The opinion
FILED
MAY 16, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 38778-0-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
LONNIE KAYE ENGLAND, )
)
Appellant. )
FEARING, C.J. — We answer two distinct questions that overlap for purposes of
this appeal. First, when the sentencing court must sentence in accordance with the law in
effect at the time of the offense and when the offense could have occurred at a time
during which version 1 of the law applied or version 2 of the law applied, but we do not
know for sure what date applies, do we apply version 1, which is the earlier and milder
version, or version 2 to the sentencing? Second, does an offender acknowledge that he
committed a crime after September 1, 2001 when he admits that he committed the crime
sometime between January 1, 1998 and December 31, 2001? The answer to the first
question is version 1. We answer the second question in the negative. We base the
answer to question two more on communication logic than the law. Based on both of our
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answers, we hold that appellant Lonnie England’s sentencing court erred when
sentencing England under a sentencing statute effective after September 1, 2001 when the
charging period extended from January 1998 to December 2001.
FACTS
Because this prosecution never went to trial, we garner the scant underlying facts
from three law enforcement officer affidavits. In 2017, the Wenatchee Police
Department investigated Lonnie England for sex offenses against two former minors.
We give the minors pseudonyms. According to a law enforcement officer affidavit, the
first victim, Jane, born in 1991, reported that England sexually abused her between 1998-
2000. Also, according to the police affidavit, a second victim, Arthur, also a pseudonym,
born also in 1991, reported England sexually molested him during the same three-year
window of time.
PROCEDURE
The details underlying this prosecution impact the question on appeal as much as
the underlying facts. On September 27, 2017, the State of Washington filed an
information charging Lonnie England with seven sex crimes for acts committed against
Jane and Arthur. The information listed all charged crimes as occurring between January
1, 1998 and December 31, 2000. Because the nature of some of the charges might
preclude anonymity for the children, we do not detail each of the counts.
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On January 23, 2020, the State of Washington filed a first amended information.
The first amended information added allegations of three sentencing aggravating factors.
The State changed the victim on one count to the other child. The amended information
listed all six charged crimes as occurring between January 1, 1998 and December 31,
2000, the same charging period advanced in the initial information.
On March 8, 2021, the State of Washington filed a second amended information.
This final information reduced the various charges against Lonnie England to two counts
of child molestation in the first degree. One count alleged Jane to be the victim. The
second count alleged Arthur to be the victim. The new information removed the
sentencing aggravators. The second amended information also expanded the charging
period for both counts to January 1, 1998 to December 31, 2001. We do not know the
circumstances behind expanding the charging period. None of the three law enforcement
officer affidavits recorded a crime occurring in 2001.
On March 8, 2021, the same date as the second amended information’s filing,
Lonnie England pled guilty to the two charges of first degree child molestation. During
the plea colloquy, England informed the trial court he understood that by pleading guilty
he forfeited the right to trial.
We closely examine the eleven-page “statement of defendant on plea of guilty to
sex offense” form that Lonnie England signed, on March 8, 2021, pursuant to his guilty
plea. On page 2, the State inserted in the standard plea form language a listing of the
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standard range of actual confinement for both counts to be 67-89 months, with a
maximum term of lifetime confinement. The inserted language also mentioned a lifetime
of community custody after any release from incarceration.
On page 4 of the plea form, the form contained standard language concerning the
differences in sex offense sentencing on whether the accused committed the crime before
September 1, 2001 or thereafter. The lengthy paragraphs read:
For sex offenses committed prior to September 1, 2001: In addition
to sentencing me to confinement, the judge may order me to serve up to one
year of community custody if the total period of confinement ordered is not
more than 12 months. If the period of confinement is over one year, the
judge will sentence me to community custody for 36 months. During the
period of community custody to which I am sentenced, I will be under the
supervision of the Department of Corrections, and I will have restrictions
and requirements placed upon me.
For sex offenses committed on or after September 1, 2001: (i)
Sentencing under RCW 9.94A.507: If this offense is any of the offenses
listed in subsections (aa) or (bb), below, the judge will impose a maximum
term of confinement consisting of the statutory maximum sentence of the
offense and a minimum term of confinement either within the standard
range for the offense or outside the standard range if an exceptional
sentence is appropriate. . . . In addition to the period of confinement, I will
be sentenced to community custody for any period of time I am released
from total confinement before the expiration of the maximum sentence.
Clerk’s Papers (CP) at 142. Table (aa) listed first degree child molestation as an offense
qualifying Lonnie England for sentencing under RCW 9.94A.507.
On page 5 of the statement on plea of guilty, the State disclosed the sentencing
recommendation it would deliver to the sentencing court. The State would recommend
eighty-nine months in prison for each count, a lifetime sex offender registration, and
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lifetime community custody. The prosecution agreed to recommend that the sentences
run concurrently.
On page 10 of the plea form, Lonnie England pled guilty to both counts of child
molestation as charged “in the Second Amended Information” and affirmed he had
“received a copy of that Information.” CP at 148. As for the factual admission attending
the guilty plea, the statement on plea declares:
The judge has asked me to state what I did in my own words that
makes me guilty of this crime, including enhancements and domestic
violence relationships if they apply. This is my statement:
Count 1: On or between January 1, 1998 and December 31, 2001, I
had sexual contact for the purpose of sexual gratification with [Jane].
Count 2: On or between January 1, 1998 and December 31, 2000, I
had sexual contact for the purpose of sexual gratification with [Arthur].
CP at 148 (boldface omitted). We note that, while the admission to count 1 extended to
December 31, 2001, the admission to count 2 extended only to December 31, 2000.
At Lonnie England’s sentencing hearing, the following colloquy occurred between
the sentencing court and England:
THE COURT: Okay. And do you understand that the Court will
impose a maximum term of confinement within the range—no, minimum
term of confinement within the range and the maximum term of
confinement consisting of the statutory maximums of this offense—do you
understand that?—and that the minimum term can be imposed—can be
increased by the Indeterminate Sentence Review Board if the board
determines by a preponderance of the evidence that it’s more likely than not
that you will commit sex offenses if released from custody?
THE DEFENDANT: Yes, ma’am. I understand.
THE COURT: So that even if the Court sentences you to the
maximum of 89 months, the Indeterminate Sentence Review Board could
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increase that.
THE DEFENDANT: Okay.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, ma’am.
Report of Proceedings (RP) (Mar. 8, 2021) at 233-34. The colloquy continued later:
THE COURT: Okay. All right. Well, I want to—I want to make it
clear that you have fully discussed your case with your attorney; is that
correct?
THE DEFENDANT: Yes.
THE COURT: And do you have any other questions for him at this
time?
THE DEFENDANT: No. We went through it line by line and I
understand it and I—and the questions that I had he answered truthfully and
faithfully.
THE COURT: Okay. And with all those things in mind what we
just discussed, do you still wish to plead guilty?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. When you reviewed this plea form, did you
read it or did Mr. Yedinak [defense counsel] read it to you?
THE DEFENDANT: We went back and forth. So if I had a question
on it, he explained it to me.
THE COURT: Okay. But did you read the full—the full agreement?
THE DEFENDANT: Yes, ma’am.
RP (Mar. 8, 2021) at 241-42.
After an extensive colloquy, the sentencing court took Lonnie England’s guilty
plea:
All right. Sir, you’re charged in the Second Amended Information
with Count I, Child Molestation in the First Degree, alleging this happened
on or between January 1st, 1998, and December 31st, 2001, and the victim
in this case being [Jane]. The maximum penalty for this Class A felony
crime is life in prison and/or a $50,000 fine. How do you plead, guilty or
not guilty?
THE DEFENDANT: Guilty.
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THE COURT: As to Count II, Child Molestation in the First Degree,
the allegation is that this occurred on or between January 1st, 1998, and
December 31st, 2001. The victim in this case and this charge is [Arthur].
And, again, the maximum penalty is life in prison and/or a $50,000 fine.
How do you plead?
THE DEFENDANT: Guilty.
THE COURT: All right. And in your plea form, it gives your
statement about what you did. And it says in paragraph 11, “Count I: On or
between January 1st, 1998, and December 31st, 2001, I had sexual contact
for the purpose of sexual gratification with [Jane].” “Count II: On or
between January 1st, 1998, and December 31st, 2000, I had sexual contact
for the purpose of sexual gratification with [Arthur].” These incidents
occurred in Chelan County, Washington. Is that what happened here?
THE DEFENDANT: Yes.
RP (Mar. 8, 2021) at 243-45. Following this factual recitation, the sentencing court
indicated it had reviewed police reports and inquired whether the State had any
information to add. The State’s attorney replied, “No, your Honor.” RP (Mar. 8, 2021)
at 245.
In allocution, Lonnie England denied the criminal allegations. England protested:
THE DEFENDANT: I’m just scared shitless. I’m sorry. But I
didn’t do any of this. I can only hope I can get something down the road
to—to show the truth. But I didn’t do any of this. It was a plea bargain.
There was no choice in the matter. It was life—life or a plea bargain. And
I’ve been made this monster.
THE COURT: Can you stand up, sir?
THE DEFENDANT: I’m sorry. But I’ve been made this monster,
and I haven’t done any of this stuff. But we know who has. That’s just the
biggest question that I gave him was how do you prove something that you
didn’t do? So you find out if something actually did happen and we did.
And we found who did it. And it was a chance to be able to do that.
During the readiness hearing, my fair trial was wiped out by all the
suppression of the defense. I had no fair trial to go to. I only had a choice
of an Alford plea with no defense or the plea deal. I’ve admitted to
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something that I didn’t do. And I admitted it to you, your Honor, and in
a—and in a declaration that I lied to you. I know the rules coming here.
You’re supposed to tell the truth, the whole truth, nothing but the truth, all
that stuff. But I didn’t do this. And I’m not a monster. I don’t want to lose
my family or be away from my family.
THE COURT: Okay. If you could stand please, continue standing.
THE DEFENDANT: I’m sorry.
THE COURT: Put those back in your ears so you can hear. Okay?
Okay. So, Mr. England, you pled guilty. You admitted to doing
this. This was not an Alford plea.
THE DEFENDANT: I know.
RP (May 5, 2021) at 285-87.
Lonnie England’s felony judgment and sentence listed the date of both convictions
as extending between January 1, 1998 to December 31, 2001. The sentencing court
imposed a concurrent sentence on both counts with a minimum term of confinement of
89 months and a maximum term of lifetime confinement. The trial court sentenced
England to community custody “for any period of time the defendant is released from
total confinement before the expiration of the statutory maximum.” CP at 203.
LAW AND ANALYSIS
On appeal, Lonnie England does not seek to withdraw his guilty plea. He instead
challenges his sentence. England assigns error to the trial court’s imposition of sentences
for both convictions because the superior court based the sentences on a sentencing
statute that became effective four months before the end of the charging period for one
conviction and after the charging period for the second conviction. He contends that no
facts support a finding by the sentencing court that a crime occurred during the effective
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date of the statute for either conviction, particularly since the witnesses stated, according
to the police reports, the molestation occurred from 1998 to 2000.
We note that, contrary to Lonnie England’s contention, the second amended
charging information alleged that both crimes occurred as late as the end of 2001. In his
statement on plea of guilty, England pled guilty to both counts of child molestation as
charged in the second amended information, and he affirmed he had received a copy of
that information. Also in the plea statement, England acknowledged that he would
receive an indeterminate sentence, under which he might spend the rest of his life in
prison and, if and when released, he would undergo community custody supervision for
the rest of his life. During the colloquy with the sentencing court, England also admitted
he faced this interminable sentence. In the plea statement’s factual admission, England
declared that, for purposes of count one, he engaged in sexual contact with Jane between
January 1, 1998 and December 31, 2001. Oddly, for count two, the statement declares,
consistent with the police affidavits but contradictory to the information, that the sexual
contact occurred only between January 1, 1998 and December 31, 2000. Then, when the
sentencing court accepted the guilty plea, she asked if Lonnie England committed both
crimes between January 1, 1998 and December 31, 2001. Finally, after England pled
guilty to both charges, the court read the section from the plea statement that limits the
charging period for count two to the years 1998-2000. No one then apparently caught the
discrepancy that we must now encounter.
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The State recasts Lonnie England’s argument as wishing relief because he lacked a
choice when pleading guilty and because he failed to understand the nature and
consequences of his plea. We disagree with this characterization of England’s
contention. Based on England’s allocution, we recognize that, like others who plead
guilty to avoid a tougher sentence if convicted after a trial regardless of guilt or
innocence, he deemed he lacked a viable choice. But he does not complain on appeal
about the lack of options. He also does not argue he did not know the consequences to
his plea. He contends that the law does not allow the sentencing court to base a sentence
on facts not found in the record, let alone untrue facts, regardless of what he understood.
The State may also complain that Lonnie England seeks to breach his plea
agreement. But the State does not brief this implied contention. So, we do not explore
any alleged breach. We deem a contention not briefed to be waived. State v. Ford, 137
Wn.2d 472, 477 n.1, 973 P.2d 452 (1999).
We first review the statutory change prompting Lonnie England’s challenge on
appeal. Before September 1, 2001, all sexual offenders were sentenced to a determinate
sentence. A determinate sentence declares with exactitude the number of months of
confinement and community custody. Offenses committed between June 6, 1996 and
September 1, 2001 also carried a requisite three years of community custody. Former
RCW 9.94A.712.
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In 2001, the Washington State Legislature implemented a new sentencing scheme
covering offenders convicted of child molestation in the first degree. LAWS OF 2001, 2d
Spec. Sess., ch. 12, § 303, initially codified at RCW 9.94A.712 (2001), currently codified
at RCW 9.94A.507. The legal community alternatively labels the new system as a
determinate-plus or an indeterminate system. The determinate-plus scheme applies to
crimes committed on or after September 1, 2001. LAWS OF 2001, 2d Spec. Sess., ch. 12,
§ 505. A determinate plus scheme means the sentencing court imposes a minimum
number of months of incarceration and then declares a maximum sentence of lifetime. In
turn, the Indeterminate Sentencing Review Board will, after expiration of the minimum
sentence, determine when to release the offender based on the board’s assessment of the
offender’s rehabilitation. On release, the offender faces a lifetime of community custody.
In addition to the 2001 legislation expressly declaring that its terms only apply to
crimes committed after September 1, 2001, a separate Washington statute dictates this
effective date. RCW 9.94A.345 declares:
[A]ny sentence imposed under this chapter shall be determined in
accordance with the law in effect when the current offense was committed.
Pursuant to RCW 9.94A.345, Washington courts sentence under the version of the
sentencing reform act in effect at the time of the offense. State v. Jenks, 197 Wn.2d 708,
714, 487 P.3d 482 (2021).
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As a result of the effective date of the 2001 sentencing amendment, we must
juggle some irreconcilable principles and some complimentary rules controlling
sentencing. First, a reviewing court should correct an erroneous sentence regardless of
the reason for the error. Second, due process demands that any facts, which influence the
court’s sentencing, be found in the record. Third, the offender deserves an opportunity to
challenge facts utilized by the sentencing court when sentencing. Fourth, the offender
should object to any objectionable or erroneous facts before the sentencing court renders
a decision. Fifth, the offender should be bound by facts to which he acknowledges. We
proceed to discuss these principles and analyze them in the context of the unique
circumstances of Lonnie England’s appeal.
Lonnie England did not spot, before the sentencing court, the discrepancy between
the charging period and police reports about the years of the alleged crimes. Nor did he
mention that the sentencing statute employed by the sentencing court took effect only
after the expiration of a portion of the charging period. Nevertheless, in the context of
sentencing, established case law holds that illegal or erroneous sentences may be
challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477 (1999); State
v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996). This principle promotes sentences
being in conformity and in compliance with existing sentencing statutes and avoids
permitting widely varying sentences to stand for no reason other than the failure of
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counsel to register a proper objection in the trial court. State v. Ford, 137 Wn.2d 472,
478 (1999).
Determinations regarding the severity of criminal sanctions are not to be rendered
in a cursory fashion. State v. Ford, 137 Wn.2d 472, 484 (1999); State v. Lopez, 107 Wn.
App. 270, 279, 27 P.3d 237 (2001), aff’d, 147 Wn.2d 515, 55 P.3d 609 (2002). This
court has the power and duty to correct a sentencing error on its discovery even when the
parties not only failed to object but agreed with the sentencing judge. State v. Loux, 69
Wn.2d 855, 858, 420 P.2d 693 (1966), overruled in part by State v. Moen, 129 Wn.2d
535 (1996). All decisions standing for this duty of correction entail the sentencing court
rendering legal error or performing a miscalculation of an offender score, not employing
factual error. Although one might argue that Lonnie England’s sentencing court made a
legal error by applying the wrong version of the sentencing statute for first degree child
molestation, England’s assignment of error emphasizes that the court factually erred
when assuming he committed both crimes after September 1, 2001.
Characterizing Lonnie England’s sentencing error as a factual mistake does not
end any analysis. Sentencing courts require reliable facts and information. State v.
Ford, 137 Wn.2d 472, 484 (1999); State v. Lopez, 107 Wn. App. 270, 279 (2001). In
accordance with basic principles of due process, Washington courts demand that, in
imposing a sentence, the facts relied on by the trial court have some basis in the record.
State v. Ford, 137 Wn.2d 472, 482 (1999); State v. Knippling, 166 Wn.2d 93, 102, 206
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P.3d 332 (2009); State v. Woldegiorgis, 53 Wn. App. 92, 94-95, 765 P.2d 920 (1988);
State v. Balkin, 48 Wn. App. 1, 4, 737 P.2d 1035 (1987); State v. Russell, 31 Wn. App.
646, 649-50, 644 P.2d 704 (1982); State v. Giebler, 22 Wn. App. 640, 644-45, 591 P.2d
465 (1979); State v. Bresolin, 13 Wn. App. 386, 396, 534 P.2d 1394 (1975). Any
extrinsic evidence must be part of the record when relied on by the sentencing court to
make a factual finding attending a guilty plea. State v. Osborne, 102 Wn.2d 87, 95, 684
P.2d 683 (1984). The State bears the burden of establishing such facts. State v.
Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009); State v. Chandler, 158 Wn. App. 1,
5-6, 240 P.3d 159 (2010).
RCW 9.94A.530(2) governs what facts the sentencing court may consider:
In determining any sentence other than a sentence above the
standard range, the trial court may rely on no more information than is
admitted by the plea agreement, or admitted, acknowledged, or proved in a
trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537.
Acknowledgment includes not objecting to information stated in the
presentence reports and not objecting to criminal history presented at the
time of sentencing. Where the defendant disputes material facts, the court
must either not consider the fact or grant an evidentiary hearing on the
point. The facts shall be deemed proved at the hearing by a preponderance
of the evidence, except as otherwise specified in RCW 9.94A.537.
(Emphasis added.) The statute creates the “real facts” doctrine that limits a sentencing
court to consideration of facts that were acknowledged, proven, or pleaded to. State v.
Houf, 120 Wn.2d 327, 332, 841 P.2d 42 (1992). Under the statute, if not due process
considerations, the offender enjoys the opportunity to demonstrate that the information
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relied on is inaccurate or incomplete. State v. Ammons, 105 Wn.2d 175, 185, 713 P.2d
719, 418 P.2d 796 (1986); State v. Woldegiorgis, 53 Wn. App. 92, 94-95 (1988); State v.
Balkin, 48 Wn. App. 1, 4 (1987).
Still, information presented at sentencing without objection is deemed
acknowledged by the defendant. State v. Ford, 137 Wn.2d 472, 483 (1999); State v.
Handley, 115 Wn.2d 275, 283, 796 P.2d 1266 (1990); State v. Burkins, 94 Wn. App. 677,
697-98, 973 P.2d 15 (1999). The court can also rely on statements from the defendant in
court. State v. Handley, 115 Wn.2d 275 (1990). Furthermore, RCW 9.94A.530(2)
authorizes a sentencing court to rely on information produced by something less than the
usual adversarial process. State v. Handley, 115 Wn.2d 275, 281 (1990); State v.
Herzog, 112 Wn.2d 419, 430-31, 771 P.2d 739 (1989). A sentencing judge may consider
facts not admissible at trial. State v. Handley, 115 Wn.2d 275, 281 (1990).
Lonnie England had a chance to object to a charging period of 1998 to the end of
2001. Instead, in both his written statement of plea and his oral plea at sentencing, he
acknowledged a charging period of January 1, 1998 to December 31, 2001. If he had
specifically stated that he committed the crimes between September 1, 2001 and
December 31, 2001, we would likely affirm the sentences imposed, despite the police
reports identifying the dates of the crime being sometime during the years 1998, 1999,
and 2000. But England agreed to something else.
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Lonnie England agreed that the two crimes occurred sometime between the
beginning of 1998 and the end of 2001. This concession does not acknowledge that the
crime occurred on or after September 1, 2001. Someone who recognizes that he
committed a crime on July 4, 1998 could accurately state that the crime occurred between
January 1, 1998 and December 31, 2001. Therefore, we rule that England did not
acknowledge that he committed the two crimes after the effective date of indeterminate
sentencing.
One might argue that Lonnie England should have identified the discrepancy to
the sentencing court before pleading guilty or at least before the court announced the
sentence. But the State carries the burden of showing facts supporting a sentence. The
State could have, but did not, declare for the record the basis on which it amended the
information to extend the charging period to December 31, 2001. The only underlying
facts before the sentencing court and presented to this court on review establish the dates
of the crimes as sometime between January 1, 1998 and December 31, 2000.
Our ruling follows some of the principles we mentioned earlier. The State carries
the burden of proving any facts attended to the sentencing. Due process demands
accurate facts employed during sentencing.
CrR 4.2(d) aids Lonnie England. Under CrR 4.2(d):
The court shall not enter a judgment upon a plea of guilty unless it is
satisfied that there is a factual basis for the plea.
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The factual basis requirement protects a defendant, who voluntarily pleads guilty with an
understanding of the nature of the charge, but who does not realize that his conduct does
not actually fall within the charge. In re Personal Restraint of Crabtree, 141 Wn.2d 577,
585, 9 P.3d 814 (2000).
Case law also benefits Lonnie England. The Supreme Court first grappled with
the question posed by this appeal in State v. Parker, 132 Wn.2d 182, 937 P.2d 575
(1997). The State charged Larry Parker with child sex offenses that allegedly occurred
between 1987 and 1991. Trial evidence demonstrated that Parker committed the acts at
various times throughout the charging period. The verdict form did not ask the jury to
identify the dates on which the defendant committed the respective crimes. In
determining Parker’s sentence, the trial court applied a statutory amendment passed
during the fourth year of the charging period. The amendment significantly increased the
standard range for Parker’s convictions. The Supreme Court reversed Parker’s sentence
because the evidence presented at trial showed Parker committed some of the criminal
acts before the increase in penalties and the trial court did not require the State to prove
the acts occurred after the penalty increase. The court reasoned that any other outcome
would violate the ex post facto clause of both the United States and Washington
Constitutions.
The Supreme Court addressed a variant of Lonnie England’s circumstances in
State v. Aho, 137 Wn.2d 736, 975 P.2d 512 (1999). The State charged Fonua Aho with
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child molestation during a time period between January 1981 and December 31, 1991.
The legislature, however, did not create the charged crime until 1988. A trial resulted in
a jury conviction for one count of first degree child molestation, but the verdict form did
not ask the jury to identify when the criminal act occurred. The Supreme Court observed
that the jury may have convicted Aho for an act occurring before the effective date of the
criminal statute. The Supreme Court reversed the conviction for child molestation.
Without ever citing to State v. Parker, the Supreme Court, in State v. Aho,
disagreed with the Parker view of justifying the holding in the ex post facto clause. The
ex post facto clause applies when the legislature enacts a law retrospectively altering the
definition of criminal conduct or increasing the punishment for a crime. The ex post
facto clause does not apply to retroactive judicial decisions. Therefore, the clause does
not address any confusion surrounding the sentence to impose because of an uncertainty
of the date of the crime. The court reframed the issue as a due process question. The
underlying concern remained the same, however. Both clauses abhor punishing one
without fair warning of the consequences of his or her action. The Supreme Court
concluded:
Application of the statute under the facts here cannot be attributed to
legislative action; the Legislature plainly and clearly provided that the
statute does not apply to acts occurring before July 1988. Instead, in direct
violation of this clear legislative mandate both the state and defense counsel
permitted this matter to go forward despite the fact that the charging period,
set forth in the jury instructions, included a substantial period of time
before July 1988.
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State v. Aho, 137 Wn.2d 736, 742 (1999).
In re Personal Restraint of Crabtree, 141 Wn.2d 577 (2000) represents the last
excursion of the Supreme Court into this area of the law. The court held that the Aho rule
did not bar Mark Crabtree’s conviction when he pled guilty to committing sex offenses
between June 1, 1988 and August 31, 1988 even though July 1, 1988 marked the
effective date of the statute under which he was sentenced. In holding Crabtree’s
sentence conformed with due process, the high court expressly noted that extrinsic
evidence demonstrated the acts occurred after July 1, 1988. The trial court must have
known of the relevant dates, because the court appropriately sentenced Crabtree under the
old scheme for a separate act of statutory rape that occurred in March of 1987. No
intrinsic or extrinsic evidence establish a crime being committed by Lonnie England after
September 1, 2001.
Lonnie England does not specify the exact remedy he seeks or he deems correct.
The State does not enlighten the court as to what remedy we should direct in the event we
reverse the sentences for the two convictions. We remand to the superior court to
resentence England on both convictions under the sentencing scheme for first degree
child molestation effective before September 1, 2001.
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ADDITIONAL GROUNDS
Statute of Limitations
Lonnie England assigns five errors in a statement of additional grounds. England
first argues that his convictions violated the statute of limitations. Because England
could have been charged under the old statute when the legislature expanded the
limitation period for child molestation prosecutions, we disagree.
To show entitlement to relief, Lonnie England must demonstrate that a controlling
statute of limitations expired before his prosecution. Once a statute of limitations period
expires, the law bars a prosecution, but, if the legislature expands the period of limitation
prior to the expiration of the original period, the State may commence prosecution at any
time within the newly established period. State v. Hodgson, 108 Wn.2d 662, 668, 740
P.2d 848 (1987).
Lonnie England contends that the statute of limitations in effect at the time he
committed the crimes should control. Under that statute, the statute of limitations would
have expired in 2012, three years after both victims turned eighteen. Former RCW
9A.04.080(1)(c) (1988). But Hodgson rejects England’s proposed test.
Based on the ages of the victims and considering the legislature’s expansions of
the limitation period for child molestation prosecutions, the State could validly prosecute
Lonnie England when it filed the original information in 2017. Both Arthur and Jane
were born in 1991.
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No. 38778-0-III
State v. England
For privacy purposes, and to avoid any possible prejudice to Lonnie England, we
analyze the statute of limitations as if both victims were born on January 1, 1991. Former
RCW 9A.04.080(1)(c) (1988) limited a prosecution for child molestation to “[no] more
than three years after the victim’s eighteenth birthday or more than seven years after their
commission, whichever is later.” In 2009, the legislature changed the limitation period to
allow prosecutions “up to the victim’s twenty-eighth birthday.” Former RCW
9A.04.080(1)(c) (2009). In 2009, both victims were eighteen years old, and so fell within
the 1988 statute’s allowance for prosecutions until three years after a victim’s eighteenth
birthday. The legislature again amended the statute in 2013 to permit prosecutions until a
victim’s thirtieth birthday. Former RCW 9A.04.080(1)(c) (2013). In 2013, both victims
were twenty-two years old, younger than twenty-eight, so England remained prosecutable
under the 2009 statute at the time of the amendment. When England was charged in
2017, the victims were twenty-six years old, younger than thirty.
Prosecutorial Misconduct
Lonnie England challenges evidence that the State might have offered at trial.
England’s arguments implicate facts not in the record. A statement of additional grounds
must be limited to evidence available in the record. A personal restraint petition is the
vehicle by which to introduce new facts or evidence for this court’s consideration. State
v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). In any case, by pleading guilty,
England relieved the State of its duty to prove the charges against him beyond a
21
No. 38778-0-III
State v. England
reasonable doubt to a jury of his peers. England’s plea rendered the admissibility of
evidence irrelevant.
Due Process Errors
Lonnie England again advances various arguments implicating facts not available
in the record. To the extent England cites to the record, his arguments are not cognizable
and do not provide notice of the nature and occurrence of the alleged errors as required
by RAP 10.10(c).
Amendment of Information
Lonnie England argues that the expansion of the conviction date range in the
second amended information prejudiced him. Ordinarily, the State may amend an
information at any time prior to a verdict if such amendment does not prejudice the
substantial rights of the defendant. CrR 2.1(d). Nevertheless, an unjustified delay in
amending an information draws scrutiny if the delay prejudiced the defendant. See State
v. Michielli, 132 Wn.2d 229, 244-46, 937 P.2d 587 (1997).
Lonnie England acknowledged that he reviewed the second amended information
before pleading guilty. The amendment did not affect his substantial rights or prejudice
his defense. England could have chosen not to plead guilty after reviewing the second
amended information’s change in charging date range. In his factual statement, England
also could have specified a shorter time period in which the criminal acts occurred.
22
No. 38778-0-III
State v. England
Advisement of Right to Appeal
Lonnie England argues that he was never given notice of his right to appeal at the
sentencing hearing as required by CrR 7.2(b). A sentencing court must advise the
defendant of the rights enumerated in CrR 7.2(b) “immediately after sentencing” and the
advisement “shall be made a part of the record.”
The transcript of Lonnie England’s sentencing hearing does not show that the trial
court bespoke an advisement of appeal rights. But England appealed. He fails to assert
any prejudice resulting from the failure to give the advisement.
Ineffective Assistance of Counsel
Lonnie England argues that he received ineffective assistance of counsel during
trial court proceedings and in plea bargaining. To the extent England argues facts and
evidence outside the record, he is precluded from doing so and must file a personal
restraint petition to advance those arguments. Otherwise, England faces a heavy burden
to establish ineffective assistance despite not contesting the validity of his guilty plea. To
show prejudice when a defendant has pleaded guilty, the defendant must show a
reasonable probability that, but for counsel’s errors, he would not have pled guilty and
would have insisted on going to trial. In re Personal Restraint of Riley, 122 Wn.2d 772,
780-81, 863 P.2d 554 (1993). The record on appeal does not permit this court to make
such a determination.
23
No. 38778-0-III
State v. England
CONCLUSION
We remand this prosecution to the superior court for resentencing under the
former statutory scheme.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, C.J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Pennell, J.
24