STATE v. FRANCIS, 50097-0-I (Wash.App. 10-20-2003)

STATE OF WASHINGTON, Respondent, v. JOSHUA DeWAYNE FRANCIS, Appellant.

No. 50097-0-IThe Court of Appeals of Washington, Division One.
Filed: October 20, 2003 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 01-1-09587-7 Judgment or order under review Date filed: 01/08/2002

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Cheryl D Aza, WA Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Joshua Dewayne Francis (Appearing Pro Se), Washington Corrections Center #822671, P.O. Box 900, Shelton, WA 98584.

Counsel for Respondent(s), Rebecca Mara Vasquez, Attorney at Law, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

AGID, J.

Joshua Francis appeals the sentence imposed following his guilty plea to one count of delivery of cocaine. He asks us to reconsider our decision in State v. McCarthy, where we held that recent amendments to certain sentencing statutes are not retroactive.[1] He also contends, and the State concedes, that the judgment and sentence must be amended to correct a clerical error. We adhere to our holding in McCarthy, but remand for correction of the judgment and sentence.

DECISION
Francis first contends we should give retroactive effect to recent amendments that would reduce his offender score and standard range. In State v. McCarthy,[2] we followed State v. Kane[3] and refused to give retroactive effect to those amendments. Francis contends McCarthy should be reconsidered in light of three Supreme Court cases it did not expressly discuss: State v. Heath,[4] State v. Grant,[5] and State v. Wiley.[6] Heath and Grant, however, were thoroughly considered and distinguished in Kane.[7] As for State v. Wiley, Francis focuses on the Supreme Court’s statement that legislative downgrading of a crime based on the determination that the conduct is less culpable will ordinarily be given retroactive effect.[8] But this language, arguably dicta, is unhelpful because Wiley did not consider RCW 10.01.040, the statute that controlled in Kane[9] and McCarthy. Moreover, Wiley’s comments about retroactivity are based only upon pre-2000 versions of the SRA.[10] In 2000, the Legislature clarified its intent by enacting RCW 9.94A.345: `Any sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was committed.’[11]
Even without considering RCW 10.01.040 or RCW 9.94A.345, Francis’ reliance on Wiley is misplaced because the amendments in this case do not reflect a legislative determination that the offenses are less culpable.[12] Rather, the Legislature found that substance abuse remains a serious societal problem and enacted a scheme aimed at more efficiently employing treatment and incarceration to minimize recidivism.[13]
Francis also argues that applying the amendments prospectively only violates equal protection and the holding in Grant County Fire Protection District No. 5 v. City of Moses Lake.[14] We rejected this argument in McCarthy.[15] Francis has shown no infirmity in McCarthy, and we adhere to its holding. Francis next contends, and the State concedes, that the judgment and sentence contains a clerical error. In its oral opinion, the court imposed the mandatory $500 victim penalty assessment and stated that `all other financial obligations will be waived.’ Consistent with that ruling, the judgment states that `all nonmandatory fines and fees [are] waived,’ and that Francis’ `Total Financial Obligation’ is $500. A box on the judgment is checked, however, for imposition of a $2,000 fine `for subsequent VUCSA [.]’ Ambiguities in a court’s written decision may be clarified by resort to the court’s oral opinion.[16] It is clear from the oral opinion in this case that the $2,000 fine is a clerical error.

Francis advances several additional arguments in a pro se statement of additional grounds for review. He contends the trial court allowed the proceedings to continue beyond his speedy trial expiration date, in violation of CrR 3.3 and his right to due process. He also contends his counsel was ineffective for failing to object on this basis below. But Francis’ trial in fact commenced during the sixty-day speedy trial period.

Because the sixtieth day fell on Saturday, January 5, 2002, the expiration date was extended until the following Monday, January 7th.[17]
The trial court ruled on preliminary motions on that date and thus commenced the trial. Francis pleaded guilty the following day. There was no violation of CrR 3.3.[18] Finally, Francis cites a `Budget Reduction Message’ allegedly presented to the governor as part of a budget review process for fiscal year 2003. According to Francis, the options listed in the message included retroactive reduction of drug offender sentences. He nowhere indicates, however, whether this option ever became law or what the law says.[19] There is simply no factual or analytical support for his conclusion that the legislation, if passed, would be retroactive. We will not consider an additional ground for review if the appellant does not adequately inform us of the nature of the alleged error. RAP 10.10(c).

Affirmed.

KENNEDY and APPELWICK, JJ., concur.

[1] 112 Wn. App. 231, 48 P.3d 1014 (2002), review denied, 148 Wn.2d 1011 (2003).
[2] McCarthy, 112 Wn. App. 231.
[3] 101 Wn. App. 607, 5 P.3d 741 (2000) (under the criminal prosecution saving statute, RCW 10.01.040, 1999 amendments expanding the availability of drug offender sentencing alternative (DOSA) are not applied retroactively).
[4] 85 Wn.2d 196, 532 P.2d 621 (1975).
[5] 89 Wn.2d 678, 575 P.2d 210 (1978).
[6] 124 Wn.2d 679, 880 P.2d 983 (1994).
[7] Kane, 101 Wn. App. at 612-18.
[8] Wiley, 124 Wn.2d at 688.
[9] Kane, 101 Wn. App. at 618 (`The Legislature . . . is entitled to assume that the courts will enforce the saving statute and give prospective application to criminal and penal statutes that do not express a contrary intent.’).
[10] Wiley, 124 Wn.2d at 687 (citing State v. Johnson, 51 Wn. App. 836, 759 P.2d 459 (1988)).
[11] Laws of 2000, ch. 26, § 2.
[12] Wiley, 124 Wn.2d at 688. (`Only when the Legislature has reassessed the culpability of criminal conduct should a sentencing court give a change in law retroactive effect under the SRA.’).
[13] Laws of 2002, ch. 290, § 1; see also Wash. Sentencing Guidelines Comm’n, A Comprehensive Review and Evaluation of Sentencing Policy in Washington State, 2000-2001 (2001).
[14] 145 Wn.2d 702, 42 P.3d 394 (2002).
[15] 112 Wn. App. at 237-38.
[16] See State v. Eppens, 30 Wn. App. 119, 633 P.2d 92 (1981).
[17] CrR 8.1; CR 6(a); State v. Kelley, 64 Wn. App. 755, 757, 828 P.2d 1106 (1992).
[18] In any event, Francis expressly waived his right to a speedy trial in his statement on plea of guilty. His guilty plea thus stands as a bar to any post-plea challenge based on speedy trial rights. See State v. Wilson, 25 Wn. App. 891, 611 P.2d 1312 (1980). It also bars all ineffective assistance claims except those that go to whether the plea was voluntary, knowing, and intelligent. See In re Peters, 50 Wn. App. 702, 705, 750 P.2d 643 (1988).
[19] To the extent Francis’ argument rests on the 2002 amendments at issue in McCarthy, his argument is controlled by our decision in that case.