In Re Postsentence Review of Leach

163 P.3d 782
CourtWashington Supreme Court
DecidedAugust 2, 2007
Docket79432-4
StatusPublished
Cited by46 cases

This text of 163 P.3d 782 (In Re Postsentence Review of Leach) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Postsentence Review of Leach, 163 P.3d 782 (Wash. 2007).

Opinion

163 P.3d 782 (2007)

In the Matter of the POSTSENTENCE REVIEW OF Yulanda LEACH, Respondent.

No. 79432-4.

Supreme Court of Washington, En Banc.

Argued May 24, 2007.
Decided August 2, 2007.

*783 Ronda Denise Larson, Gregory Joseph Rosen, Atty. Generals Office/CJ Division, Jay Douglas Geck, Office of the Attorney General, Olympia, WA, for Petitioner.

Mark Thomas Quigley, Pierce Cnty. Dept. of Assigned Counsel, Dione Joy Ludlow, Pierce County Prosecutors Office, Michelle Luna-Green, Pierce Co. Pros. Attorney, Tacoma, WA, for Respondent.

SANDERS, J.

¶ 1 We must decide whether a court can sentence an offender to community custody for attempted second degree assault of a child. Yulanda Leach was sentenced to about two years in prison and between 9 and 18 months community custody for attempting to assault her 12-year-old son. The Department of Corrections claims Leach cannot be placed on community custody because the statute authorizing community custody refers to "any crime against persons" and attempted assault is not listed as a "Crime Against Persons." The State claims it would create absurd results if we do not consider "attempted assault" as a "Crime Against Persons." The Court of Appeals denied the Department of Corrections' petition for post-sentence review, leaving Leach's community custody sentence in place. The Department of Corrections petitioned this court, and we accepted review.

¶ 2 We agree with the Department of Corrections that we cannot add "attempted assault" or any other offenses to RCW 9.94A.411(2) as judicial gloss because the statute presents an exhaustive list of "Crimes Against Persons." It is the legislature's purview to decide what one can and cannot be punished for, and for us to do so would usurp its authority.

FACTS

¶ 3 On May 11, 2005, Yulanda Leach attacked her 12-year-old son with a tire iron. Police were called and witnesses reported seeing Leach strike and threaten her son, D.L., with the tire iron to get him out of her car. Witnesses saw the boy shielding his face from the weapon while bleeding badly. When someone went to confront Leach, she fled the scene in her vehicle, leaving her son behind. D.L. was transported to the hospital where he told authorities his mother was upset because he had been suspended from school. D.L. said he was hit twice in the shin, once in the mouth, and once in the stomach. Leach pleaded guilty to attempted assault of a child in the second degree. She was sentenced to 23.25 months' confinement and between 9 and 18 months' community custody.

¶ 4 It is Leach's community custody sentence that is at issue here. The Department of Corrections claims that while Leach could be sentenced to community custody for assault of a child, she cannot be sentenced for community custody for attempted assault of a child. This is because RCW 9.94A.715 specifically enumerates the offenses for which a defendant can be sentenced to community custody. One such category is "any crime against persons under RCW 9.94A.411(2)." RCW 9.94A.715(1). And while "Crimes Against Persons" includes assault of a child in the second degree, it does not include any reference to "attempted assault" or any other anticipatory offense, such as solicitation or conspiracy.

¶ 5 The State, however, claims the list is illustrative. The Court of Appeals, Division Two, agreed, stating, "[a]ttempted second degree assault of a child is a crime against a person." In re Postsentence Review of Yulanda Leach, No. 34282-1-II, Order Den. Pet. at 2 (Wash.Ct.App. Oct. 6, 2006).[1] But *784 there is tension among lower court decisions. Division Three of the Court of Appeals held a crime not listed under RCW 9.94A.411(2) could not be a crime against a person for purposes of RCW 9.94A.715. In re Postsentence Review of Childers, 135 Wash.App. 37, 40, 143 P.3d 831 (2006) ("Because residential burglary is not listed in RCW 9.94A.411, it does not qualify as a crime against a person and thus it cannot be a basis for the court to impose community custody."). But in In re Postsentence Review of Manier, 135 Wash. App. 33, 35, 143 P.3d 604 (2006), the same panel of Division Three judges held attempt of a crime listed under RCW 9.94A.411(2) was also a crime against a person because "the nature of the crime, whether against a person or property, does not change simply because the offense was attempted rather than actually committed." In its order denying petition, the court below relied on Manier. Now we are asked to determine whether RCW 9.94A.411(2) constitutes an exclusive list of "Crimes Against Persons" for purposes of community custody.

ANALYSIS

¶ 6 Statutory construction is a question of law and reviewed de novo. Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001). A trial court may impose a sentence that is only authorized by statute. In re Pers. Restraint of Carle, 93 Wash.2d 31, 604 P.2d 1293 (1980). And the statute authorizing the superior court to impose a sentence of community custody is RCW 9.94A.715. Specifically, the statute provides:

When a court sentences a person to the custody of the department for a sex offense not sentenced under RCW 9.94A.712, a violent offense, any crime against persons under RCW 9.94A.411(2), or a felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000, or when a court sentences a person to a term of confinement of one year or less for a violation of RCW 9A.44.130(10)(a) committed on or after June 7, 2006, the court shall in addition to the other terms of the sentence, sentence the offender to community custody. . . .

RCW 9.94A.715(1) (emphasis added).

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163 P.3d 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-postsentence-review-of-leach-wash-2007.