State v. Delgado

63 P.3d 792, 148 Wash. 2d 723
Washington Supreme Court·Decided February 20, 2003·No. No. 71969-1·Published·Cited by 249 cases

Opinions

Johnson, J.

The issue in this case is whether the Persistent Offender Accountability Act (the two-strike statute), chapter 9.94A RCW, for sex offenders includes prior convictions (strikes) which were not specifically listed when Delgado was tried and sentenced for his current offense. We hold that the two-strike statute was unambiguous and did not include any offenses other than those specifically listed. We reverse the Court of Appeals and affirm the sentence imposed on Delgado by the superior court.

FACTUAL AND PROCEDURAL HISTORY

In October 1999, Dumas Augustin Delgado was found guilty of first degree rape of a child1 and first degree child molestation.2 At sentencing, the trial court counted Delgado’s two offenses as one because they encompassed the same criminal conduct. The trial court declined to count a prior statutory rape conviction from September 1986 as a “strike” under the then existing two-strike statute because statutory rape was not specifically listed as one of the offenses to be counted as a strike under the version of the statute in effect at the time of Delgado’s current offense.3

[726] The State appealed the trial court’s failure to sentence Delgado as a two-strike persistent offender. The Court of Appeals reversed Delgado’s sentence and remanded for resentencing, holding Delgado’s 1986 statutory rape conviction counted as a strike. State v. Delgado, 109 Wn. App. 61, 33 P.3d 753 (2001).

Delgado petitioned for review, and this court granted review on the sole issue of whether Delgado should be sentenced as a persistent offender.4 State v. Delgado, 146 Wn.2d 1008, 52 P.3d 520 (2002).

ANALYSIS

To resolve this issue, we look to the statute in effect at the time Delgado committed the crimes. At the time of Delgado’s offense, an offender could be sentenced as a persistent offender with only one previous conviction if the offender

(b)(i) Ha[d] been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree, with a finding of sexual motivation;. . . and
(ii) Ha[d], before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection.

Former RCW 9.94A.030(27) (1998).

We first analyze whether this language is ambiguous. Language is unambiguous when it is not susceptible to two or more interpretations. State v. McGee, 122 Wn.2d [727]*727783, 787, 864 P.2d 912 (1993). This statute is unambiguous because there is only one interpretation we can draw from it. The statute expressly lists those qualifying prior convictions which expose an offender to a sentence of life without parole as a two-strike persistent offender. The statute ends with the limiting language “of an offense listed in (b)(i) of this subsection.” Statutory rape is not listed. We conclude this list of predicate strike offenses is exclusive, and we can find no basis to add any offenses not listed.

The State argues we should look for a latent ambiguity despite the statute’s unambiguous language. A latent ambiguity is apparent only when the language is applied to the facts as they exist and is not apparent on the face of the language. See In re Estate of Bergau, 103 Wn.2d 431, 436, 693 P.2d 703 (1985). The State contends a latent ambiguity exists because two offenders with prior convictions involving similar conduct can be sentenced differently under this statute. As in Delgado’s case, an offender whose prior offense is factually similar to a strike offense is not sentenced as a persistent offender if that prior crime is not listed by the statute. Br. of Resp’t at 19-20. The State argues this requires us to construe the statute to include a comparability clause. This would allow offenses that are factually comparable to the ones listed also to count as strikes. Br. of Resp’t at 18. Similarly, the dissent outlines a comparability analysis it would have us adopt.

We disagree that a comparability analysis is warranted. When statutory language is unambiguous, we look only to that language to determine the legislative intent without considering outside sources. “Plain language does not require construction.” State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). When we interpret a criminal statute, we give it a literal and strict interpretation. Wilson, 125 Wn.2d at 217. We cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language. We assume the legislature “means exactly what it says.” Davis v. Dep’t of Licensing, 137 Wn.2d 957, 964, 977 P.2d 554 (1999). Here, the legislature unam[728] biguously did not include a comparability clause in the two-strike statute in effect when Delgado committed his offense. Former RCW 9.94A.030(27)(b)(i) (1998). Our inquiry, thus, ends with the plain language before us.

This conclusion is in accord with our prior cases. E.g., State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997) (statute defining “sexual exploitation of a minor” not subject to construction beyond plain language); State v. Mollichi, 132 Wn.2d 80, 87-88, 936 P.2d 408 (1997) (statute requiring restitution to be given at juvenile’s disposition hearing is unambiguous and not subject to construction beyond the plain language); State v. Smith, 117 Wn.2d 263, 814 P.2d 652 (1991) (plain language of statute allows any party of interest to seek a revision of a juvenile court commissioner’s ruling).

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State v. Delgado, 63 P.3d 792, 148 Wash. 2d 723 (Wash. 2003).

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