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FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MAY 27, 2021
SUPREME COURT, STATE OF WASHINGTON
MAY 27, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 98496-4
)
v. ) En Banc
)
ALAN D. JENKS, ) Filed :_____________
May 27, 2021
)
Petitioner.
)
)
WHITENER, J.—Alan Jenks was sentenced to life without parole under the
Persistent Offender Accountability Act (POAA), part of the Sentencing Reform Act
of 1981 (SRA), ch. 9.94A RCW. One of his strike offenses was second degree
robbery, which was removed from the list of most serious offenses in 2019.
ENGROSSED SUBSTITUTE S.B. (ESSB) 5288, 66th Leg., Reg. Sess. (Wash. 2019). The
amendment came into effect after Jenks’ conviction, when his case was pending
before the Court of Appeals. The Court of Appeals held that the amendment did not
apply to his case and upheld his sentence.
The sole question before us is whether to apply ESSB 5288 to Jenks’ case.
The State argues that it cannot apply due to RCW 9.94A.345 and RCW 10.01.040.
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State v. Jenks (Alan D.), No. 98496-4
We agree with the State and hold that ESSB 5288 does not apply to Jenks’ case.
Although this outcome is harsh, the legislature commands this result. We affirm the
decision of the Court of Appeals and uphold Jenks’ sentence.
FACTS AND PROCEDURAL HISTORY
Jenks appeals his conviction of first degree robbery, which he committed in
December 2014. The sentencing court determined that he had three strikes, and he
was sentenced to life without parole under the POAA in June 2017. One of his strikes
was second degree robbery. Two years after he was sentenced as a persistent
offender, the legislature enacted ESSB 5288, which removed second degree robbery
from the list of “most serious offenses”; it no longer counts as a strike under the
POAA. LAWS OF 2019, ch. 187, § 1(33)(o).
ESSB 5288 came into effect on July 28, 2019. Id. At that time, Jenks’ case
was pending before the Court of Appeals. State v. Jenks, 12 Wn. App. 2d 588, 590,
459 P.3d 389 (2020). Jenks argued that ESSB 5288 should apply to his case because
the amendment removed second degree robbery from the statute for “three-strike”
sentencing purposes. Id. The Court of Appeals disagreed, upholding Jenks’
persistent offender sentence to life in prison without possibility of release. Id.
2
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State v. Jenks (Alan D.), No. 98496-4
Jenks sought review in this court of that decision and other issues. We granted
review only on the issue of whether ESSB 5288, amending RCW 9.94A.030, applies
to his case. Order, No. 98496-4 (Wash. Sept. 9, 2020).1
Several amici briefs have been filed, which the State moved to strike, along
with portions of the petitioner’s supplemental brief. The motions were granted with
respect to arguments concerning the constitutionality of the POAA, arguments not
raised in the petition for review, and arguments solely raised by amici. Clerk’s Letter
Ruling, No. 98496-4 (Wash. Nov. 3, 2020). The motions to strike citations to
secondary sources and to strike discussions of racial discrimination were denied. Id.
Nevertheless, Jenks and amici do raise serious concerns about the racially
disproportionate impact of the POAA. Black defendants appear to receive life
without parole sentences at a far greater rate than white defendants. Suppl. Br. of
Pet’r at 1; Amicus Br. of King County Dep’t of Pub. Def. et al. at 8-9; Br. of Amici
Curiae Fred T. Korematsu Ctr. for Law & Equality et al. at 5. Indeed, the legislature
itself acknowledged this in drafting ESSB 5288, noting that “[t]here is racial
disparity in how the persistent offender statute is enforced. Four percent of the
population [of Washington] is African American yet a disproportionate number have
1
Jenks believes that we also granted review of his argument that the POAA violates equal
protection because it does not require proof of prior offenses to a jury beyond a reasonable
doubt, while, in other circumstances, such proof is necessary. Pet. for Review at 1-3.We
did not. We granted review only on the “persistent offender sentence issue.” Order, No.
98496-4 (emphasis added).
3
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State v. Jenks (Alan D.), No. 98496-4
been convicted as persistent offenders.” S.B. REP. ON S.B. 5288, 66th Leg., Reg. Sess.
(Wash. 2019). However, these issues are not before the court, as noted above. Such
constitutional consideration must await the appropriate case, and Jenks’ case must
await a legislative fix. 2
STANDARD OF REVIEW
A sentencing court’s decision to consider a prior conviction as a strike is
reviewed de novo. State v. Thiefault, 160 Wn.2d 409, 414,
158 P.3d 580 (2007). This
case primarily involves questions of statutory interpretation; such questions are also
subject to de novo review. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d
1, 9,
43 P.3d 4 (2002).
ANALYSIS
In Washington, “‘the fixing of legal punishments for criminal offenses is a
legislative function.’” State v. Hughes, 154 Wn.2d 118, 149,
110 P.3d 192 (2005),
(quoting State v. Ammons, 105 Wn.2d 175, 180,
713 P.2d 719 (1986)), abrogated
2
That legislative fix has arrived, with the signing of Engrossed Senate Bill 5164 into law
on April 26, 2021. See ENGROSSED S.B. 5164, 67th Leg., Reg. Sess. (Wash. 2021)
(http://lawfilesext.leg.wa.gov/biennium/2021-
22/Pdf/Bills/Session/%20Laws/Senate/5164.SL.pdf?q=20210513094734). This bill
provides Jenks with exactly the relief he wants: it mandates resentencing for those
sentenced to life without parole as persistent offenders for those whose strike offenses
include second degree robbery, and it requires that the resentencing be conducted as if
second degree robbery is not a strike. Id. When effective on July 25, 2021, this new law
will grant Jenks exactly what he requested of us: resentencing as if second degree robbery
is not a strike offense.
4
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State v. Jenks (Alan D.), No. 98496-4
on other grounds by Washington v. Recuenco, 548 U.S. 212,
126 S. Ct. 2546,
165
L. Ed. 2d 466 (2006). It is therefore “‘the function of the legislature and not of the
judiciary to alter the sentencing process.’” Id. (internal quotation marks omitted)
(quoting Ammons, 105 Wn.2d at 180). Two statutes regarding legislative
commandments for punishment are implicated by this case: RCW 9.94A.345 and
RCW 10.01.040.
These statutes control the result of amendments to penal statutes in
Washington. At common law, the rule was that where “a statute is repealed, it is, as
regards its operative effect, considered as if it had never existed, except as to matters
and transactions past and closed, and all pending litigation must be decided
according to the state of the law at the time of the decision.” State v. Zornes, 78
Wn.2d 9, 12,
475 P.2d 109 (1970) (plurality opinion), overruled on other grounds
by United States v. Batchelder, 442 U.S. 114,
99 S. Ct. 2198,
60 L. Ed. 755 (1979).
But the legislature changed that, first, over a century ago with RCW 10.01.040 and,
again, decades ago with RCW 9.94A.345. Under these statutes—as discussed in
more detail below—sentences imposed under the SRA are generally meted out in
accordance with the law in effect at the time of the offense. See RCW 9.94A.345;
RCW 10.01.040.
Today, we consider ESSB 5288 in light of RCW 9.94A.345 and RCW
10.01.040. ESSB 5288 came into effect in July 2019, while Jenks’ case was pending
5
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State v. Jenks (Alan D.), No. 98496-4
on appeal. LAWS OF 2019, ch. 187. As a statute, ESSB 5288 is construed based on
its plain language, including that of related enactments; if unambiguous, its plain
language provides the beginning and the end of the analysis. Campbell & Gwinn,
146 Wn.2d at 9-12. “Language is unambiguous when it is not susceptible to two or
more interpretations.” State v. Delgado, 148 Wn.2d 723, 726,
63 P.3d 792 (2003).
ESSB 5288 is unambiguous. The legislature describes the statute as “AN ACT
Relating to removing robbery in the second degree from the list of offenses that
qualify an individual as a persistent offender; and amending RCW 9.94A.030.”
ESSB 5288, LAWS OF 2019, ch. 187 pmbl. The amendment removed “[r]obbery in
the second degree” from the list of most serious offenses. LAWS OF 2019, ch. 187, §
1(33)(o). RCW 9.94A.030 was otherwise unchanged. Its effects are clear: it simply
removes second degree robbery from the list of most serious offenses. While the
legislature contemplated making this change retroactive, such that those previously
sentenced to life without parole due to a second degree robbery strike could obtain
resentencing, this provision was removed from the legislation before the bill was
enacted. See Amend. 5288-S AMS PADD S2657.1 to ESSB 5288, at 1, 66th Leg.,
Reg. Sess. (Wash. 2019). Therefore, this change does not apply to Jenks’ case due
to the operation of RCW 9.94A.345 and RCW 10.01.040. The enactments of the
legislature demand this result.
6
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State v. Jenks (Alan D.), No. 98496-4
I. Both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be
sentenced under the statutory scheme in effect at the time of his offense,
not the amendment found in ESSB 5288
A. RCW 9.94A.345 precludes the application of ESSB 5288 to Jenks’
case
RCW 9.94A.345 commands, “Any sentence imposed under this chapter shall
be determined in accordance with the law in effect when the current offense was
committed.” (Emphasis added.) This plain language is unambiguous. See Delgado,
148 Wn.2d at 726-27 (“Language is unambiguous when it is not susceptible to two
or more interpretations.”). RCW 9.94A.345 clearly commands that sentences
imposed under “this chapter”—the SRA—be imposed under the law in effect at the
time of the crime. We have repeatedly invoked RCW 9.94A.345 for just this
purpose. See, e.g., State v. Medina, 180 Wn.2d 282, 287,
324 P.3d 682 (2014) (citing
RCW 9.94A.345 for the proposition that “a defendant must be sentenced in
accordance with the law in effect at the time of his or her offense”); In re Pers.
Restraint of Carrier, 173 Wn.2d 791, 808-09,
272 P.3d 209 (2012) (same).
RCW 9.94A.345 thus applies straightforwardly to this case. Jenks’ current
offense was first degree robbery, committed in December 2014. At that time—as
now—Jenks’ sentence as a persistent offender occurred under chapter 9.94A RCW;
thus, RCW 9.94A.345 applies to his sentence. See former RCW 9.94A.030(37)
(2012) (defining “persistent offender”); RCW 9.94A.570 (sentences for persistent
offenders). The law in effect at that time, former RCW 9.94A.030(32)(o) (2012),
7
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State v. Jenks (Alan D.), No. 98496-4
listed second degree robbery a most serious offense. Therefore former RCW
9.94A.030(32)(o) applies, not ESSB 5288.
Under former RCW 9.94A.030(32)(o), Jenks had three strikes: one conviction
for second degree robbery (at issue here) as well as two convictions for first degree
robbery, including his current offense. Clerk’s Papers at 114. His conviction
mandated a life without parole sentence as a persistent offender. See former RCW
9.94A.030(37); RCW 9.94A.570. Even though RCW 9.94A.030 was later amended,
that does not assist Jenks because RCW 9.94A.345 commands sentencers to look to
the law in effect at the time of the crime.
Jenks argues that RCW 9.94A.345 does not apply because the legislature’s
statement of intent, included in the Laws of 2000, chapter 26—which enacted RCW
9.94A.345—prevents its application here. This statement of intent reads, in full:
This act is intended to cure any ambiguity that might have led to the
Washington supreme court’s decision in State v. Cruz, Cause No.
67147-8 (October 7, 1999). A decision as to whether a prior conviction
shall be included in an individual’s offender score should be determined
by the law in effect on the day the current offense was committed. This
act is also intended to clarify the applicability of statutes creating new
sentencing alternatives or modifying the availability of existing
alternatives.
LAWS OF 2000, ch. 26, § 1. Jenks argues that RCW 9.94A.345 therefore “is meant to
apply only to the calculation of the offender score and the determination of eligibility
for sentence alternatives.” Pet. for Review at 11 (emphasis added).
8
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State v. Jenks (Alan D.), No. 98496-4
We do not adopt Jenks’ reading of this statement of intent. The statement of
intent made express only one purpose, and one of the effects, of the statute—nothing
more. See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682,
80 P.3d 598
(2003) (“[A] court must not add words where the legislature has chosen not to
include them.”). The word “only” is not found in the statement of intent: it thus does
not limit the reach of RCW 9.94A.345 to the statement of intent. To the extent this
statement of intent is perceived to add any ambiguity to the application of RCW
9.94A.345, that ambiguity is cured by looking to other legislative enactments
regarding the SRA. The legislature has also said—in an analogous statement of
intent in another amendment to RCW 9.94A.030—that “each time the legislature
has amended the [SRA], the legislature intended that an offender’s criminal history
. . . be determined using the statutory provisions that were in effect on the day the
current offense was committed.” LAWS OF 2002, ch. 107, § 1. This makes clear that
RCW 9.94A.345 applies to situations like the one before us today.
Indeed, we have not interpreted the statement of intent as limiting the reach
of RCW 9.94A.345. We have instead applied RCW 9.94A.345 to various issues
relating to sentencing, not only those described in the statement of intent. See, e.g.,
Medina, 180 Wn.2d at 287 (applying RCW 9.94A.345 to determine what laws
governed “credit for time served” at the time of the offense).
9
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State v. Jenks (Alan D.), No. 98496-4
Jenks makes contrary claims. In his briefing, Jenks argues that in State v.
Pillatos, 159 Wn.2d 459,
150 P.3d 1130 (2007), we “relied on that very statement
of limited intent to conclude RCW 9.94A.345 did not prevent application of new
sentencing statutes to crimes committed long before their enactment.” Suppl. Br. of
Pet’r at 19-20 (citing Pillatos, 159 Wn.2d at 472-73). But Pillatos is better
distinguished than followed. In Pillatos, we dealt with whether a new statute, which
gave juries the responsibility of finding facts that could justify a sentence above the
standard range, could be applied to defendants who had committed crimes before
the enactment of the statute but who were tried afterward. 159 Wn.2d at 465. We
held that RCW 9.94A.345 did not bar the application of the new statute. Id. at 472-
73. We discussed how the “legislature’s express intent” in enacting RCW 9.94A.345
“was to overrule [State v.] Cruz[, 139 Wn.2d 186,
985 P.2d 384 (1999)], at least
prospectively, and make clear that defendants had no vested rights in prior, more
lenient, offender score calculation statutes.” Id. But immediately after discussing this
legislative intent, we stated:
In this case, both past and present law allows for exceptional
sentencing. The “law in effect when the current offense was
committed,” reasonably read, includes the possibility of exceptional
sentences, and the change in procedures does not violate the letter or
purpose of RCW 9.94A.345.
Id. at 473 (emphasis added).
10
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State v. Jenks (Alan D.), No. 98496-4
Here, by contrast, applying the amendment would directly “violate the
letter . . . of RCW 9.94A.345” because it would lead to Jenks’ being sentenced under
a law other than that which was in effect at the time of the crime. Id. And unlike in
Pillatos, the law in existence at the time of Jenks’ offense could not contemplate the
possibility that second degree robbery would not be a most serious offense. If the
law in effect at the time could include the possibility of being repealed, then RCW
9.94A.345 would be read out of existence—an impermissible result. See State v.
J.P., 149 Wn.2d 444, 450,
69 P.3d 318 (2003) (“‘Statutes must be interpreted and
construed so that all the language used is given effect, with no portion rendered
meaningless or superfluous.’” (internal quotation marks omitted) (quoting Davis v.
Dep’t of Licensing, 137 Wn.2d 957, 963,
977 P.2d 554 (1999))).3
Additionally, Jenks argued at oral argument that RCW 9.94A.345 is in
derogation of the common law and thus must be strictly construed. Wash. Supreme
Court oral argument, State v. Jenks, No. 98496-4 (Nov. 17, 2020), at 5 min., 00 sec.,
video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org. But strict construction would not help Jenks, as it cannot limit
3
At oral argument, Jenks went further, asserting that in Pillatos we held that the RCW
9.94A.345 controls only the situations discussed in its statement of intent. Wash.
Supreme Court oral argument, State v. Jenks, No. 98496-4 (Nov. 17, 2020), at 40
min, 4 sec., video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org. As the above discussion indicates, Pillatos contains no such holding.
159 Wn.2d at 472-73.
11
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State v. Jenks (Alan D.), No. 98496-4
the statute to its statement of intent, despite Jenks’ arguments to the contrary. See id.
“Strict construction requires that, ‘given a choice between a narrow, restrictive
construction and a broad, more liberal interpretation, we must choose the first
option.’” In re Det. of Hawkins, 169 Wn.2d 796, 801,
238 P.3d 1175 (2010) (quoting
Pac. Nw. Annual Conference of United Methodist Church v. Walla Walla County,
82 Wn.2d 138, 141,
508 P.2d 1361 (1973)). A strict construction is therefore not one
that runs counter to the text of the statute, see id.—which is precisely Jenks’ request.
Indeed, it would not narrow but, instead, delete the language of RCW 9.94A.345 to
limit its reach to the few situations discussed in its statement of intent.
In sum, RCW 9.94A.345 applies, precluding the application of ESSB 5288 to
Jenks’ case.
B. RCW 10.01.040 also precludes application of ESSB 5288 here
The saving clause statute, RCW 10.01.040, also applies. The relevant portion
of RCW 10.01.040 reads:
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, and every such
amendatory or repealing statute shall be so construed as to save all
criminal and penal proceedings, and proceedings to recover forfeitures,
pending at the time of its enactment, unless a contrary intention is
expressly declared therein.
12
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State v. Jenks (Alan D.), No. 98496-4
The saving clause created by this statute “‘is deemed a part of every repealing
statute as if expressly inserted therein, and hence renders unnecessary the
incorporation of an individual saving clause in each statute which amends or repeals
an existing penal statute.’” State v. Ross, 152 Wn.2d 220, 237,
95 P.3d 1225 (2004)
(quoting State v. Hanlen, 193 Wash. 494, 497,
76 P.2d 316 (1938)).
Jenks’ case presents us with precisely the situation contemplated by RCW
10.01.040. Jenks committed his crime when the former RCW 9.94A.030(32)(o)
(2012) “was in force,” and subsequently that “penal statute” was “repealed,”
meaning that his crime should be “punished . . . as if [that statute] were in force.”
RCW 10.01.040. Thus RCW 10.01.040 requires that Jenks be sentenced under the
regime that existed prior to ESSB 5288. As discussed above, under the prior
sentencing regime, second degree robbery was a most serious offense, Jenks had
three strikes, and therefore his third conviction resulted in life without parole. See
discussion supra pp. 6-7.
“To avoid application of the savings clause, we have not required that the
legislature explicitly state its intent that amendments repealing portions of criminal
and penal statutes apply retroactively to pending prosecutions for crimes committed
before the amendments’ effective date. Instead, ‘such intent need only be expressed
in words that fairly convey that intention.’” Ross, 152 Wn.2d at 238 (internal
quotation marks omitted) (quoting State v. Kane, 101 Wn. App. 607, 612,
5 P.3d 741
13
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State v. Jenks (Alan D.), No. 98496-4
(2000)); see also Zornes, 78 Wn.2d at 13 (strictly construing RCW 10.01.040 in this
manner because it is in derogation of the common law).That said, ESSB 5288’s
language does not fairly convey intent to exclude the saving clause. As noted above,
the legislature describes the statute as “AN ACT Relating to removing robbery in
the second degree from the list of offenses that qualify an individual as a persistent
offender; and amending RCW 9.94A.030.” LAWS OF 2019, ch. 187 pmbl. That is all
that the amendment accomplishes: removing second degree robbery from the list of
most serious offenses. See id. § 1(33)(o).
This contrasts clearly with cases where we found such intent. For instance, in
Zornes, we held that the amendment excluded the saving clause because it stated
that “‘the provisions of this chapter shall not ever be applicable to any form of
cannabis.’” 78 Wn.2d at 11 (emphasis omitted) (quoting LAWS OF 1969, 1st Ex.
Sess., ch. 256). “If the provisions of the uniform narcotics act are not ‘ever’ to be
applied to cannabis,” we concluded, “they are not to be applied in any case, whether
pending or arising in the future.” Id. at 13-14.
ESSB 5288 does not contain language similar to that in Zornes, whose “not
ever” language was read as stretching backward in time. Id. ESSB 5288 simply
removes second degree robbery from the list of most serious offenses; this change
unambiguously does not convey any intent to overcome the saving clause or for the
statute to apply retroactively.
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State v. Jenks (Alan D.), No. 98496-4
Although we need not go further, legislative history only reaffirms this
conclusion. See Campbell & Gwinn, 146 Wn.2d at 12 (we turn to legislative history
when plain language does not resolve the question of statutory interpretation); see
also Barstad v. Stewart Title Guar. Co., 145 Wn.2d 528, 536-37,
39 P.3d 984 (2002)
(we may look to legislative history to determine whether the statute was intended to
be retroactive). At one point, the amendment permitted those previously sentenced
as persistent offenders to be resentenced if one of their strikes was second degree
robbery; however, the legislature removed the provision requiring resentencing
before the bill was enacted. Amend. 5288-S AMS PADD S2657.1 to ESSB 5288, at
1. While such express retroactive language would exempt a statute from the
application of RCW 10.01.040 (as well as RCW 9.94A.345), the legislature chose
not to include it. Thus, none of the legislature’s actions indicate that they intended
to overcome the application of RCW 10.01.040.
Jenks argues that the saving clause statute is not substantive and, therefore,
does not apply. RCW 10.01.040 applies only to substantive changes in the law, not
procedural ones. Pillatos, 159 Wn.2d at 472. But ESSB 5288 is substantive: we have
repeatedly made clear that changes to criminal punishments are substantive, not
procedural. See State v. Smith, 144 Wn.2d 665, 674,
30 P.3d 1245 (2001) (changing
the meaning of the term “criminal history” in the SRA was a substantive change);
15
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State v. Jenks (Alan D.), No. 98496-4
Cruz, 139 Wn.2d at 192 (holding an amendment was substantive when it dealt with
punishment rather than procedures of a criminal trial).
Pillatos provides a clear contrast, as well. There, we held that RCW 10.01.040
did not apply to what we labeled a procedural amendment to the SRA. Pillatos, 159
Wn.2d at 472. The amendment in Pillatos required juries to find facts that justified
an exceptional sentence above the standard range. Id. at 465. Unlike ESSB 5288, it
did not change the punishment for offenses or the type of punishments possible, only
the manner in which that punishment was determined. See id. Pillatos therefore does
not render ESSB 5288 procedural.
In sum, RCW 10.01.040 applies alongside RCW 9.94A.345, also preventing
the application of ESSB 5288 to Jenks’ case.
II. Jenks’ remaining arguments are unpersuasive
A. Ramirez does not control
Jenks argues that State v. Ramirez, 191 Wn.2d 732,
426 P.3d 714 (2018),
should apply to his case. Jenks’ arguments regarding Ramirez are bound up with a
prospective application argument. But ESSB 5288 does not apply prospectively to
Jenks’ case. “[A] statute applies prospectively,” rather than retroactively, “if the
precipitating event under the statute occurred after the date of enactment.” Carrier,
173 Wn.2d at 809. “To determine what event precipitates or triggers application of
the statute, we look to the subject matter regulated by the statute.” Id.
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State v. Jenks (Alan D.), No. 98496-4
ESSB 5288 regulates which prior convictions count as a most serious offense
and, thus, who qualifies as a persistent offender under the POAA. LAWS OF 2019,
ch. 187, § 1. Current and former RCW 9.94A.030(37)(a)(i) and (ii) (2012) show that
the triggering event for determining who qualifies as a persistent offender occurs
when someone has been convicted of a most serious offense and was also, in the
past, convicted of two other most serious offenses on separate occasions. Here, the
triggering event was Jenks’ 2017 conviction for first degree robbery. That occurred
before the enactment of ESSB 5288 in 2019: the amendment therefore cannot apply
prospectively to Jenks’ case.
Jenks impliedly disagrees by arguing that Ramirez controls. In Ramirez, we
considered whether an amendment to the criminal filing fee statute, House Bill
1783, 4 applied prospectively to Ramirez’s case. Ramirez, 191 Wn.2d at 748. That
provision was enacted after we granted review but before we heard the case. Id.
Relying on State v. Blank, 131 Wn.2d 230,
930 P.2d 1213 (1997), where “[w]e
concluded that the ‘precipitating event’ for a statute ‘concerning attorney fees and
costs of litigation’ was the termination of the defendant’s case,” we held that House
Bill 1783 applied prospectively to Ramirez’s case. Ramirez, 191 Wn.2d at 749
(quoting Blank, 131 Wn.2d at 249). Specifically, we reasoned that “[b]ecause House
4
ENGROSSED SECOND SUBSTITUTE H.B. 1783, 65th Leg., Reg. Sess. (Wash. 2018) (House
Bill 1783).
17
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State v. Jenks (Alan D.), No. 98496-4
Bill 1783’s amendments pertain to costs imposed upon conviction and Ramirez’s
case was not yet final when the amendments were enacted, Ramirez [was] entitled
to benefit from this statutory change.” Id. The triggering event was the termination
of all appeals, at which point the costs were finalized. Id.
Jenks argues that because we held that the statute in Ramirez applied to a case
where sentencing was completed and the appeals not yet finalized, we should do the
same here. We decline to expand Ramirez. Ramirez and Blank, the case on which
Ramirez was largely based, dealt with the narrow subject matter of “costs imposed
upon conviction.” Ramirez, 191 Wn.2d at 749 (discussing Blank,
131 Wn.2d 230).
Such subject matter is not analogous to the determination of whether a defendant
qualifies as a persistent offender, as is the case here.
Jenks also takes Ramirez’s failure to mention RCW 10.01.040 as proof that it
did not bar application of the amendment in Ramirez and, thus, should not bar it
here. We decline to draw this inference. Ramirez’s silence on this statute means only
that it does not control how we apply RCW 10.01.040 today. See Ross, 152 Wn.2d
at 239 (also distinguishing cases because they did not discuss the saving clause).
In sum, ESSB 5288 does not apply prospectively to Jenks’ case. Ramirez does
not alter that conclusion.
18
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State v. Jenks (Alan D.), No. 98496-4
B. Wiley and Heath are also inapplicable here
Jenks also relies on State v. Heath, 85 Wn.2d 196,
532 Wn.2d 621 (1975), and
State v. Wiley, 124 Wn.2d 679,
880 P.2d 983 (1994). Both were decided without
reference to RCW 10.01.040, and Jenks argues that they thus stand for the
proposition that the saving clause statute did not apply there and likewise should not
apply here. We disagree.
In Heath, we held that a new amendment applied retroactively in a civil
proceeding. 85 Wn.2d at 197-98. As Jenks noted in his briefing, we stated that when
the penalty for a crime is reduced, “the legislature is presumed to have determined
that the new penalty is adequate and that no purpose would be served by imposing
the older, harsher one.” Id. at 198. We added that “[t]his rule has even been applied
in the face of a statutory presumption against retroactivity and the new penalty
applied in all pending cases.” Id. (citing In re Estrada,
63 Cal.2d 740,
408 P.2d 948,
48 Cal. Rptr. 172 (1965); People v. Oliver,
1 N.Y.2d 152,
134 N.E.2d 197,
151
N.Y.S.2d 367 (1956)).
Heath does not control, as we established in Ross, 152 Wn.2d at 239 and n.11.
In Ross, we faced the question of whether amendments dealing with the calculation
of offender scores applied retroactively. Id. at 233-34. In concluding that they did
not, we distinguished Heath. Id. at 239. We reasoned that “Heath did not directly
implicate the savings clause since it pertained to amendments governing civil driver
19
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State v. Jenks (Alan D.), No. 98496-4
license revocations under the Washington Habitual Traffic Offenders Act.” Id.
(emphasis added). The same is true here: this is a criminal case, not a civil
proceeding. Ross also specifically discounted Heath’s statement that legislation
reducing penalty for a crime is retroactive even “‘in the face of a statutory
presumption against retroactivity’”:
[S]ince Heath involved amendments to the portion of the Washington
Habitual Traffic Offenders Act that governs license revocation
proceedings, the savings clause was not directly implicated. Thus, we
refuse to extend this language in Heath to cases where the savings
clause clearly requires this court to enforce statutory amendments to the
penal code prospectively.
Ross, 152 Wn.2 at 239 n.11 (citation omitted) (quoting Heath, 85 Wn.2d at 198).
Ross’s reasoning applies here with equal force.
Wiley can be similarly distinguished. In Wiley, we considered whether a
change in law applied “retroactively to the prior convictions used to calculate an
offender score under the SRA.” 124 Wn.2d at 682. We held that “when the
Legislature downgrades the status of an offense”—that is, from a felony to a
misdemeanor—“a sentencing court must give retroactive effect to the Legislature’s
decision.” Id. at 687. Ross distinguished Wiley on the ground it “did not address the
effect of the savings clause.” Ross, 152 Wn.2d at 239. Wiley does not apply here for
the same reason. Further, Wiley held that a change is retroactive when a crime is
downgraded from a felony to a misdemeanor. 124 Wn.2d 686-87. Here, second
degree robbery was removed from the list of most serious offenses: no crime was
20
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State v. Jenks (Alan D.), No. 98496-4
downgraded from a felony to a misdemeanor. For those reasons, we do not follow
Wiley today.
C. Jenks’ remaining arguments are unpersuasive
Jenks argues that we should follow the principle that “new decisional law can
apply ‘to all cases . . . pending on direct review.’” Pet. for Review at 6 (quoting State
v. Evans, 154 Wn.2d 438, 444,
114 P.3d 627 (2005)). But this has no bearing on the
question before us here. This case concerns amendments to statutes, not new
decisional law.
Jenks also argues that RCW 9.94A.345 and RCW 10.01.040 impermissibly
attempt to “control a future Legislature’s ability to amend or enact statutes.” Suppl.
Br. of Pet’r at 7 (discussing RCW 10.01.040); see also id. at 18-19 (discussing RCW
9.94A.345). Jenks relies on Washington State Farm Bureau Federation v. Gregoire,
162 Wn.2d 284,
174 P.3d 1142 (2007), for this argument. There, we stated, as a
familiar principle of law, that “[i]mplicit in the plenary power of each legislature is
the principle that one legislature cannot enact a statute that prevents a future
legislature from exercising its law-making power.” Id. at 301. But the statutes at
issue here do not limit the ability of the legislature to exercise its lawmaking power
in the future. Were the legislature to decide to repeal either of them or expressly craft
statutes that were exempt from them, it could do so.
21
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State v. Jenks (Alan D.), No. 98496-4
Jenks also argues that RCW 10.73.100(6) applies to or informs the resolution
of his case. But this provision provides an exception to RCW 10.73.090, the one-
year time bar for filing a personal restraint petition; it does not apply here. See RCW
10.73.100 (“The time limit specified in RCW 10.73.090 does not apply to a petition
or motion that is based solely on one or more of the following grounds.”).
At oral argument, Jenks also asserted that ESSB 5288 is remedial and
therefore applies retroactively to his case. Wash. Supreme Court oral argument,
supra, at 7 min., 56 sec. We do not reach this question. Jenks argued that ESSB 5288
was remedial before the Court of Appeals. Jenks, 12 Wn. App. 2d at 599. The Court
of Appeals held that the remedial nature of the amendment was irrelevant, due to the
operation of RCW 10.01.040. Id. at 600. Jenks did not ask us for review of this
holding or argue that ESSB 5288 is remedial in his petition for review. Therefore,
the issue of whether ESSB 5288 is remedial is not properly before the court, and we
decline to reach it. See RAP 13.7(b). 5
5
The dissent argues that, in its view, under article I, section 14 of our constitution, leaving
in place life without parole sentences when one of the strikes was second degree robbery
where a newly sentenced offender would not receive a life without parole sentence with
the same criminal history is cruel punishment, and that we must use the doctrine of
constitutional avoidance to prevent such a result. Leaving aside that we express no view
on this constitutional argument, constitutional avoidance would not command this result.
“[A] statute will be construed so as to avoid constitutional problems, if possible.” State v.
Chester, 133 Wn.2d 15, 21,
940 P.2d 1374 (1997) (emphasis added). Or, as the dissent puts
it, we must “choose an interpretation that avoids running afoul of article I, section 14.”
Dissent at 7. But it is not possible to choose a different interpretation. The statutory scheme
clearly commands the result we reach. Any other interpretation overrides the clear intent
22
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State v. Jenks (Alan D.), No. 98496-4
CONCLUSION
We hold that ESSB 5288 does not apply to Jenks’ case and affirm the Court
of Appeals, upholding Jenks’ sentence of life without parole. In this case, the
enactments of the legislature command this result.
of the legislature as expressed in the statute’s language and scheme, supported by
legislative history. See In re Parentage of C.A.M.A., 154 Wn.2d 52, 69,
109 P.3d 405
(2005) (we do not rewrite statutes to avoid constitutional problems). What the dissent
appears to truly seek is to strike down the statute as unconstitutional—but that argument
itself was stricken and is not before the court.
The dissent’s invocation of the “rule that a newly enacted statute generally applies
to cases pending on direct appeal and not yet final” does not provide reason for an
alternative interpretation. Dissent at 7. As discussed at length above, the enactments of the
legislature demand this result. See RCW 9.94A.345; RCW 10.01.040.
23
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State v. Jenks (Alan D.), No. 98496-4
WE CONCUR.
24
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
No. 98496-4
YU, J. (concurring)—This case concerns the legislature’s decision to remove
second degree robbery as a predicate (strike) for purposes of sentencing individuals
to life without the possibility of parole under the Persistent Offender
Accountability Act (Three Strikes Law), RCW 9.94A.570. LAWS OF 2019, ch. 187,
§ 1 (the amendment). I agree with the majority’s holding that the legislature did
not intend for the amendment to apply to Alan Jenks’ life sentence and that this
outcome is “harsh.” Majority at 2. I also agree that Jenks and amici 1 raise “serious
concerns about the racially disproportionate impact” of the Three Strikes Law. Id.
at 3. I write separately to emphasize that while the legislature commands the harsh
result of affirming Jenks’ life sentence, the constitution and the ends of justice do
not. CONST. art. I, § 14.
1
Two amici briefs were filed in support of Jenks, the first by the Fred T. Korematsu
Center for Law and Equality, American Civil Liberties Union of Washington, Columbia Legal
Services, Justice Policy Institute, The Sentencing Project, Washington Association of Criminal
Defense Lawyers, and Washington Defender Association and the second by the King County
Department of Public Defense, the NAACP Alaska Oregon Washington-State Area Conference,
Community Passageways, Concerned Lifers Organization, the Black Prisoners’ Caucus at the
Washington State Reformatory, and Yoga Behind Bars.
1
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
In order to serve the ends of justice, the court retains discretion to waive any
appellate rule on its own initiative, including RAP 13.7(b)’s rule limiting review to
the questions raised in the petition for review and the answer. RAP 1.2(c); RAP
18.8(a); see, e.g., Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124,
864 P.2d 1382
(1994) (citing Kruse v. Hemp, 121 Wn.2d 715, 721,
853 P.2d 1373 (1993)).
“[W]hile we generally decline to reach issues not properly presented by the parties,
‘this court has inherent authority to consider issues not raised by the parties if
necessary to reach a proper decision.’” Filo Foods, LLC v. City of SeaTac, 183
Wn.2d 770, 792,
357 P.3d 1040 (2015) (quoting Alverado v. Wash. Pub. Power
Supply Sys., 111 Wn.2d 424, 429,
759 P.2d 427 (1988)). Consequently, the court
should have denied the State’s motions to strike the constitutional arguments so
that we might have reached the ultimate question regarding these life sentences.
See also RAP 12.1(b) (“If the appellate court concludes that an issue which is not
set forth in the briefs should be considered to properly decide a case, the court may
notify the parties and give them an opportunity to present written argument on the
issue raised by the court.”). 2
2
“The appellate court has the authority to determine whether a matter is properly before
it, and to perform all acts necessary or appropriate to secure the fair and orderly review of a
case.” RAP 7.3. The court recently answered a constitutional issue involving the Three Strikes
Law in the same manner it granted review here. Compare Order, No. 98496-4 (Wash. Sept. 9,
2020), with Order, No. 95263-9 (Wash. Feb. 6, 2019) (granting review “only on the persistent
offender sentence issue”). The court should not delay the constitutional issue present here for a
personal restraint petition. See RAP 16.4(b)(4); e.g., In re Pers. Restraint of Meippen, 193
2
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
While the legislature intended to prospectively remove second degree
robbery as a strike in the Three Strikes Law, the individuals that the legislature left
behind are disproportionately people of color and frequently disproportionately
punished. Our court has previously acknowledged the severity of these sentences,
and the reality of who was left out should give us pause. See State v. Moretti, 193
Wn.2d 809, 833,
446 P.3d 609 (2019) (“Mandatory life in prison without the
possibility of parole is the harshest sentence currently available in Washington.”
(citing State v. Gregory, 192 Wn.2d 1, 5,
427 P.3d 621 (2018) (plurality opinion)
(declaring the death penalty unconstitutional)); cf. Pers. Adm’r v. Feeney, 442 U.S.
256, 275,
99 S. Ct. 2282,
60 L. Ed. 2d 870 (1979) (“If the impact of this statute
could not be plausibly explained on a neutral ground, impact itself would signal
that the real classification made by the law was in fact not neutral.”).
I agree with amici that “[t]he extreme race disproportionality of those
sentenced to die in prison because of at least one [second degree robbery] strike is,
in part, a product of Washington’s racial past.” Br. of Amici Curiae Fred T.
Korematsu Ctr. for Law & Equality et al. at 2. Of the 62 people serving life
without the possibility of parole sentences due to a second degree robbery strike,
“[a]bout half are [B]lack, despite African Americans making up only 4% of
Wn.2d 310, 315-16, 440 P.3d 978 (2019) (declining to reach question on significant change in
the law).
3
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
Washington’s population.” Tom James, Lifer Inmates Excluded from Washington
‘3 Strikes’ Change, SEATTLE TIMES (May 20, 2019, 10:11 PM, updated May 22,
2019, 7:49 PM), https://www.seattletimes.com/seattle-news/its-just-wrong-3-
strikes-sentencing-reform-leaves-out-62-washington-state-inmates/
[http://perma.cc/26V4-NSDV]. 3 Beyond second degree robbery, “[a]lmost 40% of
three strikes offenders sentenced are African American, while only 3.9% of the
state’s population is African American. The next highest disparity is for American
Indians, who are represented among three strikers at a rate more than two and a
half times greater than the general population.” COLUMBIA LEGAL SERVS.,
WASHINGTON’S THREE STRIKES LAW: PUBLIC SAFETY AND COST IMPLICATIONS OF
LIFE WITHOUT PAROLE 7-8 (Mar. 2019), https://columbialegal.org/wp-
content/uploads/2019/03/CLS-Report_Washingtons-Three-Strikes-Law.pdf
[http://perma.cc/B2KX-2WZP].
I felt compelled to state in Moretti what is obvious, and I will say it again,
“We should not be satisfied with the status quo; permanent incarceration has
3
Hr’g on ESSB 5288 Before the H. Pub. Safety Comm., 66th Leg., Reg. Sess. (Wash.
Mar. 26, 2019), at 25 min., 6 sec. to 25 min., 25 sec., video recording by TVW, Washington
State’s Public Affairs Network, http://www.tvw.org (Test. of Sen. Jeannie Darneille). Thirty of
the 62 would have served less than a five-year sentence for the crime, if second degree robbery
was not a strike offense. Id. at 25 min., 56 sec. to 26 min., 15 sec. Among other important
considerations, amici remind us that many people serving life without the possibility of parole
sentences under the Three Strikes Law are frequently caught in a revolving door by institutions
purporting to protect them, resulting in trauma and institutionalization. See Amicus Br. of King
County Dep’t of Pub. Def. at 10-11.
4
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
neither reduced crime nor increased confidence in our criminal justice system.”
Moretti, 193 Wn.2d at 840 (2019) (Yu, J., concurring). Acknowledging the
harshness, the amendment closed a loophole in the law allowing grossly
disproportionate sentences for crimes lacking the harm inherent in other strike
offenses. See FINAL B. REP. ON ENGROSSED SUBSTITUTE S.B. 5288, 66th Leg.,
Reg. Sess. (Wash. 2019) (highlighting that while second degree robbery is no
longer a strike offense, first degree robbery and second degree assault remain strike
offenses); see also Jennifer Cox Shapiro, Comment, Life in Prison for Stealing
$48?: Rethinking Second-Degree Robbery as a Strike Offense in Washington State,
34 SEATTLE U. L. REV. 935, 954 (2011).4 But the end result of not applying it to all
who were similarly convicted and sentenced under the Three Strikes Law fell short
of achieving justice.
This case allows the court to reconsider its precedent upholding the
constitutionality of counting second degree robbery as a strike under the Three
Strikes Law. Compare State v. Witherspoon, 180 Wn.2d 875, 891,
329 P.3d 888
4
“‘Robbery’ is defined as the unlawful taking of personal property from the person of
another or in [their] presence, against [their] will, by the use or threatened use of force, violence,
or fear of injury to any person or property.” State v. Berg, 181 Wn.2d 857, 863,
337 P.3d 310
(2014) (citing RCW 9A.56.190). It remains a strike offense to commit first degree robbery, a
class A felony, by committing robbery while being armed with a deadly weapon or displaying
what appears to be a deadly weapon, by inflicting bodily injury, or by committing robbery
against a financial institution. RCW 9A.56.200; RCW 9.94A.030(32)(a). Similarly, it remains a
strike offense to commit second degree assault (a class B felony like second degree robbery).
RCW 9A.36.021; RCW 9.94A.030(32)(b).
5
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
(2014), with Br. of Amici Curiae Fred T. Korematsu Ctr. for Law &Equality et al.
at 12-17 (applying State v. Fain, 94 Wn.2d 387,
617 P.2d 720 (1980)). “[W]e can
reconsider our precedent not only when it has been shown to be incorrect and
harmful but also when the legal underpinnings of our precedent have changed or
disappeared altogether.” W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of
Carpenters, 180 Wn.2d 54, 66,
322 P.3d 1207 (2014).
Our elimination of the death penalty based on consideration of racial
disproportionality should compel us to ask the same questions here. The
“gradation of sentences that once existed before Gregory has now been
condensed,” and “a serious reexamination of our mandatory sentencing practices is
required to ensure a just and proportionate sentencing scheme.” Moretti, 193
Wn.2d at 835 (Yu, J., concurring). We ought to wrestle with whether a mandatory
life sentence without the possibility of release comports with contemporary
standards of decency; we need to ask and answer what constitutes cruel
punishment under our state constitution. CONST. art. I, § 14.
Jenks’ punishment is grossly disproportionate to the sentence he would
receive today for the same convictions. Suppl. Br. of Pet’r at 12; Br. of Amici
Curiae Fred T. Korematsu Ctr. for Law & Equality et al. at 13 (citing Fain, 94
Wn.2d at 396). And nearly half the individuals serving a life sentence would have
served less than five years. Hr’g on ESSB 5288 Before the H. Pub. Safety Comm.,
6
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State v. Jenks (Alan D.), No. 98496-4 (Yu, J., concurring)
66th Leg., Reg. Sess. (Wash. Mar. 26, 2019), at 25 min., 56 sec. to 26 min., 15
sec., video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org (Test. of Sen. Jeannie Darneille). “To assign one sentence for
such a wide range of offenses is to disregard our notions of fairness and justice.”
Moretti, 193 Wn.2d at 838 (Yu, J., concurring).
Limited review allows the court to affirm the harsh outcome the legislature
commands. Nevertheless, the court should have addressed this constitutional issue
in order to serve the ends of justice. I respectfully concur.
7
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State v. Jenks (Alan Dale)
No. 98496-4
MADSEN, J. (dissenting)—The majority concludes that Engrossed Substitute
Senate Bill 5288 (ESSB 5288), a legislative amendment removing second degree robbery
as a “strike” from the Persistent Offender Accountability Act of the Sentencing Reform
Act of 1981 (POAA), ch. 9.94A RCW, applies prospectively. Majority at 2. Such an
outcome, according to the majority, is required by our rules of statutory interpretation.
Id. at 5-6. There are many interpretive rules designed to assist courts including the rule
that directs us to construe statutes to avoid constitutional violations. Utter ex rel. State v.
Bldg. Indus. Ass’n of Wash., 182 Wn.2d 398, 434,
341 P.3d 953 (2015). The majority,
however, does not employ this rule and thereby creates an unconstitutional outcome. For
Alan Jenks, who was convicted of second degree robbery as a third “strike” before ESSB
5288 came into effect, today’s decision means he will spend the rest of his life in prison
without the possibility of release. But, for those convicted of the same crime after ESSB
5288’s effective date, such a draconian sentence cannot be imposed. In my view,
removing robbery two as a strike offense that is nonetheless applicable to offenders who
predate the change is a cruel punishment under article I, section 14 of the Washington
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No. 98496-4
Madsen, J., dissenting
State Constitution. 1 We must, therefore, construe ESSB 5288 to avoid this constitutional
violation and hold the amendment applies retroactively. I respectfully dissent.
Discussion
ESSB 5288 was enacted in 2019. LAWS OF 2019, ch. 187, § 1. Lawmakers did
not specify when or to whom ESSB 5288 would apply. This silence triggers our rules of
statutory construction which, without more, set the default effective date at 90 days
following the end of the legislative session. See generally id.; Cameron v. Atl. Richfield
Co., 8 Wn. App. 2d 795, 806,
442 P.3d 31 (2019) (“[A]n act takes effect 90 days after the
legislative session in which the legislature that enacted it adjourns unless the legislature
specifies a different effective date.”). Because the legislature was silent as to the affected
individuals, the majority looks to RCW 9.94A.345 and RCW 10.01.040, which in other
circumstances would be proper. But here, the majority’s conclusion that the legislature
intended only a prospective application of the new law results in cruel punishment. See
WASH. CONST. art. I, § 14. I cannot agree that the legislature intended this result. 2
The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. Article I, section 14 of the Washington State Constitution bars cruel
punishment. This court has held that our state constitution is more protective than its
federal counterpart in this context. State v. Witherspoon, 180 Wn.2d 875, 887,
329 P.3d
1
This court granted the motion to strike any argument related to article I, section 14. The
majority utilizes rules of statutory construction to resolve the case, and one such rule is that of
constitutional avoidance. Utter, 182 Wn.2d at 434. Therefore, I consider this constitutional
provision and related case law but do not rely on arguments stricken by the court.
2
The role of the court in statutory interpretation is to give effect to the legislature’s intent. Lake
v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526,
243 P.3d 1283 (2010).
2
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No. 98496-4
Madsen, J., dissenting
888 (2014); State v. Fain, 94 Wn.2d 387, 392-93,
617 P.2d 720 (1980). Fain provides
four factors for analyzing whether a punishment is cruel under article I, section 14: (1)
the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment
the defendant would have received in other jurisdictions, and (4) the punishment meted
out for other offenses in the same jurisdiction. 94 Wn.2d at 397.
First, we consider the nature of Jenks’ offense. Jenks was found guilty of first
degree robbery that occurred in 2014. He had two prior strike convictions, one for
second degree robbery in 2004 and another for first degree robbery in 2011. The trial
court sentenced Jenks as a persistent offender based in part on his prior robbery two
conviction under former RCW 9.94A.030(32)(o) (2012). Unlike first degree robbery,
robbery in the second degree generally involves no weapon, physical injury, or financial
institutions. RCW 9A.56.200 (listing the elements of first degree robbery); RCW
9A.56.210 (second degree robbery is all other robberies that are not first degree
robberies). Robbery two is a class B felony and the nature of the offense may vary
greatly depending on the circumstances of the crime. Witherspoon, 180 Wn.2d at 905
(Gordon McCloud, J., concurring and dissenting) (noting that a person can commit
second degree robbery by various means such as brutal assault or by an implied threat).
Though Jenks’ final strike was for first degree robbery, his sentence of life imprisonment
was sealed by the previous second degree robbery conviction. The legislature’s decision
to remove that category of crime from the list of most serious offenses indicates a
downgrade in culpability.
3
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No. 98496-4
Madsen, J., dissenting
The second Fain factor considers the legislative purpose behind the challenged
statute. The POAA was intended to deter criminals who commit three “most serious
offenses” and to segregate those criminals from society. Witherspoon, 180 Wn.2d at 888
(quoting State v. Rivers, 129 Wn.2d 697, 713,
921 P.2d 495 (1996)). The three strikes
law was based on the idea that repeat offenders constitute a small component of the
offender population. Id. at 903 (citing Jennifer Cox Shapiro, Comment, Life in Prison for
Stealing $48?: Rethinking Second-Degree Robbery as a Strike Offense in Washington
State, 34 SEATTLE U. L. REV. 935, 940 (2011)). In 2019, Washington lawmakers elected
to remove robbery two from the POAA’s most serious offense list, indicating that it no
longer advanced the purpose of the statute. See LAWS OF 2019, ch. 187, § 1. That is,
inclusion of second degree robbery did not punish the most violent criminals because the
crime is not a class A felony or a serious violent felony offense. Hr’g on ESSB 5288
Before the H. Pub. Safety Comm., 66th Leg., Reg. Sess. (Wash. Mar. 26, 2019), at 22
min., 50 sec., video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org (testimony of ESSB 5288’s prime sponsor, Senator Jeannie
Darneille).
The third Fain factor is the punishment that the defendant would have received in
other jurisdictions. This court has noted that a conviction for second degree robbery as a
third strike offense triggers mandatory life sentences in three states while the same
conviction in the “vast majority” of jurisdictions results in less than a life sentence:
typically 10 years or less. Witherspoon, 180 Wn.2d at 888. Washington now joins the
4
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No. 98496-4
Madsen, J., dissenting
majority of states in refusing to impose life sentences for offenders committing robbery
in the second degree—an admittedly serious offense, but unlike the violent crimes for
which the POAA was intended to deter. E.g., Hr’g on ESSB 5288, supra; RCW
9.94A.030(46) (listing serious violent offenses such as first degree murder, first degree
assault, and first degree rape).
The fourth Fain factor looks to the punishment in Washington for other offenses.
We noted in Witherspoon that a life sentence imposed on a habitual offender for a
robbery conviction was not cruel and unusual punishment under the Eighth Amendment.
180 Wn.2d at 888 (citing Rivers, 129 Wn.2d at 714). But article I, section 14 is more
protective than the federal constitution in this context. Fain, 94 Wn.2d at 392-93.
Outside of the POAA, only aggravated first degree murder, which is a level 16
seriousness crime, results in a mandatory sentence of life without parole. RCW
9.94A.510, .515. Second degree robbery, on the other hand, is a level 4 seriousness
offense and the maximum sentence for a class B felony is 10 years and/or a fine of
$20,000. RCW 9.94A.515; RCW 9A.20.021(1)(b). Second degree robbery is dissimilar
from other class B felony strike offenses. As Senator Darneille stated in her testimony in
support of ESSB 5288, robbery two is typically a “convenience store” crime and does not
result in bodily injury, unlike other class B offenses such as manslaughter in the second
degree. RCW 9A.32.070; Hr’g on ESSB 5288, supra, at 32 min., 40 sec. And, in the
non-POAA context, courts may impose sentences below the standard range provided
mitigating circumstances are established. RCW 9.94A.535.
5
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No. 98496-4
Madsen, J., dissenting
The Fain factors demonstrate that a sentence of life without release for second
degree robbery constitutes cruel punishment under our state constitution. WASH. CONST.
art. I, § 14. This court reviewed a similar challenge in Witherspoon and arrived at the
opposite conclusion—that a life sentence for second degree robbery is not cruel
punishment. 180 Wn.2d at 887-89. However, Witherspoon is inapposite here for the
critical fact that the legislature has removed second degree robbery as a most serious
offense under the POAA. This decision necessarily alters the substance of the Fain
factors, as described above.
Because a life sentence for second degree robbery violates the Washington State
Constitution’s bar against cruel punishment, I cannot join the majority’s interpretation of
ESSB 5288 as a prospective-only amendment. The majority relies on RCW 9.94A.345 3
and RCW 10.01.040, 4 which require criminal sentences to adhere to the law in effect
when an offense was committed. But the legislature is always free, within the limitation
of the constitution’s ex post facto protections, to provide for retroactive relief by
amending criminal sentencing statutes. Instead of mechanically applying our rules of
3
RCW 9.94A.345 states, “Any sentence imposed under this chapter [(the Sentencing Reform
Act)] shall be determined in accordance with the law in effect when the current offense was
committed.” The POAA is part of the Sentencing Reform Act. RCW 9.94A.570; see also ch.
9.94A RCW (Sentencing Reform Act).
4
RCW 10.01.040 states, in relevant 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, and
every such amendatory or repealing statute shall be so construed as to save all criminal and penal
proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless
a contrary intention is expressly declared therein.”
6
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No. 98496-4
Madsen, J., dissenting
statutory interpretation to reach an unconstitutional result, the constitution should guide
our statutory reasoning to avoid constitutional doubt. See Utter, 182 Wn.2d at 434; see
also State v. Santiago, 318 Conn. 1, 85-86,
122 A.3d 1 (2015) (holding that the death
penalty no longer comported with contemporary standards of decency and violated the
state constitutional ban on excessive and disproportion punishment and its prospective
abolition applied to capital sentences already imposed). This principle of constitutional
avoidance mandates that we choose an interpretation that avoids running afoul of article
I, section 14. See Utter, 182 Wn.2d at 434-35. Thus, I would hold that ESSB 5288
applies retroactively.
I further disagree with the majority because its holding conflicts with the rule that
a newly enacted statute generally applies to cases pending on direct appeal and not yet
final. State v. Jefferson, 192 Wn.2d 225, 246,
429 P.3d 467 (2018) (citing Landgraf v.
USI Film Prods., 511 U.S. 244, 275,
114 S. Ct. 1483,
128 L. Ed. 2d 229 (1994); State v.
Pillatos, 159 Wn.2d 459, 470,
150 P.3d 1130 (2007); State v. Blank,
131 Wn.2d 230,
248,
930 P.2d 1213 (1997)). An amendment, like any other statute, applies prospectively
unless the legislature intends, or the constitution requires, retroactive application. Howell
v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 47,
785 P.2d 815 (1990).
Prospective application of an amendment includes its application to cases pending on
appeal. See Jefferson, 192 Wn.2d at 246. Jenks’ case was pending in the Court of
Appeals when the legislature enacted ESSB 5288. Thus, his case was not final. But for
the majority’s application of RCW 9.94A.345 and RCW 10.01.040, Jenks and similarly
7
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No. 98496-4
Madsen, J., dissenting
situated individuals (those with pending appeals) would receive the benefit of ESSB 5288
and avoid lifetime imprisonment based on a robbery two conviction. I would hold that as
a matter of statutory interpretation, individuals such as Jenks should receive the benefit of
ESSB 5288 when their cases are not yet final. 5
Conclusion
The legislature’s decision to remove second degree robbery as a strike offense
under the POAA carries significant consequences: pursuant to the Fain factors, life
imprisonment without release for a robbery two conviction constitutes cruel punishment
under our state constitution. WASH. CONST. art. I, § 14. Applying ESSB 5288
prospectively based on statutes requiring sentences in accordance with the effective law
at the time an offense was committed violates our constitution’s bar against cruel
punishment. But this constitutional violation is easily avoided by construing ESSB 5288,
which is silent as to its effective date, to apply to offenders whose appeals are pending
when the amendment was enacted. See Jefferson, 192 Wn.2d at 246. Because the
majority’s conclusion will result in an unconstitutional outcome, I respectfully dissent.
5
To ensure constitutionality, ESSB 5288 must be construed as retroactively applicable. In the
context of a personal restraint petition, Jenks would necessarily obtain relief from a life sentence
under RCW 10.73.100. Subsection (6) provides, in relevant part, that there has been a significant
change in the law, whether substantive or procedural, that is material to the sentence and a court,
in interpreting a change in the law that lacks express legislative intent concerning retroactive
application, determines sufficient reasons exist to require retroactive application of the changed
legal standard. RCW 10.73.100(6). Other areas of law contemplate that, at times, timeliness and
finality must give way to granting the benefit of a changed legal standard.
8
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No. 98496-4
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