Opinion
Nos. 56006-9-I; 56019-1-I.
June 12, 2006.
Appeals from a judgment of the Superior Court for King County, No. 03-1-10031-1, Theresa Doyle, J., entered March 30, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer M. Winkler, Nielson, Broman Koch, PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Elaine L. Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
In these consolidated appeals, Richard Duncalf and Mehmet Ocak challenge the sentences imposed following their convictions for several felonies. Duncalf also challenges his two convictions for unlawful display of a weapon on double jeopardy grounds.
Appellants' sentencing claims are controlled and defeated by existing case law. The State concedes, however, that Duncalf's convictions violate double jeopardy principles. We accept the State's concession of error. Accordingly, we affirm Ocak's sentence but reverse and remand Duncalf's convictions for vacation of one count of unlawful display of a weapon and resentencing.
The facts are not disputed and will be repeated here only when necessary to explain our decision.
DECISION
Duncalf and Ocak first contend their prosecutions should have been transferred to juvenile court once they were acquitted on the charges that triggered adult court jurisdiction. They acknowledge that the auto-decline statute, RCW 13.04.030(1)(e)(v), grants adult courts exclusive jurisdiction based on the charges, not the conviction. They argue, however, that the auto-decline statute violates due process, equal protection, and separation of powers principles.
Appellants' arguments are controlled by prior decisions of this court and the Washington State Supreme Court. In re Boot, 130 Wn.2d 553, 925 P.2d 964 (1996); State v. Manro, 125 Wn. App. 165, 104 P.3d 708 (2005), review denied, 155 Wn.2d 1010 (2005). Appellants contend the holdings in these cases should be revisited in light of statements the United States Supreme Court made recently in holding the death penalty unconstitutional for juveniles. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 1195-96, 161 L. Ed. 2d 1 (2005). But only the State Supreme Court can reconsider its holding in In re Boot, and we are bound by that decision until it does. Furthermore, we agree with the State that Roper v. Simmons, which involved a capital offense, is distinguishable and has little relevance in a noncapital case.
See also State v. Posey, 130 Wn. App. 262, 122 P.3d 914 (2005) (rejecting equal protection and due process challenges).
Appellants also assert that the auto-decline statute violates separation-of-powers principles because it gives the prosecutor unchecked power to affect sentencing. They argue that a prosecutor's decision to charge an auto-decline offense is not simply a charging decision; rather, it is a sentencing decision as well because adult court exposes a juvenile to increased sentences and, under In re Boot and Manro, the adult court does not lose jurisdiction if the State fails to prove the auto-decline offense but proves a nonauto-decline offense. Appellants concede, however, that the Supreme Court rejected essentially the same argument in In re Boot, stating:
If a prosecutor overcharges a young person in the hope of securing adult court jurisdiction over that youth pursuant to the statute, the youth may file a motion under State v. Knapstad,107 Wn.2d 346, 729 P.2d 48 (1986), to challenge the sufficiency of the State's evidence to establish a prima facie case for all of the elements of the charge.
In re Boot, 130 Wn.2d at 574. Although appellants, like the concurring Justices in In re Boot, complain that `[t]he availability of a Knapstad motion does little to alter the prosecutor's aggrandized power to control sentencing,' the Boot majority concluded otherwise. See State v. Posey, 130 Wn. App. at 273 (citing Boot majority for proposition that prosecutor's charging discretion in this setting is not unfettered). The auto-decline statute does not violate separation of powers principles. Cf. State v. Tracy M., 43 Wn. App. 888, 720 P.2d 841 (1986) (statute that gave prosecutor power to charge or divert a juvenile offender did not violate separation of powers because it provided sufficient standards to guide the prosecutor and the decision of the prosecutor was subject to judicial review).
Appellants next contend the sentencing court violated their rights to due process and a jury trial because it included prior juvenile adjudications in their offender scores. They concede that this issue is controlled by our decision in State v. Weber, 127 Wn. App. 879, 112 P.3d 1287 (2005), review granted, 156 Wn.2d 1010, but argue that Weber is wrongly decided. We adhere to our decision in Weber.
Duncalf contends, and the State concedes, that his convictions for two counts of unlawful display of a weapon violated double jeopardy. We accept the State's concession of error.
When a defendant is convicted of violating one statute multiple times, the proper inquiry for double jeopardy purposes is what `unit of prosecution' the Legislature intended as the punishable act. The two unlawful display charges in this case were based on a single act of display witnessed by two victims. Both parties conclude that the unit of prosecution for unlawful display of a weapon is the defendant's act of displaying a weapon, not the number of people who witnessed the act. We agree and remand for vacation of one count of unlawful display of a weapon and resentencing on the remaining count.
Last, appellants contend the court erred in counting their prior juvenile convictions for attempted second degree robbery as completed offenses and including them in their offender scores. They concede the sentencing court's calculations are consistent with this court's decision in State v. Becker, 59 Wn. App. 848, 801 P.2d 1015 (1990), but argue that Becker was wrongly decided. We adhere to our decision in Becker.
Contrary to Appellants' assertions, the statutory construction analysis in Becker is sound and does not violate the rule of lenity. As the State points out, the rule of lenity applies only if an ambiguity exists after the application of ordinary rules of statutory construction. See e.g. State v. Coria, 146 Wn.2d 631, 48 P.3d 980 (2002); In re Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999); In re Sietz, 124 Wn.2d 645, 652, 880 P.2d 34 (1994); State v. McGee, 122 Wn.2d 783, 864 P.2d 912 (1993). Moreover, the Legislature's failure to materially amend the statutes during the sixteen years since we decided Becker reflects its acquiescence in our conclusions in that case. State v. Berlin, 133 Wn.2d 541, 558, 947 P.2d 700 (1997).
We see no reason to disturb our holding in Becker and decline appellants' invitation to do so.
Ocak's sentence is affirmed. Duncalf's judgment and sentence is reversed and remanded for proceedings consistent with this opinion.
APPELWICK, ELLINGTON and AGID, JJ., concur.