Opinion Information Sheet

			

In re Pers. Restraint of Carrier (Harry N.)

                                     No. 83377-0

       WIGGINS, J. (dissenting) -- Petitioner Harry Carrier's              judgment and 

sentence is not facially invalid because the trial court properly included his 

1981 indecent liberties conviction in his criminal history under the Sentencing 

Reform Act of 1981 (SRA), chapter 9.94A RCW.  The legislature has said that 

a pre-SRA determination of guilt by trial or guilty plea is considered a conviction 

unless it is vacated.  Former RCW               9.94.030(13)(b) (2004).  Carrier's 

suspended sentence remains a conviction because it has never been vacated.  

Moreover, it cannot be vacated under the SRA because it is a crime against 

persons.  Former RCW 9.94A.640 (1987); former RCW 43.43.830(5) (2004).  I 

would affirm Carrier's sentence of life imprisonment without the possibility of 

parole because Carrier committed two sex offenses that qualify him as a 

persistent offender under former RCW                 9.94A.030(32)(b)(i)-(ii)    (2004). 

Accordingly, I respectfully dissent.

                                      ANALYSIS

       I begin by noting my agreement with much of the majority's opinion.  I 

agree that we should consider Carrier's 1985 dismissal order in determining 

whether Carrier's sentence is valid on its face.  See majority at 6-7.  Because 

Carrier's 1981 dismissed conviction "has a direct bearing on the trial court's  

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authority to impose a life sentence," id. at 7, I believe it is appropriate for us to 

consider the facial validity of Carrier's judgment and sentence despite the 

ordinary one-year time bar imposed by RCW 10.73.090.               I also agree that a 

pre-SRA dismissal of a deferred sentence remains a "conviction" under the 

SRA    at least for some purposes.  See  id. at 8-12.  As the majority 

demonstrates, our cases, legislative history, and the text of former  RCW 

9.95.240  (2003)  support the conclusion that Carrier's dismissed pre-SRA 

conviction remains a conviction under the SRA.  Id. at 12.

       I am in agreement with the majority's discussion of former  RCW 

9.95.240 that acknowledges the legislature's intent to require a person 

convicted before the SRA to move to vacate the conviction under former RCW 

9.94A.640 in order to remove the dismissed conviction from the convict's 

criminal history.  See id. at 17, 20.  In addition, I agree that Carrier could not 

have obtained a vacation had he applied for one because his 1981 indecent 

liberties conviction qualifies as a "crime against persons" under former RCW 

9.94A.640 and former RCW 43.43.830(5).  See id. at 17-18.  Finally, I agree 

with the majority that in order to determine Carrier's 2004 sentence for first 

degree child molestation, dealing in depictions of a minor engaged in sexually 

explicit conduct, and possession of depictions of a minor engaged in sexually 

explicit conduct, we look to the law in effect when he committed the offenses

and that, as a general proposition, the law applies retroactively if the 

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precipitating event under RCW          9.95.240 occurred before the date of its 

enactment.  See id. at 18-19.

       I part company from the majority on the narrow question of what qualifies 

as the precipitating event under RCW 9.95.240.            Because I believe that the 

precipitating event under the statute is Carrier's commission of a new offense, 

which occurred after the legislature amended RCW 9.95.240 in 2003, I would 

hold that RCW 9.95.240 applies prospectively.  The prospective construction of 

RCW 9.95.240 compels the conclusion that the trial court properly included 

Carrier's 1981 indecent liberties conviction in Carrier's criminal history and 

offender score.

       The   legislature, not the court, determines crimes and punishments.  

State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) ("'Determination of 

crimes and punishment has traditionally been a legislative prerogative, subject 

to only very limited review in the courts.'" (quoting State v. Bryan, 93 Wn.2d 

177, 181, 606 P.2d 1228 (1980))).  Indeed, the legislature's power to establish 

what qualifies as crime and to fix the penalties and punishments for crime is

"'plenary and subject only to constitutional provisions.'"  Id. (quoting State v. 

Thorne, 129 Wn.2d 736, 767, 921 P.2d 514 (1996) (internal quotation marks 

omitted) (quoting State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937))).

       To determine whether a statute applies prospectively or retrospectively, 

we  look to the subject matter of the statute and the event that triggers its 

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application.  In re Estate of Burns, 131 Wn.2d 104, 112, 928 P.2d 1094 (1997).  

"A statute operates prospectively when the precipitating event for operation of 

the statute occurs after enactment."  Id. at 110.      A statute is retroactive "if the 

'triggering event' for its application happened before the effective date of the 

statute."  State v. Pillatos, 159 Wn.2d 459, 471, 150 P.3d 1130 (2007) (quoting 

State v. Belgarde, 119 Wn.2d 711, 722, 837 P.2d 599 (1992)).  We "presume 

that statutes operate prospectively unless contrary legislative intent is express 

or implied."  Burns, 131 Wn.2d at 110.  "A statute is not retroactive merely 

because it applies to conduct that predated its effective date," Pillatos, 159 

Wn.2d at 471, or "'because it is applied in a case arising from conduct 

antedating the statute's enactment or upsets expectations based in prior law.'"

Id. (quoting Landgraft v. USI Film Prods., 511 U.S. 244, 269-70, 114 S. Ct. 

1483, 128 L. Ed. 2d 229 (1994)).   Neither is a statute retroactive "'merely 

because it relates to prior facts or transactions where it does not change their 

legal effect.  It is not retroactive because some of the requisites for its actions 

are drawn from a time antecedent to its passage or because it fixes the status 

of a person for the purposes of its operation.'"   Varga, 151 Wn.2d at 195 

(quoting State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973)).

       With these principles in mind, I conclude that RCW 9.95.240 applies 

prospectively.  When the legislature amended RCW 9.95.240 in 2003, it did so 

to place pre-SRA and post-SRA convicts on the same footing with regard to 

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vacating their convictions.  See H.B. Rep. on Substitute H.B. 1346, at 4, 58th 

Leg., Reg. Sess. (Wash. 2003) (the "application for and granting of the 

vacation [for pre-SRA felons] are subject to the same conditions and 

restrictions as apply to SRA felony convictions").  This amendment expresses 

the legislative intent that any convicted person, whether sentenced before or 

after the enactment of the SRA, must apply for a vacation to exclude any prior 

conviction from his or her criminal history.  If a court has not vacated a 

conviction, then the conviction remains in the criminal history to be considered 

in any subsequent sentencing.       The subject matter of RCW 9.95.240, then, is 

the inclusion or exclusion of previous convictions in criminal history depending 

on whether the previous conviction has been vacated.                    Therefore,   the 

precipitating event under the statute here  is Carrier's commission of  child 

molestation in 2004.    If Carrier had not pleaded guilty to child molestation and 

lesser offenses in 2004, the court would not have needed to know his criminal 

history to calculate an offender score and RCW 9.95.240 would not have come 

into play.  Because the precipitating event under RCW 9.95.240 is Carrier's 

commission of a new offense, RCW 9.95.240 can only be construed to operate

prospectively: Carrier molested a child in 2004, after the legislature amended 

RCW 9.95.240 in 2003.

       This prospective construction is compelled by our precedents.  In State 

v.  Scheffel, we considered whether chapter  46.65 RCW, the Washington 

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Habitual Traffic Offenders Act of 1971, applied prospectively or retroactively.

82 Wn.2d 872, 878, 514 P.2d 1052 (1973).  The statute permitted automatic 

revocation of driver licenses where drivers received three or more serious 

traffic offenses within a five-year period.  Id. at 874-75.  When chapter 46.65 

RCW  went into effect, Scheffel  had already committed two serious traffic 

offenses.  Id. at 874.  Shortly after the statute went into effect, Scheffel 

committed a third serious offense and the State sought to classify him as a 

habitual offender thereby revoking his driver license.  Id. at 874-75.  Scheffel 

argued that the statute applied to him retroactively because it imposed a new 

penalty and constituted an increase of a previously imposed punishment.  Id. at 

878.  We disagreed, holding, "The act does not impose any new duty, and it 

does not attach any disability on [the defendant] in respect to transactions.  

[Scheffel] could have avoided the impact of the act by restraining [himself] from 

breaking the law of this state."  Id. at 878-79.  The fact that two of Scheffel's 

convictions occurred prior to the enactment of chapter 46.65  RCW  had no 

bearing on our retroactivity analysis because the statute did not alter the 

consequences of Scheffel's traffic offenses before enactment but served only 

to increase the penalties for the traffic offense he committed after the new law 

went into effect.

       Similarly, in Varga, we considered the legislature's 2002 amendments to 

the SRA that required the trial courts to include the defendants' previously 

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No. 83377-0

"washed out" convictions in their offender scores.  151 Wn.2d at 183-84, 191.

Over Varga's      arguments that the  inclusion of washed out convictions 

constituted a retroactive application of the SRA amendments, we held that 

"[t]he 2002 SRA amendments serve only to enhance the penalty for Varga's 

crime that he committed after the amendments' effective date."  Id. at 196. We 

noted that the precipitating event under the SRA amendments was the 

commission of a new offense.  Id. at 197.  We stressed that statutes are not 

deemed retroactive "'merely because [they] upset[] expectations based in prior 

law.'"  Id. at 196-97 (quoting Landgraf, 511 U.S. at 269).  Just as in Scheffel,

82 Wn.2d 872, we stated that "Varga could have avoided the effect of the 

2002 SRA amendments by not committing a subsequent crime."  Varga, 151 

Wn.2d at 197.

       The majority discusses Varga but curiously asserts that our analysis in 

State v. T.K., 139 Wn.2d 320, 987 P.2d 63 (1999), is more apt.  Majority at 21-

22.  In T.K., we held that T.K. had a vested right in sealing his juvenile records 

because he met the statutory requirements for sealing the records before the 

legislature changed those requirements.  139 Wn.2d at 334-35.  We indicated 

that the legislature's enactment of stricter conditions for sealing applied 

retroactively, depriving T.K. his right to have his records sealed.  Id.  The 

majority holds that, like T.K., "Carrier met all the conditions for vacating his 

conviction under the preamendment version of former RCW                      9.95.240."  

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No. 83377-0

Majority at 22.

       I respectfully disagree.  As an initial matter, the rights that we considered 

in T.K. involved the sealing of juvenile records and were not at all related to the 

inclusion of T.K.'s juvenile criminal history in sentencing for a subsequent 

offense.    This ground alone distinguishes T.K.  from our analysis here.  

Moreover, the legislative amendments at issue here do not "resemble" T.K. at 

all, id., but are nearly identically to the legislative amendments considered in 

Varga.  Like Varga, Carrier could not rely on the exclusion of his previous 

conviction from his offender score until he reoffended  See Varga, 151 Wn.2d 

at 197.  When Carrier reoffended, the legislature had already addressed 

Carrier's  situation and indicated that previous convictions would serve to 

augment penalties for future offenses.  Therefore, as in Varga, Carrier "could 

not exercise his alleged 'right' to [exclude his conviction from his criminal 

history] until he committed a new offense."  Id.

       As we indicated in both Varga, 151 Wn.2d 179, and Scheffel, 82 Wn.2d 

872, legislative amendments that alter the penalties for crimes committed after 

enactment are prospective in their application.  The amendments at issue here 

did not alter the consequences of Carrier's previously dismissed conviction.  

Rather, they only determined how the previously dismissed conviction would 

be used in sentencing for any subsequent conviction.  Accordingly, the 2003 

SRA amendments here apply prospectively to Carrier and, contrary to the 

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majority's holding, require Carrier's 1981 indecent liberties conviction to be included 

in his criminal history for the calculation of his offender score.1

       The majority criticizes my reliance on Varga, attempting unsuccessfully 

to distinguish this case from Varga: "The 2003 amendment changes the legal 

effect of convictions that were effectively vacated prior to its passage.  This is 

quite different from the situation in Varga."  Majority at 23 n.10.  But a 

conviction  dismissed  under former RCW             9.95.240 was not "effectively 

vacated," as the majority asserts.  A conviction is "effectively vacated" for 

purposes of Carrier's case only if it could no longer be used during a later 

prosecution.  But former RCW 9.95.240 provided just the opposite: "in any 

subsequent prosecution, for any other offense, such prior conviction may be 

pleaded and proved, and shall have the same effect as if probation had not 

been granted, or the information or indictment dismissed."  Laws of 1957, ch.

227, § 7. Carrier's 2004 prosecution is clearly a "subsequent prosecution[ ] for 

any other offense . . . .  Id. Under former RCW 9.95.240, the prior dismissal of 

Carrier's 1981 conviction has "the same effect as if probation had not been 

granted, or the information or indictment dismissed."   Laws of 1957, ch. 227, §

7.

       The majority acknowledges that we have previously explained that "'the 

1 Because I would resolve this case based solely on the statute's prospective 
application, I do not address the effect of a change to the SRA that might be 
considered retroactive.

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No. 83377-0

Legislature intended to prohibit all adverse consequences of a dismissed 

conviction, with the one exception of use in a subsequent criminal conviction 

but with no additional implied exceptions.'"        Majority at 14 (quoting State v. 

Breazeale, 144 Wn.2d 829, 837-38, 31 P.3d 1155 (2001)).  The majority then 

"take[s]  this opportunity to clarify the holding in Breazeale,"          reaching the 

opposite conclusion that Carrier's 1981 conviction cannot be used in this 

subsequent prosecution.  Majority at 15.              I conclude that we correctly 

interpreted the statute in Breazeale, 144 Wn.2d 829, and that there was no 

need to "clarify" Breazeale.  

       The majority has actually blended the two former statutes, RCW 

9.95.240 and 9.94A.640, into a hybrid to accomplish a result that could not 

have been achieved under either statute separately.  Under former RCW 

9.95.240, Carrier's 1981 conviction could have been used in a subsequent 

prosecution and could therefore have been used in this case.  Under former 

RCW     9.95A.640(2), Carrier cannot vacate his 1981 conviction because 

"crimes against persons" cannot be vacated.  But the majority combines the 

two statutes together to permit a result not allowed under either separately.  

                                    CONCLUSION

       Our cases and the apparent            legislative intent of  the 2003 SRA 

amendments require us to conclude that RCW 9.95.240 applies prospectively 

to defendants in Carrier's position.  Because RCW                    9.95.240    applies 

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No. 83377-0

prospectively, we cannot consider Carrier's 1981 indecent liberties conviction 

vacated.  Carrier's nonvacated conviction was therefore properly included in 

his criminal history at sentencing for his 2004 child molestation conviction.  The 

sentencing court did not exceed its authority in imposing Carrier's life sentence

under the Persistent Offender Accountability Act, former RCW 

9.94A.030(32)(b)(i)-(ii), and therefore Carrier's judgment and sentence cannot 

be considered facially invalid.  Carrier's petition must be denied.

       I do not reach this conclusion lightly.  Carrier's life sentence seems an 

unduly harsh punishment for the offenses to which he pleaded guilty: first 

degree child molestation, dealing in depictions of a minor engaged in sexually 

explicit conduct, and possession of such depictions would have carried a 

sentencing range of 51 to 68 months in 2004 if Carrier had had no criminal 

history and the sentences were imposed concurrently.  See  former RCW 

9.94A.510 (2004).  His sentence was elevated to life without the possibility of 

parole because of a conviction 23 years earlier for indecent liberties, for which 

he was given a suspended sentence and probation, and which was dismissed 

in 1985 after he successfully completed probation.  But however harsh the 

sentence may seem to me, the legislature has established the sentencing 

scheme, and we are bound by the intent of the legislature as expressed in 

these statutes.

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No. 83377-0

       Accordingly, I dissent.

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
                                                         Justice James M. Johnson

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