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State v. Martell

Court of Appeals of Washington, Division 2

August 29, 2017

STATE OF WASHINGTON, Respondent,
v.
RICHARD SHERWOOD MARTELL, Appellant.

          Johanson, J.

         Richard Sherwood Martell appeals the trial court order amending his sentence to impose an indeterminate sentence under the sex offender sentencing statute's indeterminate sentencing provision, RCW 9.94A.507(1)(b), following his guilty plea conviction for second degree possession of depictions of minors engaged in sexually explicit conduct. He argues that the sex offender indeterminate sentencing provision requires a prior conviction for an offense involving a pattern of criminal street gang activity and that he had no such prior offense. Under RCW 1.12.028, we reject Martell's assertion that he is not subject to an indeterminate sentence under RCW 9.94A.507(1)(b) and affirm the trial court.

         FACTS

         Martell pleaded guilty to the amended charge of second degree possession of depictions of minors engaged in sexually explicit conduct[1] between July 16, 2015 and July 21, 2015. He stipulated to a criminal history that included convictions for first degree rape of a child and first degree child molestation.

         The plea agreement described the standard range for the offense as 43 to 57 months, with 36 months community custody, and the maximum term was described as 5 years. The State agreed to recommend a sentence of 43 months with 36 months community custody.[2]

         At sentencing, the trial court sentenced Martell to the agreed sentencing recommendation of 43 months custody and 36 months of community custody. The judgment and sentence did not mention an indeterminate sentence, and the possibility of an indeterminate sentence was not discussed during the sentencing hearing.

         The Department of Corrections (DOC) subsequently notified both parties that it believed that Martell was subject to an indeterminate sentence under the sex offender indeterminate sentencing provision, which provides in part, "An offender who is not a persistent offender shall be sentenced under this section if the offender: . . . [h]as a prior conviction for an offense listed in *RCW 9.94A.030');">94A.030(31)(b), [3] and is convicted of any sex offense other than failure to register."[4]RCW 9.94A.507(1)(b). In response, the State moved to amend Martell's judgment and sentence to reflect an indeterminate term with a minimum period of incarceration of 43 months and a maximum of 60 months.

         Martell opposed the motion. He argued that he did not meet the statutory criteria for an indeterminate sentence because, according to the code reviser's note to RCW 9.94A.507(1)(b), such a sentence required a prior conviction for an offense involving "street gang activity, " and he had no such prior offense. Clerk's Papers at 45; Report of Proceedings at 26. He requested specific performance of his plea agreement.

         The trial court concluded that Martell was subject to an indeterminate sentence and that the plea agreement was therefore based on a mutual mistake because neither party had understood that Martell would be subject to an indeterminate sentence when they entered into the plea agreement. The trial court then determined that because the plea was based on a mutual mistake, it was not subject to specific performance.

         The trial court offered Martell the opportunity to withdraw his guilty plea. Martell elected not to withdraw his guilty plea and continued to argue that he was not subject to an indeterminate sentence and that there had been no mutual mistake.[5] The trial court amended Martell's sentence, imposing an indeterminate sentence.

         Martell appeals his amended sentence.

         ANALYSIS

         Martell argues that he is not subject to an indeterminate sentence because "a plain reading" of the statute, in conjunction with the code reviser's note to RCW 9.94A.507(1)(b), requires that he have a prior conviction for a crime that falls under former RCW 9.94A.030');">94A.030(3(5) (2012).[6] Br. of Appellant at 5. That subsection defines "[p]attern of criminal street gang activity, " and Martell points out that he has no such conviction. Because the code reviser's note does not accurately track the amendments to RCW 9.94A.030');">94A.030 from 2001 to 2012, Martell's reliance on the reviser's note is misplaced.[7] As discussed below in detail, correctly tracking the subsequent amendments to former RCW 9.94A.030');">94A.030(3 l)(b) (2008), as required by RCW 1.12.028, we hold that the citation at the time of Martell's offense should have been to former RCW 9.94A.030(37) (2012), which defined persistent offender. Thus, Martell fails to show that the trial court erred when it sentenced him under the sex offender indeterminate sentencing provision.

         I. Standard of Review and Interpretive Rule

         Whether Martell was subject to an indeterminate sentence is a question of law. Accordingly, we review the trial court's decision to impose the indeterminate sentence de novo. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

         Under RCW 1.12.028, "[s]tatutes referencing other statutes include any amendments to the referenced statute, absent a clear expression of a contrary intent." State v. Blilie, 132 Wn.2d 484, 492, 939 P.2d 691 (1997) (emphasis added). Applying this rule here, the reference to "RCW 9.94A.030');">94A.030(31)(b)" in RCW 9.94A.507(1)(b) must be read to include all subsequent amendments to former RCW 9.93A.030 (2012) because there is no express provision limiting our recognition of subsequent amendments.

         II. Statutory Background

         A. Original Indeterminate Sentencing Provision and Pre-2008 Amendments

         The sex offender indeterminate sentencing provision was first enacted in 2001 as former RCW 9.94A.712 (2001). Laws OF 2001, 2nd Spec. Sess., ch. 12, § 303. The original statute provided that "[a]n offender who is not a persistent offender shall be sentenced under this section if the offender ... is convicted of any sex offense" committed after September 1, 2001, and "[h]as a prior conviction for an offense listed in RCW 9.94A.030');">94A.030(32)(b)" Former RCW 9.94A.712(1)(b) (2001) (emphasis added).

         At that time, former RCW 9.94A.030');">94A.030(32) (2001) defined the term "[p]ersistent offender, " and subsection (32)(b) listed the offenses that were required to qualify a defendant as a persistent offender. Between 2001 and 2008, despite numerous amendments to both statutes, the indeterminate sentencing provision consistently referred to prior convictions for offenses listed in the "[p]ersistent offender" definitional statute.[8] In ...


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