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.
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.
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.
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.
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
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
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.
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.
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.
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.
of limited jurisdiction may dismiss misdemeanor offenses
under RCW 3.50.320 and RCW 3.66.067. 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
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 ...