State v. Weatherwax

Opinion

This opinion was filed for record at f) 00 Wh on~ I 412J) 11 ?(~~ - fer SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 93192-5

Respondent, ENBANC

v. Filed APR 0 6 2tn7 THOMAS LEE WEATHERWAX,

Petitioner.

STATE OF WASHINGTON,

Respondent,

v.

JA YME L. RODGERS,

GORDON McCLOUD, J.-The general rule in Washington is that sentences

for multiple current offenses will run concurrently. RCW 9.94A.589(1)(a). But the

portion of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, at issue

here-RCW 9.94A.589(1)(b)-provides an exception. It states that sentences for State v. Weatherwax {Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

"serious violent offenses arising from separate and distinct criminal conduct" must

run consecutively. It then provides a special rule for calculating the sentence for

each such serious violent offense: the sentence is calculated based on "the offense

with the highest seriousness level under RCW 9.94A.515." RCW 9.94A.589(1)(b).

That statute does not, however, specify how the sentencing court should

determine the seriousness level of a "serious violent offense[]" subject to RCW

9.94A.589(1)(b) consecutive sentencing when that offense is an anticipatory

crime-because anticipatory crimes are not explicitly listed in RCW 9.94A.515's

seriousness level chart. Nor does RCW 9.94A.589(1 )(b) specify how the sentencing

court should choose the "serious violent offense[]" on which to base the sentence

when there are two or more such offenses with the same seriousness level-but they

produce different standard ranges.

This lack of statutory guidance has produced a conflict in the Court of

Appeals. In the consolidated cases before us now, petitioners were each charged

with four serious violent offenses-one count of conspiracy to commit assault (an

anticipatory crime) and three substantive crimes of assault. State v. Weatherwax,

193 Wn. App. 667, 376 P.3d 1150, review granted, 186 Wn.2d 1009, 380 P.3d 490

(20 16). A divided panel of Division Three held that the anticipatory crime did not

have a seriousness level at all, and hence that anticipatory crime could not form the

basis for consecutive sentencing calculations under RCW 9.94A.589(1)(b). Instead,

2 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

it directed the sentencing court to calculate the sentence using the seriousness level

and standard range for one of petitioners' substantive crimes-an approach that

resulted in longer sentences. The majority's approach in Weatherwax conflicts with

that of Division One. In State v. Breaux, Division One held that RCW

9.94A.589(1 )(b) was ambiguous in cases where multiple serious violent offenses

had the same seriousness level but produced different length sentences; it therefore

held that the rule of lenity required courts facing that situation to start their

sentencing calculations using the serious violent offense that yields the shorter

overall sentence. 167 Wn. App. 166, 179, 273 P.3d 447 (2012).

We accepted review to resolve this conflict. We hold that for purposes of

RCW 9.94A.589(1)(b), anticipatory offenses carry the same seriousness level as

their completed offenses. We further hold that when an anticipatory offense and a

completed offense carrying the same seriousness level might both form the basis for

calculating consecutive sentences under RCW 9.94A.589(1 )(b), the sentencing court

must start its calculations with the offense that produces the lower overall sentence.

We therefore reverse and remand for resentencing using the approach taken by the

Court of Appeals in Breaux.

FACTS

On September 24, 2013, Thomas Weatherwax and Jayme Rodgers verbally

threatened an alleged rival gang member, Leroy Bercier, inside a convenience store

3 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

in Spokane. A little while later, in the parking lot of that store, Weatherwax and

Rodgers fired a series of shots at Bercier and two bystanders, Louie Stromberg and

Amanda Smith. The State charged each defendant with eight crimes-three counts

of drive-by shooting (RCW 9A.36.045(1)), one count of first degree unlawful

possession of a firearm (RCW 9 .41. 040( 1)), three counts of first degree assault

(RCW 9A.36.011(1)), and one count of conspiracy to commit first degree assault

(RCW 9A.36.011(1), 9A.28.040(1))-for these shootings. Clerk's Papers (CP) at

51-53; 373-74. The State dropped the unlawful possession of a firearm charge

against Rodgers prior to trial. CP at 379-81. The jury convicted Weatherwax and

Rodgers on all remaining counts in a joint trial. The jury also returned "yes" special

verdicts to four firearm sentence enhancements (RCW 9.94A.825, 9.94A.533) and

three gang aggravators for each young man. CP at 277-83, 587-93.

The trial court therefore had several serious violent offenses and several

nonserious violent offenses before it at sentencing. RCW 9.94A.589(1)(a) governed

the nonserious violent offenses, and the calculations on those are not before this

court. As for the other, serious violent offenses, RCW 9.94A.589(1)(b) provides

that serious violent offenses that arise from "separate and distinct criminal conduct"

must be sentenced consecutively, using "the offense with the highest seriousness

level under RCW 9.94A.515" as the predicate offense. First degree assault is a

"serious violent offense," as is conspiracy to commit first degree assault. RCW

4 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

9.94A.030(46)(a)(v), (ix). Thus, there were four serious violent offenses potentially

subject to RCW 9.94A.589(1)(b)'s consecutive sentencing rules at each defendant's

sentencing: count I (first degree assault of Bercier), count II (conspiracy to commit

first degree assault), count III (first degree assault of Stromberg), and count IV (first

degree assault of Smith).

Applying RCW 9.94A.589(1)(b), the trial court used count I (first degree

assault of Bercier) as the starting point-as the "offense with the highest seriousness

level"-for calculating the serious violent offense portion of petitioners' sentences.

That sentence plus three firearm enhancements (totaling 360 months in

Weatherwax's case due to doubling under our sentencing rules and 180 months for

Rodgers) accounted for the length of petitioners' sentences (because the other

sentences ran concurrently). In total, Weatherwax, who was 25 years old at the time

of the crime, was sentenced to 810 months (67.5 years) in prison. Rodgers, who was

22, was sentenced to 546 months (45.5 years).

Both young men appealed to Division Three of the Court of Appeals. Among

other things, they challenged the trial court's calculation of their sentences on the

serious violent offenses-specifically, its use of count I (assault) as the starting

point, rather than count II (conspiracy, an anticipatory offense).

The State conceded error on this point. Both petitioners and the State relied

on the Breaux decision from Division One. Breaux held that RCW 9.94A.589(1)(b)

5 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

was ambiguous about which offense should be used as the basis for the consecutive

sentencing calculation when a defendant's serious violent offenses included both

completed and anticipatory offenses. 167 Wn. App. at 177-78. It therefore

concluded that the rule of lenity required the sentencing court to use the anticipatory

crime as the starting point for calculations because that would yield the shorter of

two possible sentences in that case. Id. at 178.

But a divided panel of Division Three disagreed. It rejected the State's

concessi on and ruled, instead, that RCW 9. 94 A. 58 9( 1)(b) was not ambiguous and

that anticipatory offenses do not have a seriousness level at all under RCW

9.94A.515. Weatherwax, 193 Wn. App. at 674. The majority reasoned that the

legislature intended RCW 9.94A.589(1 )(b) to "maximize the offender's total

sentence," and stated that the Breaux approach would yield "a substantial benefit"

to the person being sentenced by shortening his or her sentence. Id. at 674-75. By

holding that the statute clearly precluded predicating serious violent offense

sentences on anticipatory crimes, the majority concluded that its rule "avoids an

anomalous exception for anticipatory offenses." Id. at 676. It affirmed petitioners'

sentences on this point, over dissent. Id. at 676, 681 (Pennell, J., dissenting in part).

We granted review and now reverse and remand for resentencing.

6 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

ANALYSIS

I. For Purposes of RCW 9.94A.589(1 )(b), the Seriousness Level of an Anticipatory Offense Is the Same as the Seriousness Level of the Target Crime

The legislature clearly intended to include certain anticipatory offenses-

conspiracy, attempt, and solicitation to commit a serious violent offense-in the

definition of "serious violent offenses" to which RCW 9.94A.589(1 )(b)'s special

consecutive sentencing rules apply. RCW 9.94A.030( 46)(ix). But the legislature

did not clearly specify what seriousness level such anticipatory crimes have.

Different divisions of our Court of Appeals have dealt with that problem

differently. In Weatherwax, Division Three held, "Conspiracy to commit first

degree assault has no seriousness level under RCW 9.94A.515." 193 Wn. App. at

675. In Breaux, Division One stated, "We ... need not decide whether the

seriousness levels assigned to completed offenses apply to anticipatory offenses for

purposes ofRCW 9.94A.589(1)(b)."). 167 Wn. App. at 177. Previously, however,

in State v. Mendoza, Division One stated in dicta that "the seriousness level of

anticipatory offenses charged under RCW 9A.28 is the seriousness level of the

'completed crime."' 63 Wn. App. 373, 377, 819 P.2d 387 (1991). Petitioners and

the State both urge us to hold that anticipatory offenses have the same seriousness

level for purposes ofRCW 9.94A.589(1 )(b) as their completed offense counterparts.

7 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

This is a question of first impression for our court. We have noted it only in

dicta. See State v. Weber, 159 Wn.2d 252, 268 n.7, 149 P.3d 646 (2006). We now

agree with the parties that for purposes of RCW 9.94A.589(1)(b), the seriousness

level of anticipatory offenses is the same as the seriousness level of the completed

target crime.

A. RCW 9.94A.589(J)(b) Assumes That One Offense Will Have a Higher Seriousness Level Than the Others-And That Was Not True in This Case

RCW 9.94A.589(1)(b), the SRA's exception to the general rule of concurrent

sentencing, provides:

Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under this subsection ( 1)(b) shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.

(Emphasis added.)

Under this statute, to determine the length of consecutive sentences, the

sentencing court must first identify which of the "serious violent offenses arising

from separate and distinct criminal conduct" is "the offense with the highest

8 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

seriousness level under RCW 9.94A.515." Id. (emphasis added). The statute thus

assumes that there is just one such offense.

That, however, was not the case here. Four of Weatherwax's and Rodgers's

convictions are "serious violent offenses" with arguably equally high seriousness

levels potentially subject to RCW 9.94A.589(1)(b)'s calculations: first degree

assault of Bercier (count I), first degree assault of Stromberg (count III), first degree

assault of Smith (count IV), and the anticipatory offense-conspiracy to commit first

degree assault (count II). RCW 9.94A.030( 46)(v), (ix). RCW 9.94A.589(1 )(b) does

not explicitly tell the sentencing court what to do in this situation. We therefore need

to determine how to apply the statute in this context.

B. RCW 9.94A.589(1)(b) 's Plain Language and Underlying Legislative Intent Indicate That Anticipatory Offenses Have the Same Seriousness Level as Their Target Crimes; To Hold Otherwise Would Yield Absurd Results

We review this statutory interpretation issue de novo. State v. Conover, 183

Wn.2d 706, 711, 355 P.3d 1093 (2015). Our "'fundamental objective ... is to

ascertain and carry out the legislature's intent."' Lake v. Woodcreek Homeowners

Ass'n, 169 Wn.2d 516,526,243 P.3d 1283 (2010) (quotingArborwoodidaho, LLC

v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)). In interpreting

statutes, "we presume the legislature did not intend absurd results" and thus avoid

9 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

them where possible. State v. Eaton, 168 Wn.2d 476, 480, 229 P.3d 704 (2010)

(citing State v. JP., 149 Wn.2d 444, 450, 69 P .3d 318 (2003)).

The context ofRCW 9.94A.589(1)(b) and its related provisions is important

to our analysis. We discern a statute's meaning "from the ordinary meaning of the

language at issue, the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572,

578, 210 P.3d 1007 (2009) (citing State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d

281 (2005)). "Related statutory provisions are interpreted in relation to each other

and all provisions harmonized." C.J C. v. Corp. of Catholic Bishop of Yakima, 13 8

Wn.2d 699, 708, 985 P.2d 262 (1999) (citing State v. S.P., 110 Wn.2d 886, 890, 756

P.2d 1315 (1988)). Many of the SRA's provisions cross-reference other SRA

provisions. We have recognized that such cross-references "avoid encumbering the

statute books by unnecessary repetition, and ... are recognized in this state as an

approved method of legislation." Knowles v. Holly, 82 Wn.2d 694, 700, 513 P.2d

18 (1973) (citing Roehl v. Pub. Uti!. Dist. No. 1 of Chelan County, 43 Wn.2d 214,

226, 261 P.2d 92 (1953)). We consider the referencing statute to incorporate the text

of the referenced provision completely, as if the two were one statute. !d. at 700-01.

Applying the rules, we see that RCW 9.94A.589(1)(b) directs the sentencing

court to calculate the offender score based on "the offender's prior convictions and

other current convictions that are not serious violent offenses" and to use that

10 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

offender score to determine the standard sentence range for "the offense with the

highest seriousness level" it previously identified. "Seriousness levels" are listed in

cross-referenced RCW 9.94A.515. But the chart at RCW 9.94A.515 ranks only

completed offenses-it does not explicitly include anticipatory offenses such as

conspiracy. Thus, while that chart assigns a seriousness level of XII to first degree

assault, it does not specify the seriousness level of conspiracy to commit first degree

assault.

Another SRA statute, however, arguably does. RCW 9.94A.595 provides that

the presumptive sentence for anticipatory crimes charged under chapter 9A.28 RCW

"is determined by locating the sentencing grid sentence range defined by the

appropriate offender score and the seriousness level of the crime, and multiplying

the range by 75 percent." (Emphasis added.) For purposes of this statute, the words

"the crime" have been interpreted to mean the target crime. See, e.g., State v.

Chavez, 163 Wn.2d 262, 271 n.8, 180 P.3d 1250 (2008) (calculating standard range

for attempted first degree murder using seriousness level for completed first degree

murder).

To sum up, then, the SRA requires consecutive sentencing of serious violent

offenses based on the serious violent offense "with the highest seriousness level"

(including the anticipatory versions of these crimes). The statute that ranks crimes

by seriousness level, however, does not explicitly list anticipatory crimes. But RCW

11 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

9.94A.595 seems to fill that gap by explaining where in the RCW 9.94A.515's chart

anticipatory crimes should fit-they fit with their target completed crimes.

Both petitioners and the State rely on RCW 9.94A.595 to argue that

anticipatory and completed offenses should have the same seriousness level. From

this, they conclude that the legislature intended to make the seriousness levels the

same for both types of crimes.

They also note that if anticipatory crimes were deemed to have no seriousness

level, defendants whose serious violent offenses included only anticipatory offenses

could not be sentenced in accordance with RCW 9.94A.589(1)(b) at all. Suppl. Br.

of Pet'r Jayme L. Rodgers at 5; Suppl. Br. of Resp't at 8. The State adds that in

cases where a defendant's serious violent offenses include both anticipatory offenses

whose target crimes have a high seriousness level (e.g., attempted first degree

murder, with a target crime seriousness level of XV) and completed crimes with

lower seriousness levels (e.g., first degree kidnapping, seriousness level X), a finding

that the anticipatory offense has no seriousness level would produce a "windfall" to

the defendant because his or her sentence would then be based on the lower range

for kidnapping instead of the higher range for attempted murder. Suppl. Br. of

Resp't at 8-9.

In fact, in its supplemental brief, the State includes tables calculating specific

examples of sentences that would be higher using the anticipatory offense, and not

12 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

the completed crime, as the predicate. See id. at 5-7. The Weatherwax court did not

have the benefit of these tables prepared by the State, which demonstrate the

anomalous results that can occur if anticipatory crimes are excluded from

consideration for purposes ofRCW 9.94A.589(1)(b). These tables make clear that

the rule adopted by the Court of Appeals in Weatherwax does not maximize

sentences in every case.

That leaves us with four reasons for adopting the interpretations advanced by

the parties. First, as discussed above, RCW 9.94A.595 directs judges to calculate

regular sentences for inchoate crimes using the seriousness level for "the crime"-

that is, the target crime. In other words, RCW 9.94A.595 explains how to use the

seriousness level table contained in RCW 9.94A.515 to calculate sentences for

anticipatory crimes-even though those crimes are not specifically listed in that

table. It is therefore logical to infer that the legislature intended the table in RCW

9. 94 A. 515 to be used the same way when it cross-referenced that statute in RCW

9.94A.589(1 )(b).

Second, although it seems plain from the language of the statute that the

legislature intended to increase sentences overall where multiple serious violent

offenses were committed at once, compared to the concurrent sentences generally

13 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

imposed under the guidelines, 1 it does not necessarily follow that the legislature

intended to "maximize" them. Indeed, as the Weatherwax court recognized, RCW

9.94A.589(1)(b) "ameliorates, somewhat, the impact of consecutively sentencing

serious violent offenses" by assigning an offender score of zero to all of these

offenses but one, even when these scores might otherwise have been much higher

and might have produced a much longer overall sentence. 193 Wn. App. at 674.

Third, the legislature has arguably acquiesced in Breaux's interpretation. As

the dissent stated in the court below, the legislature amended RCW 9.94A.589(l)(b)

in 20 15-three years after Breaux was decided-but left this part of the statutory

language unchanged. Id. at 682. And as the State points out, we encountered a

similar situation in State v. Kier, in which a statutory amendment passed by the

legislature three years after our decision interpreting that statute also left the relevant

statutory provision unaltered. 164 Wn.2d 798, 805, 194 P.3d 212 (2008); Suppl. Br.

ofResp't at 11. From this, we concluded, "We are confident that our analysis in [the

prior case] accurately reflects the legislature's intent." Kier, 164 Wn.2d at 805.

1 This seems to be the intent, though commentators have noted that even under ordinary circumstances (i.e., not cases involving the added wrinkle of an anticipatory offense), RCW 9.94A.589(1)(b) doesn't always result in a higher sentence than would result under ordinary application of the guidelines. See 13B SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINAL LAW§ 3511, at 302 n.9 (2d ed. 1998). 14 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

Finally, our holding today avoids absurd results. The legislature expressly

designated certain anticipatory offenses as serious violent offenses. RCW

9.94A.030( 46)(ix). It must therefore have intended to include them when calculating

sentences for serious violent offenses under RCW 9 .94A.5 89(1 )(b), not to exclude

them entirely. And choosing this reading is consistent with the purpose of RCW

9.94A.589(1)(b)-to increase sentences when multiple serious violent offenses have

been committed-because it allows sentencing courts to base sentences on

anticipatory crimes when they are more serious than a defendant's other serious

violent offenses, or when a defendant's serious violent offenses consist of only

anticipatory crimes.

Accordingly, we hold that for purposes of applying RCW 9.94A.589(1 )(b),

anticipatory offenses have the same seriousness level as their target crimes.

II. RCW 9.94A.589(1)(b) Does Not Specify Which Serious Violent Offense To Start With When Sentencing on Two or More Such Crimes; That Constitutes an Ambiguity That Must Be Resolved Using the Rule of Lenity

This interpretation does, however, leave the question of how the trial court

should calculate serious violent offense sentences when a defendant is convicted of

two or more such offenses that have the same "highest seriousness level," but which

could produce different possible total sentences. We hold that in such cases, the rule

15 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

of lenity requires the trial court to base its calculation on the crime that results in the

shorter of two possible sentences.

A. RCW 9.94A.589(1)(b) Does Not Say Which of Two or More Identical "Highest Seriousness Levels" Should Be Used To Calculate the Sentence, and It Sometimes Makes a Difference

RCW 9.94A.589(1)(b) instructs the sentencing court to determine which of

the defendant's serious violent offenses is "the offense with the highest seriousness

level," and to use that offense as the basis for calculating his or her serious violent

offense sentences. Where one offense clearly has the highest seriousness level, this

directive is clear. Even where two offenses have the same seriousness level, a

problem may not arise because, frequently, two offenses with the same seriousness

level will carry the same standard range.

But that is not always the case. Two offenses can have the same seriousness

level even though one will result in a shorter standard range. This can happen for a

number of reasons, such as where different serious violent offenses have the same

seriousness level but receive different offender scores 2 or where, as here, one offense

2 For example, if a defendant's serious violent offense convictions are for first degree rape and first degree assault, both seriousness level XII, a prior history of sex offense convictions may result in a higher offender score-and thus a higher standard range-on the rape charge than on the assault charge. See RCW 9.94A.525(17). This could also happen where a defendant has been convicted of two serious violent offenses with the same seriousness level (e.g., first degree rape and first degree assault), as well as a third offense that is not a serious violent offense (e.g., burglary) but that constitutes the same criminal conduct as one of the serious violent offenses (e.g., the assault). In that case, all other things being equal, the sentence for the rape would likely be higher because the 16 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

has been completed and another is anticipatory and thus subject to the 75 percent

sentencing rule set forth in RCW 9.94A.595.

In these situations, RCW 9.94A.589(1)(b) provides no guidance on which

offense should serve as the basis for the serious violent offender calculations. Thus,

the statute could plausibly be read to provide for two different possible sentences-

a longer overall sentence predicated on the completed assault or a shorter sentence

predicated on the conspiracy. This is exactly what accounts for the split of authority

in our Court of Appeals. Compare Weatherwax, 193 Wn. App. at 676 (choosing

higher sentence), with Breaux, 167 Wn. App. at 179 (choosing lower sentence).

B. RCW 9.94A.589(1)(b) 's Silence on This Point Is Ambiguous

A statute is ambiguous "[i]fmore than one interpretation of the plain language

is reasonable." State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). The fact

that different divisions of our Court of Appeals have considered the same statute and

arrived at opposite interpretations can indicate such ambiguity. State v. McGee, 122

Wn.2d 783, 797, 864 P.2d 912 (1993) (Johnson, J., dissenting) ("I find this split

determinative on the issue this statute can be interpreted two reasonable ways.").

burglary would count toward the offender score for that crime, but could not count toward the offender score for the assault (because it is the same criminal conduct). RCW 9.94A.589(l)(a); FINE & ENDE, supra n.l.

17 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

Using this definition, RCW 9.94A.589(1 )(b) is ambiguous about which of

several offenses with equally "highest seriousness level[s]" should form the basis

for serious violent offense consecutive sentencing. As the Court of Appeals

explained in Breaux, relying on its prior conclusion that anticipatory offenses had

the same seriousness level as their target offenses, the statute does not provide clear

direction on this point. 167 Wn. App. at 177-78. In light of that, and given the

statute's failure to provide guidance when two offenses have the same seriousness

level, the Breaux court ruled that it was at least reasonable to believe that the

legislature could have intended either offense to serve as the predicate offense for

sentencing purposes. I d. at 179.

We agree. RCW 9.94A.589(1)(b) could plausibly be interpreted either way

and, hence, is ambiguous on this point.

C. The Rule ofLenity Requires Imposing the Lesser ofthe Two Possible Sentences in This Case

In this situation, the rule of lenity requires us to interpret the statute strictly in

favor of the defendant. Conover, 183 Wn.2d at 712; see also State v. Tvedt, 153

Wn.2d 705, 710-11, 107 P.3d 728 (2005) ("'[W]hen choice has to be made between

two readings of what conduct [the legislature] has made a crime, it is appropriate,

before we choose the harsher alternative, to require that [the legislature] should have

spoken in language that is clear and definite."' (quoting United States v. Universal

18 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 93192-5

C.I.T Credit Corp., 344 U.S. 218, 222, 73 S. Ct. 227, 97 L. Ed. 260 (1952))). The

underlying rationale for the rule of lenity is to place the burden on the legislature to

be clear and definite in criminalizing conduct and establishing criminal penalties.

See Tvedt, 153 Wn.2d at 710-11; State v. Brown, 145 Wn. App. 62, 80, 184 P.3d

1284 (2008).

Our holding that anticipatory offenses have the same seriousness level as their

target crimes does not create ambiguity in every case, nor does it always result in

lower sentences, as the State points out. But because, in this case, Weatherwax's

and Rodgers's sentences could plausibly be calculated in two different ways under

the statute as written, the rule of lenity requires us to construe the statute as directing

trial courts to choose the offense that will yield the lower of the two possible

sentences.

CONCLUSION

We hold that for purposes ofRCW 9.94A.589(1)(b ), (1) anticipatory offenses

have the same seriousness level as their target crimes and (2) when the seriousness

levels of two or more serious violent offenses are identical, the trial court must

choose the offense whose standard range is lower as the starting point for calculating

the consecutive sentences. We reverse and remand for resentencing consistent with

this opinion.

19 State v. Weatherwax (Thomas Lee) & Rodgers (Jayme L.), No. 98192-5

WE CONCUR:

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