                                                                            FILED
                                                                          JUNE 6, 2017
                                                                  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. 34349-9-111
                     Respondent,              )         (consolidated with
                                              )         No. 34454-1-111)
       v.                                     )
                                              )
MARGARET J. GRINSTEAD,                        )
                                              )
                     Appellant.               )
                                              )         UNPUBLISHED OPINION
                                              )
In the Matter of the Personal Restraint of    )
                                              )
MARGARET J. GRINSTEAD,                        )
                                              )
                     Petitioner.              )


       SIDDOWAY, J. -    In this consolidated proceeding, we consider Margaret

Grinstead's appeal of the trial court's denial of a motion to amend her sentence, and her

personal restraint petition. Both challenge the trial court's refusal to reduce the term of

her sentence for third degree theft to 364 days. Finding no abuse of discretion, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Margaret Grinstead is a Canadian citizen and a legal permanent resident of the

United States. On January 25, 2010, the State charged her with three counts of second

degree theft with domestic violence, one count of first degree theft with domestic
No. 34349-9-III (consol. w/ No. 34454-1-III)
State v. Grinstead


violence, one count of conspiracy to commit theft of a vehicle, and one count of

presenting a false insurance claim.

       Less than a month after being charged, Ms. Grinstead entered an Alford1 plea to

third degree theft, a gross misdemeanor. The trial court sentenced Ms. Grinstead to 365

days' confinement, with 360 days suspended.

       A year after Ms. Grinstead's plea, the Washington legislature reduced the

maximum penalty for a gross misdemeanor from a year in jail to 364 days. It recognized

that a sentence of a year in jail for a misdemeanor can result in the automatic deportation

of a person who has lawfully immigrated, which it found to be a disproportionate

outcome. 13 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE &

PROCEDURE: MAXIMUM SENTENCE § 4806, at 367-68, n.3 (3d ed. 2004 ); LA ws OF 2011,

ch. 96, § 1 (effective July 22, 2011 ).

       On April 29, 2015, Ms. Grinstead filed a CrR 7.8 motion in the trial court, asking

it to reduce the term of her sentence to 364 days. She argued that the legislature's 2011

amendment ofRCW 9A.20.021(2) operated retroactively, and the court should give her

the benefit of the change.

       Unpersuaded that the change to RCW 9A.20.021(2) applies retroactively, the trial

court denied her motion. Ms. Grinstead appeals. She also filed a personal restraint



       1
           North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

                                              2
No. 34349-9-111 (consol. w/ No. 34454-1-111)
State v. Grinstead


petition, seeking the same relief, which was consolidated with her appeal.

                                        ANALYSIS

       Although Ms. Grinstead's personal restraint petition contains the type of

evidentiary support we ordinarily see in connection with a motion to vacate a guilty plea

on account of a defense lawyer's ineffective advice on immigration consequences, the

only relief she requests in her petition is the reduction of the term of her sentence to 364

days. We need not analyze whether she received ineffective assistance of counsel

because, if found, it would only entitle her to withdraw her guilty plea and face the

prospect of trial on all of the original charges. 2 The only issue presented by both her

petition and appeal is whether the trial court erred or abused its discretion in denying her

motion to amend her judgment.

       Under CrR 7.8(b)(5), a "court may relieve a party from a final judgment, order, or

proceeding for" any "reason justifying relief from the operation of the judgment." Final

judgments should be vacated or altered only in those limited circumstances "' where the

interests of justice most urgently require.'" State v. Smith, 159 Wn. App. 694, 700, 24 7

P.3d 775 (2011) (quoting State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989)).

Because the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, does not apply


       2
         For the same reason, we need not address Ms. Grinstead's statement of
additional grounds, in which she elaborates on the respects in which she believes her trial
lawyer was ineffective. Since she does not seek to withdraw her plea and stand trial on
the original charges, the effectiveness of her trial lawyer is irrelevant.

                                              3
No. 34349-9-111 (consol. w/ No. 34454-1-111)
State v. Grinstead


to misdemeanor judgments, the SRA's requirements for modifying a final judgment do

not apply. State v. Whitney, 78 Wn. App. 506, 517, 897 P.2d 374 (1995) (SRA does not

apply); cf Shove, 113 Wn. 2d at 89 (limiting modification of SRA sentences). 3

       We review a trial court's ruling under CrR 7.8 for an abuse of discretion. 4 State v.

Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005). A trial court abuses its discretion

when its decision is manifestly unreasonable or based on untenable grounds; this includes

making a reasonable decision but applying the wrong legal standard or basing its ruling

on an erroneous view of the law. State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991

(2006) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).

       The trial court concluded that the legislature's 2011 amendment ofRCW

9A.20.021 (2) does not apply retroactively, a question oflaw we review de novo. State v.

Schenck, 169 Wn. App. 633,642,281 P.3d 321 (2012). Generally, statutory amendments

are presumed to operate prospectively, not retroactively. Hale v. Wellpinit Sch. Dist.

No. 49, 165 Wn.2d 494, 507-08, 198 P.3d 1021 (2009). The presumption is overcome


       3
           It is only because the SRA does not apply that the statute, if retroactive, could
affect modification of a final sentence. Ordinarily retroactive laws apply only to pending
prosecutions, since SRA sentences can seldom be modified.
        4 Under CrR 7.8(c)(2), the trial court should have determined whether Ms.

Grinstead's motion was time barred under RCW 10.73.090 and, if it was, should have
transferred it to the Court of Appeals for consideration as a personal restraint petition.
State v. Flaherty, 177 Wn.2d 90, 92-93, 296 P.3d 904 (2013). Because the trial court
considered and decided the motion on its merits, this court's commissioner determined
this matter was appealable as a matter of right. Comm'r's Ruling, State v. Grinstead,
No. 34349-9-111, at 2-3 (Wash. Ct. App. July 22, 2016).

                                                4
No. 34349-9-111 (consol. w/ No. 34454-1-111)
State v. Grinstead


only when the legislature explicitly provides for retroactive application or the amendment

is curative or remedial. In re Pers. Restraint ofFlint, 174 Wn.2d 539, 546, 277 P.3d 657

(2012).

       Washington's general criminal prosecution saving statute, RCW 10.01.040,

presumptively "saves" offenses already committed and penalties or forfeitures already

incurred from being affected by the substantive amendment or repeal of a criminal

statute. State v. Rose, 191 Wn. App. 858, 860, 365 P.3d 756 (2015), review denied,

185 Wn.2d 1030 (2016). Offenses are prosecuted under the law in effect at the time they

were committed "unless," the statute provides, "a contrary intention is expressly declared

in the amendatory or repealing act." RCW 10.01.040.

       The legislation amending RCW 9A.20.021(2) in 2011 included a statement of

legislative intent "to cure [the] inequity [of automatic deportation] by reducing the

maximum sentence for a gross misdemeanor by one day." LA ws OF 2011, ch. 96, § 1.

Ms. Grinstead argues that this language fairly conveys an intent that the amendment

apply retroactively. We disagree.

       Since the saving statute is in derogation of the common law, it is strictly construed

and its exception is interpreted broadly. State v. Kane, 101 Wn. App. 607, 612, 5 P.3d

741 (2000). But because it is so easy for the legislature to provide in express terms that

legislation applies to pending litigation, Washington courts have found the exception to

apply only three times: in State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), overruled in

                                             5
No. 34349-9-III (consol. w/ No. 34454-1-III)
State v. Grinstead


part on other grounds, United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L.

Ed. 2d 755 (1979); in State v. Grant, 89 Wn.2d 678, 575 P.2d 210 (1978); and most

recently, in connection with I-520, in Rose and in State v. Gradt, 192 Wn. App. 230,

366 P.3d 462 (2016). In each amendment involved in those cases, the legislature's

language went beyond identifying the problem that prompted it to change the law. They

included language that certain laws "' shall not ever be applicable,'" that persons "' may

not be subjected to criminal prosecution,'" or that "' people intend to stop treating adult

marijuana use as a crime"' and"' [a]llow[] law enforcement resources to be focused on

violent and property crimes' "-all language conveying an intent to affect pending

prosecutions. See Rose, 191 Wn. App. at 865 (quoting Zornes, 78 Wn.2d at 13); 866

(quoting Grant, 89 Wn.2d at 682); 868 (quoting LAWS OF 2013, ch. 3, § 1(1)). The

amendment to RCW 9A.20.021(2) includes no equivalent language. No intent to apply

retroactively is clearly conveyed.

       The second exception to the presumption against retroactivity occurs when a

statute is remedial. Flint, 174 Wn.2d at 546; State v. Humphrey, 139 Wn.2d 53, 62,

983 P .2d 1118 (1999). "A statute is remedial when it relates to practice, procedure, or

remedies and does not affect a substantive right." State v. Parmlee, 172 Wn. App. 899,

909,292 P.3d 799 (2013). The amendment to RCW 9A.20.021(2) is substantive, not

remedial.




                                             6
No. 34349-9-111 (consol. w/ No. 34454-1-111)
State v. Grinstead


       Finally, the presumption against retroactivity does not apply to curative

amendments, meaning one that "clarifies or makes a technical correction to an ambiguous

statute." Flint, 174 Wn.2d at 546. Ms. Grinstead suggests that the legislature's use of the

word "cure" in its findings indicates the amendment to RCW 9A.20.021(2) was curative.

But the clear import ?f the legislative findings is that existing law unambiguously

provided for a 365 day maximum sentence for gross misdemeanors that the legislature

changed to avoid disproportionate immigration consequences for misdemeanants. The

amendment was not curative in the sense that results in retroactive application.

       The trial court did not misapply the law. Ms. Grinstead shows no other abuse of

discretion.

       Affirmed.

       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.




WE CONCUR:




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