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State v. Haggard

Court of Appeals of Washington, Division 1

June 3, 2019


          Hazelrigg-Hernandez, J.

         David B. Haggard seeks reversal of his convictions for arson and burglary, arguing that he was sentenced based on an improper offender score. Haggard contends that his score was miscalculated because a misdemeanor conviction dismissed after successful completion of a deferred sentence should not have interrupted the washout period for his prior class C felony convictions. Because the plain language of the statute is unambiguous and does not indicate that the legislature intended dismissal to be equivalent to vacation, we affirm.


         David Haggard was convicted of three felonies in California in 2002, 2004, s and 2005. He was released from incarceration for the last of these offenses on May 22, 2008. Haggard was charged with assault in the fourth degree in Snohomish County District Court for events occurring in late 2010 and pleaded guilty to the reduced charge of disorderly conduct. Haggard received a deferred sentence. On March 1, 2012, the Snohomish County District Court found Haggard to be in compliance with the conditions of his deferred sentence and dismissed the case ex parte.

         In this case, Haggard was charged with arson in the second degree and burglary in the second degree for events that took place on June 5, 2016. The trial court engaged in a full colloquy with Haggard and found that he knowingly, voluntarily, and intelligently waived his right to a jury trial and stipulated to the facts. The court found sufficient facts beyond a reasonable doubt to convict Haggard of both arson in the second degree and burglary in the second degree.

         The State filed a memorandum detailing the timing of Haggard's prior convictions, which affected his offender score. The State argued that the critical distinction between dismissal and vacation was that a prior vacated offense would not impact a future offender score. Because Haggard's 2010 conviction had been dismissed but not vacated, the State contended that he was not entitled to exclude his prior California felony convictions from the offender score calculation. Haggard argued in response that the supreme court's analysis of the analogous felony dismissal and vacation statutes compelled the conclusion that a misdemeanor dismissed after a deferred sentence may not be included when calculating an offender score.

         The court also heard oral argument on Haggard's offender score. The State argued that the governing statute specifically states that vacated convictions will not be used to calculate a future offender score but does not provide the same benefit to charges dismissed after a deferred sentence. Haggard responded that the distinction between "vacation" and "dismissal" was artificial and the two terms were interchangeable for misdemeanor convictions. He argued that the two statutes recognized a procedural distinction and applied in different stages: dismissal when the trial judge still had jurisdiction over a defendant and vacation when the trial court no longer had jurisdiction because the defendant's probation had expired.

         Haggard argued that the statute was ambiguous because it was unclear whether vacation under RCW 9.96.060 had a different legal effect than a dismissal under RCW 3.66.067, and the court should apply the rule of lenity in his favor. The State responded that RCW 9.96.060 was not ambiguous because it was a general, stand-alone statute that applied to all courts in which a defendant seeks vacation of a misdemeanor. The trial court found that the statute was not ambiguous and that it was clear from the language of the statute that the defendant had to petition the court and give notice to the prosecutor to have the conviction vacated. Only then would the court exclude the prior conviction when calculating an offender score. Therefore, the court found that Haggard's dismissed misdemeanor conviction interrupted the washout period for his prior felonies because the misdemeanor was not vacated.

         Because Haggard's prior felonies did not wash out, the court determined that he had an offender score of six. Haggard was sentenced to 39 months imprisonment on the arson charge and 29 months on the burglary charge. The sentencing hearings for this matter and another case in which Haggard was convicted of unlawful possession of a firearm and violation of the Uniform Controlled Substances Act occurred simultaneously. All four sentences were ordered to run concurrently. Haggard timely appealed. Haggard also appealed this same issue with a separate Statement of Additional Grounds for Review in State of Washington v. David B. Haggard, No. 77427-1-I.


         I. Offender Score

         Haggard contends that his dismissed 2010 conviction should not have been included in his criminal history when calculating his offender score because dismissal of a misdemeanor conviction is equivalent to vacation of that conviction.

         We review both offender score calculations and questions of statutory construction de novo. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011); State v. Breazeale, 144Wn.2d 829. 837. 31 P.3d 1155 (2001). Our objective when interpreting a statute is to determine the legislature's intent. State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). We will give effect to the plain meaning of a statute if it is evident from the text of the statute itself and context within the statutory scheme. Id. If the statute is susceptible to more than one reasonable interpretation, it is ambiguous, Id.

         A defendant's offender score is calculated according to RCW 9.94A.525. Generally, prior felony convictions each count as one point toward the offender score, except in certain specific circumstances set out in the statute. RCW 9.94A.525. However, some prior class C felonies can "wash out" (that is, be excluded from the calculation) if the offender spent five consecutive years in the community without committing any crime that results in a conviction since the last date of confinement. RCW 9.94A.525(2)(c). The issue before the trial court was whether Haggard's dismissed 2010 conviction interrupted the washout period for his prior class C felony offenses.

         Courts of limited jurisdiction may dismiss misdemeanor offenses under RCW 3.50.320 and RCW 3.66.067.[1] On a showing of good cause during a deferred sentence, the court may allow the defendant to withdraw a guilty plea, enter a plea of not guilty, and dismiss the charges. RCW 3.50.320; RCW 3.66.067. The dismissal statutes do not limit the number of deferred sentences a person may receive or the number of cases that may be dismissed. RCW 3.50.320; RCW 3.66.067. Although the statutes do not explicitly state the effect that dismissal has on a defendant's criminal history, Division Three of this court has remarked that "[n]othing in RCW 3.66.067 implies that a conviction is automatically deleted or expunged from the criminal record after dismissal." State v. Gallaher, 103 Wn.App. 842, 844, 14 P.3d 875 (2000).

         A person convicted of a misdemeanor offense who has satisfied the terms of the sentence may apply to the sentencing court for vacation of the conviction. RCW 9.96.060(1). The court may in its discretion vacate the record of conviction if the applicant qualifies under the relevant statute. RCW 9.96.060(1)-(2). Certain offenses, including violent offenses, driving under the influence offenses, and sex offenses, are not eligible for vacation. RCW 9.96.060(2)(b)-(c). If the court vacates the record of conviction, the applicant "shall be released from all penalties and disabilities resulting from the offense and the fact that the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any ...

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