                                                                      FILED
                                                                 SEPTEMBER 28, 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. 34851-2-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
KASI LYNN SLEATER,                            )         PUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. - Kasi Sleater appeals from an order denying her motion to vacate

her 2006 conviction for possession of methamphetamine, arguing that a subsequent

conviction occurring after the certificate of discharge issued for an offense committed

prior to that date was not a "new crime" preventing vacation of the offense. We disagree

with the focus of her argument and affirm the trial court.

                                          FACTS

       Ms. Sleater pleaded guilty on February 8, 2006, to possession of methamphetamine

and complied with all the terms of the judgment and sentence. A certificate of discharge

issued on May 22, 2008. However, one week before the certificate issued, she had been

arrested for possessing methamphetamine with the intent to deliver.

       She promptly pleaded guilty on May 29, 2008, to one count of unlawful possession

of methamphetamine with the intent to manufacture or deliver and was sentenced to 22
No. 34851-2-III
State v. Sleater


months in prison. On October 3, 2016, Ms. Sleater moved to vacate the 2006 conviction,

declaring that she did "not have a conviction for any new crime in any jurisdiction since

discharge." Clerk's Papers at 16. The State responded that the 2008 conviction prevented

vacation of the 2006 conviction.

       The trial court heard argument on the motion and agreed with the State's

interpretation of the statute. Ms. Sleater timely appealed to this court. A panel considered

the matter without argument.

                                        ANALYSIS

       The sole issue presented is whether the 2008 offense prevented the vacation of the

2006 conviction. Ms. Sleater wrongly focuses on the timing of her 2008 arrest rather

than the date of conviction for that offense.

       This case presents an issue of statutory interpretation, so the basic rules of

statutory construction govern this claim. Questions of statutory interpretation are

reviewed de novo. State v. Bradshaw, 152 Wn.2d 528,531, 98 P.3d 1190 (2004). A

court begins by looking at the plain meaning of the rule as expressed through the words

themselves. Tesoro Ref & Mktg. Co. v. Dep 't of Revenue, 164 Wn.2d 310, 317, 190 P.3d

28 (2008). If the meaning is plain on its face, the court applies the plain meaning. State

v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only if the language is

ambiguous does the court look to aids of construction. Id. at 110-11. A provision is

ambiguous if it is reasonably subject to multiple interpretations. State v. Engel, 166

                                                2
No. 34851-2-III
State v. Sleater


Wn.2d.572, 579,210 P.3d 1007 (2009); State v. McGee, 122 Wn.2d 783,787,864 P.2d

912 (1993).

       The rule of lenity can be applied to ambiguous criminal statutes. If a statute is

truly ambiguous, the rule of lenity requires that "the court must adopt the interpretation

most favorable to the criminal defendant." McGee, 122 Wn.2d at 787.

       Vacation of a felony conviction in Washington is a two-step process under the

Sentencing Reform Act of 1981, chapter 9.94A RCW. When a convicted offender

completes the requirements of his judgment and sentence, a certificate of discharge will

enter and restore many civil rights. RCW 9.94A.637. After the receipt of the certificate

of discharge and the passage of the requisite amount of time, 1 the offender can seek

vacation of the conviction pursuant to RCW 9.94A.640.

           At issue here is the meaning of one of the vacation policy's exceptions found in

RCW 9.94A.640(2). The relevant provision states:

              (2) An offender may not have the record of conviction cleared if: ...
      (d) the offender has been convicted of a new crime in this state, another
      state, or federal court since the date of the offender's discharge under
      RCW 9.94A.637.

RCW 9.94A.640 (emphasis added).




       1
        A five year period for most class C felony offenses and ten years for most class
B felony crimes. RCW 9.94A.640(2).

                                               3
No. 34851-2-111
State v. Sfeater


       Focusing on the phrase, "new crime," Ms. Sleater argues that there was nothing

"new" about the 2008 offense since it occurred and was known to law enforcement prior

to the certificate of discharge. She contends that the 2008 conviction could not therefore

prevent vacation of the 2006 conviction since it did not involve a new offense occurring

after the certificate of discharge. She also contends that her reading of the statute shows

that, at a minimum, the statute is ambiguous and the rule of lenity should apply.

       Although Ms. Sleater has a clever argument, we do not agree with her reading of

the statute. The plain reading makes inescapable the conclusion that since Ms. Sleater's

2008 conviction was entered after the certificate of discharge for the 2006 conviction, she

is ineligible to vacate the earlier offense. The statute does not mention, let alone focus

on, the date of the "new crime." Instead, the statute clearly states the trigger mechanism

is whether the offender has been "convicted of a new crime" after the date of discharge

and is, therefore, ineligible for vacation. RCW 9.94A.640(2)(d) (emphasis added). The

words "new crime" modify the verb "convicted." That verb is the focus of the sentence. 2

It is the fact of conviction of a new crime, not the date that the new crime was committed,

that has significance for the vacation rules. This statute is not ambiguous and there is no


       2
         Ms. Sleater places emphasis on the word "new" in the phrase "new crime" to
contend that the crime had not occurred prior to the date of discharge. That interpretation
does not flow from a plain reading of the sentence. The natural reading, based on the
total construction of the sentence, is that "new" means "different." This clarifies that the
second crime for which an offender was convicted must be different from the crime that
had been discharged.

                                             4
No. 34851-2-III
State v. Sleater


need to resort to the rule of lenity. The trial court correctly concluded that the 2006

conviction could not be vacated due to the subsequent 2008 conviction.

        Nonetheless, Ms. Sleater is not without remedy. Once she has received her

certificate of discharge for the 2008 offense and is eligible to vacate it, she can first

vacate that conviction and then seek vacation of the 2006 offense. See State v. Smith,

158 Wn. App. 501, 246 P.3d 812 (2010). 3 There is little utility to vacating the 2006

possession conviction while the more serious 2008 possession with intent conviction

remains on her record.

        The judgment of the trial court is affirmed.




WE CONCUR:



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        3
        Our decision is consistent with Smith. There, Division One of this court affirmed
the vacation of an offender's 1989 felony conviction following the vacation of his 1995
misdemeanor conviction. 158 Wn. App. at 503. That court's analysis also focused on
whether the vacated 1995 offense constituted a subsequent conviction rather than whether
it was merely a post-discharge "new crime."

                                               5
