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In re Personal Restraint of Arnold

Supreme Court of Washington, En Banc

February 15, 2018

In the Matter of the Personal Restraint of EDDIE D. ARNOLD, Petitioner.

          GORDON MCCLOUD, J.

         Eddie Dean Arnold challenges his conviction for failure to register as a sex offender, in violation of RCW 9A.44.130. He argues- and the Court of Appeals agreed-that he was not required to register because his 1988 conviction of statutory rape in violation of a statute amended in 1979, was not a "sex offense" within the meaning of the current sex offender registration statute. We disagree. The prior sex offense of which Arnold was convicted meets the two critical prerequisites to a countable "sex offense" listed in former RCW 9.94A.030(46)(b) (2012): (1) that prior conviction was based on a statute that was "in effect . . . prior to July 1, 1976" and (2) that prior conviction was based on a statute that is "comparable" to a current "sex offense" as defined in former RCW 9.94A.030(46)(a) (2012).[1]

         The Court of Appeals, Division Three, reached a contrary conclusion in part because it felt bound by prior decisions of the two other divisions of the Court of Appeals. In re Pers. Restraint of Arnold, 198 Wn.App. 842, 396 P.3d 375 (2017). Division Three labeled this deference to a prior out-of-division decision a rule of "horizontal stare decisis." Id. at 846-48. We reject this rule. It conflicts with the statutes establishing the powers and duties of the Court of Appeals and our court; it conflicts with court rules on those topics, it conflicts with prior decisions, and it would tend to diminish the robust, adversarial development of the law that is the gem of our current approach. We therefore reverse.

         Facts

         This case involves statutory interpretation of the failure-to-register statute, RCW 9A.44.130. That statute requires offenders who have been convicted of a "sex offense" to register as sex offenders at certain times, and it depends on RCW 9.94A.030 for the definition of a "sex offense" that triggers the registration requirement. RCW 9A.44.130(1)(a), .128(10)(a). That statute, former RCW 9.94A.030(46) (2012), includes within the definition of "sex offense" all felony violations of chapter 9A.44 RCW as well as several other categories. For example, it includes federal and out-of-state convictions that would be classified as sex offenses in this state. Notably, that statute also includes "[a]ny conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection." Former RCW 9.94A.44.030(46)(b) (2012). This last subsection is the one at issue here, given the date of Arnold's prior conviction.

         On June 27, 1988, Arnold pleaded guilty to a second degree statutory rape committed in 1987 in violation of former RCW 9A.44.080 (1979). Resp. to Pers. Restraint Pet., Attach, at A-2.

         Shortly after Arnold's 1988 guilty plea, the legislature repealed that statutory rape statute and the other statutes defining the three degrees of statutory rape in former RCW 9A.44.070, .080, and .090 (1979), and replaced them all with statutes criminalizing three degrees of the crime of rape of a child: RCW 9A.44.073, .076, and .079. See Substitute H.B. 1333, ch. 145, §§ 2-4, 24, 26, 50th Leg., Reg. Sess. (Wash. 1988).

         Then, in 1990, the legislature enacted RCW 9A.44.130, which required certain sex offenders to register. Second Substitute S.B. 6259, ch. 3, § 402, 51st Leg., Reg. Sess. (Wash. 1990). Arnold has been convicted five times of failure to register as a sex offender, but he is challenging only his most recent conviction here. Resp. to Pers. Restraint Pet., Attach, at C-l.

         In 2011, Division One decided State v. Taylor, which held that offenders- like Arnold-who were convicted under former RCW 9A.44.070, .080, and .090 (1979), do not have to register as sex offenders because the period when those crimes were in effect was not covered by the failure-to-register statute. In other words, those convictions fell within a statutory time period "gap" in the registration requirement. 162 Wn.App. 791, 799, 259 P.3d 289 (2011).

         Nevertheless, in 2013, the State charged Arnold with failure to register and first degree trafficking in stolen property. Resp. to Pers. Restraint Pet., Attach, at D-1, E-1. In March 2015, Arnold pleaded guilty to failure to register and second degree trafficking in stolen property. Id. at D-3 to D-8, E-3 to E-8. The trial court accepted the plea agreement and imposed a 51-month sentence on June 4, 2015. Id. at E-9 to E-20.

         Two weeks after the sentencing hearing, the Spokane County Sheriffs Office sent Arnold a letter informing him that he was relieved of his duty to register as a sex offender because of Taylor. Id. at F-1.

         Procedural History

         Shortly after receiving the sheriffs letter, Arnold timely moved to withdraw his guilty plea under CrR 7.8. Mot. for Withdrawal of Guilty Plea, State v. Arnold, No. 13-1-03641-1 (Spokane County Super. Ct, Wash. Aug. 6, 2015). Arnold stated that he was not required to register and was unaware of Taylor when he pleaded guilty. Id. at 2-3. The trial court transferred the motion to the Court of Appeals for consideration as a personal restraint petition. Order Transferring Case to Court of Appeals, State v. Arnold, No. 13-1-03641-1 (Spokane County Super. Ct., Wash. Jan. 19, 2016).

         The Court of Appeals, Division Three, issued its decision on April 25, 2017. 198 Wn.App. 842. That decision by the three-judge panel contained four separate opinions: a majority, a separate concurrence, the majority author's concurrence, and a dissent. The opinion, though fractured, held that Arnold did not have a statutory obligation to register as a sex offender. That opinion also articulated a new "horizontal stare decisis" standard, stating, "Regardless of whether Taylor and [In Personal Restraint of] Wheeler[2] were incorrectly decided, parting company at this point would create unjustified harm by rendering the applicable law impermissibly vague." Id. at 848.

         We granted review to resolve the conflicting opinions on the interpretation of the registration statute and the conflicting opinions on whether stare decisis applies between or among divisions of our Court of Appeals.

         Analysis

         I. Under the current statutory framework, Arnold is required to register as a sex offender

         In 2013, Arnold was charged with failure to register as a sex offender in violation of RCW 9A.44.130(1)(a). That subsection provides, in relevant part,

Any adult or juvenile residing ... in this state who has been found to have committed or has been convicted of any sex offense . . . shall register with the county sheriff for the county of the person's residence.

(Emphasis added.) The chapter defines "sex offense" in RCW 9A.44.128(10):

         "Sex offense" means:

(a) Any offense defined as a sex offense by RCW 9.94A.030 ...
The cross-referenced former RCW 9.94A.030(46) (2012) stated:

         "Sex offense" means:

(a)(i) A felony that is a violation of chapter 9A.44 RCW [sex offenses] other than RCW 9A.44.132 [failure to register as sex offender or kidnapping offender-refusal to provide DNA];
(v) A felony violation of RCW 9A.44.132(1) (failure to register) if the person has been convicted of violating RCW 9A.44.132(1) (failure to register) on at least one prior occasion;[3]
(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex ...

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