State v. Vanslyke

536 P.3d 1155

STATE of Washington, Respondent,

v.Marc Richard VANSLYKE, Appellant.

No. 84430-0-I

Court of Appeals of Washington, Division 1.

Filed October 16, 2023

Pllc Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250 Seattle, WA, 98121, Eric J. Nielsen, Dana M. Nelson Nielsen, Koch & Grannis, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Amanda Fern Esq. Campbell, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201, for Respondent.

PUBLISHED OPINION

Feldman, J.

¶1 Marc Richard Vanslyke appeals the no-contact condition of his judgment and sentence and the no-contact order (NCO) issued in connection therewith. Vanslyke claims that the trial court was required to reduce the duration of the no-contact condition and NCO by the amount of time that he was subject to a prior no-contact condition and NCO for the same offense and that his trial attorney was ineffective by failing to properly argue this issue below. Finding no statutory or constitutional error, we affirm.

I

¶2 On January 18, 2018, the Lynwood Municipal Court issued an order prohibiting Vanslyke from contacting Jolene Washington until January 18, 2024. On May 8, 2020, police officers responding to a 911 hang-up call from Washington's apartment found her in the apartment and Vanslyke on the neighbor's balcony. The State charged Vanslyke with (1) felony violation of a court order – domestic violence¹ and (2) gross misdemeanor interfering with domestic violence reporting.

¶3 Vanslyke pleaded guilty to both counts. On May 11, 2021, the trial court sentenced Vanslyke to 60 months of incarceration on the class C felony count and imposed 364 days of confinement on the gross misdemeanor count but suspended that sentence. As a condition of the sentence, the court ordered Vanslyke not to contact Washington. It also issued a separate post-conviction NCO that expired five years from the date of sentencing.

¶4 On January 31, 2022, this court held that Vanslyke's plea was constitutionally invalid because the charging language failed to apprise him of an essential element of a willful violation of a court order. State v. Vanslyke , No. 82651-4-I, slip op. at 1, 2022 WL 277133 (Wash. Ct. App. Jan. 31, 2022) (unpublished), http://www.courts.wa.gov/opinions/pdf/826514.pdf (citing State v. Briggs , 18 Wash. App. 2d 544, 550, 553, 492 P.3d 218 (2021) ). This court remanded the matter to the trial court to allow Vanslyke to withdraw his guilty pleas, which he did. Id .

¶5 Following a jury trial, Vanslyke was found guilty of the felony count but not guilty of the gross misdemeanor count. At the resentencing hearing on August 9, 2022, the trial court again sentenced Vanslyke to 60 months of incarceration and, as a condition of the sentence, prohibited him from contacting Washington until August 9, 2027. The court also issued a separate post-conviction NCO that likewise expired "5 years from today's date." Vanslyke appeals.

II

A. Statutory Interpretation

¶6 Vanslyke argues that the duration of the no-contact sentencing condition and NCO imposed at his resentencing hearing exceed the maximum length permitted by RCW 10.99.050 because the trial court failed to credit him with the time he was subject to the no-contact sentencing condition and NCO imposed at his initial sentencing hearing. We disagree.

¶7 We review a trial court's sentence with deference and will only reverse a sentence based on a "clear abuse of discretion or misapplication of the law." State v. Elliott , 114 Wash.2d 6, 17, 785 P.2d 440 (1990). Here, Vanslyke's sentencing arguments require us to interpret RCW 10.99.050. "The goal of statutory interpretation is to discern and implement the legislature's intent." State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007). "If the legislature's intent is clear based on the plain language of the statute, ‘then the court must give effect to that plain meaning as an expression of legislative intent.’ " State v. Granath , 190 Wash.2d 548, 552, 415 P.3d 1179 (2018) (quoting Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wash.2d 1, 10, 43 P.3d 4 (2002) ). Statutory interpretation is a legal issue, which we review de novo. State v. Landsiedel , 165 Wash. App. 886, 889, 269 P.3d 347 (2012).

¶8 The plain language of RCW 10.99.050 resolves the issue presented here. It unambiguously states, without qualification, that an NCO issued as a condition of a felony sentence "remains in effect for a fixed period of time determined by the court, which may not exceed the adult maximum sentence established in RCW 9A.20.021." RCW 10.99.050(2)(d). Vanslyke was convicted of a class C felony, which carries a maximum sentence of five years. RCW 9A.20.021(1)(c). Therefore, RCW 10.99.050 authorized the sentencing court to impose an NCO lasting up to five years for Vanslyke's offense. The trial court's NCO issued as a condition of Vanslyke's sentence did not exceed that statutory limit.

¶9 Moreover, the legislature knows how to provide defendants with credit for court-imposed restrictions, and it did not do so here. For example, RCW 9.94A.505(6) provides, "The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced." Additionally, RCW 9.94A.680(3) states, "For offenders convicted of nonviolent and nonsex offenses, the court may credit time served by the offender before the sentencing in an available county supervised community option ...." Had the legislature intended to provide a statutory basis to credit defendants with time they were previously prohibited from contacting a person, it would have used similar language in RCW 10.99.050. It did not, and its use of different language is legally significant. See Samish Indian Nation v. Dep't of Licensing , 14 Wash. App. 2d 437, 442, 471 P.3d 261 (2020) ("When the legislature uses different language in the same statute, courts presume the legislature intended a different meaning.").

¶10 Despite the clear language of the statute, Vanslyke urges us to apply the rule of lenity to construe RCW 10.99.050 in his favor. But courts may apply the rule of lenity only where a statute is ambiguous such that "it is subject to two or more reasonable interpretations." State v. McGee , 122 Wash.2d 783, 787, 864 P.2d 912 (1993). RCW 10.99.050 is subject to only one reasonable interpretation: the sentencing court could properly impose an NCO lasting up to five years from the date of sentencing. Vanslyke offers no authority supporting any legislative intent to credit defendants with time they were previously subject to NCOs for the same offense. We therefore assume no such intent exists. See State v. Loos , 14 Wash. App. 2d 748, 758, 473 P.3d 1229 (2020) ("When a party provides no citation to support an argument, this court will assume that counsel, after diligent search, has found none."). In sum, because the trial court did not prohibit Vanslyke from contacting the victim for longer than the maximum duration prescribed in RCW 10.99.050, it did not abuse its discretion in setting the duration of the sentencing condition or NCO.

B. Due Process

¶11 "[T]he ‘imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy is a violation of due process of law.’ " State v. Brown , 193 Wash.2d 280, 288, 440 P.3d 962 (2019) (quoting North Carolina v. Pearce , 395 U.S. 711, 724, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) ) (internal quotation marks omitted). Vanslyke argues that the trial court penalized him for exercising his right to appeal in violation of due process because, by not crediting him with the time he was subject to the initial sentencing condition and NCO during the pendency of his first appeal, the court effectively imposed a longer period of no-contact following his successful appeal. This argument fails because a no-contact restriction is not a "penalty"—nor is it "punitive"—for due process purposes. As a result, due process does not require that Vanslyke receive credit for the time that he was subject to the previous sentencing condition and NCO for the same offense.

\¶12Our constitutional analysis in In re Personal Restraint of Arseneau , 98 Wash. App. 368, 370-71, 989 P.2d 1197 (1999), is controlling here. In Arseneau , the Department of Corrections prohibited Arseneau from contacting a family member who was not the victim of the offense for which he was sentenced. The defendant argued the restriction violated the constitutional prohibitions on double jeopardy and ex post facto punishments. Id. at 379, 989 P.2d 1197.² In determining whether the government's action was sufficiently "punitive" to warrant constitutional scrutiny, we first considered the relevant legislative purpose. Id. We then examined the effect of the governmental action as measured by the following seven factors:

1) whether the sanction involves an affirmative disability or restraint; 2) whether it has been historically regarded as punishment; 3) whether it comes into play only on a finding of scienter; 4) whether it furthers retribution and deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether an alternative purpose to which it may rationally be connected is assignable for it; and 7) whether it appears to be excessive in relation to the alternative purpose assigned.

Id. at 379-80, 989 P.2d 1197 (citing State v. Ward , 123 Wash.2d 488, 499, 869 P.2d 1062 (1994) (citing Kennedy v. Mendoza-Martinez , 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) )). We reasoned the prohibition was not "punitive" because, although it imposed an affirmative burden, "no-contact provisions have not traditionally been considered punishment. They are civil in nature and designed to protect third parties." Id. at 380, 989 P.2d 1197. We also noted that the no-contact prohibition did not depend...