In Re the Personal Restraint of Fletcher

Utter, J.

(dissenting)—The majority bypasses the issues of mootness in this case. Realistically, this case does not present a genuine controversy. Worse, the majority misapplies the principles this court has developed in the area of merger. For these reasons, I dissent.

The majority's reasons why this court should decide Mr. Fletcher's case are not convincing. Although the majority points out that Mr. Fletcher himself now "acknowledges" that the case is not moot, see majority at 46, a party's position on mootness has no bearing on whether or not a controversy actually exists.

The majority indicates, at pages 45-46, that the Indeterminate Sentence Review Board reconsidered Mr. Fletcher's sentences after this court accepted review. The Board set Mr. Fletcher's minimum sentences to run concurrently. At issue, then, according to the majority, is solely the impact of the maximum sentences. The majority finds that under former 9.94A.360(5)(c), these consecutive máximums *54 "might deleteriously affect" his offender score if he were to be convicted of another crime. Majority, at 46.

The majority, however, does not fully address the implications of the Board's treatment of Mr. Fletcher's case. In resetting Mr. Fletcher's minimum sentences to run concurrently in light of the sentencing reform act, the Board found that his offenses constituted the "same criminal conduct.” Thus, under former RCW 9.94A.360(5)(a), his three sentences would be treated as one for determining the sentence of any future offense of which he may be convicted. The majority apparently assumes that Mr. Fletcher's consecutive maximum terms would be the sole factor in determining any possible future offender score. The majority arrives at this assumption by applying former RCW 9.94A-.360(5) (c) without any analysis why this subsection should be applied over former .360(5)(a). Majority, at 46. Such a leap of faith is unwarranted and, as it turns out, incorrect.

Former subsection (5) (a) applies to "[pjrior adult offenses which were found, under RCW 9.94A.400(l)(a), to encompass the same criminal conduct . . ." 3 Former subsection (5)(c) applies to "multiple prior convictions for offenses committed before July 1, 1986 . . ." 4 Thus, the possible future impact of Mr. Fletcher's minimum terms, because the Board found them to constitute the same *55 criminal conduct under the test derived from RCW 9.94A-.400(1)(a), is governed by former subsection (5)(a). The impact of his maximum terms—because he committed the offenses before July 1, 1986—could also be construed to fall under former (5)(c). However, such bifurcation of potential sentencing implications in the future, aside from being untowardly speculative, can only lead to confusion.

Where a defendant has been sentenced for offenses that he committed before July 1, 1986, and also has had his minimum sentences refactored in light of the sentencing reform act, only one subsection of the offender score provision should apply. For a number of reasons, that provision should be former (5)(a). For one, this court follows the rule of statutory construction that avoids reading statutes so that one provision renders another meaningless. To do this, we read the statute as a whole and attempt to harmonize its provisions in relation to one another. See Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509 , 730 P.2d 1327 (1986); Hanson v. Tacoma, 105 Wn.2d 864, 871 , 719 P.2d 104 (1986). Here, the words "for the purpose of computing the offender score" in former subsection (5)(c) imply that they address a situation in which the defendant's sentence has not been redetermined in light of the new law. Mr. Fletcher's sentence has been so redetermined. Thus, former (5)(c)'s application is not relevant here.

More essentially, any ambiguity in former RCW 9.94A-.360(5) must, under the rule of lenity, be construed in favor of the criminal defendant. See State v. Gore, 101 Wn.2d 481, 485-86 , 681 P.2d 227 , 39 A.L.R.4th 975 (1984); State v. Workman, 90 Wn.2d 443, 454 , 584 P.2d 382 (1978). The impact of the Board's redetermination of Mr. Fletcher's minimum sentences, then, must override any conflicting implications left over from his consecutive máximums. The offender score applied to any possible future offenses consequently arises from the redetermined mínimums. Therefore, the impact of the remaining maximum sentences is of no substance.

*56 A case is moot if a court can no longer grant effective relief. In re LaBelle, 107 Wn.2d 196, 200 , 728 P.2d 138 (1986). This court can grant no relief; the Indeterminate Sentence Review Board has already granted all the relief possible. As discussed above, any remaining implications of the Board's decision have no real impact on Mr. Fletcher. Therefore, this case is moot.

Nonetheless, if a case presents issues of continuing and substantial public interest, then we may choose to hear it in spite of its mootness. LaBelle, 107 Wn.2d at 200 ; Dunner v. McLaughlin, 100 Wn.2d 832, 838 , 676 P.2d 444 (1984). This is not such a case. The sentencing reform act effectively supplants the merger analysis at issue here. See RCW 9.94A.400 ("same criminal conduct" inquiry and effect of concurrent sentencing); cf. State v. Collicott, 112 Wn.2d 399 , 771 P.2d 1137 (1989). The questions concerning double jeopardy do not expand or alter the doctrine previously developed by this court in State v. Vladovic, 99 Wn.2d 413 , 662 P.2d 853 (1983). Therefore, the case presents no compelling reasons why we should spend our time—and the state's resources—considering its moot issues.

Despite the mootness of this case, the majority considers its issues—and does so incorrectly. In particular, the majority distorts the application of Vladovic's merger analysis.

In Vladovic , this court developed our present test for merger: two offenses will merge if proof of one requires proof of the other and if the second offense did not have independent purposes and effects. Vladovic, 99 Wn.2d at 419-21 . The Vladovic majority, in dicta, specifically found that robbery could merge into kidnapping. Vladovic , at 421. Yet, today's majority disregards this earlier analysis through a misreading of the kidnapping statute.

The kidnapping statute at issue here states as follows:

(1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:

(a) To hold him for ransom or reward, or as a shield or hostage; or

*57 (b) To facilitate commission of any felony or flight thereafter; or

(c) To inflict bodily injury on him; or

(d) To inflict extreme mental distress on him or a third person; or

(e) To interfere with the performance of any governmental function.

RCW 9A.40.020(1).

The majority reads this language to mean that only proof of the intent to commit the enumerated acts is required to prove first degree kidnapping. This is probably true for every subsection except the one applicable here: subsection (b). The statute does not state "with intent to commit any felony," it states, quite plainly, "with intent. . . [t]o facilitate commission of any felony or flight thereafter ..." (Italics mine.) RCW 9A.40.020(l)(b). A plain reading of these words indicates that the "intent" at the end of the first paragraph applies to the word "facilitate," not to "commission." This court generally assumes that the words the Legislature chooses are not superfluous. See, e.g., Cox v. Helenius, 103 Wn.2d 383, 387 , 693 P.2d 683 (1985); International Paper Co. v. Department of Rev., 92 Wn.2d 277, 281 , 595 P.2d 1310 (1979). The language in subsection (b), then, implies that a completed felony must be proven in order to show that the kidnapping was intended to facilitate it. Otherwise, there would be no felony to intend to facilitate or flee from, and therefore no first degree kidnapping.

In the present case, the Vladovic rule, properly applied, causes the robbery committed by Mr. Fletcher to merge into his kidnapping conviction. Because he kidnapped the women in order to steal their car, one cannot construe a purpose or effect independent from the common conduct of the two offenses. Proof of the robbery is required to show that the kidnapping facilitated the commission of a felony.

Under the Vladovic rule, then, the two offenses merge. As I developed in my dissent in that case, however, an additional reason compels us to recognize merger in this *58 case. That is the doctrine of kidnapping merger. Under this doctrine, the forced movement or abduction of a person incidental to another offense cannot support a conviction for kidnapping. See Vladovic, at 428 (Utter, J., concurring in part, dissenting in part). The kidnapping merger rule is followed in the majority of jurisdictions in this country. See Vladovic, at 428 (Utter, J., concurring in part, dissenting in part); see also Government of V.I. v. Berry, 604 F.2d 221, 225 (3d Cir. 1979). My position on advocating the kidnapping merger rule remains unchanged. Without the rule, "[t]he armed robber who orders his victim to momentarily remain motionless while his wallet is removed becomes guilty of, in addition to first degree robbery, the same offense as the infamous kidnapper of the son of Charles Lindbergh 50 years ago." Vladovic , at 429 (Utter, J., concurring in part, dissenting in part).

This case is moot and the majority misapplies precedent in spite of it. For these reasons, I dissent.

Pearson, J., concurs with Utter, J.

RCW 9.94A.360(5)(a) reads in its entirety:

"Prior adult offenses which were found, under RCW 9.94A.400(l)(a), to encompass the same criminal conduct, [sic] shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently whether those offenses shall be counted as one offense or as separate offenses, and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used;"

Former RCW 9.94A.360(5)(c) reads in its entirety:

"In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score."