State v. Haggard

461 P.3d 1159, 195 Wash. 2d 544

• Court: Washington Supreme Court
• Decided: April 23, 2020
• Docket: 97375-0
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE APRIL 23, 2020 SUPREME COURT, STATE OF WASHINGTON APRIL 23, 2020 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 97375-0 Respondent, ) ) v. ) ) En Banc DAVID BRENT HAGGARD, ) ) Petitioner. ) Filed April 23, 2020 _______________________________________)

MADSEN, J.—A class C felony washes out and is omitted from a defendant’s

offender score as long as he or she is not convicted of any crime within five years of the

last date of release from confinement. RCW 9.94A.525(2)(c). David Haggard was

convicted of a misdemeanor offense within this five-year period, which was dismissed

pursuant to RCW 3.66.067. When Haggard later pleaded guilty to burglary and arson,

the trial court included prior class C felonies in his criminal history, finding that the

dismissed misdemeanor conviction interrupted the washout period for those offenses.

Haggard contends this was error. Because a dismissed conviction constitutes a

“conviction” under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, and No. 97375-0

misdemeanor dismissal and vacation are distinct processes, Haggard’s offender score was

properly calculated. We affirm.

BACKGROUND

Haggard committed multiple class C felonies while living in California. Clerk’s

Papers (CP) at 110; see also id. at 126-27 (State’s memorandum on sentencing). 1 Less

than five years later, Haggard moved to Washington and committed another offense.

Haggard pleaded guilty to a charge of disorderly conduct in 2011. The trial court

deferred Haggard’s sentence and dismissed the conviction.

In 2017, Haggard pleaded guilty to burglary and arson. When calculating his

offender score, the court examined Haggard’s criminal history and included his previous

California convictions. The State argued, and the court agreed, that only vacated

convictions could be omitted from criminal history; because Haggard’s 2011 conviction

was dismissed but not vacated, it interrupted the washout period for the class C felonies.

Id. at 126, 128-32 (State’s memorandum on sentencing). Consequently, the previous

offenses counted in Haggard’s offender score: the three California convictions each

counted as one point and resulted in a score of six. 2 The Court of Appeals affirmed

1 Haggard was convicted of taking a vehicle without the consent of the owner and had two separate convictions for possession of methamphetamine. CP at 110; see also id. at 140, 142, 144 (California judgment and sentences for the three offenses). Following his final 2005 conviction for possession, Haggard was sentenced to two years in prison and was paroled in May 2006. Id. at 127 (State’s memorandum on sentencing). The State determined that Haggard had to remain “crime free until May 11, 2011 in order for his three felony convictions out of California to wash.” Id. at 129. 2 The court sentenced Haggard to concurrent sentences of 39 months for arson, 29 months for burglary, and 18 months of community custody. Id. at 107-08, 112. Haggard was also sentenced in an unrelated trial, under a separate cause number. Id. at 107; Sentencing Proceedings

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Haggard’s offender score calculation. State v. Haggard, 9 Wn. App. 2d 98, 442 P.3d 628

(2019). Haggard petitioned for review here, which we granted. State v. Haggard, 193

Wn.2d 1037 (2019).

ANALYSIS

This case involves the interpretation of several statutes and is strictly a question of

law, which is reviewed de novo. State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155

(2001) (citing Millay v. Cam, 135 Wn.2d 193, 198, 955 P.2d 791 (1998)). It is the duty

of the court to construe statutes in the manner that best fulfills the legislative purpose and

intent. Id. (citing State ex rel. Royal v. Bd. of Yakima County Comm’rs, 123 Wn.2d 451,

462, 869 P.2d 56 (1994)). If the meaning of a statute is plain on its face, we “give effect

to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).

To determine the plain meaning of a statute, we look to the text, as well as the

context of the statute in which that provision is found, related provisions, and the

statutory scheme as a whole. Id. at 9-12; see also Wash. Pub. Ports Ass’n v. Dep’t of

Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). An undefined term is “given its plain

and ordinary meaning unless a contrary legislative intent is indicated.” Ravenscroft v.

Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998) (citing Cowiche

(Sept. 15, 2017) at 634 (Haggard was found guilty of unlawful possession of a firearm and violation of the Uniform Controlled Substances Act, ch. 69.50 RCW, via possession of methamphetamine). The Court of Appeals affirmed in an unpublished decision. State v. Haggard, No. 77427-1-I (Wash. Ct. App. June 3, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/774271.pdf.

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Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992)). If, after this

inquiry, the statute is susceptible to more than one reasonable interpretation, it is

ambiguous and we “may resort to statutory construction, legislative history, and relevant

case law for assistance in discerning legislative intent.” Christensen v. Ellsworth, 162

Wn.2d 365, 373, 173 P.3d 228 (2007) (citing Cockle v. Dep’t of Labor & Indus., 142

Wn.2d 801, 808, 16 P.3d 583 (2001)). We review the calculation of an offender score de

novo. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011) (citing State v. Parker,

132 Wn.2d 182, 189, 937 P.2d 575 (1997)).

Haggard contests the calculation of his offender score. We look first, therefore, to

the statute governing the calculation of offender scores, RCW 9.94A.525. Generally, an

offender score is composed of prior felony convictions, each counting as a single point.

The sum of these points is an offender score. RCW 9.94A.525 (“The offender score is

the sum of points accrued under this section.”). RCW 9.94A.525(2)(c) states, in relevant

part:

[C]lass C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement . . . the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

(Emphasis added.) The statute can be broken down into two clauses: a trigger clause that

identifies the beginning of the five-year period, and a continuity or interruption clause that

outlines the substantive requirements an offender must satisfy during the five-year period.

State v. Ervin, 169 Wn.2d 815, 821, 239 P.3d 354 (2010) (citing In re Pers. Restraint of

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Nichols, 120 Wn. App. 425, 432, 85 P.3d 955 (2004)). While the phrase “any crime” is

undefined in RCW 9.94A.525(2)(c), courts look to RCW 9A.04.040(1) for the definition:

An offense defined by this title or by any other statute of this state, for which a sentence of imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, gross misdemeanors, or misdemeanors.

See State v. Crocker, 196 Wn. App. 730, 735, 385 P.3d 197 (2016). In other words, prior

class C felony convictions are excluded from an offender score as long as an offender

does not commit any crime, including misdemeanors, within five consecutive years. 3

Regarding dismissal, RCW 3.66.067 allows a court to defer and dismiss a

defendant’s misdemeanor conviction. For good cause shown, the court may permit a

defendant to withdraw his or her guilty plea and enter a plea of not guilty, and then the

court may dismiss the charges. RCW 3.66.067. 4

A separate statute governs vacation of a conviction. A person convicted of a

misdemeanor offense who has satisfied the terms of his or her sentence may apply to a

court for vacation of a sentence under RCW 9.96.060. When vacating a misdemeanor,

the court permits the applicant to withdraw a guilty plea and enter a plea of not guilty.

Alternatively, the court can set aside the guilty verdict; dismiss the information,

indictment, compliant or citation; and vacate the judgment and sentence. RCW

9.96.060(1). Vacating an offense releases an applicant “from all penalties and disabilities

resulting from the offense and the fact that the person has been convicted of the offense

3 Haggard does not contest that his California convictions are equivalent to class C felonies. 4 RCW 3.66.067 applies to district courts. A functionally identical statute outlines the same procedures for municipal court under RCW 3.50.320. The parties treat RCW 3.66.067 and RCW 3.50.320 as equivalent statutes. See Suppl. Br. of Resp’t at 7 n.4; Pet. for Review at 7 n.2.

5 No. 97375-0

shall not be included in the person’s criminal history for purposes of determining a

sentence in any subsequent conviction.” RCW 9.96.060(6)(a). Importantly, once a

conviction is vacated, it cannot be used to “determin[e] a sentence in any subsequent

conviction.” Id.

A dismissed misdemeanor conviction meets the definition of “conviction” pursuant to the SRA

Haggard contends his dismissed misdemeanor conviction does not qualify as a

conviction under the SRA and so should have been excluded from his criminal history.

Pet. for Review at 4-6, 17-18. Haggard bases this argument on the deceptively simple

idea that once a guilty plea is withdrawn and a not guilty plea is entered, a conviction is

accordingly dissolved for all purposes. Id. at 9-10; Suppl. Br. at 4-5. For support,

Haggard points to the overlapping language in the dismissal and vacation statutes: under

both provisions, a defendant may withdraw a guilty plea and enter a not guilty plea.

Compare RCW 3.66.067 (permitting “a defendant to withdraw the plea of guilty and to

enter a plea of not guilty, and the court may dismiss the charges”), with RCW

9.96.060(1)(a)-(b) (“When vacating a conviction under this section, the court effectuates

the vacation by: . . . Permitting an applicant to withdraw the applicant’s plea of guilty

and to enter a plea of not guilty.”). Because Haggard withdrew his 2011 guilty plea and

the charge was dismissed, the basis for the conviction was eliminated and no conviction

remained to vacate. Pet. for Review at 10; Suppl. Br. at 4-5.

Haggard’s argument is attractive when read in isolation, but it collapses when read

in the greater context of the SRA and our case law interpreting that statutory scheme. At

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the outset, it is worth noting that Haggard essentially repeats an argument already

considered by this court in In re Personal Restraint of Carrier, 173 Wn.2d 791, 272 P.3d

209 (2012). There, Carrier asserted that his pre-SRA felony conviction ending in

dismissal did not qualify as a conviction under the SRA. Id. at 800-03. We rejected this

argument. Id. at 803. We should reject Haggard’s claim for the same reasons.

In Carrier, we first noted that courts had already held that pre-SRA convictions

ending in suspension or deferment continued to qualify as convictions under the SRA.

Id. at 801 (citing State v. Whitaker, 112 Wn.2d 341, 346, 771 P.2d 332 (1989)

(recognizing that a “deferred sentence is treated as a ‘conviction served’ for purposes of

the SRA”); State v. Partida, 51 Wn. App. 760, 762, 756 P.2d 743 (1988) (noting that

defendant “stands convicted . . . for purposes of the SRA,” despite an “order of dismissal

after fulfilling the terms of his probation”); State v. Harper, 50 Wn. App. 578, 580, 749

P.2d 722 (1988) (noting that regardless of whether the sentence is deferred or suspended,

“the defendant has been adjudged guilty”)).

Next, legislative amendments to the definition of conviction supported the notion

that a dismissed conviction remains an SRA conviction. Id. As originally enacted, the

SRA defined conviction narrowly: “an adjudication of guilt pursuant to Titles 10 or 13

RCW.” Former RCW 9.94A.030(4) (1981). The legislature amended this definition in

1986 to read that a conviction “means an adjudication of guilt pursuant to Title 10 or 13

RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of

guilty.” LAWS OF 1986, ch. 257, § 17(6) (emphasis added). This change clarified that “‘a

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finding of guilt determined by a jury or a judge (upon entry of a plea or otherwise) is a

conviction for the purpose of the SRA.’” Carrier, 173 Wn.2d at 802 (quoting WASH.

SENTENCING GUIDELINES COMM’N, IMPLEMENTATION MANUAL II-8 cmt. (1987)). The

expansion of the definition demonstrated that the SRA focuses on the “initial finding of

guilt, not what occurs later.” Id.

Finally, the language of the dismissal statute at issue showed that a conviction

remained a conviction under the SRA. Id. at 802-03. Former RCW 9.95.240 (1957)

allowed a defendant to withdraw a guilty plea and enter a not guilty plea, and the court

could then dismiss the information or indictment, releasing a defendant from “all

penalties and disabilities resulting from the offense or crime of which he [or she] has

been convicted.” The statute also allowed future prosecutions to plead and prove the

prior conviction as if dismissal had not been granted. Id. The provision released a

defendant from penalties associated with a conviction, but it did not erase the fact of the

conviction itself. Carrier, 173 Wn.2d at 803. Thus, even though a “defendant may later

be released from some of the legal consequences of his conviction, a dismissal under

former RCW 9.95.240 does not invalidate or erase the conviction.” Id.

Carrier is not wholly dispositive here. Unlike former RCW 9.95.240, dismissal

under RCW 3.66.067 does not contain language allowing future prosecutions to use a

previously dismissed conviction. Simply put, the language between the two statutes is

different. But this was only part of the Carrier court’s reasoning. We also relied on the

expanded definition of the term “conviction” to conclude that the SRA focuses on the

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initial finding of guilt, not what comes after. Id. at 802. This analysis is applicable and

persuasive in the misdemeanor context because both concern the definition of conviction

under the SRA. Like Carrier, Haggard asserts his dismissed conviction does not meet

that definition. Yet, as Carrier explained, the term includes more than just an

adjudication or finding of guilt, it concerns an acceptance of guilt. While a defendant

may later be released from some legal consequence of his or her conviction, i.e., deferred

sentence and dismissal, this does not invalidate or erase the initial finding of guilt for

future sentencing purposes. See id. at 803. 5

Haggard declares that “fundamental tenets of criminal procedure” direct us to

conclude a dismissed conviction is equal to a vacated conviction. Pet. for Review at 9.

Yet Haggard demonstrates, through his own reliance on Carrier, we are concerned not

with general notions of criminal procedure but with the SRA.

The SRA is a technical statute, with specific definitions for the terms it uses.

Those specific definitions and our case law interpreting them guide our reasoning here.

Accordingly, as guided by Carrier, we hold that a dismissed misdemeanor conviction

constitutes a conviction under the SRA.

Dismissal and vacation are not legally equivalent

Haggard offers another previously rejected Carrier argument for why a dismissed

misdemeanor conviction should be excluded from a defendant’s criminal history: even if

5 See also State v. Gallaher, 103 Wn. App. 842, 844, 14 P.3d 875 (2000). In that case, the State asserted that a dismissal would result in a charge and conviction not being a part of Gallaher’s record. Id. The Court of Appeals noted that “[n]othing in RCW 3.66.067 implies that a conviction is automatically deleted or expunged from the criminal record after dismissal.” Id.

9 No. 97375-0

his conviction remains a conviction under the SRA, dismissal is equivalent to vacation.

See Carrier, 173 Wn.2d at 800-01 (“Alternatively, [Carrier] argues that the dismissal

order effectively vacated the indecent liberties conviction, excluding it from his criminal

history.”); Pet. for Review at 15 (“In Carrier, the appellant made an argument precisely

parallel to that made by Mr. Haggard—that his dismissed felony conviction should not be

counted in his offender score because the trial court’s dismissal of his sentence . . . had

the same legal effect as if the trial court had vacated the conviction.”). The State

responds that the plain language of RCW 3.66.067 and RCW 9.96.060 illustrates that

they are different procedures yielding different results, rather than—as Haggard

contends—separate means to the same end. Suppl. Br. of Resp’t at 5-13. We agree with

the State.

Dismissal and vacation are governed by different statutes. Title 3 RCW sets out

the jurisdiction, venue, and authority of a district court. Ch. 3.66 RCW. Vacation is

discussed six titles away in chapter 9.96 RCW, concerning the restoration of civil rights.

See RCW 9.96.010.

The requirements for dismissal versus vacation are also distinct. Dismissing a

charge rests almost entirely on the discretion of a trial court. 6 RCW 3.66.067. As an ex

parte proceeding, dismissal requires only that good cause is shown and that the defendant

has abided by any terms of the deferral. Id.; see also RCW 3.66.068. 7

6 A court cannot defer sentences for alcohol- or drug-related offenses under RCW 46.61.5055. 7 The sentencing judge noted that dismissal in Haggard’s case occurred “ex parte.” Trial Proceedings (Sept. 8, 2017) at 609-10.

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Vacation entails substantially more. Among other things, applicants may not have

their conviction vacated if one of the following is true: pending criminal charges existed

against the applicant at the time of the application; the offense sought to be vacated was a

violent, attempted violent, or an alcohol-related offense; less than three years have passed

since the applicant completed the terms of his or her sentence including financial

obligations; the applicant is convicted of a new crime since the previous conviction; or

there was a pending restraining order against the applicant. See RCW 9.96.060(2)(b)-(d),

(g)-(i).

For domestic violence offenses, RCW 9.96.060 sets out additional limitations. For

example, vacation is prohibited if the court determines the offense involved domestic

violence and the applicant failed to provide written notification of the petition to the

prosecuting attorney’s office that litigated the offense, or if less than five years have

elapsed since completing the terms of the original sentence, including financial

obligations and any ordered treatments. RCW 9.96.060(f)(i), (iv). Granting dismissal

and vacation are both matters of discretion, but, as discussed above, the vacation statute

limits this discretion.

RCW 9.96.060 and .067 contain substantively different requirements. A

successful dismissal does not automatically grant a vacation. As the State points out, a

person who satisfies the requirements of a deferred sentence less than three years ago

would be eligible for dismissal, but not for vacation. Br. of Resp’t at 11-12 (Wash. Ct.

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App. No. 77426-3-I (2018)). This example demonstrates that the legislature intended to

treat dismissal separately from vacation.

Haggard again relies on fundamental tenets of criminal procedure to assert that

dismissal is tantamount to vacation. But, as with Haggard’s first contention, resolution of

this issue turns not on larger principles of criminal procedure but on the specific

provisions of the SRA. And the SRA itself demonstrates that the legislature viewed

dismissal and vacation differently. RCW 9.94A.030(11)(b) states that “[a] conviction

may be removed from a defendant’s criminal history only if it is vacated pursuant to

RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction

has been vacated pursuant to a governor’s pardon.” (Emphasis added.) The canon

expressio unius est exclusio alterius tells us that “to express one thing in a statute implies

the exclusion of the other. Omissions are deemed to be exclusions.” In re Det. of

Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (internal citations omitted) (citing

Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999)). RCW

9.94A.030(11)(b) specifically lists vacation under RCW 9.96.060 as the “only” means of

removing a conviction from criminal history. The provision does not mention dismissal

under RCW 3.66.067. Thus, the omission of RCW 3.66.067 is deemed an exclusion.

The legislative history further supports this interpretation. Misdemeanor dismissal

was originally enacted in 1969. LAWS OF 1969, ch. 75, § 1. Thirty years later, the

legislature created a mechanism to vacate misdemeanors. LAWS OF 2001, ch. 140, § 1.

The bill report for the enacting legislation, Substitute House Bill 1174, states in no

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uncertain terms that “[s]ome felony convictions can be ‘vacated.’ Misdemeanor

convictions cannot.” FINAL B. REP. ON SUBSTITUTE H.B. 1174, at 1, 57th Leg. Reg. Sess.

(Wash. 2001). 8 Misdemeanants “may have their charges ‘dismissed’ after successful

completion of a suspended sentence. However, neither misdemeanants nor pre-SRA

felons are authorized to respond to an employment application by saying that they have

never been convicted of an offense.” Id. at 2.

Misdemeanor vacation was enacted in 2001, yet misdemeanor dismissal had

already existed for decades. If the legislature intended dismissal to be tantamount to

vacation, there would be no reason to create a new statute to bring about a result that was

already available. Indeed, the legislature was well aware that Washington courts lacked

authority to vacate a misdemeanor conviction at the time. FINAL B. REP. ON SUBSTITUTE

H.B. 1174, at 3. The bill report for Substitute House Bill 1174 cites State v. Noel, 101

Wn. App. 623, 625, 5 P.3d 747 (2000), for the proposition. Noel argued that a trial court

erred when it concluded it lacked authority to vacate his misdemeanor convictions, and

he pointed to “RCW 9.94A.230 and RCW 3.66.067 as providing the needed authority.”

Noel, 101 Wn. App. at 627. The Court of Appeals disagreed, finding neither statute

applicable: RCW 9.94A.230 pertained only to felony convictions and RCW 3.66.067

only to deferred sentencing. Id. The legislature knew of Noel’s holding and provided the

necessary vacation authority by enacting RCW 9.96.060.

8 “For felonies committed before the SRA, and for misdemeanor and gross misdemeanor offenses, there are no provisions equivalent to [felony] vacation of record procedure.” FINAL B. REP. ON SUBSTITUTE H.B. 1174, at 2.

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The plain language of the vacation and dismissal statutes demonstrate that they

exist as separate processes. But even accepting that both provisions could apply to

Haggard’s case, a “‘specific statute will supersede a general one.’” Kustura v. Dep’t of

Labor & Indus., 169 Wn.2d 81, 88, 233 P.3d 853 (2010) (quoting Waste Mgmt. of

Seattle, Inc. v. Utils. & Transp. Comm’n, 123 Wn.2d 621, 630, 869 P.2d 1034 (1994)).

Vacation pursuant to RCW 9.96.060 contains specific and distinct requirements

compared with dismissal pursuant to RCW 3.66.067, and RCW 9.96.060 would therefore

supersede it.

Moreover, the overlapping language on withdrawal of a guilty plea between

dismissal and vacation does not render either statute superfluous or meaningless. See Pet.

for Review at 9-10; Suppl. Br. at 7. Under RCW 9.96.060, some procedural steps are

unnecessary if a charge has already been dismissed under RCW 3.66.067, see Suppl. Br.

of Resp’t at 10, yet other requirements remain for an applicant to satisfy in order to

obtain vacation. E.g., RCW 9.96.060(2)(f)(i) (for domestic violence offenses, an

applicant must provide “written notification of the vacation petition to the prosecuting

attorney’s office that prosecuted the offense for which vacation is sought”). 9 Isolated

redundancies are not sufficient to overcome the overall statutory context and purposes.

In re Det. of Anderson, 185 Wn.2d 79, 86 n.4, 368 P.3d 162 (2016). Interpreting the

9 It is worth noting that while a defendant cannot automatically obtain a vacation by obtaining a dismissal, RCW 9.96.060(1) does not preclude the reverse: a defendant who has satisfied all of RCW 9.96.060’s requirements (as well as any additional sentencing requirements) may acquire a dismissal at the same time as a vacation.

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dismissal statute, as Haggard urges us, would conflict with the express legislative intent

to the contrary.

Haggard largely relies on Breazeale and Carrier to argue that dismissal is

equivalent to vacation. Pet. for Review at 14-18. In Breazeale, defendants succeeded in

dismissing pre-SRA convictions under RCW 9.94A.230. The defendants sought vacation

from a trial court to prevent the Washington State Patrol from revealing their convictions

to prospective employers. 144 Wn.2d at 833-34. The court expunged the defendants’

arrest records, but the state patrol refused to carry out this ruling because RCW 9.95.240

did not expressly vacate records and the convictions predated RCW 9.94A.230. Id.

We disagreed, explaining that the legislature intended RCW 9.95.240 and RCW

9.94A.230 (recodified as RCW 9.94A.640) to have the same practical effect. Id. at 837.

Central to our holding was the shared terms between the provisions: “released from all

penalties and disabilities.” Id. We had previously interpreted these words to mean that a

person who has been granted dismissal under RCW 9.95.240 is entitled to assert that he

or she has never been convicted. Id. (citing In re Disciplinary Proceeding Against Stroh,

108 Wn.2d 410, 417-18, 739 P.2d 690 (1987)).

We also noted that the dismissal statute expressed the policy that a deserving

offender’s preconviction status should be restored and that relevant treatises interpreted

RCW 9.95.240 and RCW 9.94A.230 as parallel. Id. at 837-38 (quoting DAVID BOERNER,

SENTENCING IN WASHINGTON § 11.6, at 11-7 (1985)). In addition, without the ability to

vacate a conviction and restrict access to records, the words of RCW 9.95.240

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(“releas[ing defendants] from all penalties and disabilities”) would be meaningless.

Thus, the state patrol was required to expunge the records under the dismissal statute. Id.

at 838.

In Carrier, we discussed and clarified Breazeale. The premise of Breazeale was

that the legislature intended the SRA vacation statute to have the same effect as the pre-

SRA dismissal statute. Carrier, 173 Wn.2d at 806. Requiring defendants to petition the

court twice under RCW 9.95.240 to obtain dismissal and then vacation served “no

purpose.” Id. However, we also noted that the legislature amended RCW 9.95.240 in

response to Breazeale. Id. at 807. In 2003, lawmakers required applicants seeking

vacation to file under RCW 9.94A.640. LAWS OF 2003, ch. 66, § 1(2)(a). The legislature

severed vacation from dismissal, requiring applicants to seek either outcome separately.

See Carrier, 173 Wn.2d at 807-08. While Carrier would have succeeded under

Breazeale, we concluded that the 2003 amendment applied retroactively. Id. at 807-08,

810. 10

Haggard refers to the 2003 amendment as the “Breazeale fix.” He claims that

because the legislature amended the felony dismissal statute (RCW 9.95.240) and did not

amend the misdemeanor dismissal statute (RCW 3.66.067), lawmakers intended

10 Nonetheless, we held the conviction should have been excluded from Carrier’s criminal history because the 2003 amendment retroactively affected his vested right in the vacated status of his conviction and so could not be applied to him. Carrier, 173 Wn.2d at 810-13 (“A statute may not be applied retroactively to infringe a vested right. . . . [O]nce a conviction is vacated, it cannot be revived for purposes of enhancing a defendant’s criminal history. Carrier’s indecent liberties conviction was effectively vacated prior to the 2003 amendment to RCW 9.95.240. The State cannot apply the amendment retroactively to infringe Carrier’s vested right in the vacated status of his conviction.”).

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Breazeale to apply. Pet. for Review at 14-16. In other words, that misdemeanor

dismissal is equivalent to vacation.

Haggard not only misreads our Breazeale decision, he misconstrues the Breazeale

fix. The Breazeale decision turned on the statutory language of the felony dismissal

statute requiring the release of defendants from “‘all penalties and disabilities resulting

from the offense or crime of which he [or she] has been convicted.’” 144 Wn.2d at 835

(quoting RCW 9.95.240). The felony vacation and dismissal statutes shared this

language, and based on the common terms, we concluded the statutes had the same

effect. Id. Misdemeanor dismissal under RCW 3.66.067, on the other hand, does not

contain this or similar language. Only the misdemeanor vacation provision “release[s]

[an applicant] from all penalties and disabilities resulting from the offense.” RCW

9.96.060(6)(a). Breazeale does not help Haggard’s case.

Nor does the Breazeale fix. Our Breazeale opinion held that felony dismissal was

equivalent to vacation, and the legislature responded by amending the statute to prevent

this outcome. Carrier, 173 Wn.2d at 807. The legislative history for RCW 9.96.060

shows the impetus for enacting the statute was the lack of a vacation mechanism, even

though dismissal under RCW 3.66.067 was already on the books. Despite Haggard’s

claim, no legislative acquiescence is demonstrated by the lack of a Breazeale fix to the

misdemeanor dismissal and vacation statutes because there is no reason for the legislature

to have applied it. See Pet. for Review at 17-18.

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RCW 9.94A.525 is not ambiguous

Haggard asserts that the class C washout provision, RCW 9.95A.525, is

ambiguous. Id. at 4-5, 9. He contends this is so because if read literally, RCW

9.95A.525 would lead to absurd results: (1) the statute would include convictions

reversed on direct appeal or collateral review because they had at one point resulted in a

conviction that was later reversed and (2) it is logically inconsistent. Id. at 6, 12-13.

Accordingly, he argues, the rule of lenity requires the statute be interpreted in his favor.

Id. at 4-5. This argument is unconvincing.

First, an overturned conviction is not a conviction for sentencing purposes. A

court effectuates vacation by permitting an applicant to withdraw a plea of guilty and

enter a plea of not guilty or, if convicted after a plea of not guilty, the court sets aside the

verdict and dismisses the information, indictment, or complaint, and vacates the judgment

and sentence. RCW 9.96.060(1)-(2). When a court reverses or overturns a sentence it

effectively vacates it, dissolving the conviction. In re Pers. Restraint of Skylstad, 160

Wn.2d 944, 954, 162 P.3d 413 (2007). Indeed we characterize overturned convictions as

being vacated. E.g., State v. Cantu, 156 Wn.2d 819, 829, 132 P.3d 725 (2006) (“We

therefore reverse the Court of Appeals [and] vacate the conviction.”). Haggard’s

assertion that an overturned conviction remains to be vacated ignores that such a

conviction has already been vacated by a reviewing court. Vacating a judgment and

sentence for constitutional infirmity, for example, reverses a conviction and, inherently, a

guilty plea or conviction after a plea of not guilty. See State v. Schwab, 163 Wn.2d 664,

18 No. 97375-0

680, 185 P.3d 1151 (2008) (Sanders, J., dissenting) (“a vacated conviction is a

nonexistent conviction”). An overturned or reversed conviction has already been

eliminated and therefore vacated through the process of judicial review. No additional

action under RCW 9.96.060 is necessary.

Moreover, the overturned or reversed conviction was not final, and thus not

subject to vacation, during the appeals process. E.g., Skylstad, 160 Wn.2d at 948-49

(stating that a judgment is final when an appellate court issues its mandate disposing of a

direct appeal, which terminates review and ends all litigation on the merits); In re Pers.

Restraint of Coats, 173 Wn.2d 123, 140, 267 P.3d 324 (2011) (“After the right of appeal

has been exhausted and the appeal is final, the defendant is afforded the additional right

to collateral review.”). The SRA defines convictions more broadly than general notions

of criminal procedure, but that definition does not extend so far as to include not-yet-final

convictions that are subject to appeal and ultimately reversed or overturned.

Second, Haggard asserts without citation to authority that a defendant with a

dismissed sentence is deemed more worthy of leniency than other defendants who were

not granted deferral. Pet. for Review at 12. According to Haggard, it is absurd to

conclude the legislature intended to allow the less-deserving defendant to obtain vacation

by filing for it under RCW 9.96.060 but not allow vacation for the more-deserving,

deferred sentence defendant. Id. at 12-13. Vacation under RCW 9.96.060 sets out

specific requirements deemed necessary by the legislature. Whether a defendant merits a

deferred sentence is irrelevant to whether a defendant satisfies those requirements. It is

19 No. 97375-0

not absurd to require additional effort to obtain vacation under RCW 9.96.060 than

merely a trial court’s discretion (as under RCW 3.66.067) because vacation results in a

greater benefit—namely, exclusion from criminal history. The language of RCW

9.96.060 plainly requires a defendant who has a dismissed conviction to separately seek

vacation of that conviction in order for it to be omitted from his or her criminal history.

CONCLUSION

Haggard does not dispute that he was convicted of the 2011 misdemeanor

disorderly conduct charge prior to the conclusion of RCW 9.94A.525’s washout period.

Nor does he dispute that he did not seek vacation under RCW 9.96.060. Only a vacated

conviction under RCW 9.96.060 can be omitted from a defendant’s criminal history.

RCW 9.96.060(6)(a). As discussed above, a dismissed conviction meets the SRA’s

definition of conviction and dismissal is not legally equivalent to vacation. Because

Haggard did not move to separately vacate his 2011 misdemeanor conviction, it

interrupted the washout period and the trial court properly included the prior class C

felonies in his offender score. Accordingly, we affirm.

20 No. 97375-0

___________________________________

WE CONCUR:

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________

21 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

No. 97375-0

GORDON McCLOUD, J. (dissenting)—David Haggard pleaded guilty to

misdemeanor disorderly conduct in 2011. In exchange for that guilty plea, the

district court deferred his sentence and placed him on probation. Haggard

complied with all conditions of his probation, and the district court dismissed the

case.

Today, the majority holds that that “dismissal” was just a superficial word

dangled in front of Haggard’s nose to extract a guilty plea, devoid of any substance

or benefit to Haggard. That “dismissal” promise did not mean the court would

really dismiss Haggard’s conviction. Because Haggard did not also seek

“vacation” of that dismissed conviction, it remained on his record, just like any

other conviction would.

The legislature cannot possibly have intended this result. I therefore

respectfully dissent.

1 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

FACTS

Haggard was convicted of various crimes in California between 2002 and

2005. Clerk’s Papers (CP) at 110. Approximately five years after his release, the

State of Washington charged Haggard with misdemeanor disorderly conduct. He

pleaded guilty pursuant to a plea-bargained exchange of promises, and the district

court deferred his sentence and placed him on probation. Haggard’s probation

terms required him to submit to an alcohol assessment, complete an anger

management workshop, commit no similar violations, and complete other “special

conditions” that are outside our record. CP at 152. Haggard complied fully with

all these conditions. Accordingly, the district court dismissed the case against him.

In 2017, the trial court found Haggard guilty of the felonies at issue in this

case after a stipulated facts bench trial. CP at 104.

I. The Two Statutes Offer Alternative Means for Different Misdemeanants To Clear the Record of Their Conviction

The primary issue before this court is whether a “dismissed” conviction

under RCW 3.66.067 may interrupt the SRA’s 1 criminal history washout period

1 Sentencing Reform Act of 1981, ch. 9.94A RCW.

2 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

under RCW 9.94A.525(2).2 To answer this question, we must determine whether

Haggard’s dismissed 2011 misdemeanor remained a “conviction” after its

dismissal. I would hold that the answer to that question is a resounding no.

The majority labels RCW 3.66.067 a “dismissal” statute and RCW 9.96.060

a “vacation” statute. Majority at 10. But both statutes seek to clear convictions

from the offender’s record. They are just geared toward different offenders, and

they serve different purposes.

RCW 3.66.067 permits district courts to defer a misdemeanor sentence and

place the defendant on probation instead. “During the time of the deferral, the

court may, for good cause shown, permit a defendant to withdraw the plea of guilty

and to enter a plea of not guilty, and the court may dismiss the charges.” RCW

3.66.067. “The granting of a deferred sentence and probation, following a plea or

verdict of guilty, is a rehabilitative measure, and as such is not a ‘matter of right

but is a matter of grace, privilege, or clemency granted to the deserving and

2 “[C]lass C prior felony convictions other than sex offenses shall not be included in the offender score if since the last date of release from confinement . . . pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.” RCW 9.94A.525(2)(c).

3 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

withheld from the undeserving,’ within the sound discretion of the trial judge.” 3

State v. Shannon, 60 Wn.2d 883, 888, 376 P.2d 646 (1962) (quoting State v.

Farmer, 39 Wn.2d 675, 679, 237 P.2d 734 (1951)), overruled in part on other

grounds by Mempa v. Rhay, 68 Wn.2d 882, 888-89, 416 P.2d 104 (1966), rev’d by

389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). Thus, only a small subset of

“deserving” misdemeanants receive the benefit of a deferred sentence, and the

smaller subset of those who successfully comply with all probation conditions

receive dismissal.

RCW 9.96.060 provides a more complicated procedure for “vacating”

convictions. It is available after three crime-free years in the community. RCW

9.96.060(2)(g), (h). Unlike a deferred sentence, which is available only to

“deserving” defendants at the discretion of the trial judge, Shannon, 60 Wn.2d at

888, vacation of sentence is available to almost any misdemeanant, subject to

various specific statutory exceptions.4

3 Cf. Majority at 11 (“Granting dismissal and vacation are both matters of discretion, but . . . the vacation statute limits this discretion.”). Whether to offer a defendant the benefit of a deferred sentence at all is a matter of trial court discretion; when the defendant complies with the terms of probation, the trial court is obligated to dismiss the conviction. 4 As the majority recognizes, both statutes contain exceptions. RCW 3.66.067 does not permit trial courts to defer driving under the influence sentences; RCW 9.96.060 prohibits dismissal or vacation of various domestic violence and sex offenses. These 4 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

While RCW 3.66.067 provides an avenue for district courts to defer

punishment and then dismiss convictions, the legislature placed RCW 9.96.060 in

the RCW chapter for “restoration of civil rights.” Defendants whose convictions

have been dismissed because they fully complied with a deferred sentencing

program do not need their rights “restored” because their conviction has already

been dismissed. Their rights were never lost. Defendants who have served a

sentence without the benefit of deferral, on the other hand, may seek vacation of

conviction to clear their record and restore their rights.

Neither the term “dismiss” nor “vacate” is defined anywhere in chapters

3.66 or 9.96 RCW or in the SRA. We therefore turn to the dictionary definitions.

LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 741-42, 339 P.3d 963 (2014)

(citing Garrison v. Wash. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7

(1976)). Black’s Law Dictionary defines “dismissal” to mean “[t]ermination of an

action, claim, or charge without further hearing, esp. before a trial; esp., a judge’s

decision to stop a court case through the entry of an order or judgment that imposes

no civil or criminal liability on the defendant with respect to that case.” BLACK’S

differences emphasize that the statutes serve different purposes and are aimed at different offenders. 5 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

LAW DICTIONARY 589 (11th ed. 2019) (emphasis added). “Vacate” means “[t]o

nullify or cancel; make void; invalidate.” Id. at 1862.

These definitions explain the legislature’s intent in each statute. RCW

3.66.067’s purpose is to provide district court judges 5 with authority to defer and

suspend sentences and dismiss charges after a misdemeanant successfully

completes probation. 6 The dismissal, with its statutory consequence of “no civil or

criminal liability on the defendant,” provides an incentive to comply with

probation conditions for deserving misdemeanants who acknowledge their

wrongdoing and agree to rehabilitative measures.

RCW 9.96.060’s vacation procedures also make sense in the light of that

statute’s purpose and the definition of “vacate.” Years after a case has concluded,

as must always be the case when a defendant petitions for vacation, the trial court

no longer has jurisdiction to “dismiss” the charges. Vacation therefore provides a

5 RCW 3.50.320 offers an equivalent suspended or deferred sentencing scheme to municipal courts. RCW 9.95.210 provides similar authority to superior courts, though does not mention deferred sentences. 6 To be sure, we have said that “pre-SRA conviction[s] that result[ed] in a suspended or deferred sentence continue[d] to qualify as . . . ‘conviction[s]’ under the SRA.” In re Pers. Restraint of Carrier, 173 Wn.2d 791, 801, 272 P.3d 209 (2012). But there we analyzed dismissed felony convictions. The SRA applies only to felonies, not to misdemeanors for which sentencing courts retain “a great deal of discretion when setting probation conditions.” State v. Deskins, 180 Wn.2d 68, 78, 322 P.3d 780 (2014). I discuss Carrier and what it means for this case further in Part II. 6 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

procedure to clear the defendant’s record and “restore” his or her civil rights after

the case has concluded, consistent with chapter 9.96 RCW’s overarching purpose.

II. The SRA Does Not Apply to Misdemeanors, Limiting the Applicability of Its Definitions and Cases Interpreting It

The majority, relying on the SRA definition of “conviction,” holds that

Haggard’s argument “collapses when read in the greater context of the SRA and

our case law interpreting that statutory scheme.” Majority at 6. But neither

chapter 3.66 nor 9.96 RCW fall under the SRA. Nor does the SRA apply at all to

misdemeanors—only felonies. State v. Snedden, 149 Wn.2d 914, 922, 73 P.3d 995

(2003) (citing RCW 9.94A.010; State v. Marks, 95 Wn. App. 537, 538, 977 P.2d

606 (1999)). Still, our analysis in two cases considering comparable felony

statutes provides guidance.

The first case is State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155 (2001). In

Breazeale, we interpreted an equivalent statutory scheme for felony charges. Id. at

835. One statute gave trial courts discretion to impose deferred sentences and

probation followed by dismissal; the other statute gave trial courts discretion to

vacate convictions after a crime-free period of years. Id. at 835-36 (quoting RCW

9.95.240; RCW 9.94A.230(1), recodified as RCW 9.94A.640(1)). Those two

statutes are just like the two statutes at issue in this case: one creates a deferral

7 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

plus dismissal scheme and one provides a vacation scheme. Id. We held that the

legislature intended these two statutes “to have the same practical effect.” Id. at

837. Indeed, the Sentencing Guidelines Commission had noted that vacation

“‘operates to clear the record of conviction in the same manner as did the

Probation Act.’” Id. at 838 (internal quotation marks omitted) (quoting DAVID

BOERNER, SENTENCING IN WASHINGTON § 11.6, at 11-7 (1985)).

We then clarified our Breazeale decision in the second case: In re Personal

Restraint of Carrier. 173 Wn.2d 791, 272 P.3d 209 (2012). In that case, the trial

court had sentenced the defendant to life in prison under the Persistent Offender

Accountability Act of the SRA. Id. at 795. In making its sentencing decision, the

trial court relied on a pre-SRA “dismissed” conviction as the defendant’s first

“strike.” Id.

Clarifying Breazeale, we stated that the “entire premise” of Breazeale’s

analysis was “that the legislature intended the SRA vacation statute to have the

same effect as the pre-SRA dismissal statute.” Id. at 806. This was because

“[r]equiring defendants to petition the court twice . . . —first to obtain a dismissal

and then to vacate the conviction—serves no purpose.” Id.

Between the decisions in Breazeale and Carrier, the legislature amended

one of the statutes “to essentially require the two-step process for vacation of pre-

8 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

SRA convictions” that would serve no purpose. Id. at 807. We made it clear that

without these amendments, known as the “Breazeale fix,” “Carrier would succeed

in his claim that the trial court wrongly included his dismissed conviction in his

criminal history.” Id. at 806-07.

The legislature has not drafted any misdemeanor “Breazeale fix.” That

means that the situation we hypothesized in Carrier is the exact situation before

the court now. In fact, that is the only permissible interpretation of our holdings in

Breazeale and Carrier. This court’s interpretation of a statute, including our

interpretation of the legislative intent behind a statute, applies to the meaning of

that statute since its inception;7 the “Breazeale fix” can be interpreted only as a

change to the single pre-SRA deferred sentencing scheme it purported to change.

It cannot be interpreted so as to change what the legislature’s intent was before that

“fix”: that requiring defendants to petition for dismissal and vacation “serves no

purpose.” Id. at 806.

Carrier did also observe that “dismissal” under the pre-SRA dismissal

statute “does not invalidate or erase the conviction” and that “vacation of a

7 In re Pers. Restraint of Hinton, 152 Wn.2d 853, 859, 100 P.3d 801 (2004) (applying In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) retroactively despite legislature’s post-Andress change to the statute at issue because the court’s 2002 construction “determined what the statute had meant since 1976”); In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). 9 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

conviction provides the sole mechanism for removing the conviction from a

defendant’s criminal history.” Id. at 803-04. But after reaching these conclusions,

the Carrier court went on to decide that without the Breazeale fix, “a court’s

dismissal of a pre-SRA conviction . . . has the same legal effect as vacating the

conviction under the SRA.” Id. at 806 (citing former RCW 9.95.240 (1957)).

To be sure, there is a difference between RCW 3.66.067 and the statutes

interpreted in Breazeale and Carrier. RCW 3.66.067 does not say that the

defendant shall “be released from all penalties and disabilities resulting from the

offense.” Cf. RCW 9.96.060(6)(a); 9.94A.640(3)(a); 9.95.240(1). The majority

finds this distinction fatal to Haggard’s argument. Majority at 16-17. And it is

true that when the legislature uses different terminology, we usually presume it

intends a different meaning. State v. Roggenkamp, 153 Wn.2d 614, 625, 106 P.3d

196 (2005) (citing State v. Beaver, 148 Wn.2d 338, 343, 60 P.3d 586 (2002)).

But we also read statutes to avoid rendering terms meaningless. Id. at 624

(quoting State ex rel. Schillberg v. Barnett, 79 Wn.2d 578, 584, 488 P.2d 255

(1971)). Regardless of the legislature’s inclusion or exclusion of that specific

phrase in RCW 3.66.067, it used the word “dismiss.” We should not render

“dismiss” meaningless because the legislature spelled out the specifics of what

“dismiss” means more precisely in other statutes. It would also be absurd to do so.

10 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

III. It Would Be Absurd To Render the Dismissal Statute Meaningless

“[W]e presume the legislature does not intend absurd results.” State v.

Ervin, 169 Wn.2d 815, 823-24, 239 P.3d 354 (2010) (citing State v. Vela, 100

Wn.2d 636, 641-42, 673 P.2d 185 (1983)). While both the majority and the State

contend “dismissal” is still a valuable result for the defendant under their

interpretation, neither provides a single example of one actual benefit to the

misdemeanant—not even the benefit of being able to truthfully tell a potential

employer that they do not have a criminal conviction. It would be absurd to

interpret a “dismissed” conviction as identical to any other conviction.

The State contends that dismissal alone means “[a] great deal,” such as that

“a defendant was previously convicted, but no longer is.” Suppl. Br. of Resp’t at

8. The State seems to be making the tautological point that the benefit of a

dismissed conviction is that it is dismissed. It suggests no other specific benefit to

the defendant. Neither does the majority.

When charges are “dismissed,” they should be treated as dismissed. The

majority dismisses this reasoning as “deceptively simple.” Majority at 6. But its

reading is deceivingly complicated. Many charged misdemeanants plead guilty to

receive the benefit of deferred sentences on the understanding that after complying

with probation, their charges will be “dismissed.” Using an attractive term like

11 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)

“dismissal” and then defining it out of existence in the fine print misleads every

defendant who agrees to plead guilty in exchange for a deferred sentence.

Our legislature does not write meaningless statutes. It crafted a deferred

misdemeanor sentencing scheme that allows a small category of deserving

misdemeanor defendants to comply with probation terms and get the benefit of

dismissal in return. The majority holds that those “dismissed” convictions are

identical to all other convictions of all other defendants whose sentences were not

deferred or who violated their probation. That cannot possibly be what the

legislature intended when it drafted RCW 3.66.067.

I respectfully dissent.

12 State v. Haggard (David Brent), No. 97375-0 (Gordon McCloud, J., dissenting)