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IN THE SUPREME COURT OF THE STATE OF WASHINGTON In the Matter of the Personal Restraint Petition of SCHAWN JAMES CRUZE, Petitioner. ) ) ) ) ) ) )

No. 82567-0 En Banc Filed August 12, 2010

OWENS, J. -- Schawn James Cruze was sentenced to life in prison without the possibility of parole under the "three strikes" provision of the Persistent Offender Accountability Act. Former RCW 9.94A.120(4) (1996), recodified as RCW 9.94A.570. Cruze filed this personal restraint petition (PRP), arguing that the second conviction on which his sentence relied is not a most serious offense, or "strike." Because Cruze filed this PRP more than one year after his judgment and sentence became final, it is time barred unless invalid on its face. Resolution of this case comes down to a single question: is a special verdict determining that Cruze was armed with a firearm a "deadly weapon verdict under [former] RCW 9.94A.125"? Former RCW 9.94A.030(23)(t) (1996), recodified as RCW 9.94A.030(29)(t). Based

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on a plain reading of the statute, we hold that a deadly weapon verdict under former RCW 9.94A.125 (1983), recodified as RCW 9.94A.825, includes a special verdict finding that a defendant was armed with a firearm. As a result, we dismiss Cruze's PRP as time barred. FACTS Cruze's relevant criminal history begins with a 1991 conviction for second degree assault. Cruze does not challenge the validity of this conviction nor does he challenge its subsequent use for the purpose of finding that he is a persistent offender subject to life imprisonment without the possibility of parole. In 1996, Cruze was convicted of violating the Uniform Controlled Substances Act, chapter 69.50 RCW, based on his possession of methamphetamine. In addition to finding Cruze guilty of possession, the jury also found, by special verdict, that Cruze was armed with a firearm at the time of his possession. In the judgment and sentence, the judge checked the box indicating: "A special verdict/finding was returned, having been specially alleged and proven, indicating the use of a firearm as defined by RCW 9.41.010 and 9.94A.125 at the time of the commission of the crimes charged in Count[] 2." J. & Sentence, Clark County Super. Court No. 97-9-00429-1 (Jan. 30, 1997) (App. B to PRP). The judge left blank the box indicating: "A special verdict/finding was returned, having been specially alleged and proven, indicating the

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use of a deadly weapon other than a firearm as defined by RCW 9.94A.125 at the time of the commission of the crimes charged in Count(s) ___." Id. In 1997, Cruze was, for the second time, found guilty of second degree assault. The trial court determined that the crime was a most serious offense and that two of Cruze's previous offenses were also most serious offenses. As a result, the trial court determined that Cruze was a persistent offender and sentenced him to life in prison without the possibility of parole pursuant to former RCW 9.94A.120(4). Cruze does not challenge the use of this third conviction for the purpose of finding that he is a persistent offender. Cruze filed his present PRP, challenging the classification of his 1996 conviction as a most serious offense and his resulting designation as a persistent offender, in Division Two of the Court of Appeals in 2008. The Court of Appeals transferred the petition to this court, and we retained the petition for a decision on the merits. ISSUE Is a special verdict finding that the defendant used a firearm a "deadly weapon verdict," as that term is used in former RCW 9.94A.030(23)(t), such that Cruze's judgment and sentence is facially valid?

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STANDARD OF REVIEW This case solely concerns the interpretation of a statute, which is a question of law that this court reviews de novo. City of Seattle v. Winebrenner, 167 Wn.2d 451, 456, 219 P.3d 686 (2009). ANALYSIS Cruze's judgment and sentence became final in 2000, eight years prior to his present PRP. As a result, Cruze's petition is time barred under RCW 10.73.090(1) unless it is invalid on its face, it was not rendered by a court of competent jurisdiction, or one of the factors listed in RCW 10.73.100 applies. Cruze argues that the sentence is facially invalid because one of the three convictions that the trial court determined were most serious offenses, and served as a necessary basis for the sentence, does not meet the statutory definition of "most serious offense." Cruze is correct that a sentence exceeding the period authorized by law is invalid on its face. In re Pers. Restraint of Tobin, 165 Wn.2d 172, 175-76, 196 P.3d 670 (2008). If Cruze is also correct that the conviction relied upon in the judgment and sentence does not meet the statutory definition of "most serious offense," the sentence of life imprisonment is in excess of the period of imprisonment authorized by law, which the sentencing court determined would be up to 10 years. In order to determine whether Cruze's petition is time barred, then, we must turn to the merits of his argument and interpret the meaning

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of the term "most serious offense." When interpreting a statute, "the court's objective is to determine the legislature's intent." State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). If the meaning of a statute is plain on its face, we "`give effect to that plain meaning as an expression of legislative intent.'" Id. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). In determining the plain meaning of a provision, we look to the text of the statutory provision in question as well as "the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." Id. If, after this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous and we "may resort to statutory construction, legislative history, and relevant case law" to resolve the ambiguity. Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007). If the statute remains ambiguous after both attempting to determine the plain meaning and resorting to tools of statutory construction, we then employ the rule of lenity and interpret ambiguities in favor of the criminal defendant. In re Pers. Restraint of Sietz, 124 Wn.2d 645, 652, 880 P.2d 34 (1994); see State v. Coria, 146 Wn.2d 631, 639, 48 P.3d 980 (2002) ("[T]he rule of lenity does not preclude ordinary statutory construction."). We begin our analysis with the plain text of the provisions at issue in this case.

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Cruze challenges only the use of his 1996 conviction as a most serious offense, so the relevant definition comes from former RCW 9.94A.030(23)(t), which provides: "`Most serious offense' means . . . [a]ny other felony with a deadly weapon verdict under RCW 9.94A.125." There is no dispute that Cruze's conviction for possession of methamphetamine is a felony, so our inquiry is limited to determining whether "a deadly weapon verdict under RCW 9.94A.125" includes a special verdict by a jury finding that Cruze was armed with a firearm at the time of the charged felony. This takes us to the language of former RCW 9.94A.125, which provides: In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime. For purposes of this section, a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm. (Emphasis added.) (Alteration in original.) This statute has two principal effects: first, it sets forth a required procedure and, second, it defines the term "deadly weapon." Based on the plain text of former RCW 9.94A.125 alone, we would have little

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difficulty concluding that the special verdict finding that Cruze used a firearm is a "deadly weapon verdict under RCW 9.94A.125." The statute explicitly includes all firearms within the definition of "deadly weapon," and the finding was in the form of a special verdict by a jury. Cruze argues, however, that the "Hard Time for Armed Crime Act" (HTACA), Laws of 1995, ch. 129 (Initiative Measure No. 159, approved Apr. 20, 1995), compels a different reading of former RCW 9.94A.125. Because the HTACA amended parts of chapter 9.94A RCW, it is relevant to determining the plain meaning of former RCW 9.94A.030(23)(t) and former RCW 9.94A.125. The HTACA took what was formerly a single sentence enhancement for offenders armed with a deadly weapon and replaced it with two sentence enhancements: one for offenders armed with a firearm and one for offenders armed with a "deadly weapon as defined by this chapter other than a firearm."1 Laws of 1995, ch. 129,

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