I                                                                                FILED
                                                                              JUNE 21, 2016
                                                                       In the Office of the Clerk of Court
                                                                     WA State Court of Appeals, Division Ill




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


II   STATE OF WASHINGTON,

                          Respondent,
                                                   )
                                                   )
                                                   )
                                                             No. 33269-1-111


l           V.
                                                   )
                                                   )
                                                   )
     TERRY LEE BAKER,                              )         PUBLISHED OPINION
                                                   )
                          Appellant.               )

            SIDDOWAY, J. -    Terry Baker's appeal of the sentence imposed for his conviction

     for escape from community custody presents a recurring question of statutory

     construction under RCW 9.94A.525: whether, in calculating an escapee's offender score,

     the sentencing court should count "only prior escape convictions," as provided by RCW

     9.94A.525(14), or should include an additional point because the conviction is for "an

     offense committed while the offender was under community custody," as provided by

     RCW 9.94A.525(19).

            We conclude the statute is susceptible to two reasonable interpretations. Applying

     the rule of lenity, we construe it as limiting the offender score to the number of an

     offender's prior escape convictions. We remand with instructions to correct Mr. Baker's

     offender score.
No. 33269-1-111
State v. Baker


              FACTS, PROCEDURAL BACKGROUND, AND ANALYSIS

       In February 2015, Terry Baker pleaded guilty to a charge of escape from

community custody. At the plea hearing, the parties disagreed over what his offender

score should be. The defense's position was that Mr. Baker's score was three, based on

his three prior escape convictions. The State's position was that his offender score was

four after adding a point because his present conviction was for an offense he committed

while under community custody. The parties acknowledged that the issue was a

recurring one and that different judges within the county had reached different results.

The sentencing court accepted the State's argument.

       Mr. Baker appeals. Despite having been released from custody, he asks us to

address the technically moot issue given that it is a recurring one, has been decided

differently by different sentencing judges, and is of substantial and continuing public

interest. The State joins in the request that we decide the appeal. We agree the case

involves matters of continuing and substantial public interest that justify retaining and

deciding it. See State v. Hunley, 175 Wn.2d 901,907,287 P.3d 584 (2012) (a moot cause

may be retained and decided under such a circumstance).

                                       Plain meaning

       Collectively, the portions of RCW 9.94A.525 that either the parties or we deem

relevant to the construction issue state:

       [T]he offender score rules are as follows:

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No. 33269-1-111
State v. Baker


             The offender score is the sum of points accrued under this section
       rounded down to the nearest whole number.
              ( 1) A prior conviction is a conviction which exists before the date of
       sentencing for the offense for which the offender score is being computed ....

              (2)(a) Class A and sex prior felony convictions shall always be
       included in the offender score.
              [(2)(b)-(d) and (I) deal with convictions that are neither Class A nor
      sex prior felony convictions. Such convictions are included unless they
      have "washed out" by virtue ofyears of crime-free time in the community
       that vary by offense. 2(e) is a special rule where the present conviction is
      felony driving while under the influence of intoxicating liquor or any drug
      or felony physical control of a vehicle while under the influence of
       intoxicating liquor or any drug]

             ( 14) If the present conviction is for Escape from Community
      Custody, RCW 72.09.310, count only prior escape convictions in the
      offender score. Count adult prior escape convictions as one point and
      juvenile prior escape convictions as 1/2 point.

             ( 19) If the present conviction is for an offense committed while the
      offender was under community custody, add one point. For purposes of this
      subsection, community custody includes community placement or
      postrelease supervision, as defined in chapter 9.94B RCW.

      Although other subsections of the statute provide special rules for counting

convictions or points for specific crimes, subsection ( 14) dealing with escape from

community custody is the only subsection that uses the words "count only."

      Mr. Baker focuses on subsection (14), and the word "only" ("count only prior

escape convictions in the offender score") as meaning that nothing counted elsewhere in

RCW 9.94A.525 is included in the offender score when the crime of conviction is escape

from community custody.

                                             3
1
1
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    No. 33269-1-111
    State v. Baker


           The State focuses on the fact that the statute is structured with an introduction

    stating, "The offender score is the sum of points accrued under this section rounded down

    to the nearest whole number," followed by 22 enumerated subsections, implying that

    each subsection must be reviewed to see if it applies. This is consistent with the reading

    of the statute in State v. Moeurn, 170 Wn.2d 169, 175, 240 P.3d 1158 (2010), in which

    our Supreme Court held that "[v ]iewing the statutory scheme as a whole, we believe that

    the legislature intended the rules for calculating offender score to be applied in the order

    in which they appear."

           The State also contends that because subsections ofRCW 9.94A.525 either count

    convictions or add points, subsection (14) is reasonably read as stating that the sentencing

    judge is to "count only prior escape convictions" (not prior convictions for other crimes)

    but as telling the judge nothing about adding points. (Emphasis added.) Subsection (19)

    then requires that a point be added for any "offense committed while the offender was

    under community custody," identifying no exceptions.

           Statutory interpretation is a question of law reviewed de novo. State v.

    Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Our fundamental purpose in

    construing statutes is to ascertain and carry out the intent of the legislature. In re

    Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011). "If the statute's meaning is plain

    on its face," this court will "give effect to that plain meaning as the expression of what

    was intended." Trac/one Wireless, Inc. v. Dep 't of Revenue, 170 Wn.2d 273,281,242

                                                   4
No. 33269-1-111
State v. Baker


PJd 810 (2010). Plain meaning is discerned from all that the legislature has said in the

statute and related statutes which disclose legislative intent about the provision in

question. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 PJd 4

(2002).

       "For a statute to be ambiguous, two reasonable interpretations must arise from the

language of the statute itself, not from considerations outside the statute." Cerillo v.

Esparza, 158 Wn.2d 194, 203-04, 142 PJd 155 (2006).

       The State's argument from the structure of the statute, and which reads "only" as

modifying which convictions get counted, is a reasonable one.

       On the other hand, reading RCW 9.94A.525(19) in the context of the entire

statute, its purpose as applied to every subsection other than subsection (14) is to increase

the offender score and thereby enhance punishment because the offender committed the

crime of conviction while under community custody. Where the conviction is for escape

from community custody, however, the offender will always commit it while under

community custody. Read as a whole, a reasonable result is reached by reading "only" as

modifying which things "count ... in the offender score."

                      Maxims of construction and legislative history

       If a statute is susceptible to more than one reasonable interpretation, "then a court

may resort to statutory construction, legislative history, and relevant case law for




                                              5
No. 33269-1-III
State v. Baker


assistance in determining legislative intent." Anthis v. Copland, 173 Wn.2d 752, 756,

270 P.3d 574 (2012).

       It is a principal of statutory construction that a specific statute prevails over a

general statute, but only where the statutes conflict. O.S. T. v. BlueShield, 181 Wn.2d

691, 701, 335 P.3d 416 (2014). Here, subsection (14) is the specific statute and

subsection ( 19) is the general statute, but they do not conflict; at issue is only whether

both were intended to apply.

       Turning to legislative history, Mr. Baker points out that in the 1992 legislation that

made the crime of escape from community custody a level 2 offense and created the

scoring provision found in RCW 9.94A.525(14), 1 the final bill report states in part that

"the offender gets points only if the offender has previous escape offenses." FINAL BILL

REPORT ON   Engrossed Substitute H.B. 2490, at 1, 52nd Leg., Reg. Sess. (1992)

(emphasis added). Elsewhere, however, it states that "[ o]nly prior escape convictions are

counted as criminal history in calculating offender points for an offender's second or

subsequent escape conviction." Id. at 2 (emphasis added). The authors of the bill report

might have been speaking only of the impact of the new legislation on criminal history,2



       1
         The crime of escape from community custody was created in 1988. LA ws OF
1988, ch. 153, § 6. The 1992 changes were made by Laws of 1992, ch. 75, §§ 3, 4, and 6.
       2
         "Criminal history" was defined then (similar to its current definition) as "the list
of a defendant's prior convictions, whether in this state, in federal court, or elsewhere."
Former RCW 9.94A.030(12)(a) (1991).

                                               6
No. 33269-1-111
State v. Baker


without considering the additional point that was then added by former RCW

9 .94A.360( 18) ( 1990) to all offenses committed while an offender was under community

placement.

       After considering the principles of construction and legislative history pointed to

by the parties, both interpretations of RCW 9 .94A.525 remain reasonable. "If after

applying rules of statutory construction we conclude that a statute is ambiguous, 'the rule

oflenity requires us to interpret the statute in favor of the defendant absent legislative

intent to the contrary."' City ofSeattle v. Winebrenner, 167 Wn.2d 451, 462, 219 P.3d

686 (2009) (quoting State v. Jacobs, 154 Wn.2d 596,601, 115 P.3d 281 (2005)). We

therefore construe RCW 9.94A.525 as providing that where an offender's crime of

conviction is escape from community custody, RCW 9.94A.525(19)'s provision for an

additional point does not apply.

       We remand with directions to correct Mr. Baker's offender score.



                                                     d]dh
                                                       J. «'4:)
                                                  Siddoway,
                                                                )t
WE CONCUR:




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