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State v. Weatherwax

Supreme Court of Washington, En Banc

April 6, 2017

JAYME L. RODGERS, Petitioner.

          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 "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 (2016). 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, 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.


         On September 24, 2013, Thomas Weatherwax and Jayme Rodgers verbally threatened an alleged rival gang member, Leroy Bercier, inside a convenience store 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 I 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 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) 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 concession and ruled, instead, that RCW 9.94A.589(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.


         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 ...

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