State v. Failey

165 Wash. 2d 673
CourtWashington Supreme Court
DecidedFebruary 12, 2009
DocketNo. 81557-7
StatusPublished
Cited by6 cases

This text of 165 Wash. 2d 673 (State v. Failey) 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
State v. Failey, 165 Wash. 2d 673 (Wash. 2009).

Opinion

Per Curiam

¶1 — This case concerns the classification of crimes existing before the enactment of the Washington Criminal Code, Title 9A RCW, and the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, for purposes of persistent offender sentencing. Robert Failey argues the Court of Appeals erroneously held that his 1974 robbery [675]*675conviction was a class A felony that counted as a “strike” offense. We agree and reverse the Court of Appeals.1

FACTS

¶2 The State sought to sentence Failey as a persistent offender after he was convicted of first degree robbery in 2007. Failey’s criminal history included a 1974 robbery conviction and a 1993 first degree robbery conviction, among other crimes. The parties disputed whether the 1974 robbery qualified as a “strike” offense that could be included in Failey’s offender score, making Failey’s current offense a third “strike” subject to life imprisonment without the possibility of early release. The trial court determined that the 1974 robbery was not a strike offense and imposed a standard range sentence. The court based its decision in part on its conclusion that the 1974 conviction had “washed out.” It also determined that RCW 9.94A.035, which the State claimed classified the 1974 robbery as a class A felony (and thus a strike offense), is ambiguous and therefore must be construed against the State under the rule of lenity.

¶3 The Court of Appeals reversed, holding that the 1974 robbery conviction did not “wash out” and that RCW 9.94A.035 unambiguously classifies that conviction as a strike offense. State v. Failey, 144 Wn. App. 132, 144, 181 P.3d 875 (2008). It remanded for imposition of a life sentence without the possibility of early release. Id. at 145.

ANALYSIS

¶4 An offender convicted of a “most serious offense” must be sentenced to life imprisonment without early release if he has at least two prior convictions for most serious offenses and those prior convictions would be included in his current offender score under RCW 9.94A.525. [676]*676RCW 9.94A.030(37)(a)(i)-(ii), .570.2 A “most serious offense” includes any class A felony, second degree robbery, and “[a]ny felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense.” RCW 9.94A.030(32)(a), (o), (u). Offenses to be included in the offender score under RCW 9.94A.525 include class A felonies and some class B and class C felonies. RCW 9.94A-.525(2)(a)-(c). But class B convictions other than sex offenses are not included in the offender score if, since the last date of release from confinement on a felony conviction or the entry of judgment and sentence, the offender had spent 10 consecutive years in the community without committing another crime that results in a conviction. RCW 9.94A.525(2)(b).

¶5 At issue is whether Failey’s 1974 robbery conviction, a pre-SRA crime, is a “most serious offense” and would be included in Failey’s current offender score, making it a strike offense qualifying him as a persistent offender. “Robbery” was then codified under former RCW 9.75.010 (1974), which did not divide the crime into degrees. The punishment for robbery was imprisonment for not less than five years. Former RCW 9.75.010. And since the crime did not have a specified maximum sentence, a court could impose a maximum term of not less than 20 years and up to and including life. RCW 9.95.010. Under the SRA, felonies defined by a statute “not in Title 9A RCW” (the Washington Criminal Code) are to be treated as class A felonies if the “maximum sentence of imprisonment authorized by law upon a first conviction of such felony is twenty years or more.” RCW 9.94A.035(1). Reading these statutes together, the Court of Appeals reasoned that Failey’s 1974 robbery was equivalent to a class A felony because the crime was defined outside Title 9A RCW (which had not yet been enacted in 1974) and then carried a maximum sentence of [677]*67720 years or more. Failey, 144 Wn. App. at 141-42. And since a class A felony is a most serious offense and never “washes out,” the court held that Failey’s 1974 robbery conviction qualified as a strike offense. Id. at 142.

¶6 But we agree with Failey that the 1974 robbery should be classified pursuant to RCW 9.94A.030(32)(u). That statute defines a “most serious offense” in part as any felony offense in effect prior to December 2, 1993, that is comparable to a current most serious offense. RCW 9.94A-.035 is concerned generally with categorizing Washington felonies not listed in the criminal code into classes based on sentence length, while RCW 9.94A.030(32)(u) more directly and specifically governs the question of whether an earlier offense counts as a strike offense. Moreover, RCW 9.94A-.035 is ambiguous in its applicability to past crimes. It could be read to simply apply to current felonies “not in Title 9A RCW,” such as vehicular homicide. See RCW 46.61.520. It is not clear that its reference to statutes “not in Title 9ARCW” is meant to apply to statutes that no longer exist, such as the former robbery statute. Given this ambiguity, the rule of lenity should apply to bar classification of Failey’s 1974 robbery pursuant to RCW 9.94A.035. See State v. Jacobs, 154 Wn.2d 596, 601, 115 P.3d 281 (2005) (rule of lenity requires interpreting ambiguous criminal statutes in manner most favorable to defendant).

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Bluebook (online)
165 Wash. 2d 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-failey-wash-2009.