State v. Madden

16 Wash.App.2d 327

480 P.3d 1154

STATE of Washington, Respondent,

v.Kenneth Lavelle MADDEN, Appellant.

No. 80302-6-I

Court of Appeals of Washington, Division 1.

FILED February 16, 2021

Marek Elias Falk, Washington Appellate, Project 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave. Everett, WA, 98201-4060, for Respondent.

Mary Kathleen Webber, Snohomish County Prosecutors Office, 3000 Rockefeller Ave Everett, WA, 98201-4061, for Respondent.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/S 504 Everett, WA, 98201, for Respondent.

PUBLISHED OPINION

Chun, J. ¶ 1 Kenneth Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of violating a no-contact order. At arraignment, the trial court ordered that Madden remain shackled based on the nature of his offense, criminal history, and prior resistance of restraints. The jury found him guilty as charged, and the trial court imposed a $100 DNA testing fee. Madden appeals. We affirm one of his convictions but reverse two based on double jeopardy principles. And we remand for the trial court to resentence Madden and determine whether the State has previously collected his DNA.

I. BACKGROUND

¶ 2 King County Superior Court entered three separate no-contact orders against Madden in favor of S.B. Madden then contacted S.B. Officers arrested Madden for violating the orders. The State charged Madden with one count of violation of a court order.

¶ 3 While jailed pending trial, Madden reported that his cell mate had called him racial slurs and in response, jail officials told Madden to pack his belongings and prepare to move to another cell. Madden asked why he had to move if it was his cell mate who called him slurs, and refused to pack his belongings. Jail officials charged Madden with major rule violations for Disobeying and Interference.

¶ 4 At arraignment, the State requested that Madden remain in restraints based on his criminal history, the report of the jail incident, his behavior towards the alleged victim, and a claim by a corrections officer that "the last time he was in court when the restraints were taken off, he also resisted us putting them back on him." In granting the State's request, the trial court explained:

I want to make it really clear that it is absolutely not based at all on this incident report. It's based on the nature of the underlying crime, what's in the affidavit of probable cause. Plus he's got—literally all of his misdemeanors are assault four, malicious mischief, or violation of no-contact orders. And then the refusal to go back into restraints last time. The incident report is not the basis of this, which I believe is in itself not sufficient.

¶ 5 On the first day of trial, the State amended the information to include two more counts of violation of a court order for the same act prompting the original count. The jury found Madden guilty as charged. The trial court ordered Madden to provide a DNA sample and pay a $100 sampling fee.

II. ANALYSIS

A. Double Jeopardy

¶ 6 Madden says his three convictions for violation of a no-contact order violate double jeopardy principles, since they stem from a single criminal act. We agree and reverse two of his convictions.

¶ 7 Article I, section 9 of the state constitution and the double jeopardy clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense. State v. Robinson, 8 Wash. App. 2d 629, 638, 439 P.3d 710 (2019) ; North Carolina v. Pearce, 395 U.S. 711, 729, 89 S. Ct. 2089, 23 L. Ed. 2d 656 (1969) ; U.S. CONST . amend. V ; CONST . art. I, § 9. Courts interpret the state and federal provisions in the same manner.

State v. Glasmann, 183 Wash.2d 117, 121, 349 P.3d 829 (2015). "When a person is charged with multiple counts of the same offense, ‘each count must be based on a separate and distinct criminal act.’ " Robinson, 8 Wash. App. 2d at 638, 439 P.3d 710 (quoting State v. Mutch, 171 Wash.2d 646, 662, 254 P.3d 803 (2011) ). "It must be ‘manifestly apparent’ from the record, testimony, and argument that ... identical charges are based on separate acts." Id. (quoting Mutch, 171 Wash.2d at 664, 254 P.3d 803 ). We will remedy a double jeopardy violation by reversing the redundant convictions. Mutch, 171 Wash.2d at 664, 254 P.3d 803.

¶ 8 "If a defendant is convicted of violating a single statute multiple times, the proper inquiry in a single statute case is ‘what unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute." State v. Tili, 139 Wash.2d 107, 113, 985 P.2d 365 (1999) (quoting State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998) ). In a unit of prosecution case, a court will first look to the statute; and if it does not define the unit of prosecution, the court turns to legislative history to discern legislative intent. State v. Jensen, 164 Wash.2d 943, 949, 195 P.3d 512 (2008). "Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the rule of lenity requires a court to resolve ambiguity in favor of one offense." Id. "The unit of prosecution rule protects the accused from overzealous prosecution." State v. Latham, 3 Wash. App. 2d 468, 475, 416 P.3d 725 (2018).

¶ 9 When examining the language of a statute, a court first looks to its plain meaning to determine legislative intent. State v. Brown, 159 Wash. App. 1, 9–10, 248 P.3d 518 (2010). "Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." Id. at 10, 248 P.3d 518 (quoting State v. Elmore, 143 Wash. App. 185, 188, 177 P.3d 172 (2008) ). But "where a statute is susceptible to an interpretation that may render it unconstitutional, courts should adopt, if possible, a construction that will uphold its constitutionality." In re Det. of C.W., 147 Wash.2d 259, 277, 53 P.3d 979 (2002).

¶ 10 The State charged Madden with violating RCW 26.50.110(4) and (5), which provide:¹

(4) Any assault that is a violation of an order issued under this chapter, chapter 7.92, 7.90, 9A.40, 9A.46, 9A.88, 9.94A, 10.99, 26.09, *26.10, 26.26A, 26.26B, or 74.34 RCW, a valid foreign protection order as defined in RCW 26.52.020, or a valid Canadian domestic violence protection order as defined in RCW 26.55.010, and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation of such an order that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.

(5) A violation of a court order issued under this chapter, chapter 7.92, 7.90, 9A.40, 9A.46, 9A.88, 9.94A, 10.99, 26.09, *26.10, 26.26A, 26.26B, or 74.34 RCW, a valid foreign protection order as defined in RCW 26.52.020, or a valid Canadian domestic violence protection order as defined in RCW 26.55.010, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 9A.40, 9A.46, 9A.88, 9.94A, 10.99, 26.09, *26.10, 26.26A, 26.26B, or 74.34 RCW, a valid foreign protection order as defined in RCW 26.52.020 or a valid Canadian domestic violence protection order as defined in RCW 26.55.010. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.

RCW 26.50.110 (emphasis added).

¶ 11 The State, citing Brown, 159 Wash. App. at 10–11, 248 P.3d 518, says that use of the indefinite article "a" preceding "court order" in subsection (5) shows that the legislature plainly intended for a violation of each individual court order to be the unit of prosecution.

And "[t]he Supreme Court ‘has consistently interpreted the legislature's use of the word ‘a’ in a criminal statute as authorizing punishment for each individual instance of criminal conduct, even if multiple instances of such conduct occurred simultaneously.’ " Id. at 11, 248 P.3d 518 (quoting State v. Ose, 156 Wash.2d 140, 147, 124 P.3d 635 (2005) ). RCW 26.50.110(4) similarly criminalizes "a violation of an order." (Emphasis added.) While the State does not address subsection (4), their claim about the meaning of the indefinite article "a" would have the same result when applied to subsection (4). The State's interpretation of RCW 26.50.110(5) follows statutory interpretation principles that Washington courts have regularly applied when deciding double jeopardy issues. See, e.g., Ose, 156 Wash.2d at 148, 124 P.3d 635 (applying the same meaning to "a" to conclude that multiple convictions for possession of multiple stolen access devices did not violate double jeopardy).

¶ 12 But we may also apply this meaning of the indefinite article "a" to the statute's use of "a violation," which interpretation indicates that the Legislature may have intended the unit of prosecution to be an individual act constituting a "violation."² And here, while Madden violated multiple court orders, he committed only one act constituting a "violation": at sentencing, the State recognized "that in each crime, the defendant had the same intent—contact with [S.B.], that each occurred at the same time and place as noted above, and each involve the same victim, [S.B.] (assuming the separate courts themselves are not the victims)."

¶ 13 The State cites no case in which a court allowed multiple convictions under a single statute based on a single act.³ And given the principle that "[w]hen a person is charged with multiple counts of the same offense, ‘each count must be based on a separate and distinct criminal act,’ " the State's interpretation of "a court order" would lead to an unconstitutional...