Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 83244-7
Title of Case: State v. Ervin
File Date: 09/09/2010
Oral Argument Date: 06/29/2010


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
06-1-09016-7
Honorable Christopher A Washington


JUSTICES
--------
Barbara A. Madsen Signed Majority
Charles W. Johnson Signed Majority
Gerry L. Alexander Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Majority Author
Mary E. Fairhurst Signed Majority
James M. Johnson Signed Majority
Debra L. Stephens Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Maureen Marie Cyr
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362


Michael John Pellicciotti
Office of the King County Prosecuting At
516 3rd Ave
Seattle, WA, 98104-2385






IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 83244-7
)
v. ) En Banc
)
JAMES L. ERVIN, )
) Filed September 9, 2010
Petitioner. )
)

OWENS, J. -- James Ervin was convicted in 2006 of felony violation of a

protection order. At sentencing, the State and Ervin disputed the proper offender

score. This dispute turned upon whether two of Ervin's prior class C felony

convictions had "washed out"'that is, whether Ervin had complied with RCW

9.94A.525(2)(c) and the prior felonies should therefore no longer be included in his

offender score. Specifically, the parties disagreed about whether the 17 days Ervin

spent in jail for violating a term of his probation for a misdemeanor interrupted the

requisite "five consecutive years in the community without committing any crime that

subsequently results in a conviction." RCW 9.94A.525(2)(c). Because Ervin

State v. Ervin
No. 83244-7

committed no crimes for a five-year period and his incarceration was not pursuant to a

felony conviction, we conclude that his prior class C felony convictions washed out

and may not be included in his offender score. We therefore reverse the Court of

Appeals decision and remand the case for resentencing.

FACTS

Ervin's criminal history begins with a 1989 juvenile felony conviction for

burglary in the second degree, a class B felony. In 1991, while still a juvenile, Ervin

committed a second felony, possession of stolen property, which is a class C felony.

Ervin's next class C felony occurred in 1994, when he was convicted of rendering

criminal assistance in the first degree. Less than five years after his release from

confinement on this last charge, Ervin committed misdemeanor criminal trespass on

April 15, 1999, and was subsequently convicted. The trial court sentenced Ervin to a

90-day suspended sentence and put him on probation. One requirement of probation

was that Ervin attend anger management classes. When Ervin failed to attend these

classes, he was jailed for 17 days, from January 25, 2002, until February 11, 2002.

On July 28, 2005, Ervin committed assault in the fourth degree, a misdemeanor,

for which he was later convicted. Between September 2005 and January 2006, Ervin

was convicted of one controlled substances felony and five misdemeanors relating to

violations of court orders.

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No. 83244-7

Ervin violated another protection order in September 2006. Because of his

prior convictions for violating court orders, Ervin was convicted of a felony for this

violation. At sentencing, Ervin argued that his prior class C felonies had washed out

because he went five consecutive years without committing a crime, from his April 15,

1999, commission of misdemeanor criminal trespass until his July 28, 2005,

commission of fourth degree assault. The State disagreed, arguing that his 17 days in

jail in 2002 interrupted the five-year washout period, even though the violation of

probation was not a crime. The trial court agreed with the State's interpretation of the

statute.

Ervin appealed his sentence but not his conviction. The Court of Appeals

agreed with the trial court's interpretation of the statute, holding that the phrase "in the

community" in RCW 9.94A.525(2)(c) means that any time spent in confinement

interrupts the washout period. State v. Ervin, 149 Wn. App. 561, 562, 205 P.3d 170

(2009). The Court of Appeals therefore affirmed Ervin's sentence. Id. Ervin timely

filed a petition for review, which we granted. State v. Ervin, 167 Wn.2d 1001, 220

P.3d 208 (2009).

ISSUE

Does time spent in jail pursuant to a violation of probation stemming from a

misdemeanor interrupt an offender's washout period?

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No. 83244-7

ANALYSIS

A. Standard of Review

Resolution of this case turns exclusively on a question of statutory

interpretation, which is a question of law reviewed de novo. In re Det. of Williams,

147 Wn.2d 476, 486, 55 P.3d 597 (2002).

B. Ervin's Incarceration Did Not Interrupt the Washout Period

When interpreting a statute, "the court's objective is to determine the

legislature's intent." State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). The

surest indication of legislative intent is the language enacted by the legislature, so if

the meaning of a statute is plain on its face, we "'give effect to that plain meaning.'"

Id. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4

(2002)). In determining the plain meaning of a provision, we look to the text of the

statutory provision in question, as well as "the context of the statute in which that

provision is found, related provisions, and the statutory scheme as a whole." Id. An

undefined term is "given its plain and ordinary meaning unless a contrary legislative

intent is indicated." Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21,

969 P.2d 75 (1998). If, after this inquiry, the statute is susceptible to more than one

reasonable interpretation, it is ambiguous and we "may resort to statutory construction,

legislative history, and relevant case law for assistance in discerning legislative intent."

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No. 83244-7

Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).

This case concerns the proper interpretation of RCW 9.94A.525(2)(c), which

governs when class C felony convictions may be included in a person's offender score.

That statute provides, in relevant part:

[C]lass C prior felony convictions . . . shall not be included in the
offender score if, since the last date of release from confinement . . .
pursuant to a felony conviction, if any, or entry of judgment and
sentence, the offender had spent five consecutive years in the community
without committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(c). In construing this statute, the Court of Appeals has helpfully

broken it down into two clauses: a "trigger "clause, which identifies the beginning of

the five-year period, and a "continuity/interruption" clause, which sets forth the

substantive requirements an offender must satisfy during the five-year period. In re

Pers. Restraint of Nichols, 120 Wn. App. 425, 432, 85 P.3d 955 (2004). We adopt this

terminology to assist our discussion of the statute.

In this case, the parties agree that the trigger date occurred sometime in 1994 or

1995 when Ervin was released from confinement pursuant to his 1994 felony

conviction. Less than five years after his release, Ervin committed misdemeanor

criminal trespass on April 15, 1999. Because Ervin was then convicted, this crime

implicated the continuity/interruption clause, effectively resetting the five-year clock.

See State v. Hall, 45 Wn. App. 766, 769, 728 P.2d 616 (1986). Both sides also agree

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that Ervin did not commit any crime resulting in a conviction between April 15, 1999,

and July 28, 2005. The sole point of contention is the phrase "in the community" and

whether that phrase means that time spent in jail for a violation of probation stemming

from a misdemeanor conviction interrupts the five consecutive years required for class

C felonies to wash out.

We conclude that both parties advance reasonable interpretations of the plain

language and that the statute is therefore ambiguous. The State's argument is that "in

the community" is an independent requirement that the offender not be in

confinement. This definition comports with one ordinary meaning of the term

"community," which is defined as, inter alia, "society at large : public." Webster's

Third New International Dictionary 460 (2002). It is also seemingly supported by the

use of the term in related statutory provisions. See, e.g., RCW 9.94A.030(5) (

"'Community custody' means that portion of an offender's sentence of confinement . .

. served in the community"), .723 (defining an action as "a violation of the conditions

of supervision if the offender is in the community and an infraction if the offender is in

confinement"). This reading is a reasonable one.

Similarly, Ervin puts forth a reasonable interpretation of the statute's plain

meaning. Ervin reads the term "in the community" to distinguish between the

offender's status for purposes of the trigger clause (i.e., in confinement pursuant to a

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State v. Ervin
No. 83244-7

felony) and for purposes of the continuity/interruption clause (i.e., not in confinement

pursuant to a felony). This comports with another dictionary definition of the term

"community": "a body of individuals organized into a unit or manifesting usu. with

awareness some unifying trait." Webster's, supra at 460. This definition is also

consistent with the usage of "in the community" in the other statutes cited by the State.

In those statutes, the "not in confinement" meaning comes from their contrasting "in

the community" with incarceration. See, e.g., RCW 9.94A.723 (contrasting "in the

community" with "in confinement"). This contrast gives context and meaning to the

term "in the community" in those statutes. RCW 9.94A.525(2)(c), however, does not

contrast "in the community" with "in confinement"; it contrasts "in the community"

with "confinement . . . pursuant to a felony conviction." Ervin's interpretation of the

plain meaning is therefore also reasonable.

As the plain meaning of the statute is ambiguous, we turn to familiar tools of

statutory construction.1 One such canon of construction is that "we interpret a statute

to give effect to all language, so as to render no portion meaningless or superfluous."

Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010). The State contends that

the failure to adopt its interpretation will render the term "in the community"

superfluous. To the contrary, as we have explained, under Ervin's interpretation, the

1Though the rule of lenity applies to sentencing statutes, City of Seattle v. Winebrenner,
167 Wn.2d 451, 462, 219 P.3d 686 (2009), it is applicable only after employing tools of
statutory construction, State v. Coria, 146 Wn.2d 631, 639, 48 P.3d 980 (2002).

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State v. Ervin
No. 83244-7

phrase distinguishes between an offender's status for purposes of the trigger and

continuity/interruption clauses. In addition, the language, as interpreted by Ervin,

ensures that time spent in prison on a subsequent felony cannot be counted toward the

washout period. Cf. State v. Smith, 65 Wn. App. 887, 892, 830 P.2d 379 (1992)

(relying on the "in the community" language to hold that time spent in confinement on

a different felony does not count toward the washout period).

Indeed, it is the State's interpretation that would result in superfluous statutory

language. The State's interpretation of the phrase "in the community" would render

the entire phrase "since the last date of release from confinement (including full-time

residential treatment) pursuant to a felony conviction" superfluous, for if "in the

community," RCW 9.94A.525(2)(c), inherently has the meaning argued by the State,

time spent in confinement pursuant to the felony would already interrupt the washout

period. Thus, the washout period would already start only upon release from

confinement pursuant to a felony, rendering much of the trigger clause superfluous.

This counsels against the State's reading.

Both parties also proffer results of their opponent's interpretation that they

claim would be absurd. It is true that we presume the legislature does not intend

absurd results and, where possible, interpret ambiguous language to avoid such

absurdity. State v. Vela, 100 Wn.2d 636, 641, 673 P.2d 185 (1983). For its absurd

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No. 83244-7

result, the State posits a released felon who, shortly after release, commits six

misdemeanors, receives deferred sentences, violates probation, and receives a one-year

term for each of the misdemeanors, to be served consecutively. Under Ervin's

interpretation, those five years spent in jail on a misdemeanor, if spent without

committing any crimes, might be used as the washout period for an earlier class C

felony. It is conceivable the legislature might have intended this result, for the

offender would still have avoided committing any crime for the five-year period.

Because it is conceivable, the result is not absurd. See Black's Law Dictionary 10 (9th

ed. 2009) ("absurdity" defined as "[t]he state or quality of being grossly unreasonable;

esp., an interpretation that would lead to an unconscionable result, esp. one that . . . the

drafters could not have intended" (emphasis added)). We may concede, however, that

it is unlikely the legislature intended such a consequence.

Ervin, in turn, puts forth a result of the State's interpretation that is also unlikely

to have been intended by the legislature. Under the State's definition, any time a

person is incarcerated he or she is not "in the community." Therefore, it would

logically follow that a person arrested and booked into jail is not "in the community,"

even if charges are never filed and the arrest was mistaken or wrongful. Here, too, it is

conceivable the legislature determined any brush with the law should interrupt the

washout period, but we also find that result unlikely. Though both parties'

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State v. Ervin
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interpretations could lead to unlikely results, the circumstances in which Ervin's

interpretation will lead to unlikely results (i.e., all or a substantial portion of the

offender's washout period is spent in jail on a misdemeanor) are far less frequent than

are the circumstances in which the State's interpretation will lead to unlikely results

(i.e., a person spends a small amount of time in jail during the washout period). This

canon of construction, therefore, also favors Ervin's interpretation.

Finally, the State cites to State v. Blair, 57 Wn. App. 512, 789 P.2d 104 (1990),

arguing that its reasoning is influential in interpreting the language in this case. In

Blair, the defendant had been convicted of a class C felony in 1981 and, as part of the

sentence, received three years' probation. Id. at 513-14. In 1984, Blair was found to

have violated probation and sentenced to a 90-day jail term. Id. at 514. His probation

was extended for another three years, and he again violated probation in 1987 and was

sentenced to another 90-day jail term. Id. In 1989, Blair was sentenced for three new

crimes. Id. at 513. At sentencing, Blair argued, and the trial court agreed, that the

prior class C felonies had washed out. Id. at 514. The Court of Appeals reversed,

holding that confinement on the felony probation violation reset the trigger date in that

it was "confinement pursuant to a felony violation." Id. at 515-17.

The reasoning of Blair does not support the State's argument. Blair was

decided solely by interpreting the trigger clause. In the present case, Ervin's

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incarceration does not implicate the trigger clause, for that clause speaks only to felony

convictions. RCW 9.94A.525(2)(c) ("since the last date of release from confinement .

. . pursuant to a felony conviction" (emphasis added)). Under the logic of Blair,

Ervin's confinement was "pursuant to a misdemeanor" since it was for a violation of

probation that was part of a misdemeanor conviction, but that does not reset the trigger

date. Only confinement pursuant to a felony conviction does so.

Any lingering doubts about the correctness of Ervin's interpretation are allayed

by the legislature's acquiescence in it. We presume the legislature is "familiar with

judicial interpretations of statutes and, absent an indication it intended to overrule a

particular interpretation, amendments are presumed to be consistent with previous

judicial decisions." State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000). In

Nichols, a 2004 case, the Court of Appeals based its holding on an interpretation of the

phrase "in the community." 120 Wn. App. at 432. Nichols had been released from

confinement on a felony conviction in 1989 and was later incarcerated for 20 days

based on misdemeanors taking place in 1992 and 1993. Id. at 427-28. The question

before the court was whether incarceration for those misdemeanors interrupted the

"five consecutive years in the community without being convicted of any felonies,"

former RCW 9.94A.360(2) (1990). 120 Wn. App. at 431-32. The Court of Appeals

squarely rejected the argument that presence in jail precludes a person from being "in

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the community" for purposes of the washout provisions.2 Id. at 432. From the time

that Nichols was decided, the Legislature has amended RCW 9.94A.525 six times, see

Laws of 2010, ch. 274, § 403; Laws of 2008, ch. 231, § 3; Laws of 2007, ch. 199, § 8;

Laws of 2007, ch. 116, § 1; Laws of 2006, ch. 128, § 6; Laws of 2006, ch. 73, § 7, but

has in no way altered the "in the community" language interpreted by Nichols. This

legislative acquiescence in the Nichols interpretation of the term strongly favors

Ervin's interpretation of the statute.

In sum, we find the plain language of RCW 9.94A.525(2)(c) allows for multiple

reasonable interpretations. Applying relevant canons of statutory construction, we

discern a legislative intent favoring Ervin's interpretation of the statute. Accordingly,

we hold that time spent in jail pursuant to violation of probation stemming from a

misdemeanor does not interrupt the washout period.

CONCLUSION

Because Ervin, for a period of five years, did not commit any crime

subsequently resulting in a conviction, and because Ervin was not confined pursuant to

a felony conviction during that period, his prior class C felonies washed out and

should not have been included in his offender score. We therefore reverse the Court

2It is true that Nichols would come out differently under the present statute because
Nichols's commission and conviction of two misdemeanors would violate the present
continuity/interruption clause. That fact does not, however, alter the interpretation of the
term "in the community."

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No. 83244-7

of Appeals and remand the case for resentencing.

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No. 83244-7

AUTHOR:

Justice Susan Owens

WE CONCUR:

Chief Justice Barbara A. Madsen

Justice Charles W. Johnson Justice Mary E. Fairhurst

Justice Gerry L. Alexander Justice James M. Johnson

Justice Richard B. Sanders Justice Debra L. Stephens

Justice Tom Chambers

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