Opinion
No. 53428-9-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 00-1-05949-0. Judgment or order under review. Date filed: 10/30/2003. Judge signing: Hon. Patricia H. Aitken.
Counsel for Appellant(s), Andrea Ruth Vitalich, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Counsel for Respondent(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
In June 2001, the trial court sentenced Robert Pankey Lee to 60 months confinement following his guilty plea to one count of delivery of cocaine arising from a drug transaction in May 2000 with an undercover police detective. In September 2003, Lee moved to vacate the sentence under CrR 7.8, arguing that the 2002 and 2003 amendments to the Sentencing Reform Act (SRA) should be applied retroactively, justifying resentencing. The State appeals the trial court's decision to vacate Lee's sentence and resentence him to 45 months based on retroactive application of the SRA amendments. We reverse and remand for reimposition of Lee's original sentence.
FACTS
The State charged Lee with one count of solicitation to deliver cocaine based on an incident occurring on May 16, 2000. Following Lee's February 17, 2001 guilty plea, the trial court sentenced him on June 16, 2001 to 60 months, the maximum term, based on his offender score of 9, seriousness level of VIII, and resulting standard range of 108 to 144 months. The standard range being more than the maximum term, Lee's standard range and maximum term became one and the same by operation of law.
In 2002, the Legislature amended the SRA, creating a new sentencing grid for drug offenders to take effect `July 1, 2004, and to apply to crimes committed on or after July 1, 2004.' Laws of 2002, ch. 290, sec. 31. But in 2003, the Legislature advanced the effective date of the new grid by one year, to July 1, 2003. This and other amendments were `necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2003.' Laws of 2003, ch. 379, sec. 29.
On September 25, 2003, Lee filed a CrR 7.8 motion to vacate his sentence, arguing that the new drug-offender sentencing grid should apply retroactively based on the Legislature's amendments to the effective dates, such that his standard range would be 45 to 60 months. The trial court agreed, finding that the deletion of the previous effective date and the use of the word `immediate,' `fairly convey a legislative intent to apply the new drug sentencing grid to all drug crimes, including those committed before the law's effective date.' Clerk's Papers at 67' Finding of Fact 6. The trial court then vacated Lee's sentence and imposed an amended sentence of 45 months.
The State appeals. ANALYSIS
The saving statute, RCW 10.01.040, presumptively saves offenses already committed, and penalties already incurred, from being affected by amendments to criminal statutes. State v. Kane, 101 Wn. App. 607, 610, 5 P.3d 741 (2000). As a derogation of the common law, the saving statute is strictly construed, whereas its exception for acts that expressly declare a contrary intention is interpreted broadly. Id. at 612. Where the saving statute applies, if the amendment is silent as to intent for retroactive application, it will be given prospective application only, and this court need not determine whether it is remedial or curative. Id. at 613. `When a new statute repeals or amends a statute governed by the saving statute, it will be given prospective application even if it is patently remedial, unless it contains words that fairly convey a different intention.' Id. at 615.
While concluding that the saving statute applies to the SRA amendments at issue, the trial court distinguished Kane and State v. McCarthy, 112 Wn. App. 231, 48 P.3d 1014 (2002), and held that the statutory language here fairly conveys a legislative intent to apply the drug sentencing grid retroactively `at least as much as the statutes found to apply retroactively in Grant and Zornes.' Clerk's Papers at 69; Conclusion of Law 4.
In State v. Grant, 89 Wn.2d 678, 682-84, 575 P.2d 210 (1978), the Supreme Court determined that a new statute providing that `intoxicated persons may not be subjected to criminal prosecution solely because of their consumption of alcoholic beverages' fairly expressed legislative intent contrary to the application of the saving statute, and dismissed a charge of public drunkenness that was pending before the new statute became effective. In State v. Zornes, 78 Wn.2d 9, 11, 13-14, 26, 475 P.2d 109 (1970) (overruled by implication on other grounds in United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1978)), the Supreme Court similarly found that an amendment providing that the "provisions of this Act shall not ever be applicable to any form of cannibus,' led to a reasonable inference that the Legislature intended the amendment to apply to pending as well as future cases.
In McCarthy, this court rejected a claim that a certain amendment to the SRA should be applied retroactively because the amendment expressly stated that it applied `to crimes committed on or after July 1, 2002,' and nothing in the amendment suggested a legislative intent for retroactive application. 112 Wn. App. at 237. In Kane, the trial court sentenced Kane based on an amendment to the DOSA eligibility requirements that took effect after he committed his crime. 101 Wn. App at 609. This court reversed because the statute contained `no language even remotely suggest[ing] an intention to make the amended eligibility criteria available in cases arising before the effective date.' Id. at 614. The court rejected Kane's attempt to demonstrate a contrary intent with legislative history because `the issue is whether the new statute's express language shows that the Legislature intended to depart from the presumption created by the saving statute.' Id.
Here, the trial court relied in part on the 2003 amendment's elimination of the phrase, `apply to crimes committed on or after July 1, 2004,' from the 2002 version of the statute to conclude that the Legislature intended retroactive application. But as Kane made clear, the question is whether the `new statute's express language' demonstrates a legislative intent to depart from the saving statute's presumption. 101 Wn. App. at 614. Although the exception to the saving statute is to be interpreted broadly, the words `expressly declared' must be given some meaning. RCW 10.01.040. As in Kane, the amendment contains no language that suggests an intention to apply the new drug-offense sentencing grid to cases arising before the effective date.
RCW 10.01.040 provides:
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
(Emphasis added).
The trial court also relied on the word `immediate' to conclude that the Legislature intended retroactive application of the amendment. But `immediate' does not mean `retroactive.' Moreover, although the amendment expressly states that it is `necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions,' it also expressly sets the effective date of July 1, 2003. Because there is no language in the amendment that demonstrates a legislative intent to avoid the presumption of the saving statute, the trial court erred by vacating Lee's sentence.
The trial court's order vacating Lee's sentence is reversed and the original sentence reinstated.
AGID and BAKER, JJ., concur.