINGTON, No. 43444 -0 -II
Respondent,
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MICHAEL DAVID COLLINS, II, UNPUBLISHED OPINION
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LEE; J. — Clark County charged Michael David Collins II with felony failure to register
as a sex offender between January 1, 2009 and March 4, 2009. However, Clark County
negotiated a plea bargain based on the legal fiction that Collins committed the offenses in 2006,
and Collins pleaded guilty. Later, Skamania County charged Collins with felony failure to
register as a sex offender between February 4, 2009 and February 9, 2009. A jury found Collins
guilty of Skamania County' s felony failure to register charge. Collins appeals arguing that his
conviction violates double jeopardy. We agree. Accordingly, we reverse and remand for
Collins' s Skamania County conviction to be dismissed with prejudice.
FACTS
On December 5, 2008, Collins was released from Clark County jail and registered his
address as required by RCW 9A.44. 130. On December 29, 2008, the Clark County Sheriff' s
Office received information that Collins was no longer living at his registered address. In early
February 2009, Collins was camping in the Dougan Falls area in Skamania County. State v.
Collins, noted at 162 Wn. App. 1051 ( 2011). Collins did not register as transient with Skamania
No. 43444 -0 -II
County Sheriff' s' Office, nor did he inform. Clark County Sheriff' s Office of a change of
residential address as required by the failure to register statute.
On March 13, 2009, the State charged Collins with failure to register as a sex offender
between January 1, 2009, and March 4, 2009 in Clark County. In the Clark County case, the
State negotiated a plea bargain based on a legal fiction that allowed Collins to plead guilty to
failing to register as a sex offender in 2006, rather than the actual offense dates in 2009. Collins
accepted the plea bargain and pleaded guilty to amended charges of failure to register as a sex
offender in 2006, rather than the 2009 dates that the State charged in the original information.
On December 15, 2011, the State charged Collins with failure to register as a sex
offender between February 4, 2009, and February 9, 2009 in Skamania County. On that same
day, the trial court heard arguments on Collins' s motion to dismiss the failure to register charge
in Skamania County. Collins argued that the Skamania County charge violated double jeopardy.
The State argued that double jeopardy was not violated because ( 1) Collins was convicted of
failing to register in Clark County in 2006, not the dates charged in Skamania County, and ( 2)
based on the unit of prosecution for failure to register as a sex offender, Collins' s failure to
register in Skamania was a separate offense from his failure to register in Clark County. The
trial court denied Collins' s motion to dismiss. A jury found Collins guilty of failing to register as
a sex offender in Skamania County. Collins appeals.
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No. 43444 -0 -II
Collins argues that the trial court erred by denying his motion to dismiss because his
conviction violates double jeopardy. We agree.
The State concedes that although Collins' s Clark County conviction was for failing to
register in 2006, the 2006 date was merely a legal fiction and was a negotiated settlement with
respect to the charges that he failed to register in Clark County in 2009. However, while the
State concedes that the Skamania County charge encompassed the same time period within
which Collins was charged and convicted in Clark County, it argues that the unit of prosecution
for failure to register as a sex offender allows a defendant to be guilty of failing to register in two
counties at the same time. We hold that the failure to register statute does not allow for a
defendant to be guilty of failing to register in two different counties in the same time period.
This court reviews questions of statutory interpretation de novo. State v. Bunker, 169
Wn.2d 571, 577, 238 P. 3d 487 ( 2010). The inquiry begins by examining the plain language of
the statute to discern and give effect to the legislature' s intent. Bunker, 169 Wn.2d at 577 -78. In
State v. Peterson, 168 Wn.2d 763, 230 P. 3d 588 ( 2010), our Supreme Court clarified the
interpretation of the failure to register statute, RCW 9A.44. 130, as it relates to the unit of
prosecution. In Peterson, the defendant argued that the failure to register statute was essentially
an alternative -
means crime because each specified residential designation, and the associated
registration deadlines, created different means of committing failure to register each with
specific elements that the State was required to prove. 168 Wn.2d at 769 -70. Our Supreme
Court rejected this argument and held that the failure to register statute was not an alternative
means crime. Peterson, 168 Wn.2d at 769 -71.
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No. 43444 -0 -II
Although Peterson is not dispositive of the issue presented here, it provides guidance on
resolving this issue. Here, the relevant portion of RCW 9A.44. 130 provides:
If any person required to register pursuant to this section moves to a new county,
the person must register with that county sheriff within three business days of
moving. Within three business days, the person must also provide, by certified
mail, with return receipt requested or in person, signed written notice of the
change of address in the new county to the county sheriff with whom the person
last registered.
RCW 9A.44. 130( 4)( b). Under the State' s theory, Collins committed failure to register in Clark
County in 2009, by failing to provide the Clark County Sheriff's Office with proper notice of his
move to Skamania County. Then Collins committed failure to register in Skamania County
during the same time period by failing to give notice to the Skamania County Sheriff's Office
that he had moved into Skamania County. This theory does not comport with our Supreme
Court' s reasoning in Peterson. The State' s theory essentially interprets RCW 9A.44. 130 as an
alternative means crime, an interpretation that our Supreme Court explicitly rejected. Peterson,
168 Wn.2d at 771 ( " We hold that the failure to register is not an alternative means crime. ").
Further, in Peterson, our Supreme Court stated that residential status was not an element
of failure to register. "[ I] t is possible to prove that a registrant failed to register within any
applicable deadline without having to specify the registrant' s particular residential status."
Peterson, 168 Wn.2d at 772. Thus, the State must only prove that the defendant failed to register
within any required deadline, which is what happened in Peterson. 168 Wn. App. at 772.
Similarly, the question here is not which specific notification requirement Collins was required
to comply with, but rather whether Collins failed to register by failing to comply with any
notification requirement at all.
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No. 43444 -0 -II
Here, Collins had moved from his registered address and did not give the statutorily-
required notice to any county sheriff' s office regarding his location. The failure to provide any
notice in compliance with the statute was the conduct resulting in the crime of failure to register,
and he was already convicted in Clark County of failing to provide notice of his move for the
same time period charged in Skamania County. Accordingly, the trial court erred by deciding
that the Skamania County charge was a distinct unit of prosecution that did not violate double
jeopardy. We reverse the trial court' s decision denying Collins' s motion to dismiss and remand
this case to dismiss Collins' s Skamania County conviction with prejudice.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
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Lee. J.
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