State v. Sulayman
State v. Sulayman
Opinion of the Court
The State appeals Sulayman’s sentence, arguing that the sentencing court erred by refusing to consider Sulayman’s 1986 juvenile adjudications in computing his offender score. Sulayman argued, and the sentencing court agreed, that considering the adjudications would result in a retroactive application of the statute. But a statute operates prospectively when the precipitating event for its application occurs after the effective date of the statute, and the precipitating event in this case was Sulayman’s current conviction. The sentencing court erred. We remand
FACTS
At sentencing, Sulayman’s criminal history included five adult felony convictions and two juvenile adjudications. The adjudications were dated February 25, 1994. Including the adjudications, the State argued that the standard range was 12 months and 1 day to 14 months. The State recommended a sentence of 12 months and 1 day.
The former version of RCW 9.94A.360(1) would have resulted in the exclusion of Sulayman’s juvenile adjudications in computing his offender score. But the amended 1997 statute, in effect at the time of Sulayman’s current conviction, contains no such exclusion. The sentencing judge excluded the juvenile adjudications, reasoning that including them would constitute an improper “retroactive” application of the sentencing statute in violation of Sulayman’s due process rights. Without the adjudications, the standard range was 4 to 12 months. The court sentenced Sulayman to 12 months’ incarceration and 12 months’ community supervision. The State appeals.
DISCUSSION
1. Consideration of Sulayman’s prior juvenile adjudications in computation of his offender score is not a retroactive application of the sentencing statute.
Sulayman argued during sentencing that the State’s proposed inclusion of two prior juvenile adjudications in his offender score would violate his due process rights because he had a vested right in their exclusion when he pleaded guilty to the offenses in reliance on the preexisting statute. We reach only the merits of his vested rights claim, however, if we accept Sulayman’s initial premise that this case presents a retroactive application of the statute. It does not.
In State v. Randle,
Similarly, in State v. Cruz
These cases are distinguishable from State v. T.K.,
The provision at issue here does not come into effect until after the completion of a criminal act entirely unrelated to Sulayman’s juvenile adjudications. As a result, as was the case in Randle and Cruz, the precipitating event was Sulayman’s current conviction. The court erred in adopting Sulayman’s due process argument because the statute did not have to be applied retroactively to include the adjudications.
2. The State’s appeal is not moot because inclusion of the adjudications results in a longer standard range.
Sulayman contends that the State’s appeal is moot because he has already served a more onerous sentence. He argues that the few extra hours he would have to serve under the State’s recommended sentence would be more than outweighed by the length of time he has served under community supervision. We disagree.
Such a result is not in conflict with Sulayman’s double jeopardy rights. In the multiple punishment context, “ ‘the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ”
We further note that treating nondetention probation time as equivalent to jail time in this case could result in a defendant with a lower offender score receiving a harsher sentence than a defendant with a higher offender score. This clearly was not within the Legislature’s intent. Moreover, the maximum sentence in this case is five years. A sentence of one year incarceration and one year community supervision is not, as a matter of law, punishment greater than the Legislature intended. Remand to correct the erro
Although not constitutionally mandated, we direct that the sentencing court consider and credit as it deems appropriate time Sulayman spent under community supervision. Although argued by Sulayman, the error in refusing to count Sulayman’s juvenile adjudications in his offender score and the resulting sentence to community supervision was that of the sentencing court. And when the State appealed, it did not seek a stay of the court’s order. The interest of justice would not be served by denying Sulayman some credit for this time.
We vacate the sentence and remand for resentencing in accordance with this opinion.
Becker and Ellington, JJ., concur.
State v. Humphrey, 91 Wn. App. 677, 682, 959 P.2d 681 (1998), review granted, 137 Wn.2d 1008 (1999).
State v. Blank, 131 Wn.2d 230, 248, 930 P.2d 1213 (1997) (citation omitted).
State v. Randle, 47 Wn. App. 232, 734 P.2d 51 (1987).
Id. at 240-41 (citation omitted).
State v. Cruz, 91 Wn. App. 389, 398-99, 959 P.2d 670 (1998), review granted, 137 Wn.2d 1008 (1999).
Id. at 399.
Id.
State v. T.K., 94 Wn. App. 121, 971 P.2d 121, review granted, 137 Wn.2d 1027 (1999).
See State v. Hale, 94 Wn. App. 46, 971 P.2d 88, 94 (1999).
Br. of Resp’t, at 9 n.7.
Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989) (citation omitted).
State v. Phelan, 100 Wn.2d 508, 516, 671 P.2d 1212 (1983).
State v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992) (citing In re Personal Restraint of Phelan, 97 Wn.2d 590, 598, 647 P.2d 1026 (1982)); In re Personal Restraint of Knapp, 102 Wn.2d 466, 470-71, 687 P.2d 1145 (1984).
See State v. Freitag, 127 Wn.2d 141, 145, 896 P.2d 1254, 905 P.2d 355 (1995).
Reference
- Full Case Name
- The State of Washington v. Mansur Sulayman
- Cited By
- 4 cases
- Status
- Published