State v. Albright

144 Wash. App. 566
Court of Appeals of Washington·Decided May 13, 2008·No. No. 35890-5-II·Published·Cited by 17 cases

Opinion

Quinn-Brintnall, J.

¶1 Todd J. Albright appeals his term of community custody imposed for his conviction of failing to register as a sex offender. Albright stipulated that he was required to register as a sex offender and that he had failed to do so between July 14 and August 14, 2006. The trial court found him guilty of failing to register as a sex offender under RCW 9A.44.130(11)(a), notified Albright that he must register as a sex offender for violating his registration duty, and imposed a sentence of 12 months of incarceration and 36 to 48 months of community custody. RCW 9A.44.130(11)(a).

[568] ¶2 On appeal, Albright contends that the legislature amended the relevant statutes to plainly read that failure to register as a sex offender is not a sex offense and that, therefore, the trial court erred by imposing a registration requirement and community custody on this conviction. The State argues that a numbering error caused this anomaly and urges us to correct the statute that defines “sex offense,” RCW 9.94A.030(42). Because it is clear that the legislature made an inadvertent numbering error when it enacted Substitute Senate Bill (SSB) 6519, we are required to correct it. Laws of 2006, ch. 129, §§ 1-4.1 Accordingly, we affirm.

DISCUSSION

¶3 A trial court may impose only sentences that statutes authorize. In re Postsentence Review of Leach, 161 Wn.2d 180,184,163 P.3d 782 (2007). Statutory construction is a question of law that we review de novo. Leach, 161 Wn.2d at 184.

¶4 In the past, there was an “inflexible rule” that this court could not “ ‘read into a statute that which it may believe the legislature has omitted, be it an intentional or an inadvertent omission.’ ” State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982) (quoting Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981)). But application of this rule sometimes allowed absurd results that violated another basic tenet of statutory construction: avoid absurd results. See State v. Burke, 92 Wn.2d 474, 478, 598 P.2d 395 (1979) (ruling that “[i]t is an established rule of statutory construction that absurd results should be avoided”). Our Supreme Court thus created a narrow exception regarding deficient legislation.

[569] ¶5 In Taylor, our Supreme Court recognized three categories of cases involving deficient legislation. 97 Wn.2d at 729. In the first, the statute contains an omission or mistake but the court can discern a rational basis for the literal language. Taylor, 97 Wn.2d at 729. In the second, a legislative omission creates inconsistencies curtailing the statute’s effectiveness but the omitted language is not necessary to read the statute rationally. Taylor, 97 Wn.2d at 729. In the third, the legislature’s error renders the plain reading of the statute absurd or undermines its purposes. Taylor, 97 Wn.2d at 730. Our Supreme Court ruled that courts may modify a statute only in cases falling within the third category and only if doing so is “ ‘imperatively required to make [the statute] rational.’ ” Taylor, 97 Wn.2d at 729 (quoting McKay v. Dep’t of Labor & Indus., 180 Wash. 191, 194, 39 P.2d 997 (1934)).

¶6 The State asks that we exercise our limited authority here to correct a clear legislative numbering error that creates an absurd result and eliminates the purpose of the sex offender registration statute’s amendment. Two statutes are involved. The first is the portion of the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW, defining sex offenses, RCW 9.94A.030(42). The second is the portion of the Washington Criminal Code defining the offense of failure to register as a sex or kidnapping offender, RCW 9A.44.130.

¶7 Before June 7, 2006, failure to register as a sex offender was a sex offense. Failure to register as a kidnapping offender was not. Former RCW 9A.44.130(10)-(11) (2003); former RCW 9.94A.030(42)(a)(i) (2006).

¶8 As relevant here, the SRA first defined “sex offense” as “[a] felony that is a violation of chapter 9A.44 RCW other than ***RCW 9A.44.130(11).” Former RCW 9.94A.030(42)(a)(i).

¶9 Chapter 9A.44 RCW is the Washington Criminal Code’s chapter on sex offenses. Former RCW 9A.44.130(11) was the section of the registration statute that defined the offense of failing to register as a kidnapping offender. [570] The legislature amended the registration statute in SSB 6519, which took effect June 7, 2006. Laws of 2006, ch. 129, §§ 1, 3. SSB 6519 added a new subsection 7 to the statute and renumbered the subsequent subsections. Laws of 2006, ch. 129, § 1. As a result of the amendment, the number of the subsection regarding failure to register as a sex offender changed from subsection 10 to 11, while the section regarding failure to register as a kidnapping offender changed from subsection 11 to 12. Laws of 2006, ch. 129, § 1.

¶10 The legislature did not, however, amend the numbered references in the SRA’s definition of “sex offense.” Laws of 2006, ch. 122, § 6. That definition excludes “RCW 9A.44.130(11),” even though subsection 11 now relates to sex offenders instead of kidnapping offenders. RCW 9.94A-.030(42)(a)(i). Thus, when read literally, kidnapping offenders who fail to register are sex offenders, while sex offenders who fail to register are not.2

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State v. Albright, 144 Wash. App. 566 (Wash. Ct. App. 2008).

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