STATE v. WUBALEM, 132 Wn. App. 1047 (2006)

No. 55465-4-I.The Court of Appeals of Washington, Division One.
May 1, 2006.

Appeal from a judgment of the Superior Court for King County, No. 00-1-04297-0, Steven C. Gonzalez, J., entered December 20, 2004.

Affirmed by unpublished per curiam opinion.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.

Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor’s Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.

PER CURIAM.

This case presents the question of whether the 2003 amendments to the Sentencing Reform Act of 1981 (SRA) apply to every criminal defendant who has not been sentenced until after the amendments’ effective date or to only those defendants who committed their crimes after that date. After carefully reviewing the statutory language, we hold that the 2003 amendments cannot be given retroactive effect. Since Yohannis Wubalem committed his crime before the date the 2003 amendments took effect, the sentencing court did not err in failing to apply them in calculating Wubalem’s offender score. Accordingly, we affirm.

FACTS
On April 19, 2000, police searched a residence occupied by Wubalem and found a quantity of crack cocaine and $880 in cash. Wubalem was tried and convicted of possession with intent to deliver cocaine in October 2000 and was sentenced in December 2004.[1] Using the law in effect at the time of Wubalem’s drug offense, the trial court imposed a standard range sentence of 45 months. This appeal followed.

ANALYSIS
Wubalem contends that the trial court should have retroactively applied recent amendments to the SRA. In 2002, the Legislature amended the SRA, creating a new sentencing grid for drug offenses, which was to take effect July 1, 2004, and apply to crimes committed after that date. In 2003, additional legislation provided that the new sentencing grid for drug offenders was to take effect July 1, 2003. Wubalem contends that the language of the 2003 amendments shows that the Legislature intended the new drug offender sentencing grid to apply retroactively. Thus, Wubalem argues his sentence should be reversed and remanded “for resentening pursuant to the amended drug offense sentencing grid, with a standard sentencing range of 12+ to 20 months.”[2] We disagree.

In enacting the 2002 amendments, the Legislature provided that the new sentencing grid was to apply to “crimes committed on or after July 1, 2004.” Laws of 2002, ch. 290, sec. 31. The 2002 amendments do not apply retroactively. State v. Ross, 152 Wn.2d 220, 237, 95 P.3d 1225 (2004); State v. McCarthy, 112 Wn. App. 231, 236-37, 48 P.3d 1014 (2002). In enacting the 2003 amendments, the Legislature announced that the amendments were “necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions” and provided that the sentencing grid was to “take effect July 1, 2003.” Laws of 2003, ch. 379, sec. 29. Wubalem argues that the different language used in 2003 shows that the Legislature intended for the 2003 amendments to apply retroactively. However, we do not find this minor change in language significant.

In RCW 9.94A.345,[3] the Legislature has expressed a general intent for prospective application of amendments to the SRA. State v. Kane, 101 Wn. App. 607, 618, 5 P.3d 741 (2000). Moreover, under Washington’s saving statute, RCW 10.01.040,[4] a statutory amendment is presumed prospective in application. Kane, 101 Wn. App. at 610. And while the saving statute, being in derogation of the common law, is strictly construed, if a statutory amendment is silent as to intent for retroactive application, it will be given prospective application only. Kane, 101 Wn. App. at 613. “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. McCarthy, 112 Wn. App. at 238 n. 20 (quoting Kane, Wn. App. at 617).

“When a new statute repeals or amends a statute governed by the saving statute, it will be given prospective application even if it is patently remedial, unless it contains words that fairly convey a different intention.” Kane, 101 Wn. App. at 615.

In Kane, the trial court sentenced Kane based on an amendment to the DOSA eligibility requirements that took effect after he committed his crime. Kane, 101 Wn. App at 609. This court reversed because the statute contained “no language that even remotely suggests an intention to make the amended eligibility criteria available in cases arising before the effective date.” Kane, 101 Wn. App. at 614. The court rejected Kane’s attempt to demonstrate a contrary intent with legislative history because “the issue is whether the new statute’s express language shows that the Legislature intended to depart from the presumption created by the saving statute.” Kane, 101 Wn. App. at 614.

As Kane made clear, the question is whether the “new statute’s express language” demonstrates a legislative intent to depart from the saving statute’s presumption. Kane, 101 Wn. App. at 614. Although the exception to the saving statute is to be interpreted broadly, the words “expressly declared” must be given some meaning. As in Kane, the 2003 amendments at issue here contain no language that suggests an intention to apply the new drug offense sentencing grid to cases arising before the effective date.

Wubalem emphasizes the Legislature’s use of the word “immediate” in arguing that it intended retroactive application of the amendments. But “immediate” does not mean “retroactive,” and the phrase “necessary for the immediate preservation” is not express language mandating a departure from the saving statute. Even though the amendments state that they are “necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions,” they did not take effect immediately. Rather, the 2003 amendments expressly set the effective date of July 1, 2003. The trial court did not err in sentencing Wubalem under the sentencing laws in effect at the time of his drug offense.

Affirmed.

COLEMAN, GROSSE and COX, JJ., concur.