# State v. Lewis

> Washington Supreme Court · July 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11101709

## Case

- **Court:** Washington Supreme Court
- **Decided:** July 17, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11101709

## How later opinions describe it (automated extraction)

- declining to require a suppression hearing to consider whether statements to Egyptian police allegedly after torture should be suppressed

## Opinion text

FILE
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
JULY 17, 2025
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
JULY 17, 2025 SARAH R. PENDLETON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON )
)
Respondent, ) No. 102910-1
)
v. )
) En Banc
MATTHEW ADAM LEWIS, )
)
Petitioner. )
_______________________________) Filed: July 17, 2025

GONZÁLEZ, J.—Our legislature has enacted a detailed felony sentencing

system in the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW. To limit

judicial discretion, the SRA establishes standard sentencing ranges based on the

seriousness of the crime and the offender score of the defendant. RCW 9.94A.010;

9.94A.510-.533. With some statutory and constitutional exceptions, judges are

generally constrained to impose sentences that fall within that legislatively

established standard range. See RCW 9.94A.010, .510, .535. See generally State v.

Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). The offender score is based

on some of the individual’s current and prior convictions, including “[o]ut-of-state

convictions.” RCW 9.94A.525.
State v. Lewis, No. 102910-1

We must decide whether “out-of-state convictions” include convictions

entered by the courts of foreign nations. We conclude that the text of the SRA is

ambiguous on this question. The parties have not pointed to any helpful legislative

history. Accordingly, we apply the rule of lenity, reverse the Court of Appeals,

and remand for resentencing.

BACKGROUND

Matthew Lewis has pleaded guilty to multiple counts of dealing in and

possessing depictions of a minor engaged in sexually explicit conduct. Clerk’s

Papers (CP) at 213. Lewis had six prior convictions: three from Washington State

and three from South Australia. CP at 214. The three prior convictions from South

Australia, if included, raised Lewis’s offender score from 6 to 9+, significantly

increasing the standard range sentence he faced. Verbatim Rep. of Proc. (Mar. 21,

2022) at 3-4; CP at 10, 99, 118; see RCW 9.94A.510.

Lewis challenged the inclusion of the South Australian convictions on

several grounds. CP at 99-103. The sentencing court rejected Lewis’s challenges

and sentenced him to 102 months on each count, to be served concurrently,

followed by 36 months of community custody. CP at 215-16. Lewis appealed,

arguing that “out-of-state convictions” did not include convictions entered in

foreign countries. The Court of Appeals rejected his arguments and affirmed his

2
State v. Lewis, No. 102910-1

sentence. We granted review, hold that the South Australian convictions were

improperly included in Lewis’s offender score, and remand for resentencing.

ANALYSIS

This case presents a question of statutory interpretation. Our review is de

novo. In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 5, 100 P.3d 805 (2004)

(citing State v. Beaver, 148 Wn.2d 338, 344, 60 P.3d 586 (2002)).

We interpret statutes in light of the legislature’s purpose in enacting the law.

State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013) (citing State v. Sweany,

174 Wn.2d 909, 914, 281 P.3d 305 (2012)). “When possible, we derive legislative

intent solely from the plain language enacted by the legislature, considering the

text of the provision in question, the context of the statute in which the provision is

found, related provisions, and the statutory scheme as a whole.” Evans, 177 Wn.2d

at 192 (citing State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)). With rare

exception, we look to standard dictionaries for the definitions of undefined

statutory terms. State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002) (citing

Cockle v. Dep’t of Lab. & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001)); City

of Spokane ex rel. Wastewater Mgmt. Dep’t v. Dep’t of Revenue, 145 Wn.2d 445,

452, 38 P.3d 1010 (2002).

The legislature has made its purpose clear:

The purpose of this chapter is to make the criminal justice system
accountable to the public by developing a system for the sentencing of
3
State v. Lewis, No. 102910-1

felony offenders which structures, but does not eliminate, discretionary
decisions affecting sentences, and to:

(1) Ensure that the punishment for a criminal offense is proportionate
to the seriousness of the offense and the offender’s criminal history;
(2) Promote respect for the law by providing punishment which is
just;
(3) Be commensurate with the punishment imposed on others
committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state’s and local governments’ resources;
and
(7) Reduce the risk of reoffending by offenders in the community.

RCW 9.94A.010.

The SRA says, in most relevant part:

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 comparable offense definitions and sentences
provided by Washington law. Neither out-of-state or federal
convictions which would have been presumptively adjudicated in
juvenile court under Washington law may be included in the offender
score unless they are comparable to murder in the first or second
degree or a class A felony sex offense. If there is no clearly
comparable offense under Washington law or the offense is one that is
usually considered subject to exclusive federal jurisdiction, the
offense shall be scored as a class C felony equivalent if it was a felony
under the relevant federal statute.

RCW 9.94A.525(3).

“Out-of-state convictions” is not a defined term in the SRA. Typically,

roughly comparable convictions from other states must be counted in an offender

score. State v. Jordan, 180 Wn.2d 456, 465, 325 P.3d 181 (2014). If the elements
4
State v. Lewis, No. 102910-1

of the conviction from another state are comparable to a Washington felony, the

inquiry ends and the conviction is counted. Jordan, 180 Wn.2d at 461. Even if the

elements are not legally comparable, a conviction from another state may be

counted if the underlying conduct constitutes a felony under Washington law. State

v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). In deciding whether

underlying conduct constitutes a felony under Washington law, the sentencing

court may rely on facts “that are admitted, stipulated to, or proved beyond a

reasonable doubt.” Id. (citing In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258,

111 P.3d 837 (2005)).

Though we presume these convictions are valid, that presumption will be

overcome and a prior conviction will not be scored if it “has been previously

determined to have been unconstitutionally obtained or . . . is constitutionally

invalid on its face.” State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d

796 (1986). Simply put, unless that prior conviction is not valid on its face or has

been undermined in a collateral proceeding, the sentencing court does not inquire

into the underlying fairness of the conviction or whether that conviction would

have been lawful under Washington law or criminal procedure rules. Id; Jordan,

180 Wn.2d at 463-65; see also State v. Gonzalez, 25 Wn. App. 2d 295, 298-99, 523

P.3d 800 (2023).

5
State v. Lewis, No. 102910-1

We have previously held that foreign convictions may be considered as part

of a defendant’s criminal history even if they were obtained under circumstances

that would be unconstitutional in the United States. State v. Herzog, 112 Wn.2d

419, 432, 771 P.2d 739 (1989) (Herzog II). 1 However, “[t]he determination of a

defendant’s criminal history is distinct from the determination of an offender

score.” RCW 9.94A.030(11)(c). Criminal history is expansive and includes “prior

convictions and juvenile adjudications, whether in this state, in federal court, or

elsewhere, and any issued certificates of restoration of opportunity pursuant to

RCW 9.97.020,” regardless whether those convictions and adjudications would be

scored. RCW 9.94A.030(11), .525 (setting forth in considerable detail which

offenses are scored).

Dictionary definitions are divided. One defines “out-of-state” as “of,

relating to, or from another state of the U.S.: a car with an out-of-state license

plate; out-of-state vacationers.” DICTIONARY.COM,

https://www.dictionary.com/browse/out-of-state [https://perma.cc/RS85-RG3P].

This supports Lewis’s interpretation. In contrast, Merriam-Webster, relevantly,

defines “out-of” as “beyond the range, limits, or sphere of,” and “state,” relevantly,

as “a politically organized body of people usually occupying a definite territory.”

1
In Herzog, the Court of Appeals affirmed a trial court’s refusal to score a 1981 West Germany
rape conviction that was conducted before a panel of only two jurors. State v. Herzog, 48 Wn. App.
831, 834, 740 P.2d 380 (1987) (Herzog I). That issue was not considered on appeal to this court.

6
State v. Lewis, No. 102910-1

MERIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-

webster.com/dictionary/out%20of [https://perma.cc/JZU6-FLW9];

https://www.merriam-webster.com/dictionary/state [https://perma.cc/4MAE-

49ZA]. Taken together, this suggests “out-of-state” refers to a conviction entered

by any state. This supports the State’s interpretation.

Turning outside of the SRA, many Washington statutes use the term “out-of-

state” and use it in ways that are inconsistent. For example, the Uniform Act for

Out-of-State Supervision concerns supervision from “any of the United States.”

RCW 9.95.270; LAWS OF 1937, ch. 92, § 1. Similarly, chapter 36.110 RCW, the

jail industries program, treats out-of-state and foreign suppliers as separate

categories. RCW 36.110.020(5). The treatment of “out-of-state” in these statutes

supports Lewis’s interpretation.2 In contrast, the legislature has included in its

definition of “resident student” a student “who is on active military duty who is

stationed out-of-state,” in context clearly intending to encompass students

stationed in other nations. See RCW 28B.15.012(2)(i). This supports the State’s

interpretation.

The legislature has also clearly indicated its desire that punishment take into

account the individual’s criminal history, which includes, but is not limited to, the

2
In addition, we note that the United States Supreme Court has interpreted a statute that barred
anyone who had been “convicted in any court” of a felony from firearm possession as not
including convictions rendered in foreign countries. Small v. United States, 544 U.S. 385, 387, 125
S. Ct. 1752, 161 L. Ed. 2d 651 (2005).
7
State v. Lewis, No. 102910-1

individual’s scored convictions. RCW 9.94A.010, .030(11)(c). As people move

over borders, they take their history with them. But the legislature must also be

aware that there are nations that do not follow what we would recognize as

minimum standards of due process in their criminal procedures. We are hesitant to

conclude the legislature intended to include convictions from jurisdictions that

allow coerced confessions, for example. Cf. United States v. Salameh, 152 F.3d

88, 117 (2d Cir. 1998) (declining to require a suppression hearing to consider

whether statements to Egyptian police allegedly after torture should be

suppressed).3

Nothing in the SRA, related statutes, or Washington statutes in general

clearly establishes whether the legislature meant to include only other states of the

union or all non-Washington convictions, including convictions entered by the

courts of United States territories, the courts of Native American tribes, and

foreign countries. Dictionary definitions are inconsistent, and the parties have not

pointed us to helpful legislative history. Accordingly, the term “out-of-state” is

subject to conflicting reasonable interpretations, rendering it ambiguous.

3
The State has no obligation to establish the constitutional validity of prior convictions before
these convictions are used at sentencing. State v. Ammons, 105 Wn.2d at 187. Prior convictions
that have “been previously determined to have been unconstitutionally obtained or which is
constitutionally invalid on its face may not be considered. Constitutionally invalid on its face
means a conviction which without further elaboration evidences infirmities of a constitutional
magnitude.” Ammons, 105 Wn.2d at 187-88 (citations omitted). Many constitutional infirmities
are not obvious from the face of a judgment and sentence. See generally In re Pers. Restraint of
Coats, 173 Wn.2d 123, 140-41, 267 P.3d 324 (2011).

8
State v. Lewis, No. 102910-1

When a criminal statute is ambiguous, the rule of lenity applies. Under the

rule of lenity, ambiguous criminal laws are strictly construed in favor of the

defendant. Evans, 177 Wn.2d at 193 (citing State v. Hornaday, 105 Wn.2d 120,

127, 713 P.2d 71 (1986); In re Post Sent’g Rev. of Charles, 135 Wn.2d 239, 250 &

n. 4, 252-53, 955 P.2d 798 (1998)); State v. Pratt, 196 Wn.2d 849, 859-63, 479

P.3d 680 (2021) (Gordon McCloud, J., dissenting) (discussing the importance of

the rule of lenity in our tradition of criminal justice). We apply this rule and hold

“out-of-state” does not include convictions entered in foreign countries.

We respectfully disagree with our dissenting colleagues that comparability

analysis will afford those being sentenced with an opportunity to establish foreign

prior convictions were obtained consistent with minimal due process of law. See

Dissent at 2 (citing Ammons, 105 Wn.2d at 187). Comparability analysis is limited

to considering whether the elements of a foreign crime are roughly equivalent to

the elements of a scored Washington offense. Jordan, 180 Wn.2d at 465.

Comparability analysis is not a “minitrial” into the character of a prior conviction.

See State v. Cruz, 139 Wn.2d 186, 189 n.4, 985 P.2d 384 (1999).

Ammons recognizes that “a prior conviction which has been previously

determined to have been unconstitutionally obtained or which is constitutionally

invalid on its face may not be considered.” 105 Wn.2d at 187-88 (citing In re Pers.

Restraint of Bush, 26 Wn. App. 486, 497-98, 616 P.2d 666 (1980), aff’d, 95 Wn.2d

9
State v. Lewis, No. 102910-1

551, 627 P.2d 953(1981)). A conviction has been previously determined to be

unconstitutional when it is successfully overturned on appeal or so recognized in a

collateral challenge. See id. Washington courts have never allowed a sentencing

proceeding to substitute for a proper collateral challenge or appeal of a prior

conviction. See State v. Thompson, 143 Wn. App. 861, 867-68, 181 P.3d 858

(2008). At sentencing, the defendant is limited to showing incomparability or

constitutional facial invalidity. State v. Blair, 191 Wn.2d 155, 162-63, 421 P.3d

937 (2018). Washington courts have no authority to entertain collateral challenges

to foreign convictions, and it would be the rare foreign judgment that would

demonstrate on its face that it was gotten by methods that did not meet Washington

due process protections. Accordingly, we respectfully disagree with the dissent

that comparability analysis is adequate to guard against unconstitutionally obtained

foreign convictions being used in sentencing.

For similar reasons, we also respectfully disagree with our dissenting

colleagues that this case is resolved by State v. Morley, 134 Wn.2d 588, 952 P.2d

167 (1998). Dissent at 2. Morley concerned whether a general court martial

obtained in a United States’ military tribunal and affirmed by a three-judge panel

of the United States Army Court of Criminal Appeals was properly scored or

considered part of an offender’s criminal history under the SRA or considered a

10
State v. Lewis, No. 102910-1

strike under the Persistent Offender Accountability Act. 134 Wn.2d at 592-95.

Morley did not consider a conviction rendered by the court of a foreign nation.

Morley concluded that a Washington sentencing court could properly

consider the record of an out-of-state conviction to determine whether the elements

of the crime were comparable. 134 Wn.2d at 606. Nothing in Morley suggests

that the out-of-state records may be consulted to determine whether the conviction

would have otherwise been properly obtained in Washington. 4 In addition, since

Morley, the legislature has made clear that “[t]he determination of a defendant’s

criminal history is distinct from the determination of an offender score.” LAWS OF

2002, ch. 107, § 2(13)(c) (currently codified at RCW 9.94A.030(11)(c)).

We recognize that our decision today is not without cost. Two of the

expressed purposes of the SRA include ensuring “that the punishment for a

criminal offense is proportionate to the seriousness of the offense and the

offender’s criminal history,” and rendering sentences that are “commensurate with

the punishment imposed on others committing similar offenses.” RCW

9.94A.010(1), (3). In addition, we owe an appropriate level of respect to the courts

4
Nor does Herzog II support the proposition that a court making a comparability analysis could
consider whether a foreign conviction was obtained by constitutional processes. Herzog II asked
whether the facts underlying a foreign conviction could be properly considered by a sentencing
court in determining where, in a standard range that was not calculated based on that foreign
conviction, the defendant should be sentenced. 112 Wn.2d at 420. The Court of Appeals had
previously determined that the foreign conviction was invalid on its face and that issue was not
before us. See Herzog I, 48 Wn. App. at 834. Nothing in Herzog I suggests the sentencing court
could properly inquire into the procedures by which a conviction was obtained.
11
State v. Lewis, No. 102910-1

of territories, tribal courts, and other nations. We note that nothing in this opinion

should be taken to prevent a sentencing court from considering such history when

deciding how to exercise its discretion within the structure of the SRA.

But given the ambiguity in the SRA and the other important interests at

stake, we reverse the Court of Appeals and remand to the trial court for further

proceedings consistent with this opinion.

WE CONCUR:

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________

12
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

No. 102910-1

JOHNSON, J. (concurring)—I concur with the majority that Matthew Lewis

is entitled to resentencing, but the majority errs by resorting to the rule of lenity to

interpret a statute that is not ambiguous. Although the Sentencing Reform Act of

1981 (SRA), ch. 9.94A RCW, does not define “out-of-state convictions,” well-

established principles of statutory interpretation yield only one reasonable

interpretation of the term. By employing those tools, the statutory language

defining “out-of-state convictions” refers to convictions from other U.S. states and

not those from foreign countries. The rule of lenity is appropriate only after

statutory interpretation fails to reveal the legislature’s intent, and thus the majority

errs by declining to engage in meaningful statutory analysis before concluding that

the rule of lenity applies. Majority at 6-8 (devoting only cursory treatment to

analysis of the statute’s plain meaning and context).

The fundamental goal of statutory interpretation is to ascertain the intent of

the legislature, and if the plain meaning of the statute is discernable, we must give

effect to that meaning as an expression of the legislature’s intent. State v.

Valdiglesias LaValle, 2 Wn.3d 310, 317-18, 535 P.3d 856 (2023). We ascertain the
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

plain meaning of a statute through the statutory text, the context, related statutory

provisions, and the statutory scheme as a whole. State v. Haggard, 195 Wn.2d 544,

548, 461 P.3d 1159 (2020). Here, while divided dictionary definitions suggest the

statutory language, when viewed in isolation, may have more than one

interpretation, the legislature’s intended meaning is discernable from the context

surrounding the term, related statutes in Title 9 RCW, and the role of the offender

score in the statutory scheme of the SRA.

Starting with the immediate context of the term, the legislature’s intent that

“out-of-state” refers to other U.S. states is discernable from the sentence that

immediately follows the use of the term: “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 comparable offense definitions and sentences provided by

Washington law.” RCW 9.94A.525(3) (emphasis added). Logically, if “out-of-

state” had been intended to cover any conviction from outside of Washington,

federal convictions would already be included in that provision. The addition of the

sentence expressly referring to them would be completely superfluous if that had

been the legislature’s intent. Thus, the specific inclusion of comparable federal

convictions expresses the legislature’s intended meaning that “out-of-state” refers

to other U.S. states, and no ambiguity exists.

2
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

Further evidence of the legislature’s intended meaning can be found

throughout the SRA, which is codified in chapter 9.94A RCW. The term “out-of-

state” can also be found in RCW 9.94A.030(42), which specifically references

federal, tribal, military, county, and municipal convictions. (“‘Repetitive domestic

violence offense’ means . . . (b) Any federal, out-of-state, tribal court, military,

county, or municipal conviction . . . .”). These terms all become superfluous under

the State’s interpretation of the term “out-of-state.” Further, the legislature uses

express language when describing criminal history from foreign jurisdictions in the

SRA. For example, in RCW 9.94A.535(2)(b), the SRA provides that courts may

impose exceptional sentences when the defendant’s “prior unscored foreign

criminal history results in a presumptive sentence that is clearly too lenient in light

of the purpose of [the SRA].” This provision shows that the legislature did not

intend that foreign criminal history would already be considered in the offender

score as an “out-of-state” conviction, and it shows that the legislature knows how

to include foreign convictions when intended.

Related statutes that use the term “out-of-state” elsewhere in Title 9 RCW

also indicate that the legislature uses the term to refer to domestic sources outside

of Washington State. For example, in RCW 9.95.270, “out-of-state supervision” is

used to refer to supervision from “any of the United States.” Similarly, in RCW

9.41.122, “out-of-state purchasing” is used to refer to purchases of firearms “in a

3
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

state other than Washington.” Although the majority manufactures ambiguity by

noting that the legislature uses “out-of-state” with a broader implicit meaning in

Title 28B RCW, the section of our state’s statutes that governs institutions of

higher education,1 such a reading does not examine a related statute or place RCW

9.94A.525 in its appropriate context, which is the section of our state law that

concerns crimes and punishments—Title 9 RCW—not the section regarding higher

education.

Finally, within the statutory scheme under the SRA, the distinct role of the

narrower “offender score” in contrast to the broader “criminal history”

demonstrates the legislature’s intended meaning. The SRA creates a system

intended to structure the sentencing court’s discretion, 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). The SRA defines

“criminal history” as “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) (emphasis added). This definition is broader than the language used

in the calculation of the offender score under RCW 9.94A.525. Throughout the

SRA, this system accounts for a defendant’s entire “criminal history,” including

1
Majority at 7 (reading RCW 28B.15.012(2)(i) to provide “resident” status to students
stationed “out-of-state” on active military duty).

4
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

foreign convictions, at multiple points in the sentencing process. See, e.g., RCW

9.94A.441 (“The prosecuting attorney and the defendant shall each provide the

court with their understanding of what the defendant’s criminal history is prior to a

plea of guilty pursuant to a plea agreement.”), .500(1) (“The court shall consider

the risk assessment report and presentence reports, if any, including any victim

impact statement and criminal history . . . .”). However, the offender score is often

not the defendant’s entire criminal history as it is defined in RCW 9.94A.030(11).

If the legislature had intended to make the offender score as broad as the term

“criminal history,” it could have done so easily by using the same catchall term,

“elsewhere,” that it used in the “criminal history” definition. Since RCW

9.94A.525 does not include that term, we should not infer it.

The legislature clarified in 2002 that the offender score is not to be equated

with “criminal history” when it amended RCW 9.94A.030 to add that “[t]he

determination of a defendant’s criminal history is distinct from the determination

of an offender score.” LAWS OF 2002, ch. 107, § 2(13)(c). When we examined a

previous version of the SRA in State v. Morley to determine whether courts-martial

qualified as convictions for the purpose of the offender score, we treated the

offender score as though it included all convictions within the definition of

“criminal history,” as long as the conviction met the comparability requirements

5
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

and washout provisions of RCW 9.94A.525. 2 134 Wn.2d 588, 601, 952 P.2d 167

(1998). However, the two provisions cannot be read coextensively today given the

legislature’s express statement in RCW 9.94A.030(11)(c) that they are distinct

determinations. While the legislative history indicates the 2002 amendment was at

least in part a response to judicial interpretation of the retroactivity of the washout

provision,3 rather than the issue at hand here and in Morley, the addition of

subsection (11)(c) is akin to an interpretive directive, which aids courts in

ascertaining the legislature’s intended relationship between the criminal history

definition and the offender score. Because we did not have the directive of

subsection (11)(c) when we decided Morley in 1998, our analysis incorrectly

treated the provisions as coextensive. Based on this statutory directive and the

statutory scheme as a whole, the legislature has expressed that the definition of

“criminal history” under RCW 9.94A.030 is not coextensive with the scope of the

“offender score” under RCW 9.94A.525. While foreign and other convictions can

be considered as part of the defendant’s “criminal history” under RCW

9.94A.030(11), foreign country convictions are not included in the term “out-of-

state” in RCW 9.94A.525(3).

2
Codified at the time as RCW 9.94A.360.
3
Bill reports indicate the amendment was motivated by State v. Cruz, 139 Wn.2d 186,
985 P.2d 384 (1999), and State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001).

6
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

Thus, when interpreted in this context, in context with the language used in

other provisions of the SRA, and in consideration of the role of the offender score

in the statutory scheme as a whole, the term “out-of-state” in RCW 9.94A.525(3)

refers only to convictions from other U.S. states. Because legislative intent can be

discerned from other rules of construction, the rule of lenity is inapplicable here.

Although we have, in some limited circumstances, applied the rule of lenity to

resolve ambiguities in the SRA, 4 “the rule only applies when a penal statute is

ambiguous and legislative intent is insufficient to clarify the ambiguity.” In re Post

Sent’g Rev. of Charles, 135 Wn.2d 239, 250 n.4, 955 P.2d 798 (1998). The rule of

lenity is a tool we reach only after employing the rules of statutory construction to

attempt to discern the legislature’s intent. City of Seattle v. Winebrenner, 167

Wn.2d 451, 462, 219 P.3d 686 (2009) (“If after applying rules of statutory

construction we conclude that a statute is ambiguous, ‘the rule of lenity requires us

to interpret the statute in favor of the defendant absent legislative intent to the

contrary.’” (emphasis added) (quoting State v. Jacobs, 154 Wn.2d 596, 601, 115

P.3d 281 (2005) (citing Charles, 135 Wn.2d at 249))). The rule of lenity applies

where we cannot otherwise resolve ambiguity through careful examination of the

language, context, related statutes, and statutory scheme. In this case, the

4
See, e.g., In re Post Sent’g Rev. of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998); In re
Pers. Restraint of Sietz, 124 Wn.2d 645, 880 P.2d 34 (1994); State v. Roberts, 117 Wn.2d 576,
817 P.2d 855 (1991).

7
State v. Lewis, No. 102910-1
(Johnson, J., concurring)

legislature’s intent is discernable from those sources, and I would hold that the

term “out-of-state” under RCW 9.94A.525(3) plainly refers to convictions from

other U.S. states and not those from foreign countries.

_________________________

Diaz, J.P.T.

8
State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

No. 102910-1

STEPHENS, C.J. (dissenting)—The Sentencing Reform Act of 1981 (SRA)

requires courts to include in a defendant’s offender score “[o]ut-of-state convictions”

that are comparable to offenses under Washington law. RCW 9.94A.525(3). The

issue in this case is whether the term “out-of-state” includes foreign countries such

as Australia. In State v. Morley, we held that out-of-state “is equally broad in its

scope” to the term “elsewhere,” which is used in the SRA’s definition of criminal

history, and “reaches all foreign convictions” from a jurisdiction other than

Washington State. 134 Wn.2d 588, 599-600, 952 P.2d 167 (1998) (interpreting

former RCW 9.94A.360 (1997), recodified as RCW 9.94A.525). In 2002, the

legislature amended the SRA specifically to abrogate our interpretation of the

washout provision in State v. Cruz, 139 Wn.2d 186, 985 P.3d 384 (1999), and State

v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001), and clarified that “[t]he

determination of a defendant’s criminal history is distinct from the determination of

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State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

an offender score.” LAWS OF 2002, ch. 107, §§ 1, 2(13)(c). That amendment did

not change the provision related to counting out-of-state convictions in offender

scores, nor did the legislature “express clear intent” to abrogate our interpretation of

that provision in Morley. See Antio, LLC v. Dep't of Revenue, 3 Wn.3d 882, 884,

557 P.3d 672 (2024). I conclude that our holding in Morley resolves the question in

this case, and Lewis does not argue that our interpretation of “out-of-state” in Morley

is incorrect and harmful.

The majority observes that the legislature likely did not intend to include in a

defendant’s offender score convictions from jurisdictions that do not provide a

minimum level of due process. I agree, but this concern is adequately addressed in

the comparability analysis. Under that analysis, courts presume that a conviction

from a jurisdiction other than Washington State is valid, and a defendant overcomes

that presumption by showing that the conviction has been “unconstitutionally

obtained” or that it is “constitutionally invalid on its face.” State v. Ammons, 105

Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986). While this typically may be

determined from the face of the judgment and sentence (or equivalent document),

nothing prohibits looking beyond these documents. We appropriately recognized in

Morley that “it may be necessary to look into the record of a foreign conviction to

determine its comparability to a Washington offense.” 134 Wn.2d at 606. There, we

2
State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

examined not only the elements of the defendants’ court-martial offenses but also

documents from the court-martial hearing record and the procedural protections

provided in a court-martial proceeding to determine that the court-martial offenses

were comparable. Morley, 134 Wn.2d at 611-12, 615-620 (“If a court-martial

complies with federal constitutional protections, nothing prevents a sentencing court

from counting the court martial as a prior conviction for the purposes of

sentencing.”). Nothing prevents a defendant from arguing that their conviction

should not be counted in their offender score because it was obtained through a

proceeding falling well below our notions of due process, even if it complied with

the constitution of the jurisdiction in which it was obtained. See State v. Herzog,

112 Wn.2d 419, 421, 771 P.2d 739 (affirming trial court’s refusal to count rape

conviction from West Germany obtained through a trial before a jury of two people).

Lewis has not made that argument here.

I disagree with the majority’s invocation of the rule of lenity to resolve this

case. Even if that rule could be applied appropriately here, the majority has not

demonstrated that it necessarily leads to the result the majority anticipates. “[T]he

principles of fairness, notice, and due process animating the rule of lenity require

that [the defendant] receive the benefit of the more lenient reading of the statute.”

State v. Pratt, 196 Wn.2d 849, 863, 479 P.3d 680 (2021) (Gordon McCloud, J.,

3
State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

dissenting). While the majority cites to this dissent to highlight our tradition of

lenity, the result it anticipates does not necessarily follow from its holding. Simply

put, the rule of lenity serves its purpose only if the defendant receives the benefit of

lenity. Even if the term “out-of-state” were ambiguous and lenity principles applied,

it does not follow that leaving convictions from foreign countries uncounted in an

offender score but open for consideration as part of a defendant’s criminal history

will necessarily result in more lenient sentences for defendants like Lewis. A

sentencing judge aware of an unscored foreign country conviction for a serious crime

may validly exercise discretion to impose a sentence at the top of the standard range,

resulting in a longer sentence than if the conviction had been included in the offender

score and the judge had sentenced toward the bottom of that standard range. There

is no claimed ambiguity in the sentencing court’s authority to do so.

The majority cites State v. Evans, 177 Wn.2d 186, 298 P.3d 724 (2013), for

its recitation of the rule of lenity but overlooks that the Evans court expressly

declined to apply lenity to Washington’s identity theft statute. The Evans court

relied on State v. Hornaday, 105 Wn.2d 120, 127, 713 P.2d 71 (1986), where this

Court applied the rule of lenity to Washington’s illegal possession of liquor statute

to conclude that “possession” of liquor should not be construed to include liquor

4
State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

already assimilated by the body. As a result of this more lenient interpretation, the

defendant was found not guilty of violating the statute. Id.

The invocation of lenity in Hornaday parallels other decisions by this court.

A more lenient statutory interpretation has reduced a defendant’s offender score,

required offenses to be merged and not counted separately, and allowed judges to

consider only a narrow set of “prior offenses” in their sentencing. State v. Roberts,

117 Wn.2d 576, 586, 817 P.2d 855 (1991); In re Pers. Restraint of Sietz, 124 Wn.2d

645, 648, 880 P.2d 34 (1994); City of Seattle v. Winebrenner, 167 Wn.2d 451, 462,

219 P.3d 686 (2009). Key to the court’s analysis in these cases is the underlying

purpose of the rule of lenity: to provide more favorable outcomes for defendants.

“[A]n ambiguous criminal statute cannot be interpreted to increase the penalty

imposed.” Winebrenner, 167 Wn.2d at 462 (citing State v. Adlington-Kelly, 95

Wn.2d 917, 920-21, 631 P.2d 954 (1981)). The majority invokes lenity here while

expressly leaving the door open for a sentencing judge to consider unscored foreign

country convictions and impose a sentence at the top of the standard range, resulting

in a longer penalty. Such an application drifts from the purpose of the rule, and I do

not believe it is appropriate, or helpful, in this context.

5
State v. Lewis, No. 102910-1
(Stephens, C.J., dissenting)

Because Morley answers the question in this case and has not been abrogated

by the legislature or shown to be incorrect and harmful, I would affirm the lower

court. Accordingly, I respectfully dissent.

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6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11101709. Public record. Not legal advice.