                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        August 29, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 48890-6-II

                               Respondent,

        v.

 RICHARD SHERWOOD MARTELL,                                     PUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Richard Sherwood Martell appeals the trial court order amending his

sentence to impose an indeterminate sentence under the sex offender sentencing statute’s

indeterminate sentencing provision, RCW 9.94A.507(1)(b), following his guilty plea conviction

for second degree possession of depictions of minors engaged in sexually explicit conduct. He

argues that the sex offender indeterminate sentencing provision requires a prior conviction for an

offense involving a pattern of criminal street gang activity and that he had no such prior offense.

Under RCW 1.12.028, we reject Martell’s assertion that he is not subject to an indeterminate

sentence under RCW 9.94A.507(1)(b) and affirm the trial court.
No. 48890-6-II


                                               FACTS

          Martell pleaded guilty to the amended charge of second degree possession of depictions of

minors engaged in sexually explicit conduct1 between July 16, 2015 and July 21, 2015. He

stipulated to a criminal history that included convictions for first degree rape of a child and first

degree child molestation.

          The plea agreement described the standard range for the offense as 43 to 57 months, with

36 months community custody, and the maximum term was described as 5 years. The State agreed

to recommend a sentence of 43 months with 36 months community custody. 2

          At sentencing, the trial court sentenced Martell to the agreed sentencing recommendation

of 43 months custody and 36 months of community custody. The judgment and sentence did not

mention an indeterminate sentence, and the possibility of an indeterminate sentence was not

discussed during the sentencing hearing.

          The Department of Corrections (DOC) subsequently notified both parties that it believed

that Martell was subject to an indeterminate sentence under the sex offender indeterminate

sentencing provision, which provides in part, “An offender who is not a persistent offender shall

be sentenced under this section if the offender: . . . [h]as a prior conviction for an offense listed in




1
  This offense is codified at RCW 9.68A.070(2). At the time of the offense, it was considered a
sex offense. Former RCW 9.94A.030(46)(a)(iii) (2012).
2
    The record does not contain the transcript from the change of plea hearing.

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No. 48890-6-II


*RCW 9.94A.030(31)(b),[3] and is convicted of any sex offense other than failure to register.”4

RCW 9.94A.507(1)(b). In response, the State moved to amend Martell’s judgment and sentence

to reflect an indeterminate term with a minimum period of incarceration of 43 months and a

maximum of 60 months.

       Martell opposed the motion. He argued that he did not meet the statutory criteria for an

indeterminate sentence because, according to the code reviser’s note to RCW 9.94A.507(1)(b),

such a sentence required a prior conviction for an offense involving “street gang activity,” and he

had no such prior offense. Clerk’s Papers at 45; Report of Proceedings at 26. He requested specific

performance of his plea agreement.

       The trial court concluded that Martell was subject to an indeterminate sentence and that the

plea agreement was therefore based on a mutual mistake because neither party had understood that

Martell would be subject to an indeterminate sentence when they entered into the plea agreement.

The trial court then determined that because the plea was based on a mutual mistake, it was not

subject to specific performance.

       The trial court offered Martell the opportunity to withdraw his guilty plea. Martell elected

not to withdraw his guilty plea and continued to argue that he was not subject to an indeterminate



3
 In the session law that last amended RCW 9.94A.507, the legislature also amended former RCW
9.94A.030 (2006). See LAWS OF 2008, ch. 231, § 23. The session law amending both RCW
9.94A.507 and former RCW 9.94A.030 (2006) defined the term “[p]ersistent offender” in
subsection (31) and subsection (31)(b) provided a list of offenses that qualified as persistent
offenses. See LAWS OF 2008, ch. 231, § 23. The legislature amended former RCW 9.94A.030
(2006) several more times in 2008; we describe those amendments and their effect more fully
below.
4
  The asterisk before “RCW 9.94A.030(31)(b)” in this statute refers to a reviser’s note that we
discuss below.

                                                3
No. 48890-6-II


sentence and that there had been no mutual mistake.5 The trial court amended Martell’s sentence,

imposing an indeterminate sentence.

       Martell appeals his amended sentence.

                                           ANALYSIS

       Martell argues that he is not subject to an indeterminate sentence because “a plain reading”

of the statute, in conjunction with the code reviser’s note to RCW 9.94A.507(1)(b), requires that

he have a prior conviction for a crime that falls under former RCW 9.94A.030(36) (2012).6 Br. of

Appellant at 5. That subsection defines “[p]attern of criminal street gang activity,” and Martell

points out that he has no such conviction. Because the code reviser’s note does not accurately

track the amendments to RCW 9.94A.030 from 2001 to 2012, Martell’s reliance on the reviser’s

note is misplaced.7 As discussed below in detail, correctly tracking the subsequent amendments

to former RCW 9.94A.030(31)(b) (2008), as required by RCW 1.12.028, we hold that the citation

at the time of Martell’s offense should have been to former RCW 9.94A.030(37) (2012), which




5
 He characterized the mistake, if any, as a breach of the plea agreement because the State had now
asked for an indeterminate sentence.
6
  Martell actually refers to former RCW 9.94A.030(37) (2015) rather than to former RCW
9.94A.030(36) (2012), both of which refer to street gang activity. But the 2015 version of the
statute was not in effect until three days after Martell committed the charged offense. See LAWS
OF 2015, ch. 287 § 1. To avoid confusion, we refer to Martell’s argument in terms of the 2012
version of the statute.
7
  At the hearing on the State’s motion, Martell argued that he was entitled to specific performance
of the plea agreement. On appeal, Martell briefly mentions case law related to the appropriate
remedy, but he presents no argument related to whether the trial court erred by refusing to allow
specific performance. Because Martell has not presented any argument on this issue, we do not
address whether the trial court erred in not offering Martell the option of specific performance.
RAP 10.3(a)(6).

                                                4
No. 48890-6-II


defined persistent offender. Thus, Martell fails to show that the trial court erred when it sentenced

him under the sex offender indeterminate sentencing provision.

                        I. STANDARD OF REVIEW AND INTERPRETIVE RULE

       Whether Martell was subject to an indeterminate sentence is a question of law.

Accordingly, we review the trial court’s decision to impose the indeterminate sentence de novo.

State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

       Under RCW 1.12.028, “[s]tatutes referencing other statutes include any amendments to the

referenced statute, absent a clear expression of a contrary intent.” State v. Blilie, 132 Wn.2d 484,

492, 939 P.2d 691 (1997) (emphasis added). Applying this rule here, the reference to “RCW

9.94A.030(31)(b)” in RCW 9.94A.507(1)(b) must be read to include all subsequent amendments

to former RCW 9.93A.030 (2012) because there is no express provision limiting our recognition

of subsequent amendments.

                                  II. STATUTORY BACKGROUND

      A. ORIGINAL INDETERMINATE SENTENCING PROVISION AND PRE-2008 AMENDMENTS

       The sex offender indeterminate sentencing provision was first enacted in 2001 as former

RCW 9.94A.712 (2001). LAWS OF 2001, 2nd Spec. Sess., ch. 12, § 303. The original statute

provided that “[a]n offender who is not a persistent offender shall be sentenced under this section

if the offender . . . is convicted of any sex offense” committed after September 1, 2001, and “[h]as

a prior conviction for an offense listed in RCW 9.94A.030(32)(b).” Former RCW 9.94A.712(1)(b)

(2001) (emphasis added).

       At that time, former RCW 9.94A.030(32) (2001) defined the term “[p]ersistent offender,”

and subsection (32)(b) listed the offenses that were required to qualify a defendant as a persistent


                                                 5
No. 48890-6-II


offender.   Between 2001 and 2008, despite numerous amendments to both statutes, the

indeterminate sentencing provision consistently referred to prior convictions for offenses listed in

the “[p]ersistent offender” definitional statute.8 In 2006, former RCW 9.94A.030(33) (2006)

defined the term “[p]ersistent offender.”

                                      B. 2008 AMENDMENTS

       In 2008, the legislature amended former RCW 9.94A.712 (2006), amended former RCW

9.94A.030 (2006) four times, and renumbered former RCW 9.94A.712 (2006) as RCW

9.94A.507.9 LAWS OF 2008, ch. 231, §§ 23, 33, 56; LAWS OF 2008, ch. 276, § 309; LAWS OF 2008,

ch. 230, § 2; LAWS OF 2008, ch. 7, § 1. Each of these amendments was made without reference to

the other amendments.

       In Laws of 2008, ch. 231, § 33, the legislature amended former RCW 9.94A.712(1)(b)

(2006) to cite to former RCW 9.94A.030(31)(b) (2006). And in Laws of 2008, ch. 231, § 23, the

legislature deleted two subsections from former RCW 9.94A.030 (2006) and renumbered the

section defining “[p]ersistent offender” from subsection (33) to subsection (31), making this

consistent with the citation contained in RCW 9.94A.507 as amended in the same session law.

These amendments were effective August 1, 2009. LAWS OF 2008, ch. 231, §§ 23, 61.



8
  See, e.g., former RCW 9.94A.712(1)(b) (2006) (citing former RCW 9.94A.030(33)(b) (2006));
former RCW 9.94A.712(1)(b) (2005) (citing former RCW 9.94A.030(33)(b) (2005)); former
RCW 9.94A.712(1)(b) (2004) (citing former RCW 9.94A.030(32)(b) (2003)); former RCW
9.94A.712(1)(b) (2001) (citing former RCW 9.94A.030(32)(b) (2001) (LAWS OF 2001, 2nd Spec.
Sess., ch. 12, § 301)).
9
  Laws of 2008, ch. 231, § 56 gave the code reviser authority “to improve the organization of
chapter 9.94A RCW by renumbering existing sections.” The code reviser subsequently
renumbered former RCW 9.94A.712 (2006) as RCW 9.94A.507, effective August 1, 2009. LAWS
OF 2008, ch. 231, §§ 61, 33.

                                                 6
No. 48890-6-II


       In Laws of 2008, ch. 276, § 309, the legislature added four new definitions preceding the

persistent offender definition to former RCW 9.94A.030 (2006). Because this amendment was

made without reference to the amendments in Laws of 2008, ch. 231, § 23, the amendments in ch.

276 changed the persistent offender subsection from (33) to (37). This amendment was effective

June 12, 2008.

       In Laws of 2008, ch. 230, § 2, and Laws of 2008, ch. 7, § 1, the legislature amended former

RCW 9.94A.030 (2006) again, but the “[p]ersistent offender” definition remained in subsection

(33). These amendments took effect 90 days after sine die of the 2010 legislative session and on

June 12, 2008, respectively. LAWS OF 2008, ch. 230, § 5.

       As a result of the 2008 amendments to former RCW 9.94A.030 (2006), the 2008 printed

statutes contained three different versions of former RCW 9.94A.030 (2006), none of which

accounted for any of the amendments in the other versions. The first version, effective June 12,

2008, based on the combined amendments from Laws of 2008, ch. 7, § 1 and Laws of 2008, ch.

276, § 309, defined “[p]ersistent offender” in subsection (37). The second version, effective

August 1, 2009, based on the amendments from Laws of 2008, ch. 231, § 23, defined “[p]ersistent

offender” in subsection (31). Finally, the third version, effective 90 days after sine die of the 2010

legislature, based on the amendments from Laws of 2008, ch. 230, § 2, defined “[p]ersistent

offender” in subsection (33).

       Again, these amendments were made without reference to each other and the resulting three

versions of former RCW 9.94A.030 (2008) in the RCWs did not account for the combined effect




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No. 48890-6-II


of the changes in 2008. The combined effect of the 2008 amendments would have resulted in

subsection (35) defining “persistent offender.”10

                                     C. 2009 AMENDMENTS

        In 2009, the legislature amended former RCW 9.94A.030 (2008) three times. First, in

Laws of 2009, ch. 28, § 4, the legislature amended former RCW 9.94A.030 (2008), including all

of the 2008 session laws. The 2009 amendments did not renumber any sections, but subsection

(35) defined “[p]ersistent offender,” which would be the correct subsection if all of the 2008

amendments were taken into account as of the effective date of August 1, 2009. LAWS OF 2009,

ch. 28, § 4.

        Second, in Laws of 2009, ch. 375, § 3, the legislature amended former RCW 9.94A.030

(2008), including Laws of 2008, ch. 276, § 309 and Laws of 2008, ch. 7, § 1. Following these

amendments, “[p]ersistent offender” was defined in subsection (37), which did not account for all

of the 2008 amendments. This amendment was effective immediately, but it expired August 1,

2009. LAWS OF 2009, ch. 375, §§ 18(1), 19.

        Finally, in Laws of 2009, ch. 375, § 4, the legislature amended former RCW 9.94A.030

(2009), including Laws of 2009, ch. 28, § 4. Among other amendments, this session law

renumbered the “[p]ersistent offender” subsection from subsection (35) to subsection (34). This

amendment was effective August 1, 2009. LAWS OF 2009, ch. 375, § 18(2). The 2009 printed




10
  The starting point in 2008 was subsection (33). Former RCW 9.94A.030 (2006). Laws of 2008,
ch. 231, § 23 removed two subsections preceding subsection (33), Laws of 2008, ch. 276, § 309
added four new subsections preceding subsection (33), and the remaining two amendments did not
change the subsection numbering. This results in a net increase of two subsections, so subsection
(33) becomes subsection (35).

                                                8
No. 48890-6-II


statute, incorporating all of the 2009 amendments, defined “[p]ersistent offender” in subsection

(34). Former RCW 9.94A.030(34) (2009).

                       D. 2010 AMENDMENTS AND CODE REVISER’S NOTE

       The legislature then amended former RCW 9.94A.030 (2009) four times in 2010. First, in

Laws of 2010, ch. 224, § 1, the legislature amended former RCW 9.94A.030 (2009) and Laws of

2009, ch. 375, § 4. This amendment added a new definition (“[m]inor child”) and, accordingly,

renumbered the “[p]ersistent offender” definition from (34) to (35).

       Second, in Laws of 2010, ch. 274, § 401, the legislature amended former RCW 9.94A.030

(2009) and Laws of 2009, ch. 375, § 4, without reference to the other 2010 amendments. This

amendment added a new definition (“[d]omestic violence”) and renumbered the “[p]ersistent

offender” definition from subsection (34) to subsection (35), not accounting for the amendment in

Laws of 2010, ch. 224, § 1.

       The remaining two amendments, Laws of 2010, ch. 227, § 11 and Laws of 2010, ch. 267,

§ 9, did not renumber the “[p]ersistent offender” definition, which remained subsection (34). The

2010 printed statute incorporates all four 2010 amendments and defined “[p]ersistent offender” in

subsection (36). Former RCW 9.94A.030(34) (2010).

       Starting in 2010, the code reviser included a reviser’s note with RCW 9.94A.507. This

note commented that subsection (1)(b)’s reference to “RCW 9.94A.030(31)(b)” was “apparently

in error” and that “[t]he reference should be to RCW 9.94A.030(34)(b).” See RCW 9.94A.507

(Reviser’s note (1)). This part of the code reviser’s note appears to correctly refer to former RCW

9.94A.030(34)(b) (2009), which reflected all amendments that were in effect when RCW

9.94A.507 took effect on August 1, 2009.


                                                9
No. 48890-6-II


       The code reviser then stated that “RCW 9.94A.030 was subsequently amended by 2010 c

224 § 1 and by 2010 c 274 § 401, changing subsection (34) to subsection (35).” RCW 9.94A.507

(Reviser’s note (1)) (emphasis added). This portion of the reviser’s note is incorrect because it

does not account for both of the 2010 amendments to former RCW 9.94A.030 (2010), which,

combined, resulted in “[p]ersistent offender” being defined in subsection (36), rather than

subsection (35). This error resulted in a citation to the “‘[p]attern of criminal street gang activity’”

subsection. Former RCW 9.94A.030(35) (2010). The code reviser repeated this error in its later

reviser’s notes.

                                       E. 2011 AMENDMENTS

       The legislature amended former RCW 9.94A.030 (2010) twice in 2011. In Laws of 2011,

ch. 87, § 2, the legislature amended former RCW 9.94A.030 (2010), and all four 2010 session

laws. This amendment added a new definition (“[h]omelessness”) and, accordingly, renumbered

the “[p]ersistent offender” definition section from (36) to (37).

       In Laws of 2011, Spec. Sess., ch. 40, § 8, the legislature amended former RCW 9.94A.030

(2010) without reference to the other 2011 amendment. This amendment did not change the

“[p]ersistent offender” section’s number, which was defined in subsection (36).

       Accounting for the combined effect of the 2011 amendments, the 2011 printed statute

incorporated both 2011 amendments and defined “[p]ersistent offender” in subsection (37).

Former RCW 9.94A.030 (2011).

                        F. 2012 AMENDMENTS AND CODE REVISER’S NOTE

       The legislature amended former RCW 9.94A.030 (2011) only once in 2012. LAWS OF

2012, ch. 143, § 1. This amendment did not change the “[p]ersistent offender” subsection, which


                                                  10
No. 48890-6-II


remained subsection (37). The published 2012 statute defined “[p]ersistent offender” in subsection

(37). Former RCW 9.94A.030(37) (2012). This is the version of the statute that applies to Martell.

       Accounting for both the 2011 and 2012 amendments, the 2012 code reviser’s note on RCW

9.94A.507 now provided,

       (1) The reference to RCW 9.94A.030(31)(b) was apparently in error. The
       reference should be to RCW 9.94A.030(34)(b). RCW 9.94A.030 was subsequently
       amended by 2010 c 224 § 1 and by 2010 c 274 § 401, changing subsection (34) to
       subsection (35). RCW 9.94A.030 was subsequently amended by 2011 c 87 § 2,
       changing subsection (35) to subsection (36).

Former RCW 9.94A.030(36) (2012) defined “[p]attern of criminal street gang activity” and

subsection (37) defined “[p]ersistent offender.”

                                        III. APPLICATION

       When Martell committed his offense, the sex offender indeterminate sentencing provision

provided,

       An offender who is not a persistent offender shall be sentenced under this section
       if the offender:
                ....
                (b) Has a prior conviction for an offense listed in *RCW 9.94A.030(31)(b),
       and is convicted of any sex offense other than failure to register.

RCW 9.94A.507(1) (emphasis added). The accompanying code reviser note stated in part,

       *(1) The reference to RCW 9.94A.030(31)(b) was apparently in error. The
       reference should be to RCW 9.94A.030(34)(b). RCW 9.94A.030 was subsequently
       amended by 2010 c 224 § 1 and by 2010 c 274 § 401, changing subsection (34) to
       subsection (35). RCW 9.94A.030 was subsequently amended by 2011 c 87 § 2,
       changing subsection (35) to subsection (36).




                                                   11
No. 48890-6-II


RCW 9.94A.507 (Reviser’s note).11

          Although the code reviser’s note attempts to trace the evolution of RCW 9.94A.030 from

2001 to 2012, as required by RCW 1.12.028, it is incorrect. As noted above, the code reviser failed

to take into account two amendments to former RCW 9.94A.030 (2009) in 2010. The correct

citation following the 2010 amendments was to subsection (36), not subsection (35) as the code

reviser’s note states. The subsequent code reviser comments continued this error.

          As discussed above, tracking the subsequent amendments to former RCW

9.94A.030(31)(b) (2008), as required by RCW 1.12.028, the citation at the time of Martell’s

offense should have been to former RCW 9.94A.030(37) (2012).12 Accordingly, to be subject to

RCW 9.94A.507(1)(b), Martell had to have a prior conviction for an offense listed under former

RCW 9.94A.030(37)(b) (2012), the definition of “[p]ersistent offender.” Martell stipulated to two

such prior offenses, a first degree rape of a child conviction and a first degree child molestation

conviction. Former RCW 9.94A.030(37) (2012). Thus, the trial court did not err when it

concluded that Martell was subject to an indeterminate sentence.




11
  The code reviser added the following additional sentence to its note after the legislature amended
the statute again in 2015: “RCW 9.94A.030 was subsequently amended by 2015 c 287 § 1,
changing subsection (36) to subsection (37).” See RCW 9.94A.570 (Reviser’s note). That portion
of the reviser’s note is irrelevant here because the crime was completed before the effective date
of the 2015 amendment.
12
     “Persistent offender” is currently defined in RCW 9.94A.030(38).
                                                    12
No. 48890-6-II


      We affirm.



                        JOHANSON, J.
 We concur:



MAXA, A.C.J.




LEE, J.




                   13
