State v. Cruz

Talmadge, J.

(dissenting) — The majority interprets the “wash out” provisions of the 1990 legislation recommended by the Governor’s Task Force on Community Protection in a fashion that defies the plain language of the statute and contradicts settled Washington case law on sentencing. I would enforce the language of the statute as it was written and uphold prior Washington sentencing case law. In this case, I would affirm the trial court’s imposition of a life sentence on Cruz.

The facts in this case are straightforward. Cruz was convicted of rape in 1975 and sentenced under the law that predated Washington’s Sentencing Reform Act of 1981 (SRA). He was convicted of a second felony, attempted burglary in the first degree, in 1989 after he entered his ex-wife’s apartment and attempted to assault her. At the time of his sentencing for the second felony, the SRA governed Cruz’s sentence. Under the law as it then applied, Cruz’s 1975 conviction “washed out,” that is, it was not counted for purposes of his criminal history because it was treated as a class B felony and such felonies were not counted as criminal history if the defendant spent 10 years in the community since the last date of release from confinement without being convicted of a felony. Former RCW 9.94A.360, as amended by Laws of 1984, ch. 209, § 19; Laws of 1988, ch. 157, § 3; Laws of 1988, ch. 153, § 12. Cruz was then sentenced based on an offender score of O.

In 1994, Cruz took a 4-year-old girl and a 6-year-old girl into a cornfield where he raped the 6-year-old and then threatened both of them to secure their silence about the crime. He was charged with rape of a child in the first degree and convicted of the crime in a stipulated facts trial after having been specifically advised by the trial court he was susceptible to a fife sentence under Washington’s Persistent Offender Accountability Act (three strikes law), RCW 9.94A.120(4). The trial court sentenced Cruz to life imprisonment without possibility of parole in accordance with that popular 1993 legislation because he had three felony convictions.

*195Cruz now claims, and the majority agrees, the 1990 amendments to the SRA wash out provisions of RCW 9.94A.360 do not allow the courts to count Cruz’s 1975 conviction once it had washed out, and the 1990 amendments may be applied only “prospectively.”

The specific language of the 1990 amendments to RCW 9.94A.360(2) makes clear the legislative intent:

Except as provided in subsection (4) of this section, class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without being convicted of any felonies. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies. Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without being convicted of any serious traffic or felony traffic offenses. This subsection applies to both adult and juvenile prior convictions.

Laws of 1990, ch. 3, § 706 (changes underscored). Moreover, in Laws of 1990, ch. 3, § 1406(2), the Legislature indicated its intent to apply the amendments prospectively: “Sections ... 701 through 706 . . . shall take effect July 1, 1990, and shall apply to crimes committed on or after July 1, 1990.” The statute plainly requires courts to take into consideration “Class A and sex prior felony convictions.” The majority asserts this mandate applies only prospectively, but fails to explain what prospective application would mean. Implicit in the majority view is that prospec*196tive application would limit “Class A and sex prior felony convictions” to those occurring only after the effective date of the statute, July 1, 1990. Qualifying crimes committed before that date could not be counted in sentencing proceedings occurring after that date. The majority’s approach would severely limit the applicability of the three strikes law in a way never intended by the Legislature and the people.6

We effectuate legislative intent, as we must do according to our cardinal principle of statutory interpretation, City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wn.2d 38, 52, 959 P.2d 1091 (1998), by concluding the 1990 amendments applied to Cruz’s 1994 crime in calculating his criminal history. Cruz could understand in 1994 that if he engaged in an additional felony after July 1, 1990, the calculation of his offender score under SRA would be subject to the 1990 amendments to RCW 9.94A.360. He thus had sufficient notice to govern his behavior.

The majority’s view that the 1990 amendments may not “revive” felonies that have previously “washed out” is without support in the statute or in our case law. The majority confuses “wash out” with expungement. Cruz committed a qualifying crime in 1975. He has never been exonerated of that offense, and it has never been expunged from the record. Even a pardon by the Governor does not serve to eliminate the criminal conviction:

In Washington, a Governor’s unconditional pardon does not expunge the crime pardoned from the pardon recipient’s record. State v. Cullen, 14 Wn.2d 105, 110, 127 P.2d 257 (1942). It merely forgives the crime by commuting the sentence. The rationale for this stems from the nature of the pardon itself; by a pardon, the Governor forgives the individual for the crime committed. Such forgiving implies that guilt was established. Cullen, [14 Wn.2d] at 109. Therefore, if the same individual is *197convicted of a subsequent crime, he or she can be sentenced as if this were the second crime.

State v. Aguirre, 73 Wn. App. 682, 690, 871 P.2d 616, review denied, 124 Wn.2d 1028, 883 P.2d 326 (1994). The majority would treat the 1975 conviction as if it had never occurred. The statute at bar does not demand such a result.7

The 1990 Community Frotection Act was the product of a Washington State task force created by Governor Gardner following the murder of a young Seattle woman by an offender on work release and a brutal sexual assault on a Tacoma boy. Task Force on Community Frotection, Final Report at 1-1 (1989). The legislation was comprehensive in addressing much more severe criminal penalties for sex offenders, adult and juvenile, establishing more extended postrelease supervision of such offenders, creating a civil commitment system for sexually violent predators, providing for registration and community notification regarding sex offenders, limiting good time for incarcerated offenders, and providing treatment and victim services. The final bill report was blunt regarding the purpose of the 1990 amendments: “All prior juvenile and adult sex offenses are included in the scoring of adult sex offenders.” H.B. Rep. E2SSB 6259, at 8 (Wash. 1990). The majority would have us believe the Legislature intended to defer the 1990 amendments to the SRA wash out provisions long into the future. Nothing in the legislation supports the majority view, which defies common sense.

Further, there is nothing in the legislation to support the view, implicitly advanced by the majority, that once an offense “washes out,” such offense may never again be used to calculate a basis for a future sentence. Indeed, other courts have held statutes lengthening the periods for which prior convictions would be counted were effective to *198“revive” offenses that were washed out, provided that the statutes were enacted before the offender’s present conviction. State v. Dabney, 301 S.C. 271, 391 S.E.2d 563, cert. denied, 498 U.S. 855, 111 S. Ct. 153, 112 L. Ed. 2d 119 (1990); Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), overruled on other grounds by State v. Mendoza, 170 Ariz. 184, 823 P.2d 51 (1992).

Every Washington appellate court considering the position advanced by Cruz has rejected it. State v. Watkins, 86 Wn. App. 852, 939 P.2d 1243 (1997); State v. Angehrn, 90 Wn. App. 339, 952 P.2d 195, review denied, 136 Wn.2d 1017, 966 P.2d 1277 (1998); State v. Wood, 94 Wn. App. 636, 972 P.2d 552 (1999). As the Watkins court observed:

We are asked to decide whether the trial court erred by including the 1971 felony conviction in the offender score based on the 1995 amendment. The plain language of RCW 9.94A.360(2) indicates that the new wash-out provision applies to all prior Class B felony convictions, regardless of whether that felony would have been considered washed out under the previous law. And generally, the SRA statute governing at the time of sentencing is used to determine a defendant’s presumptive standard range sentence.

86 Wn. App. at 855.

Because there is no statutory or constitutional right to have a “washed out” offense remain permanently “washed out” and the language of the 1990 amendments unambiguously applies to Cruz’s 1994 calculation of his offender score, Cruz’s sentence must be affirmed.

Given its statutory interpretation, the majority does not reach Cruz’s other arguments. Those arguments do not afford him relief. The use of prior washed out felonies to form a basis for the calculation of Cruz’s present offender score in sentencing does not offend ex post facto principles. The use of prior crimes affects criminal behavior only after the effective date of the 1990 amendments. The amendments did not retroactively increase the penalties for past offenses, so an ex post facto violation is not present here. State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d *199796, cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986); In re Personal Restraint of Williams, 111 Wn.2d 353, 362-63, 759 P.2d 436 (1988); State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1563, 137 L. Ed. 2d 709 (1997).8

The trial court correctly applied the 1990 amendments to RCW 9.94A.360 to Cruz. Those amendments do not offend constitutional ex post facto principles. I would uphold Cruz’s life sentence.

Guy, C.J., Ireland, J., and Kennedy, J. Fro Tem., concur with Talmadge, J.

Reconsideration denied December 6, 1999.

The majority writer’s view comports with his view that the three strikes law is unconstitutional, a position that has not prevailed in this Court. State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996) (Sanders, J., dissenting).

Cf. RCW 9.95.240 (after successful probation, guilty verdict may be set aside and information or indictment may be dismissed, but “in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.”).

Cruz raises numerous arguments regarding the three strikes statute. Those arguments have largely been rejected in our prior three strikes cases. I would decline to reach those issues.