State v. Lewis

541 P.3d 1051

STATE of Washington, Respondent,

v.Matthew Adam LEWIS, Appellant.

No. 57076-9-II

Court of Appeals of Washington, Division 2.

Filed January 23, 2024

Stephanie Alice Taplin, Harris Taplin Law Office, 3212 Nw Byron St., Ste. 106, Silverdale, WA, 98383-9154, for Appellant.

Norma J. Tillotson, William Anton Leraas, Grays Harbor County Prosecutor's Office, 102 W Broadway Ave., Rm 102, Montesano, WA, 98563-3621, for Respondent.

PUBLISHED OPINION

Cruser, A.C.J.¶1 Matthew Lewis was sentenced to 102 months of confinement after pleading guilty to two counts of dealing in depictions of a minor engaged in sexually explicit conduct and one count of possession of depictions of a minor engaged in sexually explicit conduct. His offender score was 9-plus, accounting for three prior sex offense convictions that Lewis pleaded guilty to in Australian court in 2017.

¶2 Lewis now appeals his sentence, arguing that the trial court erred when it included his Australian convictions in his offender score calculation. He argues that the plain language of the offender score statute unambiguously excludes prior convictions from outside the United States. He argues in the alternative that if the statute is ambiguous, the rule of lenity requires us to exclude foreign country convictions. Finally, he argues that even if foreign country convictions may generally be included in one's offender score, his Australian convictions should be excluded from his score as facially invalid.

¶3 We hold that the term "out-of-state" as used in the offender score statute is unambiguous and does not exclude foreign country convictions. We further hold that Lewis’ Australian convictions are not facially invalid. We therefore affirm Lewis’ sentence.

FACTS

¶4 Lewis pleaded guilty in Australian court to three offenses related to child sexual abuse material that he committed in 2017. His conduct included sending explicit messages and child sexual abuse material to a 14-year-old girl when Lewis was 28. The girl reported his behavior to the police, who seized and searched Lewis’ phone and found more images. Lewis was arrested and pleaded guilty to "aggravated dissemination of child exploitation material;" "communicating with the intention of making a child amenable to sexual activity;" and "aggravated possession of child exploitation material." Clerk's Papers (CP) at 193.

¶5 Lewis served 18 months in an Australian prison for his crimes. The Australian court explained in its sentencing remarks (equivalent to our judgment and sentence) that:

Jane [pseudonym] immediately reported the matter to the Victor Harbor police. That afternoon police located you and seized a mobile phone that you were holding. You were arrested and taken to the Victor Harbor Police Station where you were interviewed.

Id. at 194.

¶6 Upon Lewis’ release from prison in 2018, he was deported to the United States and moved in with his mother in Aberdeen. Lewis registered as a sex offender in Grays Harbor County, listing his Australian offenses on his registration form.

¶7 Lewis later faced charges in Grays Harbor County arising from social media records showing that Lewis sent explicit messages and images to underage users, including child sexual abuse material, in 2019. He was charged with two counts of dealing in depictions of a minor engaged in sexually explicit conduct, one count of possession of depictions of a minor engaged in sexually explicit conduct, and one count of communication with a minor for immoral purposes.

¶8 In plea negotiations, Lewis and the State reached an agreement as to all but the appropriate offender score. The parties disagreed about whether Lewis’ Australian charges should be counted in his offender score. Whereas Lewis thought his score should be 6, the State believed that Lewis’ score should be 9-plus. Lewis sought to plead guilty and to reserve the offender score issue for the time of sentencing, but the court expressed reservations about whether Lewis could knowingly and voluntarily enter a guilty plea without knowing what his offender score and corresponding sentencing range could be.

¶9 The court would not accept the plea and asked the parties to brief the offender score issue. The State provided the court with a copy of Lewis’ Australian sentencing remarks and certificate of record. The trial court considered these documents and heard argument on the issue at two hearings.

¶10 The trial court concluded that Lewis’ Australian convictions should be counted in his offender score as sex offense convictions. It found that the offenses were factually comparable to Washington felonies and that the Australian sentencing remarks provided by the State were equivalent to our judgment and sentence. It also concluded that the language "out-of-state" did not exclude foreign offenses. The trial court entered findings of fact and conclusions of law to that effect.

¶11 Lewis then pleaded guilty to two counts of dealing in depictions of a minor engaged in sexually explicit conduct and one count of possession of depictions of a minor engaged in sexually explicit conduct. His plea agreement provided that his offender score was 9-plus, assigning three points to each of his three Australian convictions.¹

¶12 Based on the offender score of 9-plus, Lewis faced a standard range of 87-116 months for counts one and two and a standard range of 77-102 months for count three. The State recommended a low-end sentence of 87 months. The Department of Corrections recommended a sentence of 102 months, taking into account his Australian crimes and his lack of remorse. The court sentenced Lewis to 102 months’ confinement. Lewis now appeals his sentence.

DISCUSSION

I. MEANING OF "OUT-OF-STATE" WITHIN THE SRA

¶13 Lewis argues that the trial court erred when it included his Australian convictions in calculating his offender score. Specifically, he argues that the plain language of the relevant statutory provision excludes a defendant's prior foreign country convictions from the calculation of the defendant's offender score. We disagree.

LEGAL PRINCIPLES A.

i. Statutory Interpretation

¶14 Statutory interpretation is a question of law that we review de novo. State v. Valdiglesias LaValle , 2 Wash.3d 310, 317, 535 P.3d 856 (2023). Our goal is to "ascertain and carry out the Legislature's intent." Id. at 317-18, 535 P.3d 856 (quoting Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ).

¶15 If the plain meaning of a statute is clear, our inquiry ends and we give effect to that meaning. Id. at 318, 535 P.3d 856. We determine the plain meaning of a statute by examining the text, the statutory context, related provisions, and the statutory scheme as a whole. Id. Undefined terms are given their ordinary meaning unless doing so would contradict the legislature's intent. Id.

¶16 Alternatively, if the statute can be reasonably interpreted in more than one way, the statute is ambiguous. Id. A term is not ambiguous simply because it can be interpreted in more than one possible way; rather, it must be subject to multiple reasonable interpretations. Id. We interpret an ambiguous term by employing principles of statutory construction, and examining legislative history and relevant case law. Id.

ii. Sentencing Reform Act Generally

¶17 Washington's Sentencing Reform Act of 1981 (SRA) is codified at chapter 9.94A RCW. See RCW 9.94A.020. Its purpose is "to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences." RCW 9.94A.010. It is also intended to "[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history." RCW 9.94A.010(1). "Criminal history" means "the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere." RCW 9.94A.030(11).

¶18 The SRA directs courts to determine the standard sentence range for a felony by first calculating the defendant's offender score and determining the seriousness level of the current offense. RCW 9.94A.525, .530.² The offender score and seriousness level are then used to locate the standard sentence in the tables (grids) codified at RCW 9.94A.510 and 9.94A.517. The court then applies any adjustments to the standard range that are located in RCW 9.94A.533.³ The court has discretion to sentence offenders within the standard range. RCW 9.94A.530. If aggravating factors are present, the court may impose an exceptional sentence above the standard range. RCW 9.94A.537.

¶19 Offender scores are calculated by adding together points for the defendant's prior convictions according to RCW 9.94A.525. Each prior conviction is assigned a point value depending on the offense and its severity. RCW 9.94A.525(7) - (21).

iii. Out-of-State Prior Convictions

¶20 An out-of-state prior conviction counts toward one's offender score as if it were a conviction for the comparable Washington crime. RCW 9.94A.525(3). The comparability analysis requires "rough comparability" with a Washington crime rather than an exact match. State v. Jordan , 180 Wash.2d 456, 465, 325 P.3d 181 (2014). This is so because "the legislature purposefully created the SRA scheme broadly in order to ‘ensure that defendants with equivalent prior convictions are treated the same way, regardless of whether their prior convictions were incurred in Washington or elsewhere.’ " Id. (internal quotation marks omitted) (quoting State v. Morley , 134 Wash.2d 588, 602, 952 P.2d 167 (1998) ).

¶21 The SRA does not define "out-of-state." See RCW 9.94A.030. In the SRA's offender score provision, the term "out-of-state" is used as follows:

Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the

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