State v. Conover

-F 11:-E'
IN CLEIIIICI OPPICI '

Ronald R. Carpenter
lup,ame Court Clertc

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 90782-0
Petitioner,
v. ENBANC

TIMOTHY ALLEN CONOVER,
Respondent.
Filed AUG 1 3 2015

GORDON McCLOUD, J.- Timothy Conover was convicted of three counts

of delivering heroin within 1,000 feet of a school bus stop, in violation of RCW

69.50.401(1) (delivery) and RCW 69.50.435(1)(c) (school bus stop enhancement).

The trial court imposed one 48-month standard-range base sentence on each of the

three delivery counts, to run concurrently with each other. It also imposed three 24-

month school bus stop enhancements-one for each delivery count-and ran them

consecutively to Conover's 48-month base sentence and consecutively to each other.

The total sentence was 120 months of confinement.

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State v. Conover (Timothy Allen), No. 90782-0

The single question before us is whether the school bus stop enhancement

statute-RCW 9.94A.533(6)-requires the trial court to run such an enhancement

consecutively only to the drug crime sentence it enhances or also requires the trial

court to run multiple enhancements on different counts consecutively to each other.

Our decision in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d

798 (1998), controls our answer to that question. In that case, we held that statutory

language virtually identical to the statutory language at issue here was ambiguous

about whether the trial court must run multiple enhancements consecutively only to

their underlying crimes or also consecutively to each other. Viewing that statute in

context and applying other rules of statutory interpretation, we concluded that such

language did not require trial courts to run those enhancements consecutively to each

other. Instead, "when two or more offenses each carry firearm enhancements, the

determination of whether multiple current [weapons enhancements] are to run

concurrently or consecutively is determined by resort to the rules in RCW

9.94A.[589]," which govern when all other Sentencing Reform Act of 1981 (SRA)

sentences run concurrently or consecutively. Id. at 254; ch. 9.94A RCW. We now

interpret virtually identical language in the school bus stop enhancement in the same

way: RCW 9.94A.533(6) does not require trial courts to run school bus stop

enhancements on different counts consecutively to each other; instead, when two or

more offenses each carry school bus stop enhancements, the determination of

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State v. Conover (Timothy Allen), No. 90782-0

whether those enhancements are to run concurrently or consecutively is also

determined by resort to the rules in RCW 9.94A.589(l)(a). We therefore reverse

and remand for resentencing with instructions to use RCW 9.94A.589 to determine

whether the multiple 24-month sentence enhancements run concurrently or

consecutively with each other.

FACTS

In 2011, Cowlitz-Wahkiakum County Drug Task Force Detectives Russell

Hanson and Michael Meier arranged controlled buys of heroin from Conover using

a confidential informant (CI). Clerk's Papers (CP) at 1; Trial Proceedings (TP) (Oct.

12, 2012) at 46. On May 13, the CI agreed to buy a quarter-ounce of heroin from

Conover for $400. CP at 1; TP (Oct. 11, 2012) at 35, 69; TP (Oct. 12, 2012) at 18,

51, 13 3. On that date, the CI met Conover in a motor home that was located within

1,000 feet of a school bus stop for the Longview School District. CP at 2; TP (Oct.

12, 2012) at 85. The CI gave the money to Conover, and Conover gave the CIa

clear plastic bag containing tar heroin. CP at 1; TP (Oct. 11, 2012) at 42; TP (Oct.

12, 2012) at 19-20.

On May 31, Meier again worked with the CI to arrange another controlled buy

from Conover-a quarter-ounce of heroin for $350. CP at 2; TP (Oct. 11, 2012) at

71; TP (Oct. 12, 2012) at 55, 136. The CI went to Conover's apartment to complete

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State v. Conover (Timothy Allen), No. 90782-0

the deal. CP at 2; TP (Oct. 12, 2012) at 22. This controlled buy also took place

within 1,000 feet of a school bus stop. CP at 2; TP (Oct. 12, 2012) at 88.

Then, in a July 7 recorded controlled buy, the CI bought a quarter-ounce of

heroin from Conover for $350 at Conover's apartment. CP at 2; TP (Oct. 11, 2012)

at 79-80; TP (Oct. 12, 2012) at 9, 23, 27, 135. Once again, the CI bought the drugs

within 1,000 feet of a school bus stop. CP at 2; TP (Oct. 12, 2012) at 88, 90-91.

After this buy, police arrested Conover.

The State charged Conover with three counts of delivery of heroin within

1,000 feet of a school bus stop. CP at 15-17; TP (Oct. 12, 2012) at 119-20, 123-24,

128.

The jury convicted Conover as charged. CP at 49, 52, 55. It also returned

special sentencing verdicts on each count, finding that ( 1) Conover delivered the

controlled substances within 1,000 feet of a school bus route stop designated by a

school district and (2) Conover's crime was a major violation of the Uniform

Controlled Substances Act (VUCSA), chapter 69.50 RCW, involving the attempted

or actual sale or transfer of controlled substances in quantities substantially larger

than for personal use. CP at 50-51, 53-54, 56-58; Hr'g Proceedings (HP) (Oct. 24,

2012) at 10-13.

Based on an offender score of five, Conover's standard sentencing range was

20 to 60 months of confinement for each delivery count. CP at 62; HP (Oct. 24,

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State v. Conover (Timothy Allen), No. 90782-0

2012) at 10-11. The trial court sentenced Conover to a total of 120 months: 48

months for each of his three delivery convictions, to run concurrently with each

other; plus an additional 24 months for each school bus stop enhancement on each

of the three delivery counts, to run consecutively to each 48-month sentence for the

underlying convictions and consecutively to each other, under RCW 9.94A.533(6). 1

CP at 65; HP (Oct. 24, 2012) at 20.

Conover appealed. He raised numerous issues, including two challenges to

his sentence: (1) that the trial court erroneously calculated his offender score because

the State failed to present evidence of his prior criminal history and (2) that the trial

court erroneously ran his bus stop enhancements consecutively to each other rather

than concurrently under RCW 9.94A.533. State v. Conover, noted at 183 Wn. App.

1011, 2014 WL 4229997, at *1. In an unpublished decision, the Court of Appeals

affirmed the convictions but vacated the sentences after accepting the State's

concession that it failed to prove Conover's prior convictions. 2014 WL 4229997,

at *5, *9. It rejected Conover's argument about running the enhancements

concurrently with each other.

1
The trial court did not impose an exceptional sentence based on the VUCSA
aggravating factors under RCW 9.94A.535. CP at 62; HP (Oct. 24, 2012) at 11-12,
19.

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State v. Conover (Timothy Allen), No. 90782-0

We granted Conover's petition for review on whether RCW 9.94A.533

requires trial courts to run bus stop enhancements on one count consecutively or

concurrently with bus stop enhancements on other counts. State v. Conover, 182

Wn.2d 1007, 344 P.3d 688 (2015).

ANALYSIS

I. Standard of Review

RCW 9.94A.533(6) states,
An additional twenty-four months shall be added to the standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435 or
9.94A.827. All enhancements under this subsection shall run
consecutively to all other sentencing provisions, for all offenses
sentenced under this chapter.[ 2]
(Emphasis added.)

This case requires us to decide whether the italicized language requires a trial

court to run school bus stop sentence enhancements on multiple counts

consecutively to, or concurrently with, each other.

This is a question of statutory interpretation, which we review de novo.

Charles, 135 Wn.2d at 245. Our primary objective is to determine and to apply the

2
RCW 69.50.435(1)(c) establishes the school bus stop and other
enhancements to sentences for RCW 69.50.401 violations. RCW 9.94A.827 relates
to the manufacture of methamphetamine, which is not relevant to this case.
Although the legislature has amended RCW 9.94A.533 numerous times since 2011,
the relevant language remains the same.

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State v. Conover (Timothy Allen), No. 90782-0

legislature's intent. State v. Donaghe, 172 Wn.2d 253, 261-62, 256 P.3d 1171

(2011) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). We

determine legislative intent from the statute's plain language, "considering the text

of the provision in question, the context of the statute in which the provision is found,

related provisions, amendments to the provision, and the statutory scheme as a

whole." Ass 'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Ed.,

182 Wn.2d 342,350,340 P.3d 849 (2015) (citing Dep't of Ecology v. Campbell &

Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).

If, after examining the ordinary meaning of the statute's language and its

context in the statutory scheme, more than one reasonable interpretation exists, we

treat the statute as ambiguous. Jacobs, 154 Wn.2d at 600-01. In criminal cases, we

apply the rule of lenity to ambiguous statutes and interpret the statute in the

defendant's favor. Id. at 601.

II. Neither the Language Nor the Context ofRCW 9.94A.533(6) Require
Trial Courts To Run School Bus Stop Enhancements on Multiple
Counts Consecutively to Each Other

The statutory context of RCW 9.94A.533(6) informs our analysis of

legislative intent. As noted above, RCW 9.94A.533(6) states, "All enhancements

under this subsection shall run consecutively to all other sentencing provisions, for

all offenses sentenced under this chapter." (Emphasis added.) In contrast, another

sentence enhancement in the same statute uses different language to describe when

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State v. Conover (Timothy Allen), No. 90782-0

it must run consecutively; RCW 9.94A.533(3)(e), which provides for consecutive

firearm enhancements, states, "Notwithstanding any other provision of law, all

firearm enhancements under this section are mandatory, shall be served in total

confinement, and shall run consecutively to all other sentencing provisions,

including other firearm or deadly weapon enhancements, for all offenses sentenced

under this chapter." (Emphasis added.) Similarly, RCW 9.94A.533(4)(e), which

provides for consecutive deadly weapon enhancements, states, "Notwithstanding

any other provision of law, all deadly weapon enhancements under this section are

mandatory, shall be served in total confinement, and shall run consecutively to all

other sentencing provisions, including other firearm or deadly weapon

enhancements, for all offenses sentenced under this chapter." (Emphasis added.)

As the italicized language shows, the legislature used different language in

RCW 9.94A.533(6) than it used in (3)(e) and (4)(e); the language of RCW

9.94A.533(6) does not explicitly require those enhancements to run consecutively to

each other or to other enhancements. Clearly, the legislature's choice of different

language indicates a different legislative intent. State v. Roberts, 117 Wn.2d 576,

586, 817 P.2d 855 (1991).

III. In Charles, We Held That Language Similar to RCW 9.94A.533(6) Did
Not Require Trial Courts To Run Firearm Enhancements on Multiple
Counts Consecutively To Each Other

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State v. Conover (Timothy Allen), No. 90782-0

The reason that RCW 9.94A.533(3)(e) and (4)(e) contain the language

italicized above can be traced to our decision in Charles. As discussed above,

Charles interpreted the former version of the firearm enhancement statute, RCW

9.94A.310(3)(e) (1995). 3 That old firearm enhancement statute resembles the

current drug zone enhancement section at issue here; it read, '"Notwithstanding any

other provision of law, any and all firearm enhancements under this section are

mandatory, shall be served in total confinement, and shall not run concurrently with

any other sentencing provisions."' Charles, 135 Wn.2d at 247 (some emphasis

omitted) (quoting former RCW 9.94A.310(3)(e)).

In Charles, we held that the language "shall not run concurrently with any

other sentencing provisions" was ambiguous about whether multiple weapon

enhancements must always run consecutively with each other or whether the

sentencing court must apply the general SRA statute governing when sentences are

concurrent or consecutive-former RCW 9.94A.400 (1998), recodified as RCW

9.94A.589-to determine if multiple enhancements nm consecutively or

concurrently. Id. at 250. We concluded that the sentencing court had to apply the

general concurrent/consecutive statute and that, given the presumption of

concurrency in that statute, firearm enhancements on multiple counts did not run

3 See amendments added to Laws of 1998, ch. 235, § 1.

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State v. Conover (Timothy Allen), No. 90782-0

consecutively to each other but only to the base sentences. Id. at 253-54.

Enhancements could run consecutively to each other only if the underlying sentences

run consecutively (or if the prerequisites to an exceptional sentence were met). I d.

at 254 (citing RCW 9.94A.400).

The legislature responded to Charles in 1998. It amended the weapon

enhancement statutes to add the following emphasized language: '"Notwithstanding

any other provision of law, all [firearm] enhancements under this section are

mandatory, shall be served in total confinement, and shall run consecutively to all

other sentencing provisions, including other firearm or deadly weapon

enhancements, [for all offenses · sentenced under this chapter]."' State v.

DeSantiago, 149 Wn.2d 402, 416, 68 P.3d 1065 (2003) (quoting LAWS OF 1998, ch.

235, § 1). Notably, the legislature also added language to the introductory section

of the firearm enhancement provision stating, "If the offender is being sentenced for

more than one offense, the firearm enhancement or enhancements must be added to

the total period of confinement for all offenses, regardless of which underlying

offense is subject to a firearm enhancement." LAWS OF 1998, ch. 235, § 1(3)

(emphasis added), (4) (same language for deadly weapons).

This court has interpreted the amended version ofRCW 9.94A.533 to require

that "all firearm and deadly weapon enhancements are mandatory and, where

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State v. Conover (Timothy Allen), No. 90782-0

multiple enhancements are imposed, they must be served consecutively to base

sentences and to any other enhancements." DeSantiago, 149 Wn.2d at 416.

The school bus stop enhancement statute at issue here, RCW 9.94A.533(6),

lacks the key language that transformed the weapons enhancement statutes from

being ambiguous about whether a weapon enhancement on one count must run

concurrently or consecutively with a weapon enhancement on another count to

mandating that a weapon enhancement on one count must run consecutively to a

weapon enhancement on another count. Following Charles, school bus stop

enhancements contain the pre-Charles language rather than the post-Charles

language and therefore need not run consecutively to other school bus stop

enhancements, either.

IV. Jacobs Addressed a Different Issue

The state argues that Jacobs, 154 Wn.2d 596, compels a different result. But

Jacobs addressed a different issue. Before 2006, RCW 9.94A.533(6) stated, "An

additional twenty-four months shall be added to the standard sentence range for any

ranked offense involving a violation of chapter 69.50 RCW if the offense was also

a violation ofRCW 69.50.435 or 9.94A.605." Former RCW 9.94A.533(6) (2004).

In Jacobs, a jury convicted the codefendants of one count each of manufacturing a

controlled substance and returned two special verdicts on each count: that each

defendant committed the crime while a person under 18 was present and that each

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State v. Conover (Timothy Allen), No. 90782-0

defendant manufactured a controlled substance within 1,000 feet of a school bus

stop. 154 Wn.2d at 598. The sentencing judge imposed two different 24-month

sentence enhancements based on those findings and applied them consecutively. !d.;

see RCW 9.94A.435(1)(c), .605.

The defendants challenged their consecutive sentence enhancements. They

argued that the State could not charge two different enhancements on a single count

and, even if it could, that the sentencing court could not run the two different

enhancements consecutively. The Court of Appeals affirmed. State v. Jacobs, 121

Wn. App. 669, 683, 89 P.3d 232 (2004).

In 2005, we reversed and vacated the sentence. We ruled that the two different

sentence enhancements on a single count had to run concurrently with each other.

We reasoned, "[T]he legislature clearly knows how to require consecutive

application of sentence enhancements and chose to do so only for firearms and other

deadly weapons" but not for the drug zone enhancement statute at issue. 4 Jacobs,

154 Wn.2d at 603. We explained that a contrary conclusion would conflict with (1)

"the legislature's presumption in favor of concurrent sentences as well as the lack of

4
See Roberts, 117 Wn.2d at 586 ('"[W]here the Legislature uses certain
statutory language in one instance, and different language in another, there is a
difference in legislative intent."' (alteration in original) (internal quotation marks
omitted) (quoting In re Det. of Swanson, 115 Wn.2d 21, 27, 804 P.2d 1 (1990))).

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State v. Conover (Timothy Allen), No. 90782-0

general discretion judges have in deciding whether to apply sentences concurrently

or consecutively" 5 and (2) the rule of lenity. I d.

This court in Jacobs distinguished the language in former RCW 9. 94 A. 53 3(6)

from the language in (3)(e) and (4)(e). Id. We explained that this difference in the

statutory language favored running the enhancements concurrently with each other

because RCW 9.94A.533(6) did not expressly require sentencing courts to run those

enhancements consecutively to each other or to other enhancements. I d.

In 2006, the legislature amended RCW 9.94A.533(6) by adding the sentence,

"All enhancements under this subsection shall run consecutively to all other

sentencing provisions, for all offenses sentenced under this chapter." LAws OF 2006,

5
We cited RCW 9.94A.589(1)(a), which states that multiple sentences
imposed at the same time "shall" run concurrently, unless the trial court finds that
the prerequisites to an exceptional sentence are met:

Except as provided in (b) or (c) of this subsection, whenever a person
is to be sentenced for two or more current offenses, the sentence range
for each current offense shall be determined by using all other current
and prior convictions as if they were prior convictions for the purpose
of the offender score: PROVIDED, That if the court enters a finding
that some or all of the current offenses encompass the same criminal
conduct then those current offenses shall be counted as one crime.
Sentences imposed under this subsection shall be served concurrently.
Consecutive sentences may only be imposed under the exceptional
sentence provisions ofRCW 9.94A.535 ....

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State v. Conover (Timothy Allen), No. 90782-0

ch. 339, § 301 (emphasis added). The stated purpose of the amendment was to

overturn our decision in Jacobs. 6

A series of unpublished Division Two decisions have reached different results

on whether this 2006 amendment to RCW 9.94A.533(6) was limited to the issue in

Jacobs, where the sentence involved two different enhancements applied to the same

count, or whether it also reaches situations we have here, where the sentence

involves multiple enhancements of the same kind across multiple counts.7 The

decisions finding the current statute still ambiguous rely on the rule of construction

6
See In re Postsentencing Review of Gutierrez, 146 Wn. App. 151, 155-56, 188
P.3d 546 (2008); FINAL B. REP. ON ENGROSSED SECOND SUBSTITUTE S.B. 6239, at 4, 59th
Leg., Reg. Sess. (Wash. 2006); ENGROSSED SECOND SUBSTITUTE S.B. 6239, at 2, 5, 59th
Leg., Reg. Sess. (Wash. 2006); H.B. REP. ON SECOND SUBSTITUTEH.B. 6239, at 7, 13-14,
59th Leg., Reg. Sess.

7
Compare State v. White, noted at 170 Wn. App. 1026, 2012 WL 5343231 (RCW
9.94A.533(6) requires school bus stop enhancements to run consecutively to all other
sentencing provisions and to each other (citing Gutierrez)), and State v. Gugger, noted at
168 Wn. App. 1010, 2012 WL 1699868 (amendment permits multiple enhancements and
directs that they run consecutively to each other (citing Gutierrez)), with State v. Ross,
noted at 157 Wn. App. 1054, 2010 WL 3489931, at *4 (finding the amended statute still
ambiguous, applying rule of lenity and requiring enhancements to run concurrently with
each other; "While the legislature tried to remedy the ambiguity the Jacobs court identified,
it did not. The first sentence in the statute extends the standard range for each conviction
by the length of the applicable enhancement. ... These two standard range current offenses
would normally be served concurrently. RCW 9.94A.589(1)(a). Yet, the second sentence
suggests that all enhancements be served consecutively; but this can only occur if the
enhancements are not part of standard range sentences, a proposition that the court in
Gutierrez rejected. This does not make the second sentence in RCW 9.94A.533(6)
meaningless because it still requires that when multiple enhancements apply to a single
criminal act, the court must impose those enhancements consecutively to each other"), and
State v. Lawson, noted at 145 Wn. App. 1031, 2008 WL 2601424 (same).

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State v. Conover {Timothy Allen), No. 90782-0

that the legislature's use of certain statutory language in one instance, i.e., RCW

9.94A.533(3)( e) and (4)( e), but different language in another, i.e., RCW

9.94A.533(6), indicates a different legislative intent. See Roberts, 117 Wn.2d at 586

(quoting In re Det. of Swanson, 115 Wn.2d 21, 27, 804 P.2d 1 (1990)).

We hold that that amendment addressed only the scenario presented in Jacobs.

The Jacobs decision identified and relied on the differences in statutory language

between the drug zone enhancement provision and the firearm and deadly weapon

enhancement provisions. Jacobs, 154 Wn.2d at 603. The legislature, when it

amended RCW 9.94A.533(6) in 2006, cited Jacobs but did not add language to

explicitly require all drug zone enhancements to run consecutively to all other drug

zone enhancements, as it had when it amended the firearm and deadly weapon

enhancement provisions to respond to Charles. Specifically, the drug zone

enhancement says, "All enhancements under this subsection shall run consecutively

to all other sentencing provisions, for all offenses sentenced under this chapter."

RCW 9.94A.533(6) (emphasis added). The firearm enhancement, in contrast, states,

"[A]ll firearm enhancements under this section ... shall run consecutively to all

other sentencing provisions, including other firearm or deadly weapon

enhancements, for all offenses sentenced under this chapter." RCW 9.94A.533(3)(e)

(emphasis added). The deadly weapon enhancement, like the firearm enhancement

but unlike the drug zone enhancement, states, "[A]ll deadly weapon enhancements

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State v. Conover (Timothy Allen), No. 90782-0

under this section ... shall run consecutively to all other sentencing provisions,

including other firearm or deadly weapon enhancements, for all offenses sentenced

under this chapter." RCW 9.94A.533(4)(e) (emphasis added).

Thus, the language in the drug zone enhancement does not require trial courts

to run such enhancements consecutively across counts. See State v. Delgado, 148

Wn.2d 723, 728, 63 P.3d 792 (2003) (giving effect to differences in language

between two-strike statute and three-strike statute); Charles, 135 Wn.2d at 249

("When construing a statute, we read it in its entirety and interpret the various

provisions in light of one another."); Roberts, 117 Wn.2d at 586. A contrary

interpretation would render the additional language in RCW 9.94A.533(3)(e) and

(4)(e) superfluous; this we will not do. See State v. K.L.B., 180 Wn.2d 735, 742, 328

P.3d 886 (2014) ("'a court must not interpret a statute in any way that renders any

portion meaningless or superfluous"' (quoting Jongeward v. BNSF Ry., 174 Wn.2d

586, 601,278 P.3d 157 (2012))).

CONCLUSION

We hold that RCW 9.94A.533(6) requires the trial court to run Conover's bus

stop enhancements consecutively to the base sentences for each of his three delivery

counts, but not consecutively to each other. We reverse the Court of Appeals and

remand for resentencing.

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State v. Conover (Timothy Allen), No. 90782-0

WE CONCUR:

17