Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                        )       NO. 66216-3-I
                                             )
                       Respondent,           )       DIVISION ONE
                v.                           )
                                             )
 REGINALD KARL BREAUX,                       )       PUBLISHED OPINION
                                             )
                       Appellant.            )       FILED: March 12, 2012

               Lau, J.  --  This case involves a dispute under RCW 9.94A.589(1)(b), 

which provides for mandatory consecutive sentences whenever a person is convicted of 

two or more serious violent offenses arising from separate and distinct criminal conduct.  

Reginald Breaux pleaded guilty to two serious violent offenses -- attempted first degree 
rape and first degree rape, and one violent offense -- second degree rape.1

               Under the statute's special scoring procedures, multiple serious violent 

offenses increase the sentencing range.  The procedure involves selecting the current 

serious violent offense with the highest seriousness level and then computing the 

offender score, using prior offenses and other current nonserious violent offenses.  The 

sentencing range for the other current serious violent offenses are computed by using 

        1 "Serious violent offense" is a subcategory of violent offense and includes first 
 degree rape and attempted first degree rape.  RCW 9.94A.030(44)(a)(vii), (ix).  Second 
 degree rape is a "violent offense." RCW 9.94A.030(53)(a)(i) (all class A felonies are
 "violent offenses"). Each is classified as a sex offense.  RCW 9.94A.030(44)(a)(vii), 
 (ix),  .030(45)(a)(i). 

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an offender score of 0.  The sentences for the serious violent offenses run consecutively 

and concurrently with nonserious violent offenses.  Because there is no legislative intent 

to the contrary and RCW 9.94A.589(1)(b) is ambiguous where two or more serious 

violent offenses arguably have the same seriousness level, the rule of lenity 

necessitates an interpretation that favors Breaux.  We conclude that the 0 scoring rule 

applies to Breaux's first degree rape conviction since it yields the shorter sentence.  We 

remand for resentencing consistent with this opinion.

                                             FACTS

        Reginald Breaux pleaded guilty in count one with second degree rape of TE, in 

 count two with attempted first degree rape of AD, and in count three with first degree 

 rape of EH.  His plea agreement reserved the right to challenge his offender score 

 calculation.  Before sentencing, the parties submitted sentencing memoranda.  The 

 State calculated Breaux's offender score for the attempted first degree rape as 3 and 6 

 for the first and second degree rape convictions.  On the second degree rape 

 conviction, the State scored 1 point for each prior felony conviction except Breaux's 
 1976 robbery,2 3 points for the first degree rape, and 0 for the attempted first degree 

 rape.  It applied a similar calculation to the first degree rape offender score.  On the 

 attempted first degree rape conviction, the State scored 1 point for each prior offense 

 and 0 for the other current offenses. 

        Breaux argued unsuccessfully over the propriety of counting his prior felony 

        2 For scoring purposes, Breaux's prior felony criminal history includes one 
 conviction for second degree burglary and two convictions for possession of a 
 controlled substance.

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convictions to calculate his offender score.3 To explain its consecutive sentence 

recommendation, the State reasoned:

       Counts two [(attempted first degree rape)] and three [(first degree rape)] are 
       serious, violent crimes, and serious violence [sic] run consecutive to one 
       another.  Therefore the rape in the second degree is only going to score against 
       the highest level of either count two or three.  So rape in the second degree is 
       going to be used to score against count three.  Count one scores against count 
       three, but counts two and three are going to run consecutive to one another. 
       And count two doesn't have anything to score against it because it's going to be 
       running consecutive to one another.  So we are going to add up the total 
       standard range [and it] will be the addition of whatever the Court imposes for 
       count two and count three.  We will add that up for the total standard range.

Report of Proceedings (Oct. 8, 2010) at 10. Following the State's high end 

recommendation, the sentencing court imposed high end standard range sentences for 

each offense and ordered the sentences for attempted first degree rape and first 

degree rape be served consecutively and concurrent with the second degree rape, for 

a total minimum sentence of 336 months.  Breaux appeals his sentence.

                                        DISCUSSION

       Breaux contends that under RCW 9.94A.589(1)(b), the offender score for one of 

his "serious violent offenses" should be 0 and the offender score for the other should 
be based on his prior and current convictions that are not serious violent offenses.4  

He also argues that the statute is silent as to which of his two serious violent offenses 

the 0 offender score rule should apply where both have the same seriousness level.  

       3 Breaux does not appeal this issue.

       4 We accept the State's concession that it and the sentencing court 
miscalculated Breaux's offender score.  As to the second degree rape offender score 
calculation, the State contends for the first time on appeal that the offender score 
should be nine instead of a six.  We decline to consider this claim because the trial 
court is in the best position to address the merits on remand.
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Due to the statute's ambiguity, the rule of lenity requires it be construed strictly against the 

State and in Breaux's favor.  The State responds that legislative intent precludes the 

rule's application here because "the legislature intended to maximize the punishment 

for offenders with multiple serious violent offenses." Respondent's Br. at 15. The State 

also claims that anticipatory offenses have no seriousness level.

       RCW 9.94A.589 governs the court's authority to impose concurrent or 

consecutive sentences and the applicable offender score to calculate the standard 

range for each offense.  This case involves application of the 0 scoring rule under 

RCW 9.94A.589's special scoring procedure for computing the standard range.  This 

procedure applies when a defendant has been convicted of two or more serious violent 

offenses.  Unlike second degree rape, first degree rape and attempted first degree rape 

are defined as "serious violent offenses." RCW 9.94A.030(44).  RCW 9.94A.589(1)(b) 

provides in part: 

              (b) 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 (b) of this subsection 
       shall be served consecutively to each other and concurrently with sentences 
       imposed under (a) of this subsection.

       This special scoring procedure operates as follows:

              1. Select the current serious violent offense with the highest seriousness 
        level. Compute the offender score for this offense, using only prior offenses 
        and other current offenses that are not serious violent offenses.  In other words, 
        ignore the other current serious violent offenses in computing the offender 
        score.
              2. Compute the sentencing range for the other current serious violent 

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        offenses, using an offender score of 0.
              3. Run the sentences for the serious violent offenses consecutively.
              4. Compute in the normal way the sentencing range for any current 
        offenses that are not serious violent offenses.  Run these sentences 
        concurrently with the sentences for the serious violent offenses.

13B Seth Fine & Douglas Ende, Washington Practice:  Criminal Law § 3511, at 301 (2d 

ed. 1998).

       The following chart demonstrates each party's proposed serious violent offense

offender score calculation for Breaux:

                               THE STATE'S CALCULATION

Select count 3 first degree rape as the offense with the highest seriousness level.

Calculate the offender score using prior offenses and other current nonserious violent 
offenses.
Adult History + Other Current     Multiplier (1 for nonviolent           Points
Nonserious Violent Offenses       offenses and 3 for sex offenses)
3 prior nonviolent felonies       1                                      3 points
1 other current offense that      3                                      3 points
is not a "serious violent 
offense" but is a sex offense
Total                                                                    6 points

Determine the standard range using seriousness level and offender score:

The seriousness level for first degree rape is 12.  RCW 9.94A.515.

                                       Offender Score
Seriousness level      0   1   2    3    4   5    6                    7    8    9 or more
12                                                162 -- 216 months

Apply offender score zero to count 2 attempted first degree rape because this is not the 
offense with the "highest seriousness level."

Determine the standard range using the seriousness level of the completed crime and 
offender score.  Multiply by 0.75 because it is an anticipatory offense.  RCW 
9.94A.595.

                                       Offender Score
Seriousnes     0                          1    2    3   4    5     6   7    8    9 or more
s level

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12             93 -- 123 months

Multiply 93 -- 123 months by 0.75 = 69.75 -- 92.25 months.

Count 2 runs consecutively to count 3 and both run concurrently with count 1.
The State's proposed calculation of Breaux's offender score yields a maximum 
combined sentence of 216 months + 92.25 months =            308.25 months.

                                 BREAUX'S CALCULATION

Select count 2 attempted first degree rape as the offense with the highest seriousness 
level.

Calculate the offender score using prior offenses and other current nonserious violent 
offenses.

Adult History + Other           Multiplier (1 for nonviolent     Points
Current Nonserious Violent      offenses and 3 for sex 
Offenses                        offenses)
3 prior nonviolent felonies     1                                3 points
1 other current offense that    3                                3 points
is not a "serious violent 
offense" but is a sex 
offense
Total                                                            6 points

Determine the standard range using the seriousness level of the completed crime and 
offender score.  Multiply the range by 0.75 for an anticipatory offense.  RCW 
9.94A.595.

The seriousness level for first degree rape is 12.  RCW 9.94A.515.

                                     Offender Score
Seriousnes     0    1   2    3   4   5    6                    7     8     9 or more
s level
12                                        162 -- 216 months

Multiply 162-216 months by 0.75 = 121.5-162 months.

Apply offender score of zero to count 3 first degree rape because this is not the offense 
with the "highest seriousness level."

                                     Offender Score
Seriousnes     0                    1    2  3   4    5   6     7     8     9 or more
s level

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12             93 -- 123 months

Count 3 runs consecutively to count 2 and both run concurrently with count 1.  

Breaux's proposed offender score calculation yields a maximum combined sentence of 
162 months + 123 months =         285 months.

       As shown above, the parties' proposed offender score calculations reveal 

the crux of their dispute -- which of Breaux's two serious violent offenses should be 

(1) selected for computation of the offender score and (2) selected for application of 

the 0 scoring rule. While RCW 9.94A.589(1)(b) makes clear the 0 scoring rule does 

not apply to the serious violent offense with the highest seriousness level, it fails to 
address the circumstance where two offenses have the same seriousness level.5

          Breaux asserts that under RCW 9.94A.510 and .595, his attempted first 
degree rape6 and first degree rape convictions have the "same seriousness level" -- 12.  

Because RCW 9.94A.589(1)(b) fails to address this circumstance, he contends 

ambiguity exists so the rule of lenity applies in his favor -- the offender score calculation 

should apply to his attempted first degree rape and the 0 scoring rule should apply to 

his first degree rape.  The attempted first degree rape conviction constitutes the 

       5 The State does not dispute this point.

       6 Breaux was charged with attempt under RCW 9A.28.020, which provides in 
relevant part:
       (1) A person is guilty of an attempt to commit a crime if, with intent to commit a 
specific crime, he or she does any act which is a substantial step toward the 
commission of that crime.

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offense with the highest seriousness level because it results in a shorter overall 
sentence.7

       The State responds that such a construction contravenes legislative intent and

argues that "the legislature intended to maximize the punishment for offenders with 

multiple serious violent offenses." Resp't's Br. at 15.  To support its legislative intent 

argument, the State relies on (1) a 1988 legislative change to clarify that the offender 

score under RCW 9.94A.589(1)(b) for the serious violent offense with the highest 

seriousness level includes not only prior convictions, but also current convictions that 

are not serious violent offenses, Laws of 1988, ch. 157, § 5; (2) a 1990 amendment to 
RCW 9.9A.5898 that lowered the requirement for consecutive sentences from three 

serious violent offenses to two serious violent offenses, Laws of 1990, ch. 3, § 704; and 

(3) the legislature expanded its list of serious violent offenses.    

       "The primary objective of an inquiry into the construction of a statute is to 

ascertain and carry out the intent of the legislature.  Our review is de novo."  State v. 

Hayes, 164 Wn. App. 459, 469, 262 P.3d 538 (2011).  

              "[I]f the statute's meaning is plain on its face, then the court must give 
       effect to that plain meaning as an expression of legislative intent." The "plain 
       meaning" of a statutory provision is to be discerned from the ordinary meaning of 
       the language at issue, as well as from the context of the statute in which that 
       provision is found, related provisions, and the statutory scheme as a whole.  If 
       after that examination, the provision is still subject to more than one reasonable 
       interpretation, it is ambiguous.  If a statute is ambiguous, the rule of lenity 

       7 We agree Breaux may assert this argument for the first time on appeal, a point 
that the State does not dispute.  State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 
(2008). Accordingly, we need not address Breaux's ineffective assistance claim.

       8 At the time, this provision was codified as RCW 9.94A.400.  It was recodified 
as RCW 9.94A.589 by Laws of 2001, ch. 10, § 6.  For clarity, we refer to both the 
previous and current versions of this provision as RCW 9.94A.589.

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66216-3-I/9

       requires us to interpret the statute in favor of the defendant absent legislative 
       intent to the contrary. 

 State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005) (alteration in original) 

(citations omitted) (quoting Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 

9-10, 43 P.3d 4 (2002)).  "The rule of lenity is applied only when the Legislature's intent 

is lacking."  In re Pers. Restraint of Bowman, 109 Wn. App. 869, 875-76, 38 P.3d 1017 

(2001).  "[T]he rule of lenity applies to the SRA [Sentencing Reform Act] and operates 

to resolve statutory ambiguities, absent legislative intent to the contrary, in favor of a 

criminal defendant."  In re Pers. Restraint of Sietz, 124 Wn.2d 645, 652, 880 P.2d 34 

(1994).

       To determine the offense with the highest seriousness level, RCW 

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

Anticipatory offenses are not specifically ranked in the seriousness level table in 

RCW 9.94A.515.  That table only contains seriousness levels for completed offenses.  

First degree rape has a seriousness level 12.  From this, the State argues that in the 

absence of any seriousness level for attempted first degree rape, the completed 

crime of first degree rape applies when calculating Breaux's offender score under 

RCW 9.94A.589(1)(b).  This reading ignores RCW 9.94A.595, which governs the 

procedure to calculate the standard range for anticipatory offenses,

       For persons convicted of the anticipatory offenses of criminal attempt, 
       solicitation, or conspiracy under chapter 9A.28 RCW, the presumptive sentence 
       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.

RCW 9.94A.595 (emphasis added).  

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       In State v. Mendoza, 63 Wn. App. 373, 819 P.2d 387 (1991), defendant was 

convicted of conspiracy to deliver a controlled substance, a crime that was not ranked 

in the seriousness level table.  Mendoza, 63 Wn. App. at 374, 376.  Mendoza argued 

that "in the absence of any seriousness level for his [offense, the standard range 

cannot be determined, and the statute for 'unranked' offenses (RCW 9.94A.120(6)) 

requires a range of 0 to 12 months."  Mendoza, 63 Wn. App. at 376.  The State 

responded, "[U]nder [the predecessor to RCW 9.94A.595] and [former] RCW 

9.94A.310(2), the seriousness levels assigned to completed offenses are to be used by 

trial courts in determining the seriousness levels and standard ranges for anticipatory 

offenses under RCW 9A.28."  Mendoza, 63 Wn. App. at 376-77.  We reasoned, "Those 

statutes demonstrate that the seriousness level of anticipatory offenses charged under 

RCW 9A.28 is the seriousness level of the 'completed crime' . . . ."  Mendoza, 63 Wn.

App. at 377 (emphasis added).  We concluded Mendoza was not convicted of 

conspiracy under chapter 9A.28 RCW, but rather under a separate statute for drug 

offenses, chapter 69.50 RCW.  Since chapter 69.50 RCW provides for no seriousness 

level and the standard range sentence could not be determined, we concluded RCW 

9.94A.120(6) required a 0 to 12 months standard range.  We then explained, "The 

statute is, at best, ambiguous as to the Legislature's intent regarding the appropriate 

standard range, and the rule of lenity requires this court to resolve any ambiguity in 

favor of the defendant."  Mendoza, 63 Wn. App. at 378 n.4.  

       We are unpersuaded by the State's argument but need not decide whether the 

seriousness levels assigned to completed offenses apply to anticipatory offenses for 
purposes of RCW 9.94A.589(1)(b).9  As discussed above, the rule of lenity applies in 

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favor of a defendant where legislative intent is lacking.  Because RCW 9.94.589(1)(b)

fails to address the circumstance in which two or more serious violent offenses 

arguably have the same seriousness level, we address whether the rule of lenity 

applies here.

       The State claims that application of the rule of lenity contravenes the 

legislature's intent to "maximize" punishment for serious violent offenders.  Resp't's Br. 

at 15-20.  It relies on the statutory amendments discussed above and on State v. 

Salamanca, 69 Wn. App. 817, 827-28, 851 P.2d 1242 (1993).  There, we affirmed five 

consecutive sentences for the defendant's five first degree assault convictions.  We 

reasoned, 

              Under [the predecessor to RCW 9.94A.589], prior convictions and other 
       current convictions that are not violent offenses are used to calculate the 
       offender score and sentence range for only one of the serious violent offenses, 
       while the sentence ranges for the other serious violent offenses are calculated 
       by using an offender score of 0.  Thus, the sentence ranges of the extra serious 
       violent offenses are shorter than would ordinarily be the case, but the term of 
       incarceration is longer because the sentences are served consecutively instead 
       of concurrently.  This scheme [RCW 9.94A.589] avoids double counting of 
       convictions while ensuring increased punishment for multiple violent offenses, a 
       clearly intended result which is consistent with the purposes of the Sentencing 
       Reform Act of 1981.  

Salamanca, 69 Wn. App. at 827-28 (citing David Boerner, Sentencing in Washington 

§§ 5.8(b), 6.20 (1985)).  The State overstates our reasoning in Salamanca and the 

effect of RCW 9.94A.589's amendment history.  Neither supports the State's assertion 

that the legislature intended to "maximize" punishment for multiple serious violent 

       9 The State offers no reasoned basis to explain why the legislature intended to 
assign seriousness levels for anticipatory offenses under RCW 9.94A.595 but none for 
purposes of RCW 9.94A.589.

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offenses.  It is true the legislature has generally tended to increase punishment.  But the 

legislature's intent to increase punishment for defendants who commit two or more serious violent 

offenses sheds no light on what to do where there are two or more serious violent offenses 

with the same seriousness level but with different standard ranges.  In Salamanca, we 

discussed the predecessor to RCW 9.94A.589(1)(b) and noted the legislative intent 

was to "increase" punishment for those convicted of multiple serious violent offenses.  

As structured, the statute results in an increased standard range and most significantly 

for defendants with high offender scores.  Under ordinary scoring rules, the standard 

range does not increase when the offender score exceeds 9.  While "the extra serious 

violent offenses are shorter than would ordinarily be the case," the incarceration term is 

longer because the sentences are served consecutively.  Salamanca, 69 Wn. App. at 
828.  This also avoids the double counting issue.10

       The rule of lenity requires the court to construe a statute strictly against the 

State in favor of the defendant where two possible constructions are permissible.  

Because RCW 9.94A.589(1)(b) is ambiguous, it must be construed in Breaux's favor.  

We conclude that (1) the offender score calculation applies to Breaux's attempted first 

degree rape and (2) the 0 scoring rule applies to his first degree rape conviction as this 

will yield a shorter sentence.  We remand for resentencing consistent with this opinion.

       10 We are not persuaded by the State's reliance on double jeopardy case law 
because it involves a constitutional analysis rather than a statutory one.  "The 
prohibition against double jeopardy 'protects against multiple punishments for the same 
offense, as well as against a subsequent prosecution for the same offense after 
acquittal or conviction.'"  State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006) 
(quoting State v. Graham, 153 Wn.2d 400, 404, 103 P.3d 1238 (2005)).

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WE CONCUR:

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