State of Washington v. Enrique Hernandez
Opinion
FILED
FEB. 3, 2015
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 31595-9-111 )
Respondent, )
)
v. )
)
ENRIQUE HERNANDEZ, ) PUBLISHED OPINION )
Appellant. )
BROWN, J. - Enrique Hernandez pled guilty to felony driving while under the influence of alcohol (felony DUI) and third degree assault. He appeals his offender score computation and two sentencing conditions. Mr. Hernandez contends the trial court (1) impermissibly considered offenses other than those listed in RCW 9.94A.525(2)(e) when calculating his offender score, (2) erred when it imposed a term of confinement and community custody greater than the statutory maximum for third degree assault, and (3) erred when it imposed a term of confinement coupled with a 10 year ignition interlock requirement in excess of the statutory maximum for felony DUI. We disagree with Mr. Hernandez' first contention but agree with his second and third contentions and remand for resentencing in a manner consistent with this opinion.
No. 31595-9-111 State v. Hernandez
FACTS
The State charged Mr. Hernandez with felony DUI and third degree assault.
Before trial, Mr. Hernandez moved the court to declare his offender score. He argued his felony DUI offender score should be 5 while the State believed his offender score was 9. Mr. Hernandez pled guilty to the felony DUI and assault charges. The court calculated his offender score for the felony DUI at 9+ and his offender score for third degree assault at 8. In calculating the offender score, the court considered the following criminal history: a 1994 juvenile conviction for second degree robbery, a 1998 forgery conviction, a 2001 DUI, physical control convictions in 2003 and 2006, a 2007 DUI, a 2003 second degree malicious mischief conviction, a 2003 conviction for attempt to elude, a 2006 second degree possession of stolen property conviction, and a 2009 felony DUI. The court sentenced Mr. Hernandez to 60 months for the felony DUI and 57 months for third degree assault, with the sentences running concurrently. The court ordered community custody for 12 months after his release and required use of an ignition interlock device for 10 years. Mr. Hernandez appealed.
ANALYSIS
A. Felony DUI Offender Score The issue is whether the trial court incorrectly calculated Mr. Hernandez' offender score for his felony DUI conviction by including all of his prior offenses in that calculation. Mr. Hernandez contends RCW 9.94A.525(2)(e) limits the prior offenses that can be used in his offender score calculation to felony DUI convictions, misdemeanor
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QUI convictions, and felony physical control convictions. Thus, he argues, the court should not have included any of his other prior convictions in his offender score calculation, making his maximum offender score 6 instead of 9+.
Our fundamental objective in statutory interpretation "is to ascertain and carry out the legislature's intent." State v. Morales, 168 Wn. App. 489, 492, 278 P.3d 668 (2012). A court must give effect to a statute's plain meaning if the meaning is plain on the statute's face. Id. "Such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question." Id. Interpretations rendering any portion of a statute meaningless should not be adopted. Id. "[S]trained meanings and absurd results should be avoided." Id.
We review offender score calculations de novo. State v. Wilson, 113 Wn. App.
122, 136,52 P.3d 545 (2002). Offender scores are calculated in three steps: U(1) identify all prior convictions; (2) eliminate those that wash out; (3) 'count' the prior convictions that remain in order to arrive at the offender score." State v. Moeurn, 170 Wn.2d 169, 175,240 P.3d 1158 (2010).
Former RCW 9.94A.525 (2011) applies here. Subsection (2)(e) states:
If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the last date of release from confinement (including full-time residential treatment) or entry
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of judgment and sentence; or (ii) the prior convictions would be considered "prior convictions within ten years" as defined in RCW 46.55.5055.
According to the Morales court, "the '[t]he prior convictions' that shall be included in the calculation of the offender score are limited to these: 'felony driving under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses.'" Morales, 168 Wn. App. at 493 (quoting RCW 9.94A.525(2)(e) (2011)). Mr. Morales had seven prior serious traffic offense convictions and a fourth degree assault conviction. Id. at 493-94,497. The court stated RCW 9.94A.525(2)(e) was applicable and RCW 9.94A.525(2)(d), discussing when serious traffic offenses wash out, had no bearing on the offender score calculation. Id. at 500-01. The court determined four of the serious traffic convictions washed out and the fourth degree assault conviction should not have been counted because "it [was] not among th[e] limited classes of prior offenses." Id. at 497,501. Including the current attempting to elude conviction, the defendant's offender score was 4 instead of 8 as calculated by the trial court. Id. at 491, 501.
Division Two of this court recently adopted part of Division One's Morales holding in State v. Jacob, 176 Wn. App. 351, 360, 308 P.3d 800 (2013). The court decided "under subsection (i) only RCW 9.94A.525-specified prior convictions count as offender score points for purposes of sentencing a defendant convicted of former RCW 46.61.502(6) (2008) felony DUI." Id. The court reasoned the sentencing court erred by including the defendant's drug convictions in his offender score "because drug
No. 31595-9-111 State v. Hernandez
convictions are not among the statutorily specified prior convictions for offender score inclusion under subsection (i) of RCW 9.94A.525(2)[(e)]." Id.
When calculating Enrique Hernandez' offender score, the sentencing court identified 10 prior convictions. Our focus is the second step: determining whether any of these prior convictions wash out. RCW 9.94A.525(2) contains several provisions detailing when certain types of prior convictions wash out. For example, subsection (2)(a) provides class A and sex felonies never wash out, subsection (2)(b) provides class B felonies other than sex offenses wash out after the offender spends 10 crime- free years in the community, and subsections (2)(c) and (d) provide class C felonies and serious traffic offenses wash out after the offender spends five crime-free years in the community except as provided in subsection (2}(e).
The holdings in Morales Jacob do not bind us. While Divisions One and Two were persuaded the plain meaning of subsection (2}(e) means solely those crimes specifically enumerated in the subsection could count in an offender score calculation for a felony DUI, we reason the plain meaning is that subsection (2}(e) acts as an exception to the wash out provisions seen in subsections (2}(c) and (d). Subsection (2)(e) revives certain offenses that would wash out under (2}(c) and (d), but solely in cases where the current conviction is for felony DUI or felony physical control.
Reading subsection (2)(e) differently leads to strained and absurd results.
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