In re the Personal Restraint of Acron
In re the Personal Restraint of Acron
Opinion of the Court
Felonies for which the legislature has assigned no seriousness level ranking have a standard sentencing range of 0 to 12 months. Michael Acron was convicted of an unranked offense. His sentence was based upon the seriousness level established for another crime. We reverse and remand for resentencing.
FACTS
Michael Acron was charged with two counts of indecent liberties under RCW 9A.44.100(l)(d), which is the section pertaining to an offense by a health care provider against a patient. Acron entered an Alfordl
STATUTORY BACKGROUND
The first step in imposing sentence for a felony is to determine the standard sentencing range established by RCW 9.94A.510. The range is usually found by locating the
In 1988, the legislature amended RCW 9A.44.100 to establish three means of committing indecent liberties, one by forcible compulsion and two without.
In 1993, the legislature created two additional means of committing indecent liberties without forcible compulsion, including the health care provider version at issue in this case.
In 1997, the legislature added yet another means of committing indecent liberties without forcible compulsion
Acron’s offense is not listed in the seriousness level table. He argues the court should therefore have applied the sentence range for unranked offenses as provided in RCW 9.94A.505(2)(b), and that the court erred in adopting the level VII ranking assigned to other nonforcible indecent liberties offenses. The State responds that Acron’s sentence gives effect to the legislature’s clear intent that all means of committing indecent liberties without forcible compulsion be punished the same way.
The principle expressio unius est exclusio alterius is the starting point for analysis: “ [W]here a statute specifically designates the things upon which it operates, there is an inference that the Legislature intended all omissions.’
The Sentencing Guidelines Commission recommends rankings to the legislature and does not recommend that all offenses be ranked: “The Commission decided not to rank certain felonies which seldom occur. ... If, in the future, a significant number of persons are convicted of offenses not included in the Seriousness Level Table, the Commission will recommend appropriate seriousness levels to the Legislature for those crimes.”
In State v. Taylor,
Similarly here, omitting the three new versions of indecent liberties from the seriousness level table does not undermine either statute. The indecent liberties statute can still be enforced; violations can still be punished. The seriousness level statute continues to be part of the sentencing scheme, which is not made irrational by the exclusion of three offenses.
State v. Mendoza
The Legislature’s failure to include sentencing directions like those in the RCW Title 9 statutes in RCW 69.50.407 gives rise to a presumption that the Legislature intended to treat conspiracies charged under RCW 69.50.407 differently. Furthermore, even assuming the Legislature did not intend this result, this court cannot read into a statute those things which we conceive the Legislature may have left out unintentionally
We conclude, therefore, that there is no seriousness level set for conspiracies charged under RCW 69.50.407, that the standard range for such a conspiracy cannot be determined, and that RCW 9.94A.120(6)[20 ] requires a standard range of 0 to 12 months in this case.[21 ]
The State points first to RCW 1.12.028, which 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.” The State argues this rule requires us to read the textual description to include the later amendments adding additional means of committing indecent liberties without forcible compulsion. Division Three applied this rule in State v. Horton,
But in Horton, the assault statute cited in the enhancement statute had been replaced; the provision purporting to apply to second degree assault would thus have been a nullity unless construed as applying to the replacement statute. In Taylor’s terms, omission of the updated citation undermined the purpose of the enhancement statute; supplying the omitted language was “imperative to make the statute rational.”
The State next points to the “later in time” rule set out in State v. Stackhouse:
If the omission of RCW 9A.44.100(l)(d), (e), and (f) from the seriousness level table prevents the legislature’s purposes from being perfectly realized, it is for the legislature to correct its oversight. We therefore reverse Acron’s sentence and remand for resentencing in accord with RCW 9.94A.505(2)(b).
Schindler, J., concurs.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
State v. Acron, noted at 101 Wn. App. 1020 (2000).
RCW 9.94A.530(1).
RCW 9.94A.505(2)(b) provides:
If a standard sentence range has not been established for the offender’s crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; until July 1, 2000, a term of community supervision not to exceed one year and on and after July 1, 2000, a term of community custody not to exceed one year, subject to conditions and sanctions as authorized in RCW 9.94A.710(2) and (3); and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535.
Laws of 1988, ch. 146, § 2.
Laws of 1988, ch. 218, § 2.
Laws of 1990, ch. 3, § 702.
Former RCW 9A.44.100(1) (1988), amended by Laws of 1993, ch. 477, § 3 (adding subsection (l)(d), where the perpetrator is a health care provider and the victim is a client or patient, and subsection (l)(e), where the victim is a resident
Laws of 1997, ch. 340, § 1; ch. 392, § 515 (adding subsection (l)(f) pertaining to victims who are frail elders or vulnerable adults where the perpetrator is not married to the victim but has a significant relationship with the victim).
The statute now provides:
(1) A person is guilty of indecent liberties when he or she knowingly causes another person who is not his or her spouse to have sexual contact with him or her or another:
(a) By forcible compulsion;
(b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless;
(c) When the victim is developmental^ disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;
(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment;
(e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or
(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.
(2) Indecent liberties is a class B felony, except that indecent liberties by forcible compulsion is a class A felony.
RCW 9A.44.100.
In re Pers. Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999) (quoting Queets Band of Indians v. State, 102 Wn.2d 1, 5, 682 P.2d 909 (1984)).
Washington State Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual at 11-57 (1993).
On the other hand, the Sentencing Guidelines Commission manual contains an index of felony offenses and their seriousness level rankings. Where offenses
State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982); see also State u. Mendoza, 63 Wn. App. 373, 378, 819 P.2d 387 (1991).
Taylor, 97 Wn.2d at 729.
97 Wn.2d 724, 649 P.2d 633 (1982).
63 Wn. App. 373, 819 P.2d 387 (1991).
Recodified as RCW 9.94A.505(2)(b) (Laws op 2001, eh. 10, § 6). See supra note 9.
Mendoza, 63 Wn. App. at 377-78 (citations and footnote omitted).
See State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002) (appellate courts must construe an ambiguous statute to effectuate the intent of the legislature).
59 Wn. App. 412, 798 P.2d 813 (1990).
At the time of Horton’s offense, RCW 9.94A.310(3) provided: “If the offender .. . was armed with a deadly weapon . .. the following times shall be added to the presumptive range [:] .. .. (c) 12 months for Assault 2 (RCW 9A.36.020).” Horton, 59 Wn. App. at 414 n.3.
RCW 9A.36.020(l)(c).
Horton, 59 Wn. App. at 416.
Taylor, 97 Wn.2d at 729.
88 Wn. App. 963, 947 P.2d 777 (1997).
Id. at 968 (citations omitted).
Resp’t’s Br. at 7-8.
Mendoza, 63 Wn. App. at 377-78.
Acron has asked to file additional briefing challenging his exceptional sentence under Blakely v. Washington,_U.S._, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Because we reverse and remand for resentencing, we deny the motion.
Concurring Opinion
(concurring)
Considering the serious attention the legislature has given to the crime of indecent liberties, I doubt that leaving certain versions of that crime unranked was a deliberate legislative decision. Nonetheless, I fully agree with the conclusion and supporting analysis that we must leave it to the legislature to correct any omission.
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