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State v. Craig

September 3, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
BRYAN J. CRAIG, APPELLANT.



PER CURIAM. -- Bryan Craig appeals the trial's court determination that Craig's prior misdemeanor sex offense conviction rendered him ineligible for a Special Sexual Offender Sentencing Alternative (SSOSA) Disposition. The State concedes error. We accept the concession and remand.

Bryan Craig pleaded guilty to an amended information charging him with one count of third degree child molestation. His standard range was calculated at 15-20 months, based on a 1989 conviction for communicating with a minor. However, before sentencing, the parties discovered that the prior conviction was a gross misdemeanor, not a felony. Thus, when the parties appeared for sentencing, the standard range was recalculated at 6-12 months to accurately reflect Craig's offender score. The court imposed a sentence of 12 months with the option of work release.

The jail subsequently denied Craig's request for work release because he was not enrolled in a SSOSA treatment program. Craig obtained new counsel and moved to withdraw his guilty plea. He argued he received ineffective assistance of counsel because his original attorney failed to ask the court to consider a SSOSA Disposition once the attorney discovered the prior conviction was a gross misdemeanor.

The court determined that a prior sex offense, whether a felony or a gross misdemeanor, rendered a defendant ineligible for a SSOSA. The court denied the motion to withdraw the guilty plea, but stayed imposition of sentence pending appeal.

Under the Sentencing Reform Act, a SSOSA is not available to defendants previously convicted of a "sex offense." RCW 9.94A.120(7)(c). "Sex offense" is defined in a different section of the SRA as follows:

(33) "Sex offense" means:

(a) A felony that is a violation of chapter 9A.44 RCW or RCW

9A.64.020 or 9.68A.090 or a felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

(b) A felony with a finding of sexual motivation under RCW

9.94A.127 or 13.40.135; or (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection. RCW 9.94A.030(33)(former .030(31)).

The State concedes that, under these statutory provisions, only a felony conviction for a sex offense would preclude a sentencing court from considering a defendant for a SSOSA. Based on well-settled rules of statutory construction, we accept the concession of error.

We remand the case to allow the sentencing court to reconsider the motion to withdraw the guilty plea or alternatively to consider imposing a SSOSA Disposition.

19960903 ...


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