Summary
In Brake, we held that because there is no clear legislative intent that the 2020 amendments to the bail jumping statute apply retroactively, "the version of the statute in effect on the date of... [the] offense is the one that applies."
Summary of this case from State v. DeloOpinion
No. 52613-1-II
12-08-2020
STATE of Washington, Respondent, v. Terysa Ann BRAKE, Appellant.
Gregory Charles Link, Richard Wayne Lechich, Washington Appellate Project, Seattle, WA, for Appellant. Randall Avery Sutton, John L. Cross, Kitsap County Prosecutor's Office, Prosecutor'S Office-Criminal Division Kitsap County, Port Orchard, WA, for Respondent.
Gregory Charles Link, Richard Wayne Lechich, Washington Appellate Project, Seattle, WA, for Appellant.
Randall Avery Sutton, John L. Cross, Kitsap County Prosecutor's Office, Prosecutor'S Office-Criminal Division Kitsap County, Port Orchard, WA, for Respondent.
PUBLISHED IN PART OPINION
Melnick, J. ¶1 Terysa Ann Brake appeals her 2018 bail jumping conviction. In the published portion of this opinion we address her argument that the 2020 changes to the bail jumping statute, RCW 9A.76.170, require vacating her conviction. We conclude that the 2020 changes to the bail jumping statute do not apply to Brake's conviction. In the unpublished portion of this opinion we address Brake's argument that the trial court erred by not finding that Brake knowingly failed to appear and by becoming a witness during Brake's bench trial in violation of ER 605 and due process. Finding no error, we affirm.
The following facts are based on the trial court's findings of fact following Brake's bench trial, which are unchallenged and therefore verities on appeal. State v. Homan , 181 Wash.2d 102, 106, 330 P.3d 182 (2014).
¶2 The State originally charged Brake with possession of stolen property in the second degree. On February 12, 2018, she appeared for her arraignment. The trial court released Brake after she posted bail. The court advised Brake of her rights and notified her that she must return on April 3, 2018 for an omnibus hearing. The release order stated that Brake must "make all Court Appearances as directed." Clerk's Papers (CP) at 19. The court also "advised [Brake] orally that she was required to make her court appearances." CP at 19. Brake signed the order for release with these conditions.
¶3 Brake appeared at the next three scheduled omnibus hearings, all of which the court continued at Brake's request. At the third hearing, the court issued a written order stating that "[Brake] must personally be present" at the next hearing scheduled for June 28. CP at 21.
¶4 On June 28, Brake did not appear. The court issued a warrant for her arrest. Five days later, Brake appeared before the court and moved to quash the warrant. The court quashed the warrant. Brake did not explain why she failed to appear at the omnibus hearing. ¶5 The State charged Brake with bail jumping and dismissed the possession charge. The matter proceeded to a bench trial.
¶6 The trial court found Brake guilty, entering findings of fact and conclusions of law. The court labeled one section "FINDINGS OF FACT" and the other section "RULING." CP at 18, 24. In paragraph 2 of the ruling section, the court stated:
[T]he State is required to prove beyond a reasonable doubt that [Brake] knowingly failed to appear before the Court, having been on bail with the requirement of a subsequent personal appearance before the Court. The State has proven beyond reasonable doubt that [Brake], on bail, was released with the requirement that she personally make all future court appearances. Further, the State has proven beyond reasonable doubt that [Brake] failed to personally appear before the Court on June 28, 2018 at 10:30 a.m. for omnibus, having been advised that her personal appearance was required.
CP at 24. Brake appeals.
ANALYSIS
I. RETROACTIVITY OF RCW 9A.76.170
¶7 We first address whether Brake's conviction should be vacated based on recent changes to the bail jumping statute, RCW 9A.76.170. We permitted the parties to provide supplemental briefing on this issue. Brake argues that the changes to RCW 9A.76.170 apply retroactively to her charge because her appeal is not final and for other reasons set forth below. We disagree.
A. Standard of Review and Legal Principles
¶8 Determining whether a statute is retroactive is a question of law that we review de novo. State v. Schenck , 169 Wash. App. 633, 642, 281 P.3d 321 (2012).
¶9 RCW 10.01.040 states that "[n]o offense committed ... previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act." Moreover, statutes are presumed to be prospective unless there is a clear indication that the legislature intended a retroactive effect. City of Ferndale v. Friberg , 107 Wash.2d 602, 605, 732 P.2d 143 (1987). Thus, a statute in effect on the date of a criminal offense is the applicable statute "absent clear legislative intent to the contrary." In re Pers. Restraint of Flint , 174 Wash.2d 539, 559 n.9, 277 P.3d 657 (2012).
B. No Retroactive Intent
¶10 Brake committed her offense on June 28, 2018. At that time, former RCW 9A.76.170(1) (1983) stated, "Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state ... and who knowingly fails to appear ... is guilty of bail jumping."
¶11 On March 7, 2020, the legislature amended RCW 9A.76.170. LAWS OF 2020, ch. 19, §§ 1, 2. The law took effect on June 11, 2020. LAWS OF 2020, ch. 19, §§ 1, 2.
¶12 Under the prior law, felony bail jumping required only failure to appear "before any court of this state." Former RCW 9A.76.170(1), (3) (2001). Under the 2020 law, felony bail jumping requires a person to fail to appear for trial. LAWS OF 2020, ch. 19, § 1(1)(a). The legislature also created a separate section for failure to appear for a court date other than trial and downgraded the crime to either a gross misdemeanor or no crime at all. LAWS OF 2020, ch. 19, § 2. As part of the new crime of failure to appear or surrender for a non-trial court date, the State must either prove that the defendant did not appear and did not move to quash the warrant within thirty days of its issuance or that the defendant had a prior warrant issued in the case for failing to appear. RCW 9A.76.190(1)(b)(i)-(ii). ¶13 The legislature did not state that the statute would apply retroactively. Accordingly, we presume the revised statute is prospective only.
This section has been codified as RCW 9A.76.190.
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C. State v. Ramirez
¶14 Brake argues we should not presume RCW 9A.76.170 is prospective based on State v. Ramirez , 191 Wash.2d 732, 749, 426 P.3d 714 (2018), because the 2020 amendments became effective while her case was pending on direct appeal. We disagree.
¶15 Ramirez addressed whether the 2018 legislative amendments to the legal financial obligation (LFO) statutes applied to a case pending on direct appeal. 191 Wash.2d at 747-49, 426 P.3d 714. The defendant in Ramirez appealed the trial court's imposition of discretionary LFOs, arguing that the court had failed to make an adequate inquiry into his ability to pay. 191 Wash.2d at 736-37, 426 P.3d 714.
¶16 Ramirez concluded that the trial court had erred in imposing the LFOs without making an adequate inquiry into his ability to pay, which normally would have entitled the defendant to resentencing. Ramirez , 191 Wash.2d at 746, 426 P.3d 714. However, while the appeal was pending the legislature enacted amendments to the LFO statutes that prohibited the imposition of discretionary LFOs and the criminal filing fee on indigent defendants. Ramirez , 191 Wash.2d at 746, 426 P.3d 714. The defendant argued that these amendments applied to his appeal, and therefore the Supreme Court should strike the LFOs because he was indigent rather than remanding for resentencing. Ramirez , 191 Wash.2d at 746, 426 P.3d 714.
¶17 The court agreed and held that the 2018 LFO amendments "concern the court's ability to impose costs on a criminal defendant following conviction" and Ramirez's case was on appeal as a matter of right when the amendments became effective. Ramirez , 191 Wash.2d at 749, 426 P.3d 714. The court concluded that "[b]ecause [the LFO] amendments pertain to costs imposed upon conviction and Ramirez's case was not yet final when the amendments were enacted, Ramirez [was] entitled to benefit from this statutory change." Ramirez , 191 Wash.2d at 749, 426 P.3d 714.
¶18 Brake suggests that Ramirez adopted a rule of prospective application of statutory amendments to all cases pending on direct appeal. However, the court in Ramirez clearly limited its holding to "costs imposed on criminal defendants following conviction." Ramirez , 191 Wash.2d at 747, 426 P.3d 714. Ramirez did not state a rule of general application to all issues in all cases and it did not overrule precedent. We decline to adopt Brake's proposed rule on prospective application of new or amended statutes.
D. Other Reasons for Retroactive Application
¶19 Brake next argues that the 2020 revisions to RCW 9A.76.170 apply retroactively because RCW 10.01.040 has been interpreted too narrowly by Washington courts and because the lack of a clause relating to retroactive application renders the bail jumping statute ambiguous and subject to statutory interpretation. We disagree.
¶20 We have previously held that RCW 10.01.040 "creates an easily-administered, bright-line rule." State v. Kane , 101 Wash. App. 607, 618, 5 P.3d 741 (2000). There is nothing fundamentally unfair in convicting offenders "in accordance with the law they presumably were aware of at the time they committed their offenses." Kane , 101 Wash. App. at 618, 5 P.3d 741. Moreover, we have recently held that when the legislature downgrades the culpability of an offense and does not include any indication that the legislature intended the change to apply retroactively then RCW 10.01.040 applies. State v. Molia , 12 Wash. App. 2d 895, 904, 460 P.3d 1086 (2020). We decline Brake's invitation to construe RCW 10.01.040 differently.
¶21 We also reject Brake's contention that the statute is ambiguous and subject to statutory interpretation. Our legislature clearly did not include language that the statute was meant to apply retroactively. We decline to view this omission as an ambiguity. See State v. Delgado , 148 Wash.2d 723, 731, 63 P.3d 792 (2003). Moreover, "we do not have the power to read into a statute that which we may believe the legislature has omitted, be it an intentional or an inadvertent omission." State v. Martin , 94 Wash.2d 1, 8, 614 P.2d 164 (1980).
¶22 We conclude that there is no clear legislative intent that the 2020 amendments to the bail jumping statute apply retroactively. Therefore, the version of the statute in effect on the date of Brake's offense is the one that applies to her.
¶23 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Worswick, P.J.
Cruser, J.