                                                                        FILED
                                                                     MARCH 19, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )         No. 36191-8-111
                                             )
                      Respondent,            )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
KENT JEROME HUXEL,                           )
                                             )
                      Appellant.             )

      FEARING, J. -    Substitute House Bill 1041, effective July 28, 2019, deleted

language in RCW 9.96.060 that had precluded vacation of a gross misdemeanor

conviction if a court had previously vacated another conviction of the offender. Kent

Huxel asks this court to apply Substitute House Bill 1041 to his appeal and requests that

we vacate a gross misdemeanor conviction. We grant his request.
No. 36191-8-III
State v. Huxel


                                          FACTS

       On February 19, 2008, Kent Huxel, in this Klickitat County prosecution,

pled guilty to the charge of attempted failure to register as a sex offender under

RCW 9A.44.130 and RCW 9A.28.020, a gross misdemeanor. The trial court sentenced

Huxel to 365 days of incarceration and suspended 350 of those days. Huxel served

fifteen days of confinement.

       In March 2018, the Clark County Superior Court granted Kent Huxel's motion to

vacate a 2002 Clark County felony conviction for possession of child pornography.

                                      PROCEDURE

       Kent Huxel, in April 2018, moved for an order vacating his 2008 gross

misdemeanor conviction, in this Klickitat County proceeding, for failure to register as a

sex offender. On June 4, 2018, the trial court, based on the controlling law at the time,

denied the motion because Huxel's vacation of the 2002 Clark County felony conviction

precluded his request. On July 2, 2018, the trial court again denied Huxel's motion.

                                 LAW AND ANALYSIS

       Kent Huxel appeals denial of his motion to vacate his 2008 gross misdemeanor

conviction for attempted failure to register. After Huxel filed his opening brief, this court

asked the parties to file supplemental briefing on the application of Substitute House Bill



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No. 36191-8-III
State v. Huxel


1041. The parties agree that the bill applies.

       This appeal concerns RCW 9.96.060 that governs the vacation of misdemeanor

and gross misdemeanor offenses. Before the legislature enacted the 2019 amendments,

former RCW 9.96.060 provided that a court had discretion to vacate a record of

conviction "[i]f the court finds the applicant meets the tests prescribed in subsection (2)

of this section." Former RCW 9.96.060(1) (2017). Subsection 2 then indicated that an

applicant failed to meet the requirements for vacation if "[t]he applicant has ever had the

record of another conviction vacated." Former RCW 9.96.060(2)(h). But under another

statute, RCW 9 .94A.640, an offender could procure a vacation of a felony despite

previously gaining a vacation of another conviction. The statutory scheme unreasonably

rendered vacation of a gross misdemeanor more difficult than vacation of a felony.

Nevertheless, Kent Huxel's trial court correctly followed the dictates of RCW 9.96.060

when Huxel sought vacation of his Klickitat County gross misdemeanor conviction.

      Effective July 28, 2019, the legislature amended RCW 9.96.060 and deleted the

blanket provision stating that the vacation of another conviction barred vacation of a

gross misdemeanor. LA ws OF 2019, ch. 3 31, § 4(2)( d). The amended statutory language

now bars vacation in narrower circumstances:




                                                 3
No. 36191-8-III
State v. Huxel


              [A ]n applicant may not have the record of conviction for
       misdemeanor or gross misdemeanor offense vacated if any one of the
       following is present:

              (e)     The offense was any misdemeanor or gross misdemeanor
       violation, including attempt, of chapter 9.68 RCW (obscenity and
       pornography), chapter 9.68A RCW (sexual exploitation of children), or
       chapter 9A.44 RCW (sex offenses), except for failure to register as a sex
       offender under RCW 9A.44.132.

RCW 9.96.060(2)(e) (emphasis added).

       The 2008 court convicted Kent Huxel with attempted failure to register as a sex

offender. The amended statutory language now permits vacation of this conviction

notwithstanding the former vacation of a felony.

       The State of Washington graciously concedes that the 2019 statutory amendment

to RCW 9.96.060 applies to Kent Huxel's application for vacation, since his appeal was

pending at the time of the effective date of the amendment. State v. Ramirez, 191 Wn.2d

732,747,426 PJd 714 (2018). The State asks that this court dismiss this appeal and that

Huxel move the trial court anew for vacation of the gross misdemeanor conviction. We

conclude the better and more efficient remedy is a direction to the superior court to vacate

the 2008 gross misdemeanor conviction.




                                             4
No. 36191-8-III
State v. Huxel


                                     CONCLUSION

       We grant Kent Hux el' s request and remand to the trial court for vacation of his

2008 conviction of attempted failure to register as a sex offender.

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

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                          Fearing, J.

WE CONCUR:




Lawrence-Berrey, J.
                             j




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