                                                                                                      COLIRT
                                                                                                          IST OF
                                                                                                                 APPEALS
                                                                                                           DIVIStWq 1T
                                                                                                     2015 JUN 30
                                                                                                                 41 8: 30
                                                                                                     STA
                                                                                                       r   R nyASHINGTO?,
       IN THE COURT OF APPEALS OF THE STATE OF WASHINd
                                                                                                                    TY
                                                 DIVISION II

 In Re the Matter       of   the Personal Restraint   of                      No. 45426 -2 -II


 MICHAEL ALAN WHEELER,
                                                                         PUBLISHED OPINION
                                        Petitioner.




          LEE, J. —     Michael Alan Wheeler filed a CrR 7. 8 motion, alleging that his 2000 conviction .

for failure to register as a sex offender is invalid because it is based on his 1985 conviction of third


degree statutory rape, which the legislature repealed as an offense in 1988. Wheeler' s motion was

transferred to this court as a personal restraint petition. We hold that the judgment and sentence


is invalid on its face, grant the petition, and vacate Wheeler' s 2000 conviction for failure to register

as a sex offender.



                                                       FACTS


          Wheeler pleaded guilty to third degree statutory rape in 1985. The legislature repealed the

statute under which          Wheeler   was convicted   in 1988. LAWS   of   1988,   ch.   145, § 24. In 1990, the


legislature enacted RCW 9A.44. 130, which.required sex offenders to register. LAWS of 1990, ch.


3, §   402.    In 1999, the State charged Wheeler with failing to register as a sex offender under the

newly    enacted      law based   on   his 1985 third degree statutory   rape conviction.      In 2000, Wheeler


pleaded guilty to failure to register as a sex offender, with his 1985 statutory .rape conviction

serving   as   the   predicate offense.
No. 45426 -2 -II



         In 2013, Wheeler filed a CrR 7. 8 motion in superior court, alleging that his 2000 conviction

was unlawful under     State   v.   Taylor, 162 Wn.       App.       791, 259 P. 3d 289 ( 2011).    Because the motion


appeared to be time barred, the superior court transferred it to this court for consideration as a

personal restraint petition under       CrR 7. 8(   c)(   2).   After the State filed a response arguing that the

petition was untimely under RCW 10.73. 090( 1) and RCW 10. 73. 100, we requested, and the parties

provided, supplemental briefing regarding the facial validity of the 2000 judgment and sentence.

                                                    ANALYSIS


A. .     LEGAL PRINCIPLES


         To obtain relief by means of a personal restraint petition, a petitioner must demonstrate

that he is under restraint and that the restraint is unlawful. In re Pers. Restraint ofMartinez, 171

Wn.2d 354, 363, 256 P. 3d 277 ( 2011).           A petitioner is under restraint if he has limited freedom


because of a court decision, is confined or subject to imminent confinement, or is under some other


disability   resulting from    a   judgment   or sentence           in   a criminal case.   RAP 16. 4( b).   Wheeler has


completed his sentence for failure to register, but the State concedes that he meets the " restraint"


requirements due to the stigma and collateral consequences associated with his conviction. See In


re   Pers. Restraint of Richardson, 100 Wn.2d 669, 670, 675 P. 2d 209 ( 1983) ( allowing petitioner


who had completed sentence to bring personal restraint petition to " remove a serious blot from his

record"),    overruled on other grounds, State v. Dhaliwal, 150 Wn.2d 559, 79 P. 3d 432 ( 2003).


         To show that his restraint is unlawful, a petitioner must demonstrate either constitutional

error that resulted in actual and substantial prejudice or a fundamental defect of a nonconstitutional


nature that resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d




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No. 45426 -2 -II



802, 810- 13, 792 P. 2d 506 ( 1990).             The imposition of an unlawful sentence is a fundamental defect.


In re Pers. Restraint of Carrier, 173 Wn.2d 791, 818, 272 P. 3d 209 ( 2012).

         In addition, a petition challenging a judgment and sentence generally must be filed within

one year after     the judgment becomes final. RCW 10. 73. 090( 1).                           The time limit may be avoided if

the judgment and              sentence   is invalid   on   its face. RCW 10. 73. 090( 1).           A judgment is invalid on its


face under RCW 10. 73. 090( 1) where the trial court exceeded its statutory authority in entering the

judgment or sentence. In re Pers. Restraint of Coats, 173 Wn.2d 123,, 135, 267 P. 3d 324 ( 2011).

Where a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its

face. In   re   Pers. Restraint of Hinton, 152 Wn.2d 853, 860, 100 P. 3d 801 ( 2004).                                   This is true


whether or not       the       petitioner pleaded      guilty. Hinton, 152 Wn.2d               at   860. An agreement to plead


guilty to a nonexistent crime does not foreclose collateral relief because a plea agreement cannot

exceed the statutory authority granted to the courts. In re Pers. Restraint ofThompson, 141 Wn.2d

712, 723, 10 P. 3d 380 ( 2000).


         Wheeler'         s   judgment     and sentence      became final       when     it   was entered    in 2000.    See RCW


10. 73. 090( 3)(   a) (   judgment becomes final              when      filed   with   the trial     court clerk).   He filed this


petition well      beyond the        one- year   time limit. If his judgment and sentence is invalid on its face,


however, his petition is exempt from that time limit.


B.       JUDGMENT AND SENTENCE INVALID ON ITs FACE


         The State concedes in its briefing that Wheeler' s judgment and sentence is facially invalid

if we agree with Division One' s analysis in Taylor, 162 Wn. App. 791. 1 In Taylor, the defendant



1 Despite its written concession, the State asserted during oral argument that Wheeler' s guilty plea
waived his facial invalidity claim. As discussed, Hinton disposes of this assertion.


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No. 45426 -2 -II



was convicted of              third degree statutory        rape under       former RCW 9A.44. 090 ( 1979) in 1988.                     162.


Wn.      App.    at   793- 94. The legislature            repealed    former RCW 9A.44. 090 later that year. LAWS of


1988,     ch.   145, §        24; Taylor, 162 Wn. App. at 793- 94.2 In 2009, the State charged Taylor with

failure to      register as a sex offender           in   violation of   former RCW 9A.44. 130 ( 2006),          listing the 1988

                rape conviction as             his ,predicate     offense.    Taylor, 162 Wn.     App.   at   794    n. l   . The trial
statutory


court    found him guilty             as charged, and      he   appealed.     Taylor, 162 Wn. App. at 794.

           At the time of Taylor'.s 2009 offense, the sex offender registration statute required any

adult who had been convicted of a sex offense to register with the county sheriff. Former RCW

9A.44. 130( 1)(         a);   Taylor, 162 Wn.        App.    at   794. The registration statute defined a sex offense, in


part, as    any       offense so        defined    by    RCW 9. 94A. 030.        Former RCW 9A.44. 130( 10)(                a)(   i).   The


Taylor court held that the relevant part of the sex offense definition was that defining a sex offense

as   a   felony       that " is"     a violation of chapter         9A.44 RCW.       162 Wn.      App.   at   795.     Because the


predicate offense for Taylor' s 2009 failure to register conviction was not a violation of chapter


9A.44 RCW in 2009, Division One reversed the conviction. 162 Wn. App. at 801.

           Here, Wheeler pleaded guilty to third degree statutory rape under former RCW 9A.44. 090

 1979) in 1985.               As    stated,   the legislature     repealed   the statutory   rape statutes    in 1988.        LAWS of


1988,     ch.   145, §    24. In 2000, Wheeler pleaded guilty to failure to register as a sex offender between

September 1997                and   April 1998.      At the time of his offense, the sex offender registration statute

required any adult who had been convicted of a sex offense to register with the county sheriff.

Former RCW 9A.44. 130( 1) (                     1997).    The statute defined a sex offense, in part, as any felony so



2 The legislature replaced the provisions defining three degrees of statutory rape with three degrees
of the crime of rape of a child. Taylor, 162 Wn. App. at 796 n.4.


                                                                       El
No. 45426 -2 -II



defined   by    RCW 9. 94A. 030.             Former RCW 9A.44. 130( 6)( a).                The corresponding definition of

 sex offense" stated as follows:


                   a) A felony that is a violation of chapter 9,4. 44 RCW or RCW 9A.64. 020
          or 9. 68A.090 or a felony that is, under chapter 9A.28 RCW, a criminal attempt,
          criminal solicitation, or criminal conspiracy to commit such crimes;
                       b) A felony with a finding of sexual motivation under RCW 9. 94A. 127 or
          13. 40. 135; or
                       c) Any federal or out-of-state conviction for an offense that under the laws
          of   this    state     would     be   a   felony   classified   as   a   sex    offense   under ( a)   of this

          subsection.




Former RCW 9. 94A.030( 33) ( 1997) (                   emphasis added).        Under the reasoning in Taylor, because

statutory rape was repealed in 1988 and, therefore, not a violation of chapter 9A.44 RCW in 1997

and 1998, Wheeler' s resulting conviction for failure to register as a sex offender would be invalid

on its face.


B.        LEGISLATIVE INTENT


          The State maintains that we should not follow Taylor because it rests on an improper

interpretation        of   the   word "   is" in the   sex offense     definition. The State argues that it is far more


reasonable to read the word " is" broadly and to conclude that the legislature intended that any

crime which was at any time included in chapter 9A.44 RCW " is" a sex offense.

          To    support       its interpretation       of   former RCW 9. 94A.030( 33), the State cites the policy


statement      underlying the         sex offender registration statute.                 That policy notes the high risk of

reoffense that sex offenders pose and the need to assist local law enforcement agencies in


protecting their communities by requiring sex offenders to register with those agencies. LAWS of

1990,   ch.    3, §    401.      The State argues that if monitoring the whereabouts of sex offenders is a




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No. 45426 -2 -II



priority, it is unlikely that the legislature meant to exempt offenders who were convicted before

the 1990 legislation was enacted. We disagree.


               The purpose of interpreting a statute is to determine and enforce the legislature' s intent.

State     v.   Alvarado,. 164 Wn.2d 556, 561- 62, 192 P. 3d 345 ( 2008).            Where the meaning of statutory

language is plain on its face, courts must give effect to that plain meaning as an expression of

legislative intent. Id.         at   562.   In discerning the plain meaning of a provision, courts consider the

entire statute in which the provision is found, as well as related statutes or other provisions in the


same act that disclose legislative intent. Id.


               Looking at the plain language of the sex offense definition, we observe, as did the Taylor

court,     that this definition       was amended       in 1999 to include "[   a] ny conviction for a felony offense

in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense

in ( a)    of    this   subsection."    LAWS      of   1999,   ch.   352, § 8; 162 Wn.   App.   at   798.   This action is


consistent with the view that the previous language did not apply the duty to register to crimes not

currently listed in chapter 9A.44 RCW. Taylor, 162 Wn. App. at 798. This action also shows the

legislature' s ability to tailor the definition to include offenses other than those currently classified

as sex offenses under the SRA.


               We observe further that despite the holding in Taylor, the legislature has not amended the

sex offense definition to include comparable post -1976 felonies that were subsequently repealed.

The legislature is presumed to be familiar with past judicial interpretations of statutes, including

appellate court          decisions. State    v.   Stalker, 152 Wn. App. 805, 812- 13, 219 P. 3d 722 ( 2009),       review



denied, 168 Wn.2d 1043 ( 2010). "[                 L]egislative inaction following a judicial decision interpreting.

a statute often is deemed to indicate legislative acquiescence in or acceptance of the decision."




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No. 45426 -2 -II



Stalker, 152 Wn.     App.   at    813. "` [   W] here statutory language remains unchanged after a court

decision the court will not overrule clear precedent interpreting the same statutory language."'

Stalker, 152 Wn. App.      at   813 ( quoting Riehl   v.   Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P. 3d 930


 2004)).   Consequently, we agree with Taylor that the sex offense definition in effect when

Wheeler    failed   to   register     supports    a   reading     of "   is"    that permits      only sex    offenses


contemporaneously included in chapter 9A.44 RCW to serve as the predicate for a failure to

register conviction.



        Wheeler' s 2000 judgment and sentence is invalid on its face because his conviction is not


based   on an offense     defined    as a sex offense at        the time   of   the failure to   register.   This error


constitutes a fundamental defect that entitles Wheeler to relief. Accordingly, we grant the petition

and vacate Wheeler' s 2000 conviction for failing to register as a sex offender.




                                                                                        Lee, J.
 We concur:




                         4
                    Worswick, P. J.




                         taxa, J.




                                                            7
