STATE v. McMILLER, 48221-1-I (Wash.App. 6-3-2002)

STATE OF WASHINGTON, Respondent, v. ANTHONY McMILLER, Appellant.

No. 48221-1-IThe Court of Appeals of Washington, Division One.
Filed: June 3, 2002 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County, No. 001107427, Hon. Stephen G. Scott, February 27, 2001, Judgment or order under review.

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

Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Deborah A. Dwyer, King County Prosecutors Office, Appellate Unit, 1850 Key Tower 700 5th Av, Seattle, WA 98104-2312.

PER CURIAM.

At sentencing on Anthony McMiller’s conviction for solicitation to deliver cocaine, a dispute arose as to whether his prior drug offenses should be scored as one or three points. Relying on this court’s decision in State v. Howell,[1] the court scored the offenses as three points each. McMiller appeals his sentence, arguing that Howell conflicts with several published decisions and was wrongly decided. In a supplemental brief, he argues that a recent amendment to the pertinent scoring statute is retroactive and requires that his prior conviction be counted as one point. We affirm.

FACTS
McMiller pleaded guilty to one count of solicitation to deliver cocaine. At sentencing, the parties disagreed on how to score his prior convictions for solicitation to deliver cocaine and delivery of a substance in lieu of a controlled substance. Citing Howell and the scoring provisions of RCW 9.94A.360, the State argued that each prior conviction should count as three points. McMiller maintained that Howell conflicts with our Supreme Court’s decision in In re Hopkins.[2] The sentencing court followed Howell and scored the prior drug convictions as three points apiece. Based on an offender score of eight, the court imposed a sentence of 60 months.

DECISION
The sole issue on appeal is whether the sentencing court erred in counting McMiller’s prior drug convictions as three points each. We review the court’s scoring decision de novo.[3]

The issue presented turns on the meaning of several statutes we interpreted in Howell. RCW 9.94A.360(12) directs that when the “present conviction is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense.” (Emphasis added). When the present conviction “is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense.” RCW 9.94A.360(6) (emphasis added); see also former RCW 9.94A.410.[4] Similarly, if the prior convictions are for felony anticipatory offenses, they are scored “the same as if they were convictions for completed offenses.” RCW 9.94A.360(4); see also former RCW 9.94A.410. McMiller contends his current conviction for solicitation to deliver is not a “drug offense,” and therefore the tripling statute, RCW 9.94A.360(12), does not apply. We addressed and rejected the same argument in Howell.

Like McMiller, the defendants in Howell pleaded guilty to solicitation to deliver cocaine.[5] They argued, as McMiller does here, that their prior drug convictions should be scored as one point, not three, because their current offenses were not “drug offenses.” Noting that a “drug offense” is defined as a “felony violation of [RCW] 69.50,”[6] they pointed to the holding in Hopkins that, for purposes of the doubling requirement in RCW 69.50.408(a), a conviction for solicitation to deliver was not a “drug offense” under RCW 69.50.[7] If solicitation was not a “drug offense” under RCW 69.50, they reasoned, then it was not a “drug offense” under RCW 9.94A.360(12) for the purpose of triple scoring a prior drug offense. They also argued that RCW 9.94A.360(12) conflicts with RCW 9.94A.360(6) and that the resulting ambiguity required application of the rule of lenity.

In rejecting those arguments, we first distinguished Hopkins, noting that it only addressed whether solicitation to deliver is a drug offense under RCW 69.50.[8] We then stated:

RCW 9.94A.360(6) provides that where the present offense is for an anticipatory crime, each prior conviction should be treated as if the present conviction were for the completed offense. In this case, the defendants’ conviction for the solicitation of delivery of cocaine should be treated as a delivery of cocaine offense which is a drug offense under chapter 69.50 RCW. Therefore, the defendants’ prior felony drug convictions each count three points. RCW 9.94A.360(12).

We hold that RCW 9.94A.360(6) and (12) plainly establish the defendant’s prior drug offenses count as three points . . . . The plain language of the statute is not ambiguous. We need not apply the rule of lenity or inquire into the statute’s legislative history.[9]

McMiller challenges Howell’s conclusion that the scoring statutes are unambiguous, arguing that they are subject to more than one reasonable interpretation. But he offers no alternative explanation that would give effect to RCW 9.94A.360(6) and former 9.94A.410. We adhere to our holding in Howell.

We also reject McMiller’s contention that Howell conflicts with Hopkins. As we pointed out in Howell, Hopkins involved RCW 69.50.408(a), a part of the Uniform Controlled Substances Act. Howell addressed a completely different issue under the SRA scoring rules in RCW 9.94A.360.

McMiller argues that Howell also conflicts with this court’s decision in State v. Becker.[10] He points out that in resolving an analogous statutory conflict, the Becker court considered the comments of the Sentencing Guidelines Commission and applied a rule of statutory construction. Because Howell did not consider the Commission’s comments or apply the rule of construction, McMiller contends it conflicts with Becker. But Becker mentioned those aids in an alternative analysis that assumed the statutes could not be harmonized.[11] As discussed above, the statutes at issue in Howell can be harmonized. Becker and Howell do not conflict.

Finally, McMiller contends in a supplemental filing that a 2002 amendment[12] to the tripling provision in RCW 9.94A.525(12) is remedial and applies retroactively.[13] But absent language indicating a contrary intent, an amendment to a penal statute — even a patently remedial one — must apply prospectively under RCW 10.01.040.[14] The amendment at issue expressly states that it “applies to crimes committed on or after July 1, 2002.”[15] Nothing in the amendment suggests that the Legislature intended the statute to apply retroactively. Accordingly, the amendment applies prospectively only.

Contrary to McMiller’s assertions, this result does not violate equal protection. Although equal protection problems may arise when a law is applied retroactively to some persons but not to others,[16] equal protection is generally not implicated by the prospective application of a new law.[17] In addressing equal protection challenges to new criminal sentencing laws, courts have typically applied a rational basis standard and have had little trouble finding rational bases for applying such laws prospectively only.[18] Here, the interests of finality and the principles underlying our saving statute, RCW 10.01.040, provide a rational basis for the prospective application of the challenged amendment.[19]

McMiller’s claim that Grant County Fire Protection District No. 5 v. City of Moses Lake, 145 Wn.2d 702, 42 P.3d 394 (2002), requires heightened scrutiny in this case is meritless. In that case, the majority held that our state constitution provides greater protection than the federal equal protection clause “when the threat is not of majoritarian tyranny but of a special benefit to a minority and when the issue concerns favoritism rather than discrimination.” 42 P.3d at 408. The amendment at issue here does not confer a “special benefit” to a minority or amount to favoritism. It is simply a change in the law that applies equally to those who commit crimes after its effective date. Furthermore, the level of scrutiny applied in Grant County is not applicable here because no fundamental right is at stake.[20]

Affirmed.

[1] State v. Howell, 102 Wn. App. 288, 6 P.3d 1201 (2000).
[2] In re Personal Restraint of Hopkins, 137 Wn.2d 897, 976 P.2d 616
(1999).
[3] “The question of whether a sentencing court has miscalculated the defendant’s offender score is a question of law that is reviewed de novo.” Howell, 102 Wn. App. at 292.
[4] Former RCW 9.94A.410, effective through July 1, 2001, provided that anticipatory offenses should be scored by counting “each prior conviction as if the present conviction were for the completed offense”.
[5] Howell, 102 Wn. App. at 288.
[6] RCW 9.94A.030(19).
[7] Hopkins, 137 Wn.2d at 901.
[8] Howell, 102 Wn. App. at 294.
[9] Howell, 102 Wn. App. at 295.
[10] State v. Becker, 59 Wn. App. 848, 801 P.2d 1015 (1990).
[11] Becker, 59 Wn. App. at 852-54. The rule of construction mentioned in Becker applies only when an apparent conflict between statutes cannot be harmonized. Becker, 59 Wn. App. at 852; see also In re Estate of Kerr, 134 Wn.2d 328, 335, 343, 949 P.2d 810 (1998).
[12] S.S.H.B. 2338, 57th Leg., Reg. Sess. (Wash. 2002).
[13] We grant McMiller’s request for permission to file the supplemental brief but deny his motion for oral argument.
[14] State v. Kane, 101 Wn. App. 607, 610-15, 5 P.3d 741 (2000). RCW 10.01.040 provides in pertinent part, “Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act . . . .”
[15] S.S.H.B. 2338 sec. 29.
[16] See Powell v. Ducharme, 998 F.2d 710, 716 (9th Cir. 1993).
[17] In re Stanphill, 134 Wn.2d 165, 175, 949 P.2d 365 (1998) (equal protection is not violated “merely because the Legislature changed the standard sentencing range for a crime” or “changed its view of criminal punishment which resulted in offenders being subject to different punishment schemes.”); Fuller v. State, Dep’t of Retirement Systems, 106 Wn.2d 822, 825, 725 P.2d 972 (1986) (equal protection not violated by prospective amendment adding retirement benefits for public employees) Reedy v. Reedy, 12 Wn. App. 844, 532 P.2d 626 (1975) (prospective statute lowering age of majority did not violate equal protection clauses); see also 16B C.J.S. Constitutional Law § 777 (1985) (“[A] reduction of sentences only prospectively . . . is not a denial of equal protection.”); Sperry Hutchinson Co. v. Rhodes, 220 U.S. 502, 505, 31 S.Ct. 490, 491, 55 L.Ed. 561, 563 (1911) (“[T]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.”).
[18] See generally McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991) (“‘There is no denial of equal protection in having persons sentenced under one system for crimes committed before July 1, 1984 and another class of prisoners sentenced under a different system. The standard is of a rational relation to governmental purpose. Improvement in sentencing is a rational governmental purpose.” Citations omitted.) In re Moreno, 58 Cal.App.3d 740, 130 Cal.Rptr. 78, 81 (1976) (prospective operation of sentencing statutes serves legitimate purpose of maintaining deterrent effect of laws by carrying out the original prescribed punishment); People v. Montoya, 647 P.2d 1203, 1206 (Colo. 1982) (fixing of punishments based on the date of offense is reasonably related to state’s interest in finality of judgments and uniformity of punishment and does not violate equal protection).
[19] One of the saving statute’s underlying principles is “that individuals should be punished in accordance with the sanctions in effect at the time the offense was committed . . . .” State v. Kane, 101 Wn. App. at 617 (quoting Holiday v. United States, 683 A.2d 61, 79
(D.C. 1996)).
[20] See Grant County, 42 P.3d at 409 (right to petition is fundamental under state constitution); State v. Manussier, 129 Wn.2d 652, 673, 921 P.2d 473 (1996) (when statute involves a physical liberty interest and does not involve a suspect class, no fundamental right is threatened); Coria, 120 Wn.2d at 170-71 (no heightened scrutiny where physical liberty alone is implicated).