In Re Acron

95 P.3d 1272
CourtCourt of Appeals of Washington
DecidedAugust 16, 2004
Docket52877-7-I
StatusPublished
Cited by9 cases

This text of 95 P.3d 1272 (In Re Acron) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Acron, 95 P.3d 1272 (Wash. Ct. App. 2004).

Opinion

95 P.3d 1272 (2004)

In the Matter of the Personal Restraint Petition Of Michael ACRON, Petitioner.

No. 52877-7-I.

Court of Appeals of Washington, Division 1.

August 16, 2004.

*1273 Eric Nielson, Nielsen Broman & Koch, Seattle, WA for Appellant.

Seth Aaron Fine, Snohomish Co. Prosecuting Attorney, Everett, WA, for Respondent.

ELLINGTON, A.C.J.

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(1)(d), which is the section pertaining to an offense by a health care provider against a patient. Acron entered an Alford[1] plea to both counts. The trial court calculated a standard range sentence of 31 to 41 months, based upon its determination that, like other indecent liberties offenses, Acron's offense carried a seriousness level of VII. The court then imposed concurrent exceptional sentences of 84 months. On direct appeal, we affirmed the exceptional sentence as justified by the victims' particular vulnerability.[2] Acron filed this personal restraint petition challenging his offender score.

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 intersection of a grid consisting of seriousness level rankings for offenses, and the offender's criminal history, or offender score.[3] OFFENSES WITHOUT An assigned seriousness level (unranked offenses) are not found on the grid, and carry a standard range of 0 to 12 months.[4]

In 1988, the legislature amended RCW 9A.44.100 to establish three means of committing indecent liberties, one by forcible compulsion and two without.[5] Each means was assigned a seriousness level, and a textual reference and statutory citation for each was included in the seriousness level table in RCW 9.94A.515.[6] Indecent liberties with forcible compulsion, RCW 9A.44.100(1)(a), was assigned seriousness level VII. The two offenses committed without forcible compulsion, RCW 9A.44.100(1)(b) and (c), were assigned seriousness level VI. In 1990, the legislature raised the seriousness level of indecent liberties with forcible compulsion to level IX, and the two means without forcible compulsion to level VII.[7]

*1274 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.[8] The legislature did not, however, amend the seriousness level table in RCW 9.94A.515, or otherwise assign a seriousness level to these new offenses.

In 1997, the legislature added yet another means of committing indecent liberties without forcible compulsion,[9] and again increased the seriousness level of indecent liberties with forcible compulsion. Once again, however, the legislature assigned no seriousness level ranking to the new means of committing indecent liberties without forcible compulsion. Of the five offenses now constituting indecent liberties without forcible compulsion,[10] only two are assigned a seriousness level ranking.

DISCUSSION

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: "Where a statute specifically designates the things upon which it operates, there is an inference that the Legislature intended all omissions.'"[11] The seriousness level table specifically designates RCW 9A.44.100(1)(b) and (c) as level VII offenses, and omits any reference to RCW 9A.44.100(1)(d), (e), or (f). The inference required by the rule is that the legislature intended this omission, and thus that the legislature intended to leave Acron's offense unranked.

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 *1275 crimes."[12] Leaving certain versions of indecent liberties unranked thus may have been a deliberate legislative decision.[13] (As Judge Coleman's concurrence points out, however, this seems unlikely.)

Even if the legislature did not intend to omit the three new methods of committing indecent liberties from the seriousness level table, however, we must leave it to the legislature to correct the error.[14] APPELLATE COURTS DO not supply omitted language even when the legislature's omission is clearly inadvertent, unless the omission renders the statute irrational. "To do so would [be] to arrogate to ourselves the power to make legislative schemes more perfect, more comprehensive and more consistent."[15] Thus, where the legislature's omission "did not undermine the purposes of the statute [but] simply kept the purposes from being effectuated comprehensively," we will not read omitted language into a statute.[16]

In State v. Taylor,[17] the defendant appealed his felony flight conviction on grounds that the offense had been decriminalized by RCW 46.63.020, which decriminalized traffic offenses, with certain specified exceptions. Still criminalized were reckless driving and failure to stop.

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Bluebook (online)
95 P.3d 1272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acron-washctapp-2004.