In the Matter of the Personal Restraint of EDDIE D. ARNOLD, Petitioner.
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
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.
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
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.
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).
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.
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).
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.
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.
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).
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 were incorrectly decided,
parting company at this point would create unjustified harm
by rendering the applicable law impermissibly vague."
Id. at 848.
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.
Under the current statutory framework, Arnold is required to
register as a sex offender
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):
(a) Any offense defined as a sex offense by RCW 9.94A.030 ...
The cross-referenced former RCW 9.94A.030(46) (2012) stated:
(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
(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 ...