City of Seattle v. Makasini

16 Wash.App.2d 148

480 P.3d 459

CITY OF SEATTLE, Petitioner,

v.Derek Kevin MAKASINI, Respondent.

No. 80745-5-I

Court of Appeals of Washington, Division 1.

February 8, 2021

Richard Edward Greene, Seattle City Attorney's Office Criminal, 701 5th Ave., Ste. 2050, Seattle, WA, 98104-7095, for Petitioner(s).

Virginia Norling Branham, Northwest Defenders Division/ KCDPD, 710 2nd Ave., Ste. 250, Seattle, WA, 98104-1765, for Respondent(s).

PUBLISHED OPINION

Hazelrigg, J. ¶ 1 On January 31, 2011, Derek Makasini was sentenced in Seattle Municipal Court for a gross misdemeanor offense. The court suspended a portion of his sentence for a period of five years, placed him on probation and ordered him to comply with numerous conditions. More than four years after the date of the first alleged violation of the terms of his sentence, and more than three years after an alleged new criminal offense, the probation office sought a bench warrant ex parte. The bench warrant was granted on October 14, 2015 and served on May 6, 2018, over seven years after sentencing. The City claimed that the period of supervision was tolled by the issuance of the bench warrant in 2015 and defense objected based on the plain language of RCW 35.20.255.

¶ 2 The municipal court ruled that the warrant issued ex parte tolled the period of probation and imposed a jail sanction for the violations. Makasini appealed to the superior court, which reversed the municipal court. The superior court concluded the statute is not ambiguous and only provides for tolling if a probationer fails to appear at a hearing. This court accepted discretionary review and we affirm the superior court.

FACTS

¶ 3 Derek Makasini entered a guilty plea in Seattle Municipal Court to one count of physical control of a motor vehicle while under the influence on January 31, 2011. He was sentenced to 365 days jail, of which 363 days were suspended for a period of five years on conditions which included: obtaining a drug and alcohol evaluation and completing any recommended treatment, attending a victim impact panel, compliance with supervision by the probation department, and not having any new criminal law violations. The order also required Makasini to report to the probation department within 36 hours of his release from jail.

¶ 4 On October 12, 2015, the Probation Services Division submitted a request for bench warrant based on allegations that Makasini never reported to the probation office after release in 2011 and had been charged with misdemeanor harassment for an incident on February 10, 2012. The next day, the trial court issued a bench warrant for Makasini ex parte. Makasini was arrested on the warrant on May 6, 2018. The following day, the City of Seattle (City) filed a notice of probation violation alleging Makasini had failed to report to probation and that he had committed a new criminal law violation (the February 2012 offense). The probation department later reported additional alleged violations including failure to complete treatment, failure to attend a victim impact panel, and that Makasini had committed other new criminal law violations. Makasini was released from custody. The court set a review hearing that was ultimately continued four times before the alleged violations were addressed.

¶ 5 On December 11, 2018, the City filed an amended notice of probation violations which alleged Makasini had failed to report to probation, did not complete treatment, had not attended the victim impact panel, and committed another new criminal law violation in addition to the February 2012 offense. A hearing was held January 29, 2019 to address concerns raised by Makasini that he framed as jurisdictional.¹ The municipal court ruled that RCW 35.20.255 authorized tolling between the date that the bench warrant issued in 2015 and the date Makasini was booked into jail on the warrant in 2018. Thus, the court determined it still had authority to revoke Makasini's probation if the alleged violations were found to have occurred. On March 1, 2019, the trial court found that Makasini had committed all of the violations alleged by the City and revoked 60 days of his suspended sentence as a sanction.

¶ 6 Makasini brought a RALJ² appeal to the superior court, arguing the municipal court did not have authority to revoke his suspended sentence as tolling was never properly triggered. The superior court agreed, concluding RCW 35.20.255 is unambiguous and only allows tolling when a probationer fails to appear at a court hearing. This court granted discretionary review.

ANALYSIS

¶ 7 Washington courts of limited jurisdiction are established by the legislature. See Young v. Konz, 91 Wash.2d 532, 540-42, 588 P.2d 1360 (1979). "Therefore, a municipal court's jurisdiction must be granted by statute." City of Spokane v. Marquette ( Marquette II ), 146 Wash.2d 124, 129, 43 P.3d 502 (2002). Superior courts and inferior courts do not have inherent authority to suspend or defer a sentence. Id. "This power derives entirely from the legislature." City of Spokane v. Marquette ( Marquette I ), 103 Wash. App. 792, 798, 14 P.3d 832 (2000), reversed by, 146 Wash.2d 124, 43 P.3d 502. There are four grants of probationary power in our state. Marquette II, 146 Wash.2d at 129, 43 P.3d 502. The statute at issue here, RCW 35.20.255, applies to municipal courts of cities with a population above 400,000.

¶ 8 The parties’ dispute focuses on the following sentence from RCW 35.20.255, which was added through legislative amendment in 2001:

A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant's compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record.

This case may be resolved exclusively by means of statutory interpretation which is a question of law reviewed de novo. State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010). The court's objective when interpreting a statute is to determine the legislature's intent. State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005), superseded by statute, State v. Conover, 183 Wash.2d 706, 355 P.3d 1093 (2015). The best indication of legislative intent is the language enacted by the legislature, so if the meaning of a statute is plain on its face, the interpreting court " ‘give[s] effect to that plain meaning.’ " Ervin, 169 Wash.2d at 820, 239 P.3d 354 (quoting Jacobs, 154 Wash.2d at 600, 115 P.3d 281 ). The plain meaning of a statute is to be discerned from the ordinary meaning of the language under scrutiny, in addition to the context of the statute in which the language is found, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wash.2d at 600, 115 P.3d 281.

¶ 9 If there are multiple reasonable interpretations of a statute's plain meaning, it is ambiguous. State v. Swanson, 116 Wash. App. 67, 70, 65 P.3d 343 (2003). In instances of ambiguity as to a statute's meaning, then the court relies on principles of statutory construction, legislative history, and relevant case law to decipher the legislative intent. State v. Manuel, 14 Wash. App. 2d 455, 461, 471 P.3d 265 (2020). "After such analysis, if a criminal statute still remains ambiguous, the rule of lenity requires courts to construe the statute strictly in favor of the defendant." Id.

¶ 10 The plain meaning of RCW 35.20.255 is clear and not subject to numerous interpretations. It is common in a case of statutory interpretation to have two (or more) competing interpretations presented to demonstrate the ambiguous nature of the statute. See State v. Evans, 177 Wash.2d 186, 298 P.3d 724 (2013) ; see also State v. Dennis, 191 Wash.2d 169, 421 P.3d 944 (2018) ; State v. Engel, 166 Wn.2d 572, 210 P.3d 1007, 421 P.3d 944 (2009). However, the City has not put forth an alternative interpretation of the plain meaning of the statute, but rather argues that case law does not support Makasini's interpretation, despite its acceptance by the superior court.

¶ 11 In his briefing, Makasini advances the interpretation that the plain meaning of the statutory language "fails to appear for any hearing to address the defendant's compliance with the terms of probation when ordered to do so by the court" is that tolling only begins "when a court orders a defendant to appear at a hearing to address the allegations of a probation violation, and then the defendant fails to appear." The City did not engage in a plain meaning analysis of the statute and instead focused its argument on case law. Its arguments to the superior court on RALJ appeal were similarly limited.

¶ 12 The City avers that numerous cases indicate supervision is tolled while a probationer is on warrant status. However, those cases are not controlling as they deal with different courts and distinct statutes entirely, all of which are silent on tolling. See State v. V.J., 132 Wash. App. 380, 132 P.3d 763 (2006) (holding Juvenile Justice Act of 1977³ , which had no express tolling provision, confers statutory authority to toll juvenile probation while on warrant status); State v. D.D.-H., 196 Wash. App. 948, 385 P.3d 283 (2016) (holding Juvenile Justice Act of 1977 provides a juvenile's probation tolled while on warrant status by operation of law); State v. Robinson, 142 Wash. App. 649, 175 P.3d 1136 (2008) (holding it was proper to toll a 10-year suspended sentence when the defendant had absconded from the jurisdiction).

¶ 13 The City's primary argument is that Marquette II is binding authority on the question presented on appeal. 146 Wash.2d 124, 43 P.3d 502. However, Makasini correctly points out that Marquette II dealt with a prior version of RCW 35.20.255 which did not include the amended language at the heart of this case. Id. at 130, 43 P.3d 502. The Supreme Court acknowledged in Marquette II that the legislature's amendment of RCW...