State v. Morley

Johnson, J.

(dissenting) — We are confronted with the simple question of whether a conviction in a general court-martial can be used to enhance a sentence under RCW 9.94A, the Sentencing Reform Act of 1981 (SRA) and regarded as a “strike” under the Persistent Offender Accountability Act. We are not disputing the validity of the military proceeding, nor determining whether the full faith and credit clause plays a role in this case. Contrary to the majority’s position, I would find the language of the statute does not include military proceedings in the circle of prior convictions which can be used to enhance a sentence or be considered a “strike.”

The majority opinion gives no meaning to the express limiting language in RCW 9.94A. By failing to do so, the majority erroneously expands the scope of a statute that specifically limits convictions to a certain type. Therefore, I respectfully dissent.

Under the statute, a defendant’s sentence is determined in part by the defendant’s “criminal history,” which is “the list of a defendant’s prior convictions, whether in this state, in federal court, or elsewhere.” RCW 9.94A.030(12)(a). The critical issue is what are the “convictions” the statute references. The obvious starting point is the statutory definition. “Conviction” is defined as “an adjudication of guilt *623 pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.” RCW 9.94A.030(9). The crucial question becomes what is “pursuant to Title 10.”

I believe the “pursuant to Title 10” language expresses the Legislature’s intent to limit the application of the SRA to specific proceedings, rather than include the multitude of other adjudicatory proceedings in which findings of illegal conduct are entered.

In order to properly interpret a statute, we must define the specific words within the statute. Words used in a statute are to be given their usual and ordinary meaning. Garrison v. Washington State Nursing Bd., 87 Wn.2d 195, 196 , 550 P.2d 7 (1976). Undefined terms are given their “plain, ordinary and popular” meaning, and courts look to standard English language dictionaries to determine the ordinary meaning of such terms. Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877 , 784 P.2d 507 , 187 A.L.R.4th 405 (1990) (quoting Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 73 , 549 P.2d 9 (1976)). As the majority correctly notes, “pursuant to” is defined as “in the course of carrying out : in conformance to or agreement with : according to . . . .” Majority at 595-96; (quoting Webster’s Third New International Dictionary 1848 (1986)). The majority, however, does not apply this definition to the statute.

The majority erroneously believes “pursuant to” means an out-of-state conviction could not be used for SRA purposes unless the criminal procedure of the foreign state fully complies with Washington’s. The majority reaches this conclusion by arguing the court rules governing preliminary hearings, bail and appearance bonds, jurisdiction and venue, warrants and arrests, arraignment, trial, and judgment and sentencing must all be identical to Washington’s court rules before a sentencing court could use the conviction for SRA purposes. Majority at 596-97. The majority asserts this would be “absolutely unworkable,” and it would require a sentencing court to conduct a “ridiculous inquiry.” Majority at 596. Despite having the proper *624 definition in the opinion, the majority redefines “pursuant to” to mean “identical to.” This change creates the difficulty the majority has with the statutory interpretation in this case, and it leads the majority to the mistaken belief that it must rewrite the statute.

Contrary to the majority, I find the dictionary definition useful and would hold a “conviction” is only a “conviction” for purposes of the SRA and for sentence enhancement when the criminal procedure is “in conformance to or in agreement with” criminal procedure outlined in Title 10. Applying this definition, “pursuant to Title 10” must refer to those limited criminal cases where constitutional principles and procedures in conformance to Title 10 apply. Both out-of-state and federal criminal convictions fit within this definition because these proceedings are fully in accord with the various criminal provisions in the United States Constitution and, while not literally identical, are generally in conformance to Title 10. When “pursuant to Title 10” is read to include convictions from other states and federal courts, and to exclude convictions from military and foreign courts, the majority’s “doomsday” concerns are eliminated.

The role of the United States Constitution in the regulation of the criminal justice process is significant. Of the 26 separate rights specified in the first eight amendments to the Bill of Rights, 15 directly relate to the criminal justice process. 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 2.1, at 56-57 (1984). The Fourth Amendment guarantees the right of people to be secure against unreasonable searches and seizures. The Fifth Amendment requires prosecution by grand jury indictment, prohibits placing a person in double jeopardy, and protects an individual from self-incrimination. The Fifth Amendment also prohibits the deprivation of life, liberty, or property without due process of law. The Sixth Amendment lists several rights applicable in all criminal prosecutions—the right to a speedy trial, to a public trial, to a trial by jury, to have favorable witnesses testify, and to have effective assistance of counsel. The Eighth Amendment prohibits excessive bail

*625 or fines and prohibits cruel and unusual punishment. Id. § 2.1, at 57. While military law generally provides for these protections through the Uniform Code of Military Justice, 10 U.S.C. §§ 801-941 , not all constitutional protections apply to military personnel. It is true that constitutional rights are not surrendered upon entering the military, but constitutional rights are applied to military personnel with reference to the unique conditions that exist within military society. Middendorf v. Henry, 425 U.S. 25, 50-51 , 96 S. Ct. 1281 , 47 L. Ed. 2d 556 (1976) (Powell, J., concurring). As the United States Supreme Court stated in Burns v. Wilson, 346 U.S. 137 , 73 S. Ct. 1045 , 97 L. Ed. 1508 (1953):

Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.

Burns, 346 U.S. at 140 (footnotes omitted).

The Constitution gives Congress the power to “make rules for the government and regulation of the land and naval forces.” U.S. Const, art. I, § 8, cl. 13. The existence of this separate provision implicitly recognizes that the demands of the military require “a special system of military courts in which not all of the specific procedural protections deemed essential in Art. Ill trials need apply.” O’Callahan v. Parker, 395 U.S. 258, 261 , 89 S. Ct. 1683 , 23 L. Ed. 2d 291 (1969) (emphasis added), overruled on other grounds by Solorio v. U.S., 483 U.S. 435 , 107 S. Ct. 2924 , 97 L. Ed. 2d 364 (1987).

As the majority notes, the Fifth Amendment does not extend to court-martial proceedings. While declaring the Sixth Amendment’s jury guarantee a “centerpiece of Amer *626 ican freedom,” one commentator stresses that a military accused does not have a right to a jury of one’s peers. 1 Francis A. Gilligan, Court-Martial Procedure § 1-60.00, at 36 (1991). However, the right to a jury is considered so important it appears in the Constitution twice, first in U.S. Const, art. Ill, § 2 and then again in the Sixth Amendment. United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 , 76 S. Ct. 1 , 100 L. Ed. 8 (1955). Further, the provisions of U.S. Const, art. Ill, designed to give judges the maximum freedom from possible coercion or influence, are not applicable to the military courts. Toth, 350 U.S. at 16 . While subtle differences between state and federal civilian courts exist, courts-martial are decidedly different and not “pursuant to Title 10.” Indeed, the United States Supreme Court stated:

We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property.

Toth, 350 U.S. at 17 .

The majority erroneously determines that convictions “pursuant to Title 10” encompass only those convictions obtained in Washington and concludes “conviction” cannot be limited to in-state convictions for purposes of the SRA because the statute repeatedly references out-of-state convictions. Majority at 595-96. The majority’s remedy for this dilemma is to ignore the express language of RCW 9.94A.030(9) and to simply exclude “pursuant to Title 10” from the definition.

Instead of attempting to harmonize the different sections of the statute, the majority violates a rule of construction and edits the statutory definition to fit its needs. Just as the court will not add language to a clear statute even if it believes the Legislature intended something else but failed to express it adequately, Adams v. Department of Soc. & Health Servs., 38 Wn. App. 13, 16 , 683 P.2d 1133 (1984), *627 nor should we delete language for the same purpose. The majority senses the Legislature intended all criminal convictions be included as criminal history and be used to enhance a sentence. Even if the majority is correct, it is the duty of the Legislature, not the court, to rewrite and clarify an unclear statute. 1 The majority’s decision to ignore the express language of the statute must be questioned because no attempt was made to harmonize the statute.

The simple way to harmonize the definition of “conviction” with the rest of the statute is to recognize that the Legislature understands all convictions are not alike. While convictions may be recognized in Washington for purposes of the full faith and credit clause, not all are to be used for sentence enhancement. The Legislature intended to limit the statute to include only those “convictions” obtained in accordance with the constitutional protections made available to a defendant in Washington. For the reasons stated earlier, military courts-martial do not conform and are not included. We are not obligated to increase a defendant’s punishment merely because the defendant had a prior adjudication included in the defendant’s criminal history.

The practical implication of the majority’s opinion creates the most difficulty. By ignoring “pursuant to Title 10,” the majority effectively rewrites the statutory definition and expands the scope of “convictions” used to enhance a criminal sentence. As directed by the majority, we remove the “pursuant to Title 10” language from the statute, and the definition of “conviction” in RCW 9.94A.030(9) becomes: “an adjudication of guilt . . . and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.” Noticeably absent is any reference to the type of proceeding which must accompany the adjudication.

Despite effectively rewriting the statute’s definition of *628 “conviction” earlier in the opinion, the majority feels compelled to demonstrate why military courts-martial convictions can and should be considered for SRA purposes. 2 This futile exercise indicates a degree of uncomfortableness with the proposition that any adjudication is acceptable, and it acknowledges the Legislature was concerned not only with the prior act, but also with the procedure through which the adjudication was obtained.

The majority asserts, aside from some procedural differences, a military court-martial and a criminal proceeding are similar because a court-martial must still comport with some basic constitutional guarantees and protections. The majority should be honest with this statement—while courts-martial may indeed be constitutional in the broad sense of the word, courts-martial are authorized by an entirely separate article of the United States Constitution and are not governed by the same procedural rules governing state and federal civilian criminal trials. As the majority notes, the Fifth Amendment does not apply to court-martial proceedings. As I noted, significant differences exist between the two jury systems.

While I do not question the validity of a court-martial conviction, I do not believe it is “pursuant to Title 10.” The military justice system is mandated by Congress and recognized by the United States Supreme Court, but is recognized by the high court as legitimately unique. Middendorf, 425 U.S. 25 ; Chappell v. Wallace, 462 U.S. 296, 300-03 , 103 S. Ct. 2362 , 76 L. Ed. 2d 586 (1983). And, aside from the Supreme Court, our military system does not look to the civilian courts to dispose of military justice problems. David A. Schlueter, Military Criminal Justice: Practice and Procedure § 1-1, at 2-3 (3d ed. 1992). The system is separate: separate crimes, procedures, and sanctions. Id. I believe the majority has wrongfully construed and broadened the statutory definition. Military courts-martial are *629 not included as criminal history because they do not conform to Title 10.

Madsen, Alexander, and Sanders, JJ., concur with Johnson, J.

This is not the first time a court has had difficulty interpreting this statute. See State v. Knowles, 46 Wn. App. 426, 431-32 , 730 P.2d 738 (1986). The Legislature is aware of the ambiguous language and has made no attempt to clarify it.

The majority conducts the same ridiculous, unworkable inquiry the majority previously claimed a court could not do. Majority at 596.