                                                                                                       FILED
                                                                                              COURT OF APPEALS
                                                                                                  DIVISION 11

                                                                                         2010 JUN 23          AM 8: 31
                                                                                                 E OF L ASH!' GTON




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

 STATE OF WASHINGTON,                                                         No. 45829- 2- 11


                                     Respondent,


        v.



MARCO R. MEDINA,                                                     UNPUBLISHED OPINION


                                     Appellant.


       JOHANSON, C. J. —       Marco Medina pleaded guilty to three counts of delivery of a controlled

substance with three school bus route stop enhancements. The sentencing court imposed the three

24 -month sentence enhancements consecutively to one another and consecutively to the

underlying   charge.   Medina appeals, alleging that the sentencing court lacked the authority to

impose the sentencing enhancements to run consecutively to one another. To the extent that RCW

9.94A.533( 6) is ambiguous, legislative history reveals an unequivocal intent to impose multiple

enhancements consecutively. Thus, we affirm.

                                                   FACTS


       In January 2012, Medina sold methamphetamine and heroin to a confidential informant

 CI) three times. Each   of   the   sales occurred within   1, 000 feet   of a school   bus   route   stop.
No. 45829- 2- 11



         The State charged Medina with three counts of delivery of a controlled substance, each

with accompanying sentence enhancements for Medina' s proximity to the school bus stop, and

one count of unlawful possession of a controlled substance.'              Medina pleaded guilty as charged.

         Medina' s   standard   sentencing    range was      20 to 60.   months.   Both Medina and the State


agreed that the three 24 -month sentencing enhancements were mandatory and that they were to

run consecutively both to the underlying offense and to one another. The court sentenced Medina

to 30 months on each of the three delivery counts, to run concurrently, plus three consecutive 24-

month bus stop enhancements, for a total of 102 months.

         Medina then filed a CrR 7. 8 motion seeking to withdraw his guilty plea based on his belief

that the sentencing court erred by imposing the school bus stop enhancements consecutively rather

than concurrently. The court denied Medina' s motion. Medina appeals his judgment and sentence

as well as the court' s order denying his CrR 7. 8 motion.

                                                 ANALYSIS


         Medina contends that RCW 9. 94A.533( 6) does not authorize a sentencing court to apply

the school bus stop enhancements consecutively to one another. Specifically, Medina argues that

the legislature intended these specific sentencing enhancements to run concurrently because,

unlike other statutory provisions that specify when multiple enhancements of the same category

run   consecutively to   each other,   the   school   bus stop   enhancement provision    does   not.   We hold


that the sentencing court did not err by imposing consecutive school bus stop enhancements

because RCW 9. 94A.533( 6) and the accompanying legislative history support the court' s sentence.




1 Medina does not challenge the possession charge on appeal.

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No. 45829 -2 -II



             Absent an abuse of discretion, we will not reverse an order denying a motion for relief from

judgment. State           v.   Bourgeois, 133 Wn.2d 389, 406, 945 P. 2d 1120 ( 1997).                 The legislature has


plenary authority          over     sentencing. State       v.   Jones, 182 Wn.2d 1, 6, 338 P. 3d 278 ( 2014). Under


this authority, it       passed     the   Sentencing Reform Act          of   1981 ( SRA), ch. 9. 94A RCW, which guides


sentencing discretion through the SRA' s detailed statutory                         procedures.   Jones, 182 Wn.2d at 6.


Although sentencing courts generally enjoy discretion in tailoring sentences, for the most part that

discretion does not extend to deciding whether to apply sentences concurrently or consecutively.

State   v.   Jacobs, 154 Wn.2d 596, 602, 115 P. 3d 281 ( 2005).                      It is also within the purview of the


legislature to amend these procedures in response to judicial interpretation. Jones, 182 Wn.2d at


6.


             In construing a statute, the court' s objective is to determine the legislature' s intent. Jacobs,

154 Wn.2d         at   600. ‘" [    I)f the statute' s meaning is plain on its face, then the court must give effect

to that   plain   meaning          as an expression of legislative       intent.'   Jacobs, 154 Wn.2d at 600 ( alteration


in   original) ( quoting        Dep' t    of Ecology   v.   Campbell & Gwinn, L.L. C., 146 Wn.2d 1, 9, 43 P. 3d 4


 2002).       The " plain meaning" of a statutory provision is to be discerned from the ordinary meaning

of the language at issue, as well as from the context of the statute in which that provision is found,


related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at 600. If a statute is

susceptible to more than one reasonable interpretation, it is ambiguous and we may resort to

legislative history for guidance in discerning legislative intent. State v. Larson, 185 Wn. App. 903,

909, 344 P. 3d 244 ( 2015).


             RCW 9. 94A. 533( 6)           governs   the category of sentencing enhancements at            issue here.   It


provides,




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No. 45829 -2 -II



         An additional twenty -four months shall be added to the standard sentence range for
         any ranked offense involving a violation of chapter 69. 50 RCW if the offense was
         also a violation of   RCW 69. 50. 435         or   9. 94A. 827.    All enhancements under this
         subsection shall run consecutively to all other sentencing provisions, for all
         offenses sentenced under this chapter.


Emphasis     added.)   And RCW 69. 50. 435( 1) provides, in pertinent part,


         Any person who violates RCW 69. 50.401 by manufacturing, selling, delivering, or
         possessing with the intent to manufacture, sell, or deliver a controlled substance
         listed under RCW 69. 50.401 or who violates RCW 69. 50.410 by selling for profit
         any controlled substance or counterfeit substance classified in schedule I, RCW
         69. 50.204, except leaves and flowering tops of marihuana to a person:

                   c) Within one thousand feet of a school bus route stop designated by the
         school district.


         Importantly, the legislature had amended RCW 9. 94A.533( 6) in 2006 in light of our

Supreme Court' s decision in Jacobs.              LAWS OF 2006,       ch.   339, § 301.   There, our high court,


construing former RCW 9. 94A. 533( 6) (             2002), 2 ruled that the provision was ambiguous as to

whether the enhancements should be applied concurrently or consecutively. Jacobs, 154 Wn.2d

at 599. Consequently, the court applied the rule of lenity and remanded the case to the sentencing

court with instructions to impose the two enhancements concurrently rather than consecutively.

Jacobs, 154 Wn.2d at 604.


         After Jacobs, the legislature      amended      RCW 9. 94A. 533( 6),     adding the second sentence to

specify that courts are to impose drug zone enhancements " consecutively to all other sentencing

provisions."   RCW 9. 94A. 533( 6); H.B. REP. ON ENGROSSED SECOND SUBSTITUTE H.B. 6239, 59th




2
    Former RCW 9. 94A. 533( 6)             T]wenty -four months shall be added to the standard sentence
                                   read, ‘" [

range   for any   ranked offense   involving a violation of chapter 69. 50 RCW ... if the offense was
also a violation of RCW     69. 50. 435   or    9. 94A.605.'"   Jacobs, 154 Wn.2d at 601 ( footnotes omitted).
One of the two sentencing enhancements at issue there was also a school bus stop enhancement.

                                                            4
No. 45829 -2 -I1



Leg., Reg.      Sess.,   at   7 ( Wash. 2006).      The legislature summarized this portion of the amendment


by   stating that "[     s] tatutory language is clarified to specify that all sentence enhancements relating

to   violations of    the [ Uniform Controlled Substances Act,                      ch.   69. 50 RCW,]   in drug -free zones are

to be   run   consecutively to       all other   sentencing    provisions      for    all sentences under    the [ SRA]."   H.B.


REP.    ON   ENGROSSED SECOND SUBSTITUTE H.B. 6239, 59th                             Leg., Reg.   Sess., at 12 ( Wash. 2006).


          Additionally, the House Bill Analysis also states that the intent of the amendment is in part

to "[   c] larif[y] that all sentence enhancements relating to violations of the Uniform Controlled

Substance Act in drug -free zones are to be run consecutively ( instead ofconcurrently) to all other

sentencing      provisions."         HOUSE CRIMINAL JUSTICE &                 CORRECTIONS COMM. H.B. ANALYSIS ON


ENGROSSED SECOND SUBSTITUTE H.B. 6239,                         at   2, 59th   Leg., Reg.       Sess. ( Wash. 2006) (   emphasis




added).       Our   courts    have   recognized    that "[ t]he acknowledged purpose of the amendment was to


overturn      the decision in [ Jacobs]."         Gutierrez     v.
                                                                     Dep' t   of Corr.,      146 Wn. App. 151, 155 -56, 188

P. 3d 546 ( 2008).


          Medina contends that despite the statute' s amended language, the sentencing court

nevertheless erred by imposing the three school bus stop enhancements consecutively because

RCW 9. 94A.533( 6) does not specifically say that school bus stop enhancements run consecutively

to   other    school     bus stop     enhancements.       To support his position, Medina cites the statutory

provision which governs firearm enhancements and states specifically that all firearm

enhancements run              consecutively to     all other   sentencing           provisions, "   including other firearm or

deadly    weapon enhancements."              RCW 9. 94A( 533)( 3)(            e).     Medina urges us to conclude that the


absence of similar language in the school bus stop enhancement provision evinces a different

legislative intent.



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No. 45829 -2 -II



             But Medina' s argument is unpersuasive because the legislative history underlying the 2006

amendment establishes that the trial court did not err by applying the enhancements consecutively.

While Medina is correct that the provisions governing other categories of sentencing

enhancements do use more specific language, he nevertheless fails to demonstrate how RCW


9.94A.533( 6) does not require a sentencing court to apply multiple enhancements consecutively

to one another.


             The    statute   directs   court   to impose   enhancements   to   run   consecutively " to all other


sentencing         provisions."    RCW 9. 94A.533( 6).      Medina does not contend that the school bus stop

enhancements do not constitute " other sentencing provisions. "3 Indeed, the language ofthe related
provisions         suggests    otherwise.       As    mentioned,   RCW 9. 94A.533( 3)(    e)   states that firearm


enhancements run consecutively to all other sentencing provisions, including other firearm

enhancements.




             And while Medina is correct that a different legislative intent is presumed where the


legislature uses certain language in one instance but different or dissimilar language in another,


State   v.   Scherz, 107 Wn.       App.   427, 435, 27 P. 3d 252 ( 2001), there is evidence here to suggest that


there was no different intent.


             To the extent that the statute is ambiguous, the relevant legislative history establishes that

the legislature intended multiple school bus stop enhancements to run consecutively to the

underlying         offense and    to    each other.   As mentioned, the legislature specifically stated that its

purpose        in amending RCW 9. 94A.533( 6) was to clarify that the enhancements are to run




3 Medina also does not contend that "other" provisions refers to all sentencing provisions excluding
the same category of enhancement.
                                                              6
No. 45829 -2 -II



consecutively. H.B. REP. ON ENGROSSED SECOND SUBSTITUTE H.B. 6239, 59th Leg., Reg. Sess.,

at   12 ( Wash. 2006). The legislature        specifically   sought   to   avoid   the   result   in Jacobs. Gutierrez,


146 Wn.    App.     at   155 -56.   If the legislature intended multiple enhancements to run concurrently,

there would have been no reason to address our Supreme Court' s holding in Jacobs.

         For the    foregoing       reasons, we   hold that Medina' s   claim   fails.    Accordingly, we hold that

the sentencing court did not err in applying Medina' s three school bus stop enhancements

consecutively.


         Affirmed.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040, .


it is so ordered.




 We concur:




 P' JRLN, J.




 SUTTON, J.




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