In 2023, the legislature amended RCW 9.94A.535(1)(b) to prohibit the inclusion of most prior juvenile adjudications in an offender score. A defendant recently challenged a sentence imposed in October 2022 because the court had included juvenile adjudications in his offender score.
Following an incident in May 2022, the defendant was found guilty of third degree theft and residential burglary. According to the appeals court’s opinion, the court included six juvenile adjudications in calculating the defendant’s offender score. He was sentenced in October 2022 to 364 days of confinement, which was suspended, for the theft conviction and 45 months of confinement for the residential burglary.
The defendant appealed, arguing that his offender score should be calculated without the previous juvenile adjudications based on RCW 9.94A.535(1)(b).
The version of RCW 9.94A.535(1)(b) in effect at the time of the defendant’s conviction and sentencing did not preclude a court from counting prior juvenile adjudications when calculating an offender score. The legislature amended the statute in 2023. Effective July 23, 2023, RCW 9.94A.535(1)(b) precludes the inclusion of juvenile adjudications of guilt, except first or second degree murder or class A felony sex offenses, from being included in a defendant’s offender score.
Pursuant to RCW 9.94A.345, sentencing is determined based on the law in effect at the time an offense was committed except where the Sentencing Reform Act states otherwise. Additionally, there is a general savings clause for criminal and penal statutes. RCW 10.01.040 provides that, when a criminal or penal statute is amended or repealed, any offenses committed or penalties imposed while the law was in force will be punished or enforced as though the law were in force unless the legislature expressly states an intent otherwise in the act amending or repealing the statute.
Statutes are generally presumed to apply prospectively. The appeals court pointed out, however, that an amendment may apply to a pending appeal when “the precipitating event under the statute” happened after the amendment was enacted.
The appeals court noted that the former version of the statute was in effect when the defendant was convicted. There was no indication the legislature intended the amendment to apply to offenses that were committed before it took effect. The appeals court concluded that, pursuant to RCW 9.94A.245 and RCW 10.01.040, the defendant should be sentenced based on the prior version of RCW 9.94A.525(1).
The defendant argued that the amendment should be applied because his case was pending on direct appeal. He argued the precipitating event was termination of the appeal. The appeals court disagreed, however, concluded that the precipitating event was the defendant’s sentencing where the offender score was calculated. The defendant’s sentencing occurred before the amendment was enacted.
The appeals court also rejected the defendant’s argument that the amendment should apply because RCW 9.94A.525(1) was a remedial statute, which are generally enforced when they become effective. The appeals court noted remedial statutes are generally procedural instead of substantive. The appeals court further concluded that whether the statute was remedial was not relevant because it was subject to RCW 10.01.040.
The appeals court determined the amendment did not apply to the defendant’s sentencing and affirmed the conviction and sentence. The appeals court did, however, remand the case so the trial court could strike the Victim Penalty Assessment.
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