State v. Durrett
State v. Durrett
Opinion of the Court
¶1 Donnie Durrett, a convicted sex offender, failed to report weekly to the King County sheriff during the period November 6, 2006, through November 17, 2006, and during the period December 6, 2006, through January 23, 2007. A jury found him guilty of two counts of failure to register as a sex offender. We agree with Durrett that the two convictions violate double jeopardy because they involve only one unit of prosecution. We also agree that under our recent decision in State v. Linerud,
FACTS
¶2 Appellant Durrett has been registered as a sex offender with the King County Sheriff’s Office since October 2004. Because he has no fixed residence, Durrett must also report weekly to the sheriff’s office.
¶3 When Durrett was last released from jail on October 23, 2006, he reported to the sheriff’s office on October 23, 2006, and again the following week of October 30, 2006. Durrett failed to report during the weeks of November 6 and November 13, 2006. He reported during the weeks of November 20 and November 27, 2006, and then did not report again until he was arrested on January 22, 2007.
¶4 The State charged Durrett with one count of failure to register as a sex offender, alleging that he failed to report weekly from December 6, 2006, through January 22, 2007. After the trial ended in a hung jury, the State amended the information to add a second count of failure to register, alleging that Durrett failed to report weekly from November 6, 2006 through November 17, 2006.
¶5 On retrial, the jury found Durrett guilty as charged of both counts. At sentencing, the court imposed concurrent standard range terms of 43 months and community custody of 36 to 48 months. The court placed a handwritten notation on the judgment and sentence specifying that “ [t]he total term of incarceration and community custody cannot exceed a combined term of 60 months.”
DISCUSSION
¶6 Durrett contends that his conviction for two counts of failure to register as a sex offender violated double jeopardy
¶7 The double jeopardy provisions of both the state and federal constitutions prohibit multiple convictions under the same statute if the defendant has committed only “one unit of the crime.”
¶8 Former RCW 9A.44.130 (2006) imposes on specified sex offenders a general duty to register with the sheriff of the county in which they live.
¶9 Durrett, who was properly registered with the King County sheriff, failed to comply with former RCW 9A.44-.130(6)(b), which requires offenders who have no fixed residence to “report weekly, in person, to the sheriff of the county where he or she is registered.” He was then charged under former RCW 9A.44.130(ll)(a), which provides that “[a] person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony.”
¶10 The State reasons that because “weekly” means once a week, the plain language of the statute defines each weekly failure to report as a separate and distinct violation of the statute. Durrett, pointing primarily to provisions in former RCW 9A.44.140 (2006), argues that failure to register is an ongoing, single offense that does not terminate until certain statutory events occur. But neither the State nor Durrett offers any meaningful analysis of what legislative intent can be gleaned from the primary operative language of the charged offense: “knowingly fails to comply with any of the requirements of this section.”
¶11 Our Supreme Court has recently emphasized the difficulty in determining legislative intent as to unit of prosecution from the definition of “any.” In State v. Sutherby,
Given the context of the language used in the child pornography statute, and our repeated construction of “any” as including “every” and “all,” we hold that the proper unit of prosecution under former ROW 9.68A.070 is one count per possession of child pornography, without regard to the number of images comprising such possession or the number of minors depicted in the images possessed.[14]
¶13 The Sutherby court also pointed to the decision in State v. Westling
¶14 Former RCW 9A.44.130(ll)(a) criminalizes a violation of “any of the [registration and reporting] requirements.” Washington law favors construing “any” as meaning “every” and “all” rather than, as the State suggests, “any one.” The use of the plural “requirements” rather than a singular form favors this approach as well. Federal courts have routinely held the use of the word “any” causes
¶15 Moreover, the statutory requirements in this case involved Durrett’s obligation to “report weekly, in person, to the sheriff.” The State argues that this requirement creates a discrete and separate offense of failing to report each week. But former RCW 9A.44.140(3)(a) (2006) refers to the “duty to register” under former RCW 9A.44.130 and specifies in extensive detail when and under what circumstances that duty ends. This characterization suggests that it is reasonable to view the “requirement” to report weekly as an ongoing obligation or duty rather than a collection of discrete actions. Viewed in this manner, the duty to report weekly is more appropriately described as an ongoing course of conduct that may not be divided into separate time periods to support separate charges.
¶16 Our research has not disclosed a unit of prosecution case addressing a statute similar to the reporting obligation in former RCW 9A.44.130(6)(b), and neither party has cited one. The United States Supreme Court addressed a somewhat analogous provision in United States v. Universal C.I.T. Credit Corp.
a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single “impulse,” a conception recognized by this Court in the Blockburger case.[23]
The Court’s analysis supports the argument that we should construe the failure to report weekly as an ongoing duty and, at least under the facts here, as a course of conduct.
¶18 We recognize that former RCW 9A.44.130(ll)(a) can reasonably be construed either to punish each weekly failure to report or the failure to comply with the ongoing duty to report. But the significantly harsher consequences of the former interpretation, coupled with the broad meaning accorded the term “any” in Washington and the absence of any statutory indication of the legislature’s intention, favor application of the rule of lenity here. Under this analysis, the punishable offense would be a course of conduct—the failure to comply with the ongoing duty to report—rather than each separate failure to report.
¶19 Once we have determined the correct unit of prosecution, “a factual analysis is necessary to decide whether, under the facts of the case, more than one unit of prosecution is present.”
¶20 The State’s reasoning is flawed. The period of Durrett’s failure to report weekly began on November 6, 2006, and ended on January 22, 2007, when he was arrested. Had he not reported at all during this period, he would have been subject to conviction for one count of failure to register. But under the State’s theory, because he partially complied by interrupting the noncompliance with two weeks of compliance, he became subject to conviction on two counts. Had he reported weekly on more occasions during this period, he could have become subject to even more charges. That interpretation is contrary to the statutory goal of encouraging regular reporting.
¶21 The parties disagree about the relevance of former RCW 9A.44.140(6), which provides that “[ujnless relieved of the duty to register pursuant to this section, a violation of RCW 9A.44.130 is an ongoing offense for purposes of the statute of limitations under RCW 9A.04.080.” Durrett relies on this provision to argue that the legislature intended to define the weekly reporting obligation as a continuing offense. The State argues it shows an intent to create a separate weekly offense. Generally, the doctrine of “continuing criminal impulse” involves the issue of when the crime is complete for purposes of the statute of limitations.
¶22 Durrett contends that the sentencing court exceeded its statutory authority and violated the separation of pow
¶23 This court recently addressed an essentially identical issue in Linerud, concluding that this type of sentence violates the SRA because it is indeterminate and impermissibly allows the Department of Corrections to determine sentence length.
¶24 Durrett has filed a statement of additional grounds for review as permitted by RAP 10.10. Initially, he challenges alleged errors that occurred during his first trial. But there is no basis to address such contentions in the appeal from the retrial.
¶25 Durrett also claims that his conviction must be reversed because the amended information and jury instructions did not include the statutory requirement that he report weekly on “a day specified by the county sheriff’s office.”
¶26 Durrett next contends that the sentencing court lacked statutory authority to impose community custody because failure to register is not a sex offense. This court rejected an analogous contention in State v. Albright.
¶27 We decline to address Durrett’s remaining allegations. Some of his claims are insufficient to “inform the court of the nature and occurrence of alleged errors.”
¶28 Remand for resentencing on a single count of failure to register and entry of a sentence consistent with Linerud.
147 Wn. App. 944, 197 P.3d 1224 (2008).
State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002).
State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998).
See State v. Diaz-Flores, 148 Wn. App. 911, 915-16, 201 P.3d 1073 (2009).
State v. Sutherby, 165 Wn.2d 870, 878-79, 204 P.3d 916 (2009) (internal quotation marks omitted) (quoting State v. Adel, 136 Wn.2d 629, 634-35, 965 P.2d 1072 (1998)).
State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635 (2005).
Adel, 136 Wn.2d at 632.
Former RCW 9A.44.130(l)(a) (2006).
See State v. Peterson, 145 Wn. App. 672, 678, 186 P.3d 1179 (2008) (noting that most subsections of former RCW 9A.44.130 articulate definition of continuing compliance and do not create alternative means of committing the crime of failure to register), review granted, 165 Wn.2d 1027, 203 P.3d 379 (2009).
Former RCW 9A.44.130(4)(b).
(Emphasis added.)
165 Wn.2d 870, 204 P.3d 916 (2009).
Former RCW 9.68A.011(2) (2006).
14 Sutherby, 165 Wn.2d at 882.
145 Wn.2d 607, 610, 40 P.3d 669 (2002).
Id. at 611-12 (emphasis omitted).
United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir.), cert. denied, 501 U.S. 1217 (1991); see also Bell v. United States, 349 U.S. 81, 82, 75 S. Ct. 620, 99 L. Ed. 905 (1955) (Congress did not clearly and unambiguously define unit of prosecution for transporting under Mann Act “any woman or girl” to support two convictions for transporting two women at once.).
Adel, 136 Wn.2d at 635.
344 U.S. 218, 73 S. Ct. 227, 97 L. Ed. 260 (1952).
Id. at 219.
Universal C.I.T., 344 U.S. at 219 n.1 (quoting Fair Labor Standards Act §§ 15, 16).
Id. at 220 n.3 (quoting Br. of United States at 10).
23 Id. at 224 (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
Westling, 145 Wn.2d at 612.
See State v. Mermis, 105 Wn. App. 738, 744-46, 20 P.3d 1044, review denied, 145 Wn.2d 1014 (2001).
See former RCW 9A.44.130(ll)(a); former RCW 9A.20.021(l)(c) (2006).
See State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004).
Linerud, 147 Wn. App. at 949-50.
See State v. Berg, 147 Wn. App. 923, 941, 198 P.3d 529 (2008).
Former RCW 9A.44.130(6)(b).
144 Wn. App. 566, 572-73, 183 P.3d 1094 (correcting numbering error because it leads to absurd results), review denied, 164 Wn.2d 1028 (2008).
See RAP 10.10(c).
See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).
Dissenting Opinion
¶29 (dissenting) — I concur in all aspects of the opinion save one: I respectfully dissent from the remand for resentencing as unnecessary. I adhere to the views expressed in State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004) and State v. Hagler, 150 Wn. App. 196, 208 P.3d 32 (2009).
Reconsideration denied July 16, 2009.
Reference
- Full Case Name
- The State of Washington v. Donnie W. Durrett
- Cited By
- 13 cases
- Status
- Published