NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Appellant, No. 82930-1-I v. PUBLISHED OPINION JARVIS LEIGHTON FRENCH,
Respondent.
DWYER, J. — The State appeals from the sentence imposed on Jarvis
French after a resentencing hearing. The State contends that the superior court
erred by declining to add one point to the offender score as a result of French
committing his current offense while on community custody. Because the
sentence condition of community custody was imposed on French pursuant to a
constitutionally invalid conviction, we disagree. Accordingly, we affirm the ruling
of the superior court.
I
Jarvis French pleaded guilty to one count of possession of a controlled
substance with intent to manufacture or deliver in violation of RCW 69.50.401(1).
In his guilty plea, French acknowledged that he committed this offense while on
community custody.
On January 13, 2020, the superior court entered judgment and sentenced
French to 60 months of incarceration. French had a criminal history of six prior For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/2
convictions, which included one prior conviction for possession of a controlled
substance. Pursuant to this criminal history, French’s offender score was 7.1
One of these points resulted from his prior conviction for possession of a
controlled substance, while another point resulted from French committing his
present offense while he was on community custody. Notably, the term of
community custody was imposed pursuant to his prior sentence for possession of
a controlled substance.
On April 28, 2021, following our Supreme Court’s decision in State v.
Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021), French filed a pro se motion in
superior court in which he sought relief from the judgment and sentence. In this
motion, French asserted that, pursuant to Blake, he was entitled to be
resentenced because his prior conviction for possession of a controlled
substance was void.
On May 5, 2021, French’s attorney filed a motion wherein he argued that
French’s offender score should be 5 instead of 7. On July 12, the State filed a
memorandum in which the State agreed that French’s prior conviction for
possession of a controlled substance should not be included in his offender
score. However, the State argued that French’s offender score should be 6
because French committed his current offense while on community custody.
On July 14, 2021, the superior court heard argument as to the proper
calculation of French’s offender score. During the hearing, the superior court
reasoned that, pursuant to Blake, “everything coming out of that charge,
1 The standard range sentence for French’s offender score of 7 amounted to a standard
range sentence of 60 months to 120 months of incarceration.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/3
including community custody, is unconstitutional, so . . . I cannot add a point for
community custody.” That same day, the superior court resentenced French with
an offender score of 5. This resulted in a standard range sentence of 20 to 60
months of incarceration. The superior court sentenced French to the low end of
the range.
The State appeals.
II
The sole issue on appeal is whether the sentencing court erred by
declining to add one point to the offender score as a result of French committing
the current offense while on community custody. The condition of community
custody was imposed on French pursuant to his sentence for violating RCW
69.50.4013(1)—a statute that, pursuant to Blake, has always been void under
both the state and federal constitutions. We hold that the superior court, when
calculating French’s offender score, properly declined to consider that French
committed the current offense while he was on community custody as a direct
consequence of an invalid conviction.
A
The Sentencing Reform Act of 1981 (the SRA) provides, in pertinent part,
“[i]f the present conviction is for an offense committed while the offender was
under community custody, add one point.” RCW 9.94A.525(19). French
committed the current offense—possession of a controlled substance with intent
to manufacture or deliver in violation of RCW 69.50.401(1)—while he was
serving a sentence that imposed a term of community custody. French was
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/4
serving this term of community custody pursuant to a prior conviction for
possession of a controlled substance in violation of RCW 69.50.4013(1).
B
In Blake, our Supreme Court held that Washington’s strict liability drug
possession statute, RCW 69.50.4013(1), “violates the due process clauses of the
state and federal constitutions and is void.” 197 Wn.2d at 195. In so doing, the
Blake court explained:
This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power.
197 Wn.2d at 173 (footnote omitted).
It is well established that a prior conviction based on a constitutionally
invalid statute may not be considered when a sentencing court calculates an
offender score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718
P.2d 796 (1986); accord State v. Jennings, 199 Wn.2d 53, 67, 502 P.3d 1255
(2022) (holding that, pursuant to Blake, a sentencing court may not consider a
prior conviction under RCW 69.50.4013(1) when calculating an offender score).
Furthermore,
“‘[a]n unconstitutional law is void, and is as no law’”; accordingly, a penalty imposed pursuant to an unconstitutional law is void even if the prisoner’s sentence became final before the law was held unconstitutional. Montgomery v. Louisiana, 577 U.S. 190, 204, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (quoting Ex parte Siebold, 100 U.S. 371, 376, 25 L. Ed. 717 (1879)).
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/5
State v. Markovich, 19 Wn. App. 2d 157, 172, 492 P.3d 206 (2021) (emphasis
added), review denied, 198 Wn.2d 1036 (2022).2
Under the SRA, a term of community custody amounts to a penalty that
may or must be imposed by a sentencing court. Indeed, “[c]ommunity
placement[3] primarily furthers the punitive purposes of deterrence and
protection.” State v. Ross, 129 Wn.2d 279, 286, 916 P.2d 405 (1996) (emphasis
added). Additionally, the statutory definition of community custody clarifies that a
term of community custody amounts to a portion or part of the sentence imposed
upon an offender:
“Community custody” means that portion of an offender’s sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender’s movement and activities by the department.
RCW 9.94A.030(5) (emphasis added). Being sentenced to a period of
community custody is a direct consequence of a conviction. Ross, 129 Wn.2d at
285-86.
There are at least two reasons why the superior court did not err by
declining to add one point to French’s offender score as a result of his
2 The State asserts that the quoted language from Markovich is merely dicta. Not so. The defendant in Markovich, on direct appeal, challenged a sentence that was imposed on him by a trial court. 19 Wn. App. 2d at 172. Therein, the defendant asserted that “his sentence [was] invalid because . . . prior out-of-state convictions for simple drug possession that were included in the calculation of his offender score [were] no longer comparable to any valid Washington crime.” Markovich, 19 Wn. App. 2d at 172. In holding that the defendant was entitled to be resentenced, the appellate court explained that “a penalty imposed pursuant to an unconstitutional law is void.” Markovich, 19 Wn. App. 2d at 172. This statement both related to an issue that was before the court and was necessary to decide the case. Accordingly, this statement was not mere dicta. See Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 618, 468 P.3d 125 (2021) (“‘Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.’” (internal quotation marks omitted) (quoting In re Pers. Restraint of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005))). 3 “[C]ommunity custody is a subset of community placement.” State v. Crandall, 117 Wn.
App. 448, 451, 71 P.3d 701 (2003).
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/6
commission of an offense while on community custody. First, the term of
community custody that was imposed on French pursuant to his prior conviction
for violating RCW 69.50.4013(1) was a penalty imposed pursuant to an
unconstitutional law. Therefore, that term of community custody was void. See
Markovich, 19 Wn. App. 2d at 172. Because the term of community custody was
void, the superior court properly declined to consider whether French committed
an offense while on community custody.
Second, in Blake, our Supreme Court explained that, as “an issue of first
impression,” RCW 69.50.4013(1), “violates the due process clauses of the state
and federal constitutions and is void.” 197 Wn.2d at 173, 195. As such, Blake
announced that courts were never with lawful authority to enter judgment on a
conviction for unlawful possession of a controlled substance in violation of RCW
69.50.4013(1). Moreover, because courts were never with lawful authority to
enter judgment on a conviction for unlawful possession of a controlled substance,
they were also never with lawful authority to impose a sentence pursuant to such
a conviction. Had the superior court, under these circumstances, added a point
to French’s offender score for committing an offense while on community
custody, the court would have “renewed” the original constitutional violation.
State v. Holsworth, 93 Wn.2d 148, 157, 607 P.2d 845 (1980). Accordingly, the
superior court did not err.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/7
Nevertheless, the State contends that, pursuant to the plain language of
the SRA,4 the superior court was required to add one point to French’s offender
score regardless of whether the term of community custody in question was
imposed pursuant to a violation of an unconstitutional statute. This is so,
according to the State, because neither RCW 9.94A.525(19) nor RCW
9.94A.030(5) expressly provides that a term of community custody must be
imposed pursuant to a constitutionally valid conviction. The State’s argument
runs counter to prevailing authority.
Indeed, the SRA itself does not explicitly require a prior conviction to be
constitutionally valid in order for a sentencing court to consider such a conviction
when calculating an offender score. See RCW 9.94A.525. Nevertheless, it is
established beyond debate that a prior conviction based on a constitutionally
invalid statute may not be considered in computing an offender score. Ammons,
105 Wn.2d at 187-88. Just as we interpret the SRA to require that a prior
conviction be valid in order for the conviction to be considered by a sentencing
court, we likewise interpret the SRA to require that a term of community custody
be validly imposed in order for such a condition to be considered by a sentencing
court under RCW 9.94A.525(19).
Undeterred, the State next asserts that “[e]ven if [a] statute is void, a
judgment entered pursuant to the statute is not void, but merely erroneous. Until
the judgment is overturned, sanctions may be imposed for violations” of the
4 “Statutory interpretation is a question of law, which we review de novo.” State v. Budik, 173 Wn.2d 727, 733, 272 P.3d 816 (2012).
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/8
judgment.5 In support of this argument, the State quotes the following language
from an opinion in a civil dispute resolved by our Supreme Court:
It is, of course, well settled that disobedience of, or resistance to a void order, judgment, or decree is not contempt. This is so because a void order, judgment, or decree is a nullity and may be attacked collaterally. But there is a vast difference between a judgment which is void and one which is merely erroneous. In 31 Am. Jur., Judgments, section 401, p. 66, it is said: “* * * a void judgment should be clearly distinguished from one which is merely erroneous or voidable. There are many rights belonging to litigants—rights which a court may not properly deny, and yet if denied, they do not render the judgment void. Indeed, it is a general principle that where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgment void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith. This is true even if there is a fundamental error of law appearing upon the face of the record. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid.” “Obviously, the power to decide includes the power to decide wrong, and an erroneous decision is as binding as one that is correct until set aside or corrected in a manner provided by law.” Freeman on Judgments, 5th Ed., section 357, p. 744.
Dike v. Dike, 75 Wn.2d 1, 7-8, 448 P.2d 490 (1968).
However, the issue herein does not involve a collateral attack on French’s
prior conviction for possession of a controlled substance in violation of RCW
69.50.4013(1). Rather, this dispute concerns the conditions that a court may
presently consider when sentencing this defendant in an entirely different cause
and for a subsequent offense. Put simply, this case is not that case. The State’s
argument fails.
5 Reply Br. of Appellant at 1.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/9
Similarly, the State claims that we should treat the community custody
sentencing condition that is enumerated in RCW 9.94A.525(19) in the same
manner that we treat violations of erroneously entered contempt orders. The
State cites to an opinion wherein the United States Supreme Court explained
that, in order to be entitled to relief from a court order, a party must directly
challenge the validity of that order or the order that serves as the basis for that
order:
An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.
Howat v. State of Kansas, 258 U.S. 181, 189-90, 42 S. Ct. 277, 66 L. Ed. 550
(1922).
Additionally, the State cites to a decision from our Supreme Court wherein
the court stated that “[t]he traditional measure of the vitality of a contempt
conviction for violation of a court order when the order itself is found to have
been improper is the scope of the jurisdiction of the issuing court.” Mead Sch.
Dist. No. 354 v. Mead Ed. Ass’n, 85 Wn.2d 278, 280, 534 P.2d 561 (1975).
As already explained, the issue herein involves the conditions that a court
must consider when sentencing a defendant in an entirely different cause and for
a subsequent offense. In this cause, French does not directly challenge the
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/10
sentence imposed on him pursuant to his prior violation of RCW 69.50.4013(1).
Instead, French initiated this proceeding by filing a motion wherein he sought to
have his offender score recalculated for the purpose of correctly calculating the
standard range sentence applicable to a subsequent conviction for possession of
a controlled substance with intent to manufacture or deliver. Therefore, the
contempt cases cited by the State are of no aid to our analysis.
The State also draws an analogy between the issue herein and the crime
of escape. RCW 9A.76.110(1) provides that “[a] person is guilty of escape in the
first degree if he or she knowingly escapes from custody or a detention facility
while being detained pursuant to a conviction of a felony or an equivalent juvenile
offense.” Our Supreme Court has explained that “in a prosecution for escape the
State is not required to prove the defendant had been detained pursuant to a
constitutionally valid conviction.” State v. Gonzales, 103 Wn.2d 564, 565, 693
P.2d 119 (1985). In Gonzales, the question presented dealt with the elements of
the crime.
Notably, the Gonzales court expressly distinguished its holding therein
from its earlier holding in Holsworth, wherein the court held that the “habitual
criminal statute requires proof of constitutionally valid prior convictions.”6 103
6 In particular, the Holsworth court stated:
We . . . hold that the defendant in a habitual criminal proceeding can challenge the use of pre-Boykin [v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] pleas on the ground that he or she was not apprised of the nature of or of the consequences of pleading guilty to the prior offense. Because we do not consider this application of Boykin principles to be either retroactive or a collateral attack we do not reach or assess the validity of the Court of Appeals holding in State v. Boyd, 21 Wn. App. 465, 586 P.2d 878 (1978), that attack, although collateral, would be allowed because the plea defect was of a constitutional nature. 93 Wn.2d at 159.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82930-1-I/11
Wn.2d at 567. In so doing, the Gonzales court explained that “Holsworth
involves sentence enhancement based on prior convictions” and was therefore
“not analogous to the situation before us.” 103 Wn.2d at 567. Similar to the
issue in Holsworth, the issue herein involves a sentencing court’s exercise of its
authority during a sentencing proceeding. As a result, it is materially
distinguishable from the issue presented in Gonzales.
The superior court did not err.
Affirmed.
WE CONCUR: