                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 27, 2016

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 46902-2-II

                        Respondent,

         v.

    FRANKLIN H. WILCOX,                                         PUBLISHED OPINION

                        Appellant.


        SUTTON, J. – Frank H. Wilcox appeals the trial court’s order that he register as a sex

offender and serve three years of community custody. He argues that the trial court’s order resulted

from an erroneous ruling that his conviction for failure to register as a sex offender under

RCW 9A.44.1321 qualifies as a “sex offense” under former RCW 9.94A.030(46)(a)(v) (2012).2

Wilcox argues that his current conviction is not for a “sex offense” because his prior convictions

for failure to register were under former RCW 9A.44.130 (2008), not RCW 9A.44.132. We hold

that the unambiguous plain language of former RCW 9.94A.030(46)(a)(v) 3 supports Wilcox’s




1
 The legislature amended RCW 9A.44.132 in 2015. Laws of 2015, ch. 261 § 5. Because these
amendments are not relevant here, we cite to the current version of the statute.
2
 A defendant found guilty of a “sex offense” is (1) required to register as a sex offender, RCW
9A.44.130(1)(a) and (2) subject to three years of community custody, RCW 9.94A.701(1)(a).
3
  Former RCW 9.94A.030(46)(a)(v), the definitional statute in effect when Wilcox committed his
current offense, defined “sex offense” as “[a] felony violation of RCW 9A.44.132(1) (failure to
register) if the person has been convicted of violating RCW 9A.44.132(1) (failure to register) on at
least one prior occasion.” (Emphasis added.)
No. 46902-2-II


argument and that the subsequent amendment to that statute does not apply retroactively. We

reverse and remand this matter to the trial court to strike the sex offender registration requirement

and the three-year community custody term, and to impose the proper term of community custody.

                                              FACTS

         The State charged Wilcox with felony failure to register as a sex offender under

RCW 9A.44.132(1)(b) and alleged that this offense occurred between November 5, 2012 and

August 21, 2013. Wilcox waived his right to a jury trial and entered into a stipulated facts bench

trial.

         Wilcox stipulated to several prior convictions, including convictions for felony failure to

register as a sex offender in 1999 and 2000 under former RCW 9A.44.130(10).4 The trial court

found Wilcox guilty as charged.

         At sentencing, Wilcox argued that his current conviction for failure to register was not a

“sex offense” under former RCW 9.94A.030(46)(a)(v), because his previous convictions for

failure to register were under former RCW 9A.44.130, not under RCW 9A.44.132. If he was

correct, the statutory requirement to register as a sex offender and imposition of three years of

community custody would be inapplicable. The trial court rejected this argument and imposed a

sex offender registration requirement and three years of community custody.

         Wilcox appeals the trial court’s determination that his current offense qualifies as a “sex

offense” and the resulting registration requirement and three-year community custody sentence.




4
  These prior failure to register convictions were under former RCW 9A.44.130(10) (1999), and
former RCW 9A.44.130(10) (2000). For ease of reference, we refer to these statutes collectively
as former RCW 9A.44.130(10).


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No. 46902-2-II


                                            ANALYSIS

                                    I. UNAMBIGUOUS STATUTE

       Wilcox’s prior failure to register offenses involved convictions under former

RCW 9A.44.130. He argues that under the plain language of former RCW 9.94A.030(46)(a)(v),

his current offense is not a “sex offense” because he has no prior convictions under

RCW 9A.44.132. We agree.

A. LEGAL PRINCIPLES

       Whether Wilcox’s prior failure to register convictions were “sex offenses” under former

RCW 9.94A.030(46)(a)(v), is an issue of statutory interpretation and one of first impression. We

review issues of statutory interpretation de novo. State v. Armendariz, 160 Wn.2d 106, 110,

156 P.3d 201 (2007). “‘Our purpose in interpreting the statute is to determine and enforce the

intent of the legislature.’” In re Det. of Coppin, 157 Wn. App. 537, 551, 238 P.3d 1192 (2010)

(quoting Rental Housing Ass’n of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 536,

199 P.3d 393 (2009)).

       In interpreting a statute, we look first to the statute’s plain language. State v. Keller,

143 Wn.2d 267, 276, 19 P.3d 1030 (2001). To ascertain the plain language, we examine the

statute’s language, other provisions of the same act, and related statutes. Coppin, 157 Wn. App.

at 552. If the statute’s plain language is unambiguous, our inquiry is at an end, and we enforce the

statute “‘in accordance with its plain meaning.’”        Coppin, 157 Wn. App. at 552 (quoting

Armendariz, 160 Wn.2d at 110). But “[w]here the plain language of the statute is subject to more

than one reasonable interpretation, it is ambiguous. . . . [W]e may attempt to discern the legislative




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No. 46902-2-II


intent underlying an ambiguous statute from its legislative history.” Armendariz, 160 Wn.2d

at 110-11.

B. PLAIN LANGUAGE

       Former RCW 9.94A.030(46)(a)(v) defined “sex offense” as “[a] felony violation of

RCW 9A.44.132(1) (failure to register) if the person has been convicted of violating

RCW 9A.44.132(1) (failure to register) on at least one prior occasion.” (Emphasis added.) The

statute specifies that the violation must be a violation of RCW 9A.44.132, not a violation of

RCW 9A.44.130 or any former version of the failure to register statute. Thus, a plain reading of

the statute supports Wilcox’s argument.

       The State argues that the inclusion of the parenthetical “(failure to register)” after the

second citation to RCW 9A.44.132(1), supports the conclusion that the legislature intended to

include prior convictions for failure to register under former RCW 9A.44.130 because otherwise

this parenthetical would be superfluous. But this parenthetical reference, on its face, merely

identifies RCW 9A.44.132 as the failure to register statute. It does not suggest the inclusion of

any former statutes or otherwise create any ambiguity.

       The State further argues that under RCW 1.12.028, the reference to RCW 9A.44.132 in

former RCW 9.94A.030(46)(a)(v) should be read to include former RCW 9A.44.130 because

RCW 9A.44.132 is essentially an amendment to former RCW 9A.44.130. RCW 1.12.028

provides, “If a statute refers to another statute of this state, the reference includes any amendments

to the referenced statute unless a contrary intent is clearly expressed.” (Emphasis added.) But

this case involves amendments to former RCW 9A.44.130, which is not the “referenced statute.”




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No. 46902-2-II


The “referenced statute” is RCW 9A.44.132. Thus, we do not find this argument persuasive, and

we hold that Wilcox’s current offense is not a sex offense.

                               II. EFFECT OF SUBSEQUENT AMENDMENT

        We next consider the impact of the 2015 amendments. In 2015, our legislature amended

former RCW 9.94A.030(46)(a)(v) to expressly include violations of the previous version of the

failure to register statute:

        “Sex offense” means: . . . [a] felony violation of RCW 9A.44.132(1) (failure to
        register as a sex offender) if the person has been convicted of violating RCW
        9A.44.132(1) (failure to register as a sex offender) or 9A.44.130 prior to June 10,
        2010, on at least one prior occasion.

RCW 9.94A.030(47)(a)(v) (emphasis added); Laws of 2015, ch. 261, § 12; see also Laws of 2015,

ch. 287, § 1 (changing subsection numbering from 46 to 47).5 We hold that the amendment has

no effect here.

        We presume that a statutory amendment is prospective. State v. Smith, 144 Wn.2d 665,

673, 30 P.3d 1245, (2001), as corrected, 39 P.3d 294 (2002), superseded by statute, Laws of 2002,

ch. 10, § 1. Court’s generally disfavor retroactive application, but the State can overcome this

presumption if it shows: (1) the legislature intended the amendment to apply retroactively, (2) the

amendment is “curative,” or (3) the amendment is remedial. Smith, 144 Wn.2d at 673. In this

case, none of these factors exist.




5
 The legislature amended RCW 9.94A.030 again in 2016. Laws of 2016, ch. 81, § 16. The 2016
amendments are not relevant here.


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No. 46902-2-II


       Generally, if the legislature intends that a statute apply retroactively, the statutory language

must clearly state so. Smith, 144 Wn.2d at 673. There is nothing in the amended statutory language

that shows the legislature intended the amendments to apply retroactively. Furthermore, the

effective date of the amendment was July 24, 2015, and there is no reference to retroactive

application in the amendment or any related amendments. See generally Laws of 2015, ch. 261.

       The amendment also is not curative. “A curative amendment clarifies or technically

corrects an ambiguous statute.” Smith, 144 Wn.2d at 674. Because we hold that the 2010 version

of the statute was not ambiguous, the amendment is not a clarification or technical correction.

Smith, 144 Wn.2d at 674. The amendment did not merely clarify the 2010 statute, it substantively

changed the meaning by including prior convictions under former RCW 9A.44.130, which were

previously not included.

       Finally, the amendment is not remedial. “A remedial change is one that relates to practice,

procedures, or remedies and does not affect a substantial or vested right.” Smith, 144 Wn.2d

at 674. The amendment increases the term of community custody. Increasing the term of

community custody clearly has no relation to practice, procedures, or remedies. Thus, we hold

that the 2015 amendment does not apply retroactively.




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No. 46902-2-II


         We reverse the trial court and remand this matter for the trial court to strike the sex offender

registration requirement and the three-year community custody term, and to impose the proper

term of community custody.6




                                                        SUTTON, J.
    We concur:



    JOHANSON, P.J.




    MELNICK, J.




6
 The parties have also addressed whether the imposition of appellate costs against Wilcox is
appropriate. Because the State is not the prevailing party, we need not address appellate costs.


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