State v. Jenks

487 P.3d 482, 197 Wash. 2d 708

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE MAY 27, 2021 SUPREME COURT, STATE OF WASHINGTON MAY 27, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) Respondent, ) No. 98496-4 ) v. ) En Banc ) ALAN D. JENKS, ) Filed :_____________ May 27, 2021 ) Petitioner. ) )

WHITENER, J.—Alan Jenks was sentenced to life without parole under the

Persistent Offender Accountability Act (POAA), part of the Sentencing Reform Act

of 1981 (SRA), ch. 9.94A RCW. One of his strike offenses was second degree

robbery, which was removed from the list of most serious offenses in 2019.

ENGROSSED SUBSTITUTE S.B. (ESSB) 5288, 66th Leg., Reg. Sess. (Wash. 2019). The

amendment came into effect after Jenks’ conviction, when his case was pending

before the Court of Appeals. The Court of Appeals held that the amendment did not

apply to his case and upheld his sentence.

The sole question before us is whether to apply ESSB 5288 to Jenks’ case.

The State argues that it cannot apply due to RCW 9.94A.345 and RCW 10.01.040. State v. Jenks (Alan D.), No. 98496-4

We agree with the State and hold that ESSB 5288 does not apply to Jenks’ case.

Although this outcome is harsh, the legislature commands this result. We affirm the

decision of the Court of Appeals and uphold Jenks’ sentence.

FACTS AND PROCEDURAL HISTORY

Jenks appeals his conviction of first degree robbery, which he committed in

December 2014. The sentencing court determined that he had three strikes, and he

was sentenced to life without parole under the POAA in June 2017. One of his strikes

was second degree robbery. Two years after he was sentenced as a persistent

offender, the legislature enacted ESSB 5288, which removed second degree robbery

from the list of “most serious offenses”; it no longer counts as a strike under the

POAA. LAWS OF 2019, ch. 187, § 1(33)(o).

ESSB 5288 came into effect on July 28, 2019. Id. At that time, Jenks’ case

was pending before the Court of Appeals. State v. Jenks, 12 Wn. App. 2d 588, 590,

459 P.3d 389 (2020). Jenks argued that ESSB 5288 should apply to his case because

the amendment removed second degree robbery from the statute for “three-strike”

sentencing purposes. Id. The Court of Appeals disagreed, upholding Jenks’

persistent offender sentence to life in prison without possibility of release. Id.

2 State v. Jenks (Alan D.), No. 98496-4

Jenks sought review in this court of that decision and other issues. We granted

review only on the issue of whether ESSB 5288, amending RCW 9.94A.030, applies

to his case. Order, No. 98496-4 (Wash. Sept. 9, 2020).1

Several amici briefs have been filed, which the State moved to strike, along

with portions of the petitioner’s supplemental brief. The motions were granted with

respect to arguments concerning the constitutionality of the POAA, arguments not

raised in the petition for review, and arguments solely raised by amici. Clerk’s Letter

Ruling, No. 98496-4 (Wash. Nov. 3, 2020). The motions to strike citations to

secondary sources and to strike discussions of racial discrimination were denied. Id.

Nevertheless, Jenks and amici do raise serious concerns about the racially

disproportionate impact of the POAA. Black defendants appear to receive life

without parole sentences at a far greater rate than white defendants. Suppl. Br. of

Pet’r at 1; Amicus Br. of King County Dep’t of Pub. Def. et al. at 8-9; Br. of Amici

Curiae Fred T. Korematsu Ctr. for Law & Equality et al. at 5. Indeed, the legislature

itself acknowledged this in drafting ESSB 5288, noting that “[t]here is racial

disparity in how the persistent offender statute is enforced. Four percent of the

population [of Washington] is African American yet a disproportionate number have

1 Jenks believes that we also granted review of his argument that the POAA violates equal protection because it does not require proof of prior offenses to a jury beyond a reasonable doubt, while, in other circumstances, such proof is necessary. Pet. for Review at 1-3.We did not. We granted review only on the “persistent offender sentence issue.” Order, No. 98496-4 (emphasis added).

3 State v. Jenks (Alan D.), No. 98496-4

been convicted as persistent offenders.” S.B. REP. ON S.B. 5288, 66th Leg., Reg. Sess.

(Wash. 2019). However, these issues are not before the court, as noted above. Such

constitutional consideration must await the appropriate case, and Jenks’ case must

await a legislative fix. 2

STANDARD OF REVIEW

A sentencing court’s decision to consider a prior conviction as a strike is

reviewed de novo. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). This

case primarily involves questions of statutory interpretation; such questions are also

subject to de novo review. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d

1, 9, 43 P.3d 4 (2002).

ANALYSIS

In Washington, “‘the fixing of legal punishments for criminal offenses is a

legislative function.’” State v. Hughes, 154 Wn.2d 118, 149, 110 P.3d 192 (2005),

(quoting State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719 (1986)), abrogated

2 That legislative fix has arrived, with the signing of Engrossed Senate Bill 5164 into law on April 26, 2021. See ENGROSSED S.B. 5164, 67th Leg., Reg. Sess. (Wash. 2021) (http://lawfilesext.leg.wa.gov/biennium/2021- 22/Pdf/Bills/Session/%20Laws/Senate/5164.SL.pdf?q=20210513094734). This bill provides Jenks with exactly the relief he wants: it mandates resentencing for those sentenced to life without parole as persistent offenders for those whose strike offenses include second degree robbery, and it requires that the resentencing be conducted as if second degree robbery is not a strike. Id. When effective on July 25, 2021, this new law will grant Jenks exactly what he requested of us: resentencing as if second degree robbery is not a strike offense.

4 State v. Jenks (Alan D.), No. 98496-4

on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165

L. Ed. 2d 466 (2006). It is therefore “‘the function of the legislature and not of the

judiciary to alter the sentencing process.’” Id. (internal quotation marks omitted)

(quoting Ammons, 105 Wn.2d at 180). Two statutes regarding legislative

commandments for punishment are implicated by this case: RCW 9.94A.345 and

RCW 10.01.040.

These statutes control the result of amendments to penal statutes in

Washington. At common law, the rule was that where “a statute is repealed, it is, as

regards its operative effect, considered as if it had never existed, except as to matters

and transactions past and closed, and all pending litigation must be decided

according to the state of the law at the time of the decision.” State v. Zornes, 78

Wn.2d 9, 12, 475 P.2d 109 (1970) (plurality opinion), overruled on other grounds

by United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 755 (1979).

But the legislature changed that, first, over a century ago with RCW 10.01.040 and,

again, decades ago with RCW 9.94A.345. Under these statutes—as discussed in

more detail below—sentences imposed under the SRA are generally meted out in

accordance with the law in effect at the time of the offense. See RCW 9.94A.345;

Today, we consider ESSB 5288 in light of RCW 9.94A.345 and RCW

10.01.040. ESSB 5288 came into effect in July 2019, while Jenks’ case was pending

5 State v. Jenks (Alan D.), No. 98496-4

on appeal. LAWS OF 2019, ch. 187. As a statute, ESSB 5288 is construed based on

its plain language, including that of related enactments; if unambiguous, its plain

language provides the beginning and the end of the analysis. Campbell & Gwinn,

146 Wn.2d at 9-12. “Language is unambiguous when it is not susceptible to two or

more interpretations.” State v. Delgado, 148 Wn.2d 723, 726, 63 P.3d 792 (2003).

ESSB 5288 is unambiguous. The legislature describes the statute as “AN ACT

Relating to removing robbery in the second degree from the list of offenses that

qualify an individual as a persistent offender; and amending RCW 9.94A.030.”

ESSB 5288, LAWS OF 2019, ch. 187 pmbl. The amendment removed “[r]obbery in

the second degree” from the list of most serious offenses. LAWS OF 2019, ch. 187, §

1(33)(o). RCW 9.94A.030 was otherwise unchanged. Its effects are clear: it simply

removes second degree robbery from the list of most serious offenses. While the

legislature contemplated making this change retroactive, such that those previously

sentenced to life without parole due to a second degree robbery strike could obtain

resentencing, this provision was removed from the legislation before the bill was

enacted. See Amend. 5288-S AMS PADD S2657.1 to ESSB 5288, at 1, 66th Leg.,

Reg. Sess. (Wash. 2019). Therefore, this change does not apply to Jenks’ case due

to the operation of RCW 9.94A.345 and RCW 10.01.040. The enactments of the

legislature demand this result.

6 State v. Jenks (Alan D.), No. 98496-4

I. Both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be sentenced under the statutory scheme in effect at the time of his offense, not the amendment found in ESSB 5288 A. RCW 9.94A.345 precludes the application of ESSB 5288 to Jenks’ case

RCW 9.94A.345 commands, “Any sentence imposed under this chapter shall

be determined in accordance with the law in effect when the current offense was

committed.” (Emphasis added.) This plain language is unambiguous. See Delgado,

148 Wn.2d at 726-27 (“Language is unambiguous when it is not susceptible to two

or more interpretations.”). RCW 9.94A.345 clearly commands that sentences

imposed under “this chapter”—the SRA—be imposed under the law in effect at the

time of the crime. We have repeatedly invoked RCW 9.94A.345 for just this

purpose. See, e.g., State v. Medina, 180 Wn.2d 282, 287, 324 P.3d 682 (2014) (citing

RCW 9.94A.345 for the proposition that “a defendant must be sentenced in

accordance with the law in effect at the time of his or her offense”); In re Pers.

Restraint of Carrier, 173 Wn.2d 791, 808-09, 272 P.3d 209 (2012) (same).

RCW 9.94A.345 thus applies straightforwardly to this case. Jenks’ current

offense was first degree robbery, committed in December 2014. At that time—as

now—Jenks’ sentence as a persistent offender occurred under chapter 9.94A RCW;

thus, RCW 9.94A.345 applies to his sentence. See former RCW 9.94A.030(37)

(2012) (defining “persistent offender”); RCW 9.94A.570 (sentences for persistent

offenders). The law in effect at that time, former RCW 9.94A.030(32)(o) (2012),

7 State v. Jenks (Alan D.), No. 98496-4

listed second degree robbery a most serious offense. Therefore former RCW

9.94A.030(32)(o) applies, not ESSB 5288.

Under former RCW 9.94A.030(32)(o), Jenks had three strikes: one conviction

for second degree robbery (at issue here) as well as two convictions for first degree

robbery, including his current offense. Clerk’s Papers at 114. His conviction

mandated a life without parole sentence as a persistent offender. See former RCW

9.94A.030(37); RCW 9.94A.570. Even though RCW 9.94A.030 was later amended,

that does not assist Jenks because RCW 9.94A.345 commands sentencers to look to

the law in effect at the time of the crime.

Jenks argues that RCW 9.94A.345 does not apply because the legislature’s

statement of intent, included in the Laws of 2000, chapter 26—which enacted RCW

9.94A.345—prevents its application here. This statement of intent reads, in full:

This act is intended to cure any ambiguity that might have led to the Washington supreme court’s decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual’s offender score should be determined by the law in effect on the day the current offense was committed. This act is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.

LAWS OF 2000, ch. 26, § 1. Jenks argues that RCW 9.94A.345 therefore “is meant to

apply only to the calculation of the offender score and the determination of eligibility

for sentence alternatives.” Pet. for Review at 11 (emphasis added).

8 State v. Jenks (Alan D.), No. 98496-4

We do not adopt Jenks’ reading of this statement of intent. The statement of

intent made express only one purpose, and one of the effects, of the statute—nothing

more. See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598

(2003) (“[A] court must not add words where the legislature has chosen not to

include them.”). The word “only” is not found in the statement of intent: it thus does

not limit the reach of RCW 9.94A.345 to the statement of intent. To the extent this

statement of intent is perceived to add any ambiguity to the application of RCW

9.94A.345, that ambiguity is cured by looking to other legislative enactments

regarding the SRA. The legislature has also said—in an analogous statement of

intent in another amendment to RCW 9.94A.030—that “each time the legislature

has amended the [SRA], the legislature intended that an offender’s criminal history

. . . be determined using the statutory provisions that were in effect on the day the

current offense was committed.” LAWS OF 2002, ch. 107, § 1. This makes clear that

RCW 9.94A.345 applies to situations like the one before us today.

Indeed, we have not interpreted the statement of intent as limiting the reach

of RCW 9.94A.345. We have instead applied RCW 9.94A.345 to various issues

relating to sentencing, not only those described in the statement of intent. See, e.g.,

Medina, 180 Wn.2d at 287 (applying RCW 9.94A.345 to determine what laws

governed “credit for time served” at the time of the offense).

9 State v. Jenks (Alan D.), No. 98496-4

Jenks makes contrary claims. In his briefing, Jenks argues that in State v.

Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), we “relied on that very statement

of limited intent to conclude RCW 9.94A.345 did not prevent application of new

sentencing statutes to crimes committed long before their enactment.” Suppl. Br. of

Pet’r at 19-20 (citing Pillatos, 159 Wn.2d at 472-73). But Pillatos is better

distinguished than followed. In Pillatos, we dealt with whether a new statute, which

gave juries the responsibility of finding facts that could justify a sentence above the

standard range, could be applied to defendants who had committed crimes before

the enactment of the statute but who were tried afterward. 159 Wn.2d at 465. We

held that RCW 9.94A.345 did not bar the application of the new statute. Id. at 472-

73. We discussed how the “legislature’s express intent” in enacting RCW 9.94A.345

“was to overrule [State v.] Cruz[, 139 Wn.2d 186, 985 P.2d 384 (1999)], at least

prospectively, and make clear that defendants had no vested rights in prior, more

lenient, offender score calculation statutes.” Id. But immediately after discussing this

legislative intent, we stated:

In this case, both past and present law allows for exceptional sentencing. The “law in effect when the current offense was committed,” reasonably read, includes the possibility of exceptional sentences, and the change in procedures does not violate the letter or purpose of RCW 9.94A.345.

Id. at 473 (emphasis added).

10 State v. Jenks (Alan D.), No. 98496-4

Here, by contrast, applying the amendment would directly “violate the

letter . . . of RCW 9.94A.345” because it would lead to Jenks’ being sentenced under

a law other than that which was in effect at the time of the crime. Id. And unlike in

Pillatos, the law in existence at the time of Jenks’ offense could not contemplate the

possibility that second degree robbery would not be a most serious offense. If the

law in effect at the time could include the possibility of being repealed, then RCW

9.94A.345 would be read out of existence—an impermissible result. See State v.

J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (“‘Statutes must be interpreted and

construed so that all the language used is given effect, with no portion rendered

meaningless or superfluous.’” (internal quotation marks omitted) (quoting Davis v.

Dep’t of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999))).3

Additionally, Jenks argued at oral argument that RCW 9.94A.345 is in

derogation of the common law and thus must be strictly construed. Wash. Supreme

Court oral argument, State v. Jenks, No. 98496-4 (Nov. 17, 2020), at 5 min., 00 sec.,

video recording by TVW, Washington State’s Public Affairs Network,

http://www.tvw.org. But strict construction would not help Jenks, as it cannot limit

3 At oral argument, Jenks went further, asserting that in Pillatos we held that the RCW 9.94A.345 controls only the situations discussed in its statement of intent. Wash. Supreme Court oral argument, State v. Jenks, No. 98496-4 (Nov. 17, 2020), at 40 min, 4 sec., video recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org. As the above discussion indicates, Pillatos contains no such holding. 159 Wn.2d at 472-73.

11 State v. Jenks (Alan D.), No. 98496-4

the statute to its statement of intent, despite Jenks’ arguments to the contrary. See id.

“Strict construction requires that, ‘given a choice between a narrow, restrictive

construction and a broad, more liberal interpretation, we must choose the first

option.’” In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010) (quoting

Pac. Nw. Annual Conference of United Methodist Church v. Walla Walla County,

82 Wn.2d 138, 141, 508 P.2d 1361 (1973)). A strict construction is therefore not one

that runs counter to the text of the statute, see id.—which is precisely Jenks’ request.

Indeed, it would not narrow but, instead, delete the language of RCW 9.94A.345 to

limit its reach to the few situations discussed in its statement of intent.

In sum, RCW 9.94A.345 applies, precluding the application of ESSB 5288 to

Jenks’ case.

B. RCW 10.01.040 also precludes application of ESSB 5288 here

The saving clause statute, RCW 10.01.040, also applies. The relevant portion

of RCW 10.01.040 reads:

Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.

12 State v. Jenks (Alan D.), No. 98496-4

The saving clause created by this statute “‘is deemed a part of every repealing

statute as if expressly inserted therein, and hence renders unnecessary the

incorporation of an individual saving clause in each statute which amends or repeals

an existing penal statute.’” State v. Ross, 152 Wn.2d 220, 237, 95 P.3d 1225 (2004)

(quoting State v. Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938)).

Jenks’ case presents us with precisely the situation contemplated by RCW

10.01.040. Jenks committed his crime when the former RCW 9.94A.030(32)(o)

(2012) “was in force,” and subsequently that “penal statute” was “repealed,”

meaning that his crime should be “punished . . . as if [that statute] were in force.”

RCW 10.01.040. Thus RCW 10.01.040 requires that Jenks be sentenced under the

regime that existed prior to ESSB 5288. As discussed above, under the prior

sentencing regime, second degree robbery was a most serious offense, Jenks had

three strikes, and therefore his third conviction resulted in life without parole. See

discussion supra pp. 6-7.

“To avoid application of the savings clause, we have not required that the

legislature explicitly state its intent that amendments repealing portions of criminal

and penal statutes apply retroactively to pending prosecutions for crimes committed

before the amendments’ effective date. Instead, ‘such intent need only be expressed

in words that fairly convey that intention.’” Ross, 152 Wn.2d at 238 (internal

quotation marks omitted) (quoting State v. Kane, 101 Wn. App. 607, 612, 5 P.3d 741

13 State v. Jenks (Alan D.), No. 98496-4

(2000)); see also Zornes, 78 Wn.2d at 13 (strictly construing RCW 10.01.040 in this

manner because it is in derogation of the common law).That said, ESSB 5288’s

language does not fairly convey intent to exclude the saving clause. As noted above,

the legislature describes the statute as “AN ACT Relating to removing robbery in

the second degree from the list of offenses that qualify an individual as a persistent

offender; and amending RCW 9.94A.030.” LAWS OF 2019, ch. 187 pmbl. That is all

that the amendment accomplishes: removing second degree robbery from the list of

most serious offenses. See id. § 1(33)(o).

This contrasts clearly with cases where we found such intent. For instance, in

Zornes, we held that the amendment excluded the saving clause because it stated

that “‘the provisions of this chapter shall not ever be applicable to any form of

cannabis.’” 78 Wn.2d at 11 (emphasis omitted) (quoting LAWS OF 1969, 1st Ex.

Sess., ch. 256). “If the provisions of the uniform narcotics act are not ‘ever’ to be

applied to cannabis,” we concluded, “they are not to be applied in any case, whether

pending or arising in the future.” Id. at 13-14.

ESSB 5288 does not contain language similar to that in Zornes, whose “not

ever” language was read as stretching backward in time. Id. ESSB 5288 simply

removes second degree robbery from the list of most serious offenses; this change

unambiguously does not convey any intent to overcome the saving clause or for the

statute to apply retroactively.

14 State v. Jenks (Alan D.), No. 98496-4

Although we need not go further, legislative history only reaffirms this

conclusion. See Campbell & Gwinn, 146 Wn.2d at 12 (we turn to legislative history

when plain language does not resolve the question of statutory interpretation); see

also Barstad v. Stewart Title Guar. Co., 145 Wn.2d 528, 536-37, 39 P.3d 984 (2002)

(we may look to legislative history to determine whether the statute was intended to

be retroactive). At one point, the amendment permitted those previously sentenced

as persistent offenders to be resentenced if one of their strikes was second degree

robbery; however, the legislature removed the provision requiring resentencing

before the bill was enacted. Amend. 5288-S AMS PADD S2657.1 to ESSB 5288, at

1. While such express retroactive language would exempt a statute from the

application of RCW 10.01.040 (as well as RCW 9.94A.345), the legislature chose

not to include it. Thus, none of the legislature’s actions indicate that they intended

to overcome the application of RCW 10.01.040.

Jenks argues that the saving clause statute is not substantive and, therefore,

does not apply. RCW 10.01.040 applies only to substantive changes in the law, not

procedural ones. Pillatos, 159 Wn.2d at 472. But ESSB 5288 is substantive: we have

repeatedly made clear that changes to criminal punishments are substantive, not

procedural. See State v. Smith, 144 Wn.2d 665, 674, 30 P.3d 1245 (2001) (changing

the meaning of the term “criminal history” in the SRA was a substantive change);

15 State v. Jenks (Alan D.), No. 98496-4

Cruz, 139 Wn.2d at 192 (holding an amendment was substantive when it dealt with

punishment rather than procedures of a criminal trial).

Pillatos provides a clear contrast, as well. There, we held that RCW 10.01.040

did not apply to what we labeled a procedural amendment to the SRA. Pillatos, 159

Wn.2d at 472. The amendment in Pillatos required juries to find facts that justified

an exceptional sentence above the standard range. Id. at 465. Unlike ESSB 5288, it

did not change the punishment for offenses or the type of punishments possible, only

the manner in which that punishment was determined. See id. Pillatos therefore does

not render ESSB 5288 procedural.

In sum, RCW 10.01.040 applies alongside RCW 9.94A.345, also preventing

the application of ESSB 5288 to Jenks’ case.

II. Jenks’ remaining arguments are unpersuasive

A. Ramirez does not control

Jenks argues that State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018),

should apply to his case. Jenks’ arguments regarding Ramirez are bound up with a

prospective application argument. But ESSB 5288 does not apply prospectively to

Jenks’ case. “[A] statute applies prospectively,” rather than retroactively, “if the

precipitating event under the statute occurred after the date of enactment.” Carrier,

173 Wn.2d at 809. “To determine what event precipitates or triggers application of

the statute, we look to the subject matter regulated by the statute.” Id.

16 State v. Jenks (Alan D.), No. 98496-4

ESSB 5288 regulates which prior convictions count as a most serious offense

and, thus, who qualifies as a persistent offender under the POAA. LAWS OF 2019,

ch. 187, § 1. Current and former RCW 9.94A.030(37)(a)(i) and (ii) (2012) show that

the triggering event for determining who qualifies as a persistent offender occurs

when someone has been convicted of a most serious offense and was also, in the

past, convicted of two other most serious offenses on separate occasions. Here, the

triggering event was Jenks’ 2017 conviction for first degree robbery. That occurred

before the enactment of ESSB 5288 in 2019: the amendment therefore cannot apply

prospectively to Jenks’ case.

Jenks impliedly disagrees by arguing that Ramirez controls. In Ramirez, we

considered whether an amendment to the criminal filing fee statute, House Bill

1783, 4 applied prospectively to Ramirez’s case. Ramirez, 191 Wn.2d at 748. That

provision was enacted after we granted review but before we heard the case. Id.

Relying on State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997), where “[w]e

concluded that the ‘precipitating event’ for a statute ‘concerning attorney fees and

costs of litigation’ was the termination of the defendant’s case,” we held that House

Bill 1783 applied prospectively to Ramirez’s case. Ramirez, 191 Wn.2d at 749

(quoting Blank, 131 Wn.2d at 249). Specifically, we reasoned that “[b]ecause House

4 ENGROSSED SECOND SUBSTITUTE H.B. 1783, 65th Leg., Reg. Sess. (Wash. 2018) (House Bill 1783).

17 State v. Jenks (Alan D.), No. 98496-4

Bill 1783’s amendments pertain to costs imposed upon conviction and Ramirez’s

case was not yet final when the amendments were enacted, Ramirez [was] entitled

to benefit from this statutory change.” Id. The triggering event was the termination

of all appeals, at which point the costs were finalized. Id.

Jenks argues that because we held that the statute in Ramirez applied to a case

where sentencing was completed and the appeals not yet finalized, we should do the

same here. We decline to expand Ramirez. Ramirez and Blank, the case on which

Ramirez was largely based, dealt with the narrow subject matter of “costs imposed

upon conviction.” Ramirez, 191 Wn.2d at 749 (discussing Blank, 131 Wn.2d 230).

Such subject matter is not analogous to the determination of whether a defendant

qualifies as a persistent offender, as is the case here.

Jenks also takes Ramirez’s failure to mention RCW 10.01.040 as proof that it

did not bar application of the amendment in Ramirez and, thus, should not bar it

here. We decline to draw this inference. Ramirez’s silence on this statute means only

that it does not control how we apply RCW 10.01.040 today. See Ross, 152 Wn.2d

at 239 (also distinguishing cases because they did not discuss the saving clause).

In sum, ESSB 5288 does not apply prospectively to Jenks’ case. Ramirez does

not alter that conclusion.

18 State v. Jenks (Alan D.), No. 98496-4

B. Wiley and Heath are also inapplicable here

Jenks also relies on State v. Heath, 85 Wn.2d 196, 532 Wn.2d 621 (1975), and

State v. Wiley, 124 Wn.2d 679, 880 P.2d 983 (1994). Both were decided without

reference to RCW 10.01.040, and Jenks argues that they thus stand for the

proposition that the saving clause statute did not apply there and likewise should not

apply here. We disagree.

In Heath, we held that a new amendment applied retroactively in a civil

proceeding. 85 Wn.2d at 197-98. As Jenks noted in his briefing, we stated that when

the penalty for a crime is reduced, “the legislature is presumed to have determined

that the new penalty is adequate and that no purpose would be served by imposing

the older, harsher one.” Id. at 198. We added that “[t]his rule has even been applied

in the face of a statutory presumption against retroactivity and the new penalty

applied in all pending cases.” Id. (citing In re Estrada, 63 Cal.2d 740, 408 P.2d 948,

48 Cal. Rptr. 172 (1965); People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 151

N.Y.S.2d 367 (1956)).

Heath does not control, as we established in Ross, 152 Wn.2d at 239 and n.11.

In Ross, we faced the question of whether amendments dealing with the calculation

of offender scores applied retroactively. Id. at 233-34. In concluding that they did

not, we distinguished Heath. Id. at 239. We reasoned that “Heath did not directly

implicate the savings clause since it pertained to amendments governing civil driver

19 State v. Jenks (Alan D.), No. 98496-4

license revocations under the Washington Habitual Traffic Offenders Act.” Id.

(emphasis added). The same is true here: this is a criminal case, not a civil

proceeding. Ross also specifically discounted Heath’s statement that legislation

reducing penalty for a crime is retroactive even “‘in the face of a statutory

presumption against retroactivity’”:

[S]ince Heath involved amendments to the portion of the Washington Habitual Traffic Offenders Act that governs license revocation proceedings, the savings clause was not directly implicated. Thus, we refuse to extend this language in Heath to cases where the savings clause clearly requires this court to enforce statutory amendments to the penal code prospectively.

Ross, 152 Wn.2 at 239 n.11 (citation omitted) (quoting Heath, 85 Wn.2d at 198).

Ross’s reasoning applies here with equal force.

Wiley can be similarly distinguished. In Wiley, we considered whether a

change in law applied “retroactively to the prior convictions used to calculate an

offender score under the SRA.” 124 Wn.2d at 682. We held that “when the

Legislature downgrades the status of an offense”—that is, from a felony to a

misdemeanor—“a sentencing court must give retroactive effect to the Legislature’s

decision.” Id. at 687. Ross distinguished Wiley on the ground it “did not address the

effect of the savings clause.” Ross, 152 Wn.2d at 239. Wiley does not apply here for

the same reason. Further, Wiley held that a change is retroactive when a crime is

downgraded from a felony to a misdemeanor. 124 Wn.2d 686-87. Here, second

degree robbery was removed from the list of most serious offenses: no crime was

20 State v. Jenks (Alan D.), No. 98496-4

downgraded from a felony to a misdemeanor. For those reasons, we do not follow

Wiley today.

C. Jenks’ remaining arguments are unpersuasive

Jenks argues that we should follow the principle that “new decisional law can

apply ‘to all cases . . . pending on direct review.’” Pet. for Review at 6 (quoting State

v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627 (2005)). But this has no bearing on the

question before us here. This case concerns amendments to statutes, not new

decisional law.

Jenks also argues that RCW 9.94A.345 and RCW 10.01.040 impermissibly

attempt to “control a future Legislature’s ability to amend or enact statutes.” Suppl.

Br. of Pet’r at 7 (discussing RCW 10.01.040); see also id. at 18-19 (discussing RCW

9.94A.345). Jenks relies on Washington State Farm Bureau Federation v. Gregoire,

162 Wn.2d 284, 174 P.3d 1142 (2007), for this argument. There, we stated, as a

familiar principle of law, that “[i]mplicit in the plenary power of each legislature is

the principle that one legislature cannot enact a statute that prevents a future

legislature from exercising its law-making power.” Id. at 301. But the statutes at

issue here do not limit the ability of the legislature to exercise its lawmaking power

in the future. Were the legislature to decide to repeal either of them or expressly craft

statutes that were exempt from them, it could do so.

21 State v. Jenks (Alan D.), No. 98496-4

Jenks also argues that RCW 10.73.100(6) applies to or informs the resolution

of his case. But this provision provides an exception to RCW 10.73.090, the one-

year time bar for filing a personal restraint petition; it does not apply here. See RCW

10.73.100 (“The time limit specified in RCW 10.73.090 does not apply to a petition

or motion that is based solely on one or more of the following grounds.”).

At oral argument, Jenks also asserted that ESSB 5288 is remedial and

therefore applies retroactively to his case. Wash. Supreme Court oral argument,

supra, at 7 min., 56 sec. We do not reach this question. Jenks argued that ESSB 5288

was remedial before the Court of Appeals. Jenks, 12 Wn. App. 2d at 599. The Court

of Appeals held that the remedial nature of the amendment was irrelevant, due to the

operation of RCW 10.01.040. Id. at 600. Jenks did not ask us for review of this

holding or argue that ESSB 5288 is remedial in his petition for review. Therefore,

the issue of whether ESSB 5288 is remedial is not properly before the court, and we

decline to reach it. See RAP 13.7(b). 5

5 The dissent argues that, in its view, under article I, section 14 of our constitution, leaving in place life without parole sentences when one of the strikes was second degree robbery where a newly sentenced offender would not receive a life without parole sentence with the same criminal history is cruel punishment, and that we must use the doctrine of constitutional avoidance to prevent such a result. Leaving aside that we express no view on this constitutional argument, constitutional avoidance would not command this result. “[A] statute will be construed so as to avoid constitutional problems, if possible.” State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997) (emphasis added). Or, as the dissent puts it, we must “choose an interpretation that avoids running afoul of article I, section 14.” Dissent at 7. But it is not possible to choose a different interpretation. The statutory scheme clearly commands the result we reach. Any other interpretation overrides the clear intent

22 State v. Jenks (Alan D.), No. 98496-4

CONCLUSION

We hold that ESSB 5288 does not apply to Jenks’ case and affirm the Court

of Appeals, upholding Jenks’ sentence of life without parole. In this case, the

enactments of the legislature command this result.

of the legislature as expressed in the statute’s language and scheme, supported by legislative history. See In re Parentage of C.A.M.A., 154 Wn.2d 52, 69, 109 P.3d 405 (2005) (we do not rewrite statutes to avoid constitutional problems). What the dissent appears to truly seek is to strike down the statute as unconstitutional—but that argument itself was stricken and is not before the court. The dissent’s invocation of the “rule that a newly enacted statute generally applies to cases pending on direct appeal and not yet final” does not provide reason for an alternative interpretation. Dissent at 7. As discussed at length above, the enactments of the legislature demand this result. See RCW 9.94A.345; RCW 10.01.040.

23 State v. Jenks (Alan D.), No. 98496-4

WE CONCUR.

24 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

No. 98496-4

YU, J. (concurring)—This case concerns the legislature’s decision to remove

second degree robbery as a predicate (strike) for purposes of sentencing individuals

to life without the possibility of parole under the Persistent Offender

Accountability Act (Three Strikes Law), RCW 9.94A.570. LAWS OF 2019, ch. 187,

§ 1 (the amendment). I agree with the majority’s holding that the legislature did

not intend for the amendment to apply to Alan Jenks’ life sentence and that this

outcome is “harsh.” Majority at 2. I also agree that Jenks and amici 1 raise “serious

concerns about the racially disproportionate impact” of the Three Strikes Law. Id.

at 3. I write separately to emphasize that while the legislature commands the harsh

result of affirming Jenks’ life sentence, the constitution and the ends of justice do

not. CONST. art. I, § 14.

1 Two amici briefs were filed in support of Jenks, the first by the Fred T. Korematsu Center for Law and Equality, American Civil Liberties Union of Washington, Columbia Legal Services, Justice Policy Institute, The Sentencing Project, Washington Association of Criminal Defense Lawyers, and Washington Defender Association and the second by the King County Department of Public Defense, the NAACP Alaska Oregon Washington-State Area Conference, Community Passageways, Concerned Lifers Organization, the Black Prisoners’ Caucus at the Washington State Reformatory, and Yoga Behind Bars. 1 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

In order to serve the ends of justice, the court retains discretion to waive any

appellate rule on its own initiative, including RAP 13.7(b)’s rule limiting review to

the questions raised in the petition for review and the answer. RAP 1.2(c); RAP

18.8(a); see, e.g., Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124, 864 P.2d 1382

(1994) (citing Kruse v. Hemp, 121 Wn.2d 715, 721, 853 P.2d 1373 (1993)).

“[W]hile we generally decline to reach issues not properly presented by the parties,

‘this court has inherent authority to consider issues not raised by the parties if

necessary to reach a proper decision.’” Filo Foods, LLC v. City of SeaTac, 183

Wn.2d 770, 792, 357 P.3d 1040 (2015) (quoting Alverado v. Wash. Pub. Power

Supply Sys., 111 Wn.2d 424, 429, 759 P.2d 427 (1988)). Consequently, the court

should have denied the State’s motions to strike the constitutional arguments so

that we might have reached the ultimate question regarding these life sentences.

See also RAP 12.1(b) (“If the appellate court concludes that an issue which is not

set forth in the briefs should be considered to properly decide a case, the court may

notify the parties and give them an opportunity to present written argument on the

issue raised by the court.”). 2

2 “The appellate court has the authority to determine whether a matter is properly before it, and to perform all acts necessary or appropriate to secure the fair and orderly review of a case.” RAP 7.3. The court recently answered a constitutional issue involving the Three Strikes Law in the same manner it granted review here. Compare Order, No. 98496-4 (Wash. Sept. 9, 2020), with Order, No. 95263-9 (Wash. Feb. 6, 2019) (granting review “only on the persistent offender sentence issue”). The court should not delay the constitutional issue present here for a personal restraint petition. See RAP 16.4(b)(4); e.g., In re Pers. Restraint of Meippen, 193 2 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

While the legislature intended to prospectively remove second degree

robbery as a strike in the Three Strikes Law, the individuals that the legislature left

behind are disproportionately people of color and frequently disproportionately

punished. Our court has previously acknowledged the severity of these sentences,

and the reality of who was left out should give us pause. See State v. Moretti, 193

Wn.2d 809, 833, 446 P.3d 609 (2019) (“Mandatory life in prison without the

possibility of parole is the harshest sentence currently available in Washington.”

(citing State v. Gregory, 192 Wn.2d 1, 5, 427 P.3d 621 (2018) (plurality opinion)

(declaring the death penalty unconstitutional)); cf. Pers. Adm’r v. Feeney, 442 U.S.

256, 275, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979) (“If the impact of this statute

could not be plausibly explained on a neutral ground, impact itself would signal

that the real classification made by the law was in fact not neutral.”).

I agree with amici that “[t]he extreme race disproportionality of those

sentenced to die in prison because of at least one [second degree robbery] strike is,

in part, a product of Washington’s racial past.” Br. of Amici Curiae Fred T.

Korematsu Ctr. for Law & Equality et al. at 2. Of the 62 people serving life

without the possibility of parole sentences due to a second degree robbery strike,

“[a]bout half are [B]lack, despite African Americans making up only 4% of

Wn.2d 310, 315-16, 440 P.3d 978 (2019) (declining to reach question on significant change in the law). 3 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

Washington’s population.” Tom James, Lifer Inmates Excluded from Washington

‘3 Strikes’ Change, SEATTLE TIMES (May 20, 2019, 10:11 PM, updated May 22,

2019, 7:49 PM), https://www.seattletimes.com/seattle-news/its-just-wrong-3-

strikes-sentencing-reform-leaves-out-62-washington-state-inmates/

[http://perma.cc/26V4-NSDV]. 3 Beyond second degree robbery, “[a]lmost 40% of

three strikes offenders sentenced are African American, while only 3.9% of the

state’s population is African American. The next highest disparity is for American

Indians, who are represented among three strikers at a rate more than two and a

half times greater than the general population.” COLUMBIA LEGAL SERVS.,

WASHINGTON’S THREE STRIKES LAW: PUBLIC SAFETY AND COST IMPLICATIONS OF

LIFE WITHOUT PAROLE 7-8 (Mar. 2019), https://columbialegal.org/wp-

content/uploads/2019/03/CLS-Report_Washingtons-Three-Strikes-Law.pdf

[http://perma.cc/B2KX-2WZP].

I felt compelled to state in Moretti what is obvious, and I will say it again,

“We should not be satisfied with the status quo; permanent incarceration has

3 Hr’g on ESSB 5288 Before the H. Pub. Safety Comm., 66th Leg., Reg. Sess. (Wash. Mar. 26, 2019), at 25 min., 6 sec. to 25 min., 25 sec., video recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org (Test. of Sen. Jeannie Darneille). Thirty of the 62 would have served less than a five-year sentence for the crime, if second degree robbery was not a strike offense. Id. at 25 min., 56 sec. to 26 min., 15 sec. Among other important considerations, amici remind us that many people serving life without the possibility of parole sentences under the Three Strikes Law are frequently caught in a revolving door by institutions purporting to protect them, resulting in trauma and institutionalization. See Amicus Br. of King County Dep’t of Pub. Def. at 10-11. 4 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

neither reduced crime nor increased confidence in our criminal justice system.”

Moretti, 193 Wn.2d at 840 (2019) (Yu, J., concurring). Acknowledging the

harshness, the amendment closed a loophole in the law allowing grossly

disproportionate sentences for crimes lacking the harm inherent in other strike

offenses. See FINAL B. REP. ON ENGROSSED SUBSTITUTE S.B. 5288, 66th Leg.,

Reg. Sess. (Wash. 2019) (highlighting that while second degree robbery is no

longer a strike offense, first degree robbery and second degree assault remain strike

offenses); see also Jennifer Cox Shapiro, Comment, Life in Prison for Stealing

$48?: Rethinking Second-Degree Robbery as a Strike Offense in Washington State,

34 SEATTLE U. L. REV. 935, 954 (2011).4 But the end result of not applying it to all

who were similarly convicted and sentenced under the Three Strikes Law fell short

of achieving justice.

This case allows the court to reconsider its precedent upholding the

constitutionality of counting second degree robbery as a strike under the Three

Strikes Law. Compare State v. Witherspoon, 180 Wn.2d 875, 891, 329 P.3d 888

4 “‘Robbery’ is defined as the unlawful taking of personal property from the person of another or in [their] presence, against [their] will, by the use or threatened use of force, violence, or fear of injury to any person or property.” State v. Berg, 181 Wn.2d 857, 863, 337 P.3d 310 (2014) (citing RCW 9A.56.190). It remains a strike offense to commit first degree robbery, a class A felony, by committing robbery while being armed with a deadly weapon or displaying what appears to be a deadly weapon, by inflicting bodily injury, or by committing robbery against a financial institution. RCW 9A.56.200; RCW 9.94A.030(32)(a). Similarly, it remains a strike offense to commit second degree assault (a class B felony like second degree robbery). RCW 9A.36.021; RCW 9.94A.030(32)(b). 5 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

(2014), with Br. of Amici Curiae Fred T. Korematsu Ctr. for Law &Equality et al.

at 12-17 (applying State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980)). “[W]e can

reconsider our precedent not only when it has been shown to be incorrect and

harmful but also when the legal underpinnings of our precedent have changed or

disappeared altogether.” W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of

Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014).

Our elimination of the death penalty based on consideration of racial

disproportionality should compel us to ask the same questions here. The

“gradation of sentences that once existed before Gregory has now been

condensed,” and “a serious reexamination of our mandatory sentencing practices is

required to ensure a just and proportionate sentencing scheme.” Moretti, 193

Wn.2d at 835 (Yu, J., concurring). We ought to wrestle with whether a mandatory

life sentence without the possibility of release comports with contemporary

standards of decency; we need to ask and answer what constitutes cruel

punishment under our state constitution. CONST. art. I, § 14.

Jenks’ punishment is grossly disproportionate to the sentence he would

receive today for the same convictions. Suppl. Br. of Pet’r at 12; Br. of Amici

Curiae Fred T. Korematsu Ctr. for Law & Equality et al. at 13 (citing Fain, 94

Wn.2d at 396). And nearly half the individuals serving a life sentence would have

served less than five years. Hr’g on ESSB 5288 Before the H. Pub. Safety Comm., 6 State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)

66th Leg., Reg. Sess. (Wash. Mar. 26, 2019), at 25 min., 56 sec. to 26 min., 15

sec., video recording by TVW, Washington State’s Public Affairs Network,

http://www.tvw.org (Test. of Sen. Jeannie Darneille). “To assign one sentence for

such a wide range of offenses is to disregard our notions of fairness and justice.”

Moretti, 193 Wn.2d at 838 (Yu, J., concurring).

Limited review allows the court to affirm the harsh outcome the legislature

commands. Nevertheless, the court should have addressed this constitutional issue

in order to serve the ends of justice. I respectfully concur.

7 State v. Jenks (Alan Dale)

MADSEN, J. (dissenting)—The majority concludes that Engrossed Substitute

Senate Bill 5288 (ESSB 5288), a legislative amendment removing second degree robbery

as a “strike” from the Persistent Offender Accountability Act of the Sentencing Reform

Act of 1981 (POAA), ch. 9.94A RCW, applies prospectively. Majority at 2. Such an

outcome, according to the majority, is required by our rules of statutory interpretation.

Id. at 5-6. There are many interpretive rules designed to assist courts including the rule

that directs us to construe statutes to avoid constitutional violations. Utter ex rel. State v.

Bldg. Indus. Ass’n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015). The majority,

however, does not employ this rule and thereby creates an unconstitutional outcome. For

Alan Jenks, who was convicted of second degree robbery as a third “strike” before ESSB

5288 came into effect, today’s decision means he will spend the rest of his life in prison

without the possibility of release. But, for those convicted of the same crime after ESSB

5288’s effective date, such a draconian sentence cannot be imposed. In my view,

removing robbery two as a strike offense that is nonetheless applicable to offenders who

predate the change is a cruel punishment under article I, section 14 of the Washington No. 98496-4 Madsen, J., dissenting

State Constitution. 1 We must, therefore, construe ESSB 5288 to avoid this constitutional

violation and hold the amendment applies retroactively. I respectfully dissent.

Discussion

ESSB 5288 was enacted in 2019. LAWS OF 2019, ch. 187, § 1. Lawmakers did

not specify when or to whom ESSB 5288 would apply. This silence triggers our rules of

statutory construction which, without more, set the default effective date at 90 days

following the end of the legislative session. See generally id.; Cameron v. Atl. Richfield

Co., 8 Wn. App. 2d 795, 806, 442 P.3d 31 (2019) (“[A]n act takes effect 90 days after the

legislative session in which the legislature that enacted it adjourns unless the legislature

specifies a different effective date.”). Because the legislature was silent as to the affected

individuals, the majority looks to RCW 9.94A.345 and RCW 10.01.040, which in other

circumstances would be proper. But here, the majority’s conclusion that the legislature

intended only a prospective application of the new law results in cruel punishment. See

WASH. CONST. art. I, § 14. I cannot agree that the legislature intended this result. 2

The Eighth Amendment to the United States Constitution prohibits cruel and

unusual punishment. Article I, section 14 of the Washington State Constitution bars cruel

punishment. This court has held that our state constitution is more protective than its

federal counterpart in this context. State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d

1 This court granted the motion to strike any argument related to article I, section 14. The majority utilizes rules of statutory construction to resolve the case, and one such rule is that of constitutional avoidance. Utter, 182 Wn.2d at 434. Therefore, I consider this constitutional provision and related case law but do not rely on arguments stricken by the court. 2 The role of the court in statutory interpretation is to give effect to the legislature’s intent. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

2 No. 98496-4 Madsen, J., dissenting

888 (2014); State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980). Fain provides

four factors for analyzing whether a punishment is cruel under article I, section 14: (1)

the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment

the defendant would have received in other jurisdictions, and (4) the punishment meted

out for other offenses in the same jurisdiction. 94 Wn.2d at 397.

First, we consider the nature of Jenks’ offense. Jenks was found guilty of first

degree robbery that occurred in 2014. He had two prior strike convictions, one for

second degree robbery in 2004 and another for first degree robbery in 2011. The trial

court sentenced Jenks as a persistent offender based in part on his prior robbery two

conviction under former RCW 9.94A.030(32)(o) (2012). Unlike first degree robbery,

robbery in the second degree generally involves no weapon, physical injury, or financial

institutions. RCW 9A.56.200 (listing the elements of first degree robbery); RCW

9A.56.210 (second degree robbery is all other robberies that are not first degree

robberies). Robbery two is a class B felony and the nature of the offense may vary

greatly depending on the circumstances of the crime. Witherspoon, 180 Wn.2d at 905

(Gordon McCloud, J., concurring and dissenting) (noting that a person can commit

second degree robbery by various means such as brutal assault or by an implied threat).

Though Jenks’ final strike was for first degree robbery, his sentence of life imprisonment

was sealed by the previous second degree robbery conviction. The legislature’s decision

to remove that category of crime from the list of most serious offenses indicates a

downgrade in culpability.

3 No. 98496-4 Madsen, J., dissenting

The second Fain factor considers the legislative purpose behind the challenged

statute. The POAA was intended to deter criminals who commit three “most serious

offenses” and to segregate those criminals from society. Witherspoon, 180 Wn.2d at 888

(quoting State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495 (1996)). The three strikes

law was based on the idea that repeat offenders constitute a small component of the

offender population. Id. at 903 (citing Jennifer Cox Shapiro, Comment, Life in Prison for

Stealing $48?: Rethinking Second-Degree Robbery as a Strike Offense in Washington

State, 34 SEATTLE U. L. REV. 935, 940 (2011)). In 2019, Washington lawmakers elected

to remove robbery two from the POAA’s most serious offense list, indicating that it no

longer advanced the purpose of the statute. See LAWS OF 2019, ch. 187, § 1. That is,

inclusion of second degree robbery did not punish the most violent criminals because the

crime is not a class A felony or a serious violent felony offense. Hr’g on ESSB 5288

Before the H. Pub. Safety Comm., 66th Leg., Reg. Sess. (Wash. Mar. 26, 2019), at 22

min., 50 sec., video recording by TVW, Washington State’s Public Affairs Network,

http://www.tvw.org (testimony of ESSB 5288’s prime sponsor, Senator Jeannie

Darneille).

The third Fain factor is the punishment that the defendant would have received in

other jurisdictions. This court has noted that a conviction for second degree robbery as a

third strike offense triggers mandatory life sentences in three states while the same

conviction in the “vast majority” of jurisdictions results in less than a life sentence:

typically 10 years or less. Witherspoon, 180 Wn.2d at 888. Washington now joins the

4 No. 98496-4 Madsen, J., dissenting

majority of states in refusing to impose life sentences for offenders committing robbery

in the second degree—an admittedly serious offense, but unlike the violent crimes for

which the POAA was intended to deter. E.g., Hr’g on ESSB 5288, supra; RCW

9.94A.030(46) (listing serious violent offenses such as first degree murder, first degree

assault, and first degree rape).

The fourth Fain factor looks to the punishment in Washington for other offenses.

We noted in Witherspoon that a life sentence imposed on a habitual offender for a

robbery conviction was not cruel and unusual punishment under the Eighth Amendment.

180 Wn.2d at 888 (citing Rivers, 129 Wn.2d at 714). But article I, section 14 is more

protective than the federal constitution in this context. Fain, 94 Wn.2d at 392-93.

Outside of the POAA, only aggravated first degree murder, which is a level 16

seriousness crime, results in a mandatory sentence of life without parole. RCW

9.94A.510, .515. Second degree robbery, on the other hand, is a level 4 seriousness

offense and the maximum sentence for a class B felony is 10 years and/or a fine of

$20,000. RCW 9.94A.515; RCW 9A.20.021(1)(b). Second degree robbery is dissimilar

from other class B felony strike offenses. As Senator Darneille stated in her testimony in

support of ESSB 5288, robbery two is typically a “convenience store” crime and does not

result in bodily injury, unlike other class B offenses such as manslaughter in the second

degree. RCW 9A.32.070; Hr’g on ESSB 5288, supra, at 32 min., 40 sec. And, in the

non-POAA context, courts may impose sentences below the standard range provided

mitigating circumstances are established. RCW 9.94A.535.

5 No. 98496-4 Madsen, J., dissenting

The Fain factors demonstrate that a sentence of life without release for second

degree robbery constitutes cruel punishment under our state constitution. WASH. CONST.

art. I, § 14. This court reviewed a similar challenge in Witherspoon and arrived at the

opposite conclusion—that a life sentence for second degree robbery is not cruel

punishment. 180 Wn.2d at 887-89. However, Witherspoon is inapposite here for the

critical fact that the legislature has removed second degree robbery as a most serious

offense under the POAA. This decision necessarily alters the substance of the Fain

factors, as described above.

Because a life sentence for second degree robbery violates the Washington State

Constitution’s bar against cruel punishment, I cannot join the majority’s interpretation of

ESSB 5288 as a prospective-only amendment. The majority relies on RCW 9.94A.345 3

and RCW 10.01.040, 4 which require criminal sentences to adhere to the law in effect

when an offense was committed. But the legislature is always free, within the limitation

of the constitution’s ex post facto protections, to provide for retroactive relief by

amending criminal sentencing statutes. Instead of mechanically applying our rules of

3 RCW 9.94A.345 states, “Any sentence imposed under this chapter [(the Sentencing Reform Act)] shall be determined in accordance with the law in effect when the current offense was committed.” The POAA is part of the Sentencing Reform Act. RCW 9.94A.570; see also ch. 9.94A RCW (Sentencing Reform Act). 4 RCW 10.01.040 states, in relevant part, “Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.”

6 No. 98496-4 Madsen, J., dissenting

statutory interpretation to reach an unconstitutional result, the constitution should guide

our statutory reasoning to avoid constitutional doubt. See Utter, 182 Wn.2d at 434; see

also State v. Santiago, 318 Conn. 1, 85-86, 122 A.3d 1 (2015) (holding that the death

penalty no longer comported with contemporary standards of decency and violated the

state constitutional ban on excessive and disproportion punishment and its prospective

abolition applied to capital sentences already imposed). This principle of constitutional

avoidance mandates that we choose an interpretation that avoids running afoul of article

I, section 14. See Utter, 182 Wn.2d at 434-35. Thus, I would hold that ESSB 5288

applies retroactively.

I further disagree with the majority because its holding conflicts with the rule that

a newly enacted statute generally applies to cases pending on direct appeal and not yet

final. State v. Jefferson, 192 Wn.2d 225, 246, 429 P.3d 467 (2018) (citing Landgraf v.

USI Film Prods., 511 U.S. 244, 275, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994); State v.

Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130 (2007); State v. Blank, 131 Wn.2d 230,

248, 930 P.2d 1213 (1997)). An amendment, like any other statute, applies prospectively

unless the legislature intends, or the constitution requires, retroactive application. Howell

v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 47, 785 P.2d 815 (1990).

Prospective application of an amendment includes its application to cases pending on

appeal. See Jefferson, 192 Wn.2d at 246. Jenks’ case was pending in the Court of

Appeals when the legislature enacted ESSB 5288. Thus, his case was not final. But for

the majority’s application of RCW 9.94A.345 and RCW 10.01.040, Jenks and similarly

7 No. 98496-4 Madsen, J., dissenting

situated individuals (those with pending appeals) would receive the benefit of ESSB 5288

and avoid lifetime imprisonment based on a robbery two conviction. I would hold that as

a matter of statutory interpretation, individuals such as Jenks should receive the benefit of

ESSB 5288 when their cases are not yet final. 5

The legislature’s decision to remove second degree robbery as a strike offense

under the POAA carries significant consequences: pursuant to the Fain factors, life

imprisonment without release for a robbery two conviction constitutes cruel punishment

under our state constitution. WASH. CONST. art. I, § 14. Applying ESSB 5288

prospectively based on statutes requiring sentences in accordance with the effective law

at the time an offense was committed violates our constitution’s bar against cruel

punishment. But this constitutional violation is easily avoided by construing ESSB 5288,

which is silent as to its effective date, to apply to offenders whose appeals are pending

when the amendment was enacted. See Jefferson, 192 Wn.2d at 246. Because the

majority’s conclusion will result in an unconstitutional outcome, I respectfully dissent.

5 To ensure constitutionality, ESSB 5288 must be construed as retroactively applicable. In the context of a personal restraint petition, Jenks would necessarily obtain relief from a life sentence under RCW 10.73.100. Subsection (6) provides, in relevant part, that there has been a significant change in the law, whether substantive or procedural, that is material to the sentence and a court, in interpreting a change in the law that lacks express legislative intent concerning retroactive application, determines sufficient reasons exist to require retroactive application of the changed legal standard. RCW 10.73.100(6). Other areas of law contemplate that, at times, timeliness and finality must give way to granting the benefit of a changed legal standard.

8 No. 98496-4 Madsen, J., dissenting

___________________________________