                                                                       FILED
                                                                   NOVEMBER 15, 2018
                                                                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. 35171-8-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 MATTHEW THOMAS SCHWARTZ,                      )         PUBLISHED OPINION
                                               )
                      Appellant.               )

       SIDDOWAY, J. — In several contexts, statutory language that detention or

confinement is “pursuant to a felony conviction” has been held by our courts to include

detention or confinement for a probation or community custody violation. In calculating

Matthew Schwartz’s offender score in 2017 for his failure to register as a sex offender,

the trial court was persuaded that his 1997 and 2001 convictions for class C felonies

never washed out because recent incarcerations for willfully failing to pay legal financial

obligations (LFOs) were “pursuant to” his then 16-year-old 2001 conviction.
No. 35171-8-III
State v. Schwartz


       The obligation to make payments toward an LFO constitutes a condition or

requirement of a sentence. In the event of willful noncompliance, the offender is subject

to modification of his or her judgment and sentence to impose further punishment. E.g.,

RCW 9.94A.760(11), .6333; RCW 9.94B.040. Yet unlike nonfinancial conditions of a

criminal judgment and sentence, a condition requiring payment toward LFOs is not

directly related to public safety, and it creates an obligation that can continue well beyond

the statutory maximum term for the crime: for 20 years in the case of an offense

committed before July 1, 2000, and indefinitely for an offense committed on or after that

date. RCW 9.94A.760(4).

       Given these differences and the purpose of the wash-out provisions of the

Sentencing Reform Act of 1981, chapter 9.94A RCW, we hold that the language “the last

date of release from confinement . . . pursuant to a felony conviction” in RCW

9.94A.525(2)(c) does not include confinement imposed for a failure to make a payment

toward LFOs. In so holding, we disagree with State v. Mehrabian, 175 Wn. App. 678,

308 P.3d 660 (2013). We remand for resentencing.

                     FACTS AND PROCEDURAL BACKGROUND

       In February 2017, the State charged Matthew Schwartz with one count of failing

to register as a sex offender. He pleaded guilty as charged. At sentencing, the court was

presented with the following criminal history for Mr. Schwartz:




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No. 35171-8-III
State v. Schwartz


                    Crime                 Violation Date    Sentence Date     Crime Type
    Assault 2 (w Sexual Motivation)             9/01/93        7/10/93             FA
                 Forgery                        7/02/97       7/22/1997            FC
   Failure to Register as Sex Offender          5/04/01        9/04/01             FC
    Possession of Methamphetamine               3/13/13       11/03/14             FC

See Clerk’s Papers (CP) at 28.

      It was uncontested that the 1993 assault 2 conviction resulted in three points

toward Mr. Schwartz’s offender score. Defense counsel argued that the 1997 and 2001

class C felony convictions had washed out, resulting in an offender score of 4. But the

State presented evidence that in the prior several years, Mr. Schwartz had been sentenced

to jail time by orders imposing sanctions for his failure to pay LFOs imposed in

connection with his 2001 sentence and argued that those orders prevented both the 1997

and 2001 crimes from washing out.1

      With an offender score of 4, Mr. Schwartz’s standard range was 12 to 14 months.

With an offender score of 6, his standard range was 17 to 22 months. Finding Mr.

Schwartz’s offender score to be 6, the court imposed a low-end sentence of 17 months.

      Mr. Schwartz appeals.



      1
        Mr. Schwartz’s judgment and sentence for the 2001 conviction had been
modified pursuant to RCW 9.94A.6333 to impose five days’ confinement with credit for
time served in October 2014, three days with credit for time served in January 2015, and
most recently another three days with credit for time served, to be suspended if he paid
$50.


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State v. Schwartz


                                        ANALYSIS

       RCW 9.94A.525, which provides the rules for calculating a defendant’s offender

score, includes rules under which class B felonies, class C felonies, and serious traffic

infractions “wash out”—i.e., will not be counted—if the defendant has spent sufficient

crime-free time in the community. The three rules, which appear at RCW

9.94A.525(2)(b)-(d), are couched in parallel language. RCW 9.94A.525(2)(c) is the

provision at issue in this case. Subject to exceptions not relevant here, RCW

9.94A.525(2)(c) provides that class C prior felony convictions shall not be included in the

offender score if,

       since the last date of release from confinement (including full-time
       residential treatment) pursuant to a felony conviction, if any, or entry of
       judgment and sentence, the offender had spent five consecutive years in the
       community without committing any crime that subsequently results in a
       conviction.

       In State v. Ervin, our Supreme Court endorsed a construction of the statute that

“[breaks] it down into two clauses: a ‘“‘trigger[ ]’”’ clause, which identifies the

beginning of the five-year period, and a ‘“‘continuity/interruption’”’ clause, which sets

forth the substantive requirements an offender must satisfy during the five-year period.”

169 Wn.2d 815, 821, 239 P.3d 354 (2010) (second alteration in original) (quoting In re

Pers. Restraint of Nichols, 120 Wn. App. 425, 432, 85 P.3d 955 (2004)).

                We reject Mr. Schwartz’s argument that the trigger clause
                      ambiguously provides optional trigger dates



                                             4
No. 35171-8-III
State v. Schwartz


        Mr. Schwartz contends on appeal that the trigger clause ambiguously creates

alternative trigger dates, the first being “the last date of release from confinement

(including full-time residential treatment) pursuant to a felony conviction” and the second

being “entry of judgment and sentence.” Appellant’s Opening Br. at 4-5 (quoting RCW

9.94A.525(2)(c)). He argues that the doctrine of lenity allows him to apply the more

favorable “entry of judgment and sentence” trigger date, under which his 2001 conviction

washed out based on six and a half years he spent crime-free in the community: from

2006, when he was released from custody, until his controlled substance violation in

2013.

        Statutory interpretation is a question of law reviewed de novo. In re Det. of

Williams, 147 Wn.2d 476, 486, 55 P.3d 597 (2002). “The court’s paramount duty in

statutory interpretation is to give effect to the legislature’s intent.” Nichols, 120 Wn.

App. at 431. The surest indication of legislative intent is the language enacted by the

legislature, so if the meaning of a statute is plain on its face, we “‘give effect to that plain

meaning.’” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (quoting Dep’t of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). “The legislature

is presumed not to include unnecessary language when it enacts legislation.” McGinnis

v. State, 152 Wn.2d 639, 645, 99 P.3d 1240 (2004).

        A statute is ambiguous only if susceptible to two or more reasonable

interpretations; it is not ambiguous merely because different interpretations are

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No. 35171-8-III
State v. Schwartz


conceivable. Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005). Although

the rule of lenity applies to sentencing statutes, it applies only after employing tools of

statutory construction. Ervin, 169 Wn.2d at 823 n.1.

       We do not agree that the trigger clause is ambiguous. When a statute speaks of

“A, if any, or B” the words “if any” can reasonably communicate that “A” is to apply if it

exists, and only if it does not exist will “B” apply. That is reasonably communicated by

the trigger clause. In most cases, there will be a “last date of release from confinement

. . . pursuant to a felony conviction,” and that will be the trigger. Less often, there will be

no period of confinement, either because the seriousness level and offender score are both

low,2 a sentencing alternative is ordered,3 or the court imposes an exceptional sentence.

In those cases, entry of the judgment and sentence will be the trigger. The clause cannot

reasonably be read to create truly alternate dates, as argued by Mr. Schwartz, because the

judgment and sentence date would always be more favorable and the “last day of release

from confinement” would never apply.

       That does not end our construction of the statutory language, however, because we

find it irreconcilable with the purpose of the wash-out provisions to reset the clock for




       2
        See RCW 9.94A.510, under which the low end of the standard range sentence for
crimes with a seriousness level of I or II can be 0 with a sufficiently low offender score.
      3
        E.g., RCW 9.94A.650 (first time offender); RCW 9.94A.655 (custodial parent).

                                               6
No. 35171-8-III
State v. Schwartz


confinement imposed based solely on an offender’s failure to pay LFOs.4 And any

resetting of the clock for the failure to pay the LFOs imposed in the 2001 judgment and

sentence does not affect the wash out of the 1997 forgery conviction.

                          The 1997 forgery conviction washed out

        The trial court erred in adopting the State’s position that the 1997 forgery

conviction had not washed out. Although neither party provided any “release from

confinement” dates, we can safely assume that Mr. Schwartz had been released from

confinement for the forgery conviction before May 4, 2001, when he committed the

crime of failure to register as a sex offender. Being a class C felony, the forgery

conviction was subject to a five-year wash-out period. If we assume that Mr. Schwarz

served the maximum five years for his 2001 failure to register conviction, he would have

been released from confinement on or before September 4, 2006. He did not commit

another crime until his controlled substance crime in March 2013, meaning that he was

crime-free in the community for six and a half years, from September 2006 to March

2013.

        The wash-out period need not immediately follow the prior conviction. Any five-

year period will do, so long as it follows the date of entry of judgment and the last date of



        4
         This issue was identified during the panel’s consideration of the case. The
parties were invited to present written argument on the issue in accordance with RAP
12.1(b).

                                              7
No. 35171-8-III
State v. Schwartz


release from confinement for the prior offense. State v. Hall, 45 Wn. App. 766, 768, 728

P.2d 616 (1986). Both are true of the 1997 forgery conviction. That conviction clearly

washed out.

               Whether the 2001 failure to register conviction washed out
              turns on our construction of RCW 9.94A.525’s “confinement
                     . . . pursuant to a felony conviction” language

       In State v. Perencevic, 54 Wn. App. 585, 774 P.2d 558, review denied, 113 Wn.2d

1017 (1989), this court interpreted the language “being detained pursuant to a conviction

of a felony” in the first degree escape statute, RCW 9A.76.110, as including confinement

for violating a term of community supervision imposed for a felony conviction.

Perencevic had completed serving his period of confinement for two prior felonies but

had violated conditions of community service. His escape attempt took place while in

custody for the community service violations. This court reasoned that the bench

warrants resulting in the detention from which he attempted to escape “were issued due to

his failure to complete certain requirements of community supervision which are as much

a part of the punishment and sentence as detention time.” Perencevic, 54 Wn. App. at

589.

       In State v. Blair, 57 Wn. App. 512, 789 P.2d 104 (1990), this court extended the

reasoning of Perencevic to the wash-out context, interpreting “release from confinement

. . . pursuant to a felony conviction,” as used in former RCW 9.94A.360(2) (1989) as

encompassing release from confinement imposed after Blair violated probation terms of

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No. 35171-8-III
State v. Schwartz


his felony sentence. This court found the construction to be supported by the plain

language of the provision and in harmony with the purpose provision of the Sentencing

Reform Act by “giving the offender an opportunity to improve himself.” Blair, 57 Wn.

App. at 516 (citing RCW 9.94A.010(5)).

       The obligation to make payments toward a legal financial obligation constitutes a

condition or requirement of a sentence and in the event of willful noncompliance, the

offender is subject to modification of his or her judgment and sentence to impose further

punishment. E.g., RCW 9.94A.760(11), .6333. But it is unlike other conditions of a

sentence in two important respects.

       First, nonfinancial conditions of community custody cannot extend beyond the

statutory maximum for the crime. E.g., State v. Hernandez, 185 Wn. App. 680, 689, 342

P.3d 820 (2015) (DUI5 offender could not be ordered to use an ignition interlock device

for more than the 60 month statutory maximum for the crime); State v. Armendariz, 160

Wn.2d 106, 120, 156 P.3d 201 (2007) (no-contact order imposed under RCW

9.94A.505(8) is limited to the statutory maximum). A condition requiring payment

toward a legal financial obligation creates an obligation that can continue for 20 years in

the case of an offense committed before July 1, 2000, and indefinitely for an offense

committed on or after that date. RCW 9.94A.760(4) provides:



       5
           Driving under the influence of intoxicants.

                                               9
No. 35171-8-III
State v. Schwartz


       For an offense committed on or after July 1, 2000, the court shall retain
       jurisdiction over the offender, for purposes of the offender’s compliance
       with payment of the legal financial obligations, until the obligation is
       completely satisfied, regardless of the statutory maximum for the crime.

Thus, while the statutory maximum for Mr. Schwartz’s 2001 failure to register conviction

was five years, any violation of his duty to pay LFOs imposed by that sentence, at any

time, could re-start the clock on the wash-out provision.

       This stinginess when it comes to washing out crimes for offenders who fail to pay

LFOs makes no sense in light of the second difference between financial and

nonfinancial conditions of community custody: financial conditions have no relation to

the important sentencing purposes of protecting the public, offering the offender an

opportunity to improve himself or herself, or reducing the risk of reoffending. See RCW

9.94A.010(4), (5), and (7). We recognize that a court must find a willful failure to pay

LFOs before modifying a sentence to impose an additional period of confinement. But

even so, we cannot conceive of a legislative purpose for the wash-out provisions under

which it is logical to deny wash out to an offender who has lived crime-free in the

community for the required period but failed to make a payment toward an LFO.

       The State correctly cites Mehrabian, a 2013 decision of another division of this

court, as holding that confinement for a failure to pay LFOs resets the wash-out clock.

The Mehrabian court based its conclusion on Perencevic and Blair, without (it appears)

being presented with any argument that substantial differences between financial and



                                            10
No. 35171-8-111
State v. Schwartz


nonfinancial conditions warrant a more critical consideration of legislative intent. We

hold that as used in RCW 9 .94A.525(2)(b)-( d), the language "the last date of release from

confinement ... pursuant to a felony conviction" does not include confinement that is

imposed for failing to make a payment toward an LFO. Given that construction of the

provision, Mr. Schwartz's 2001 failure to.register conviction washed out based on his six

and a half crime free years in the community following September 2006.

       We reverse and remand for resentencing.




WE CONCUR:



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