S 0617

S‑0617.1 _____________________________________________

SENATE BILL 6120

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Senators Kline and Hochstatter

Read first time 02/23/2001. Referred to Committee on Judiciary.

_1 AN ACT Relating to persistent offenders; amending RCW

_2 9.94A.030; adding a new section to chapter 9.94A RCW; prescribing

_3 penalties; providing an effective date; providing an expiration

_4 date; and declaring an emergency.

_5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_6 Sec. 1. RCW 9.94A.030 and 2000 c 28 s 2 are each amended to read

_7 as follows:

_8 Unless the context clearly requires otherwise, the definitions

_9 in this section apply throughout this chapter.

10 (1) "Collect," or any derivative thereof, "collect and remit,"

11 or "collect and deliver," when used with reference to the

12 department, means that the department, either directly or through

13 a collection agreement authorized by RCW 9.94A.145, is responsible

14 for monitoring and enforcing the offender's sentence with regard

15 to the legal financial obligation, receiving payment thereof from

16 the offender, and, consistent with current law, delivering daily

17 the entire payment to the superior court clerk without depositing

18 it in a departmental account.

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_1 (2) "Commission" means the sentencing guidelines commission.

_2 (3) "Community corrections officer" means an employee of the

_3 department who is responsible for carrying out specific duties in

_4 supervision of sentenced offenders and monitoring of sentence

_5 conditions.

_6 (4) "Community custody" means that portion of an offender's

_7 sentence of confinement in lieu of earned release time or imposed

_8 pursuant to RCW 9.94A.120(2)(b), 9.94A.650 through 9.94A.670,

_9 9.94A.137, 9.94A.700 through 9.94A.715, or 9.94A.383, served in

10 the community subject to controls placed on the offender's

11 movement and activities by the department. For offenders placed on

12 community custody for crimes committed on or after July 1, 2000,

13 the department shall assess the offender's risk of reoffense and

14 may establish and modify conditions of community custody, in

15 addition to those imposed by the court, based upon the risk to

16 community safety.

17 (5) "Community custody range" means the minimum and maximum

18 period of community custody included as part of a sentence under

19 RCW 9.94A.715, as established by the commission or the legislature

20 under RCW 9.94A.040, for crimes committed on or after July 1,

21 2000.

22 (6) "Community placement" means that period during which the

23 offender is subject to the conditions of community custody and/or

24 postrelease supervision, which begins either upon completion of

25 the term of confinement (postrelease supervision) or at such time

26 as the offender is transferred to community custody in lieu of

27 earned release. Community placement may consist of entirely

28 community custody, entirely postrelease supervision, or a

29 combination of the two.

30 (7) "Community service" means compulsory service, without

31 compensation, performed for the benefit of the community by the

32 offender.

33 (8) "Community supervision" means a period of time during which

34 a convicted offender is subject to crime-related prohibitions and

35 other sentence conditions imposed by a court pursuant to this

36 chapter or RCW 16.52.200(6) or 46.61.524. Where the court finds

37 that any offender has a chemical dependency that has contributed

38 to his or her offense, the conditions of supervision may, subject

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_1 to available resources, include treatment. For purposes of the

_2 interstate compact for out-of-state supervision of parolees and

_3 probationers, RCW 9.95.270, community supervision is the

_4 functional equivalent of probation and should be considered the

_5 same as probation by other states.

_6 (9) "Confinement" means total or partial confinement.

_7 (10) "Conviction" means an adjudication of guilt pursuant to

_8 Titles 10 or 13 RCW and includes a verdict of guilty, a finding of

_9 guilty, and acceptance of a plea of guilty.

10 (11) "Crime-related prohibition" means an order of a court

11 prohibiting conduct that directly relates to the circumstances of

12 the crime for which the offender has been convicted, and shall not

13 be construed to mean orders directing an offender affirmatively to

14 participate in rehabilitative programs or to otherwise perform

15 affirmative conduct. However, affirmative acts necessary to monitor

16 compliance with the order of a court may be required by the

17 department.

18 (12) "Criminal history" means the list of a defendant's prior

19 convictions and juvenile adjudications, whether in this state, in

20 federal court, or elsewhere. The history shall include, where

21 known, for each conviction (a) whether the defendant has been

22 placed on probation and the length and terms thereof; and (b)

23 whether the defendant has been incarcerated and the length of

24 incarceration.

25 (13) "Day fine" means a fine imposed by the sentencing court

26 that equals the difference between the offender's net daily income

27 and the reasonable obligations that the offender has for the

28 support of the offender and any dependents.

29 (14) "Day reporting" means a program of enhanced supervision

30 designed to monitor the offender's daily activities and compliance

31 with sentence conditions, and in which the offender is required to

32 report daily to a specific location designated by the department

33 or the sentencing court.

34 (15) "Department" means the department of corrections.

35 (16) "Determinate sentence" means a sentence that states with

36 exactitude the number of actual years, months, or days of total

37 confinement, of partial confinement, of community supervision, the

38 number of actual hours or days of community service work, or

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_1 dollars or terms of a legal financial obligation. The fact that an

_2 offender through earned release can reduce the actual period of

_3 confinement shall not affect the classification of the sentence as

_4 a determinate sentence.

_5 (17) "Disposable earnings" means that part of the earnings of

_6 an offender remaining after the deduction from those earnings of

_7 any amount required by law to be withheld. For the purposes of this

_8 definition, "earnings" means compensation paid or payable for

_9 personal services, whether denominated as wages, salary,

10 commission, bonuses, or otherwise, and, notwithstanding any other

11 provision of law making the payments exempt from garnishment,

12 attachment, or other process to satisfy a court-ordered legal

13 financial obligation, specifically includes periodic payments

14 pursuant to pension or retirement programs, or insurance policies

15 of any type, but does not include payments made under Title 50

16 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title

17 74 RCW.

18 (18) "Drug offender sentencing alternative" is a sentencing

19 option available to persons convicted of a felony offense other

20 than a violent offense or a sex offense and who are eligible for

21 the option under RCW 9.94A.660.

22 (19) "Drug offense" means:

23 (a) Any felony violation of chapter 69.50 RCW except possession

24 of a controlled substance (RCW 69.50.401(d)) or forged

25 prescription for a controlled substance (RCW 69.50.403);

26 (b) Any offense defined as a felony under federal law that

27 relates to the possession, manufacture, distribution, or

28 transportation of a controlled substance; or

29 (c) Any out-of-state conviction for an offense that under the

30 laws of this state would be a felony classified as a drug offense

31 under (a) of this subsection.

32 (20) "Earned release" means earned release from confinement as

33 provided in RCW 9.94A.150.

34 (21) "Escape" means:

35 (a) Escape in the first degree (RCW 9A.76.110), escape in the

36 second degree (RCW 9A.76.120), willful failure to return from

37 furlough (RCW 72.66.060), willful failure to return from work

38 release (RCW 72.65.070), or willful failure to be available for

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_1 supervision by the department while in community custody (RCW

_2 72.09.310); or

_3 (b) Any federal or out-of-state conviction for an offense that

_4 under the laws of this state would be a felony classified as an

_5 escape under (a) of this subsection.

_6 (22) "Felony traffic offense" means:

_7 (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW

_8 46.61.522), eluding a police officer (RCW 46.61.024), or felony

_9 hit-and-run injury-accident (RCW 46.52.020(4)); or

10 (b) Any federal or out-of-state conviction for an offense that

11 under the laws of this state would be a felony classified as a

12 felony traffic offense under (a) of this subsection.

13 (23) "Fine" means a specific sum of money ordered by the

14 sentencing court to be paid by the offender to the court over a

15 specific period of time.

16 (24) "First-time offender" means any person who has no prior

17 convictions for a felony and is eligible for the first-time

18 offender waiver under RCW 9.94A.650.

19 (25) "Home detention" means a program of partial confinement

20 available to offenders wherein the offender is confined in a

21 private residence subject to electronic surveillance.

22 (26) "Legal financial obligation" means a sum of money that is

23 ordered by a superior court of the state of Washington for legal

24 financial obligations which may include restitution to the victim,

25 statutorily imposed crime victims' compensation fees as assessed

26 pursuant to RCW 7.68.035, court costs, county or interlocal drug

27 funds, court-appointed attorneys' fees, and costs of defense,

28 fines, and any other financial obligation that is assessed to the

29 offender as a result of a felony conviction. Upon conviction for

30 vehicular assault while under the influence of intoxicating liquor

31 or any drug, RCW 46.61.522(1)(b), or vehicular homicide while

32 under the influence of intoxicating liquor or any drug, RCW

33 46.61.520(1)(a), legal financial obligations may also include

34 payment to a public agency of the expense of an emergency response

35 to the incident resulting in the conviction, subject to RCW

36 38.52.430.

37 (27) "Most serious offense" means any of the following felonies

38 or a felony attempt to commit any of the following felonies:

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_1 (a) Any felony defined under any law as a class A felony or

_2 criminal solicitation of or criminal conspiracy to commit a class

_3 A felony;

_4 (b) ((~~Assault in the second degree;~~

_5 ~~(c)~~)) Assault of a child in the second degree;

_6 ((~~(d)~~)) (c) Child molestation in the second degree;

_7 ((~~(e)~~)) (d) Controlled substance homicide;

_8 ((~~(f)~~)) (e) Extortion in the first degree;

_9 ((~~(g)~~)) (f) Incest when committed against a child under age

10 fourteen;

11 ((~~(h)~~)) (g) Indecent liberties;

12 ((~~(i)~~)) (h) Kidnapping in the second degree;

13 ((~~(j)~~)) (i) Leading organized crime;

14 ((~~(k)~~)) (j) Manslaughter in the first degree;

15 ((~~(l)~~)) (k) Manslaughter in the second degree;

16 ((~~(m)~~)) (l) Promoting prostitution in the first degree;

17 ((~~(n)~~)) (m) Rape in the third degree;

18 ((~~(o) Robbery in the second degree;~~

19 ~~(p)~~)) (n) Sexual exploitation;

20 ((~~(q)~~)) (o) Vehicular assault;

21 ((~~(r)~~)) (p) Vehicular homicide, when proximately caused by the

22 driving of any vehicle by any person while under the influence of

23 intoxicating liquor or any drug as defined by RCW 46.61.502, or by

24 the operation of any vehicle in a reckless manner;

25 ((~~(s)~~)) (q) Any other class B felony offense with a finding of

26 sexual motivation;

27 ((~~(t)~~)) (r) Any other felony with a deadly weapon verdict under

28 RCW 9.94A.125;

29 ((~~(u)~~)) (s) Any felony offense in effect at any time prior to

30 December 2, 1993, that is comparable to a most serious offense

31 under this subsection, or any federal or out-of-state conviction

32 for an offense that under the laws of this state would be a felony

33 classified as a most serious offense under this subsection;

34 ((~~(v)~~)) (t)(i) A prior conviction for indecent liberties under

35 RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st

36 ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a),

37 (b), and (c) as it existed from July 1, 1979, until June 11, 1986,

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_1 and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11,

_2 1986, until July 1, 1988;

_3 (ii) A prior conviction for indecent liberties under RCW

_4 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1,

_5 1988, if: (A) The crime was committed against a child under the age

_6 of fourteen; or (B) the relationship between the victim and

_7 perpetrator is included in the definition of indecent liberties

_8 under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through

_9 July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from

10 July 25, 1993, through July 27, 1997.

11 (28) "Nonviolent offense" means an offense which is not a

12 violent offense.

13 (29) "Offender" means a person who has committed a felony

14 established by state law and is eighteen years of age or older or

15 is less than eighteen years of age but whose case is under

16 superior court jurisdiction under RCW 13.04.030 or has been

17 transferred by the appropriate juvenile court to a criminal court

18 pursuant to RCW 13.40.110. Throughout this chapter, the terms

19 "offender" and "defendant" are used interchangeably.

20 (30) "Partial confinement" means confinement for no more than

21 one year in a facility or institution operated or utilized under

22 contract by the state or any other unit of government, or, if home

23 detention or work crew has been ordered by the court, in an

24 approved residence, for a substantial portion of each day with the

25 balance of the day spent in the community. Partial confinement

26 includes work release, home detention, work crew, and a

27 combination of work crew and home detention.

28 (31) "Persistent offender" is an offender who:

29 (a)(i) Has been convicted in this state of any felony

30 considered a most serious offense; and

31 (ii) Has, before the commission of the offense under (a) of

32 this subsection, been convicted as an offender on at least two

33 separate occasions, whether in this state or elsewhere, of

34 felonies that under the laws of this state would be considered

35 most serious offenses and would be included in the offender score

36 under RCW 9.94A.360; provided that of the two or more previous

37 convictions, at least one conviction must have occurred before the

38 commission of any of the other most serious offenses for which the

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_1 offender was previously convicted; or

_2 (b)(i) Has been convicted of: (A) Rape in the first degree, rape

_3 of a child in the first degree, child molestation in the first

_4 degree, rape in the second degree, rape of a child in the second

_5 degree, or indecent liberties by forcible compulsion; (B) murder

_6 in the first degree, murder in the second degree, homicide by

_7 abuse, kidnapping in the first degree, kidnapping in the second

_8 degree, assault in the first degree, assault in the second degree,

_9 assault of a child in the first degree, or burglary in the first

10 degree, with a finding of sexual motivation; or (C) an attempt to

11 commit any crime listed in this subsection (31)(b)(i); and

12 (ii) Has, before the commission of the offense under (b)(i) of

13 this subsection, been convicted as an offender on at least one

14 occasion, whether in this state or elsewhere, of an offense listed

15 in (b)(i) of this subsection. A conviction for rape of a child in

16 the first degree constitutes a conviction under (b)(i) of this

17 subsection only when the offender was sixteen years of age or

18 older when the offender committed the offense. A conviction for

19 rape of a child in the second degree constitutes a conviction

20 under (b)(i) of this subsection only when the offender was

21 eighteen years of age or older when the offender committed the

22 offense.

23 (32) "Postrelease supervision" is that portion of an offender's

24 community placement that is not community custody.

25 (33) "Restitution" means a specific sum of money ordered by the

26 sentencing court to be paid by the offender to the court over a

27 specified period of time as payment of damages. The sum may include

28 both public and private costs.

29 (34) "Risk assessment" means the application of an objective

30 instrument supported by research and adopted by the department for

31 the purpose of assessing an offender's risk of reoffense, taking

32 into consideration the nature of the harm done by the offender,

33 place and circumstances of the offender related to risk, the

34 offender's relationship to any victim, and any information

35 provided to the department by victims. The results of a risk

36 assessment shall not be based on unconfirmed or unconfirmable

37 allegations.

38 (35) "Serious traffic offense" means:

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_1 (a) Driving while under the influence of intoxicating liquor or

_2 any drug (RCW 46.61.502), actual physical control while under the

_3 influence of intoxicating liquor or any drug (RCW 46.61.504),

_4 reckless driving (RCW 46.61.500), or hit-and-run an attended

_5 vehicle (RCW 46.52.020(5)); or

_6 (b) Any federal, out-of-state, county, or municipal conviction

_7 for an offense that under the laws of this state would be

_8 classified as a serious traffic offense under (a) of this

_9 subsection.

10 (36) "Serious violent offense" is a subcategory of violent

11 offense and means:

12 (a)(i) Murder in the first degree;

13 (ii) Homicide by abuse;

14 (iii) Murder in the second degree;

15 (iv) Manslaughter in the first degree;

16 (v) Assault in the first degree;

17 (vi) Kidnapping in the first degree;

18 (vii) Rape in the first degree;

19 (viii) Assault of a child in the first degree; or

20 (ix) An attempt, criminal solicitation, or criminal conspiracy

21 to commit one of these felonies; or

22 (b) Any federal or out-of-state conviction for an offense that

23 under the laws of this state would be a felony classified as a

24 serious violent offense under (a) of this subsection.

25 (37) "Sex offense" means:

26 (a) A felony that is a violation of:

27 (i) Chapter 9A.44 RCW other than RCW 9A.44.130(11);

28 (ii) RCW 9A.64.020;

29 (iii) RCW 9.68A.090; or

30 (iv) A felony that is, under chapter 9A.28 RCW, a criminal

31 attempt, criminal solicitation, or criminal conspiracy to commit

32 such crimes;

33 (b) Any conviction for a felony offense in effect at any time

34 prior to July 1, 1976, that is comparable to a felony classified

35 as a sex offense in (a) of this subsection;

36 (c) A felony with a finding of sexual motivation under RCW

37 9.94A.127 or 13.40.135; or

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_1 (d) Any federal or out-of-state conviction for an offense that

_2 under the laws of this state would be a felony classified as a sex

_3 offense under (a) of this subsection.

_4 (38) "Sexual motivation" means that one of the purposes for

_5 which the defendant committed the crime was for the purpose of his

_6 or her sexual gratification.

_7 (39) "Standard sentence range" means the sentencing court's

_8 discretionary range in imposing a nonappealable sentence.

_9 (40) "Statutory maximum sentence" means the maximum length of

10 time for which an offender may be confined as punishment for a

11 crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the

12 statute defining the crime, or other statute defining the maximum

13 penalty for a crime.

14 (41) "Total confinement" means confinement inside the physical

15 boundaries of a facility or institution operated or utilized under

16 contract by the state or any other unit of government for twenty-

17 four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.

18 (42) "Transition training" means written and verbal

19 instructions and assistance provided by the department to the

20 offender during the two weeks prior to the offender's successful

21 completion of the work ethic camp program. The transition training

22 shall include instructions in the offender's requirements and

23 obligations during the offender's period of community custody.

24 (43) "Victim" means any person who has sustained emotional,

25 psychological, physical, or financial injury to person or property

26 as a direct result of the crime charged.

27 (44) "Violent offense" means:

28 (a) Any of the following felonies:

29 (i) Any felony defined under any law as a class A felony or an

30 attempt to commit a class A felony;

31 (ii) Criminal solicitation of or criminal conspiracy to commit

32 a class A felony;

33 (iii) Manslaughter in the first degree;

34 (iv) Manslaughter in the second degree;

35 (v) Indecent liberties if committed by forcible compulsion;

36 (vi) Kidnapping in the second degree;

37 (vii) Arson in the second degree;

38 (viii) Assault in the second degree;

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_1 (ix) Assault of a child in the second degree;

_2 (x) Extortion in the first degree;

_3 (xi) Robbery in the second degree;

_4 (xii) Drive-by shooting;

_5 (xiii) Vehicular assault; and

_6 (xiv) Vehicular homicide, when proximately caused by the

_7 driving of any vehicle by any person while under the influence of

_8 intoxicating liquor or any drug as defined by RCW 46.61.502, or by

_9 the operation of any vehicle in a reckless manner;

10 (b) Any conviction for a felony offense in effect at any time

11 prior to July 1, 1976, that is comparable to a felony classified

12 as a violent offense in (a) of this subsection; and

13 (c) Any federal or out-of-state conviction for an offense that

14 under the laws of this state would be a felony classified as a

15 violent offense under (a) or (b) of this subsection.

16 (45) "Work crew" means a program of partial confinement

17 consisting of civic improvement tasks for the benefit of the

18 community that complies with RCW 9.94A.135.

19 (46) "Work ethic camp" means an alternative incarceration

20 program as provided in RCW 9.94A.137 designed to reduce recidivism

21 and lower the cost of corrections by requiring offenders to

22 complete a comprehensive array of real-world job and vocational

23 experiences, character-building work ethics training, life

24 management skills development, substance abuse rehabilitation,

25 counseling, literacy training, and basic adult education.

26 (47) "Work release" means a program of partial confinement

27 available to offenders who are employed or engaged as a student in

28 a regular course of study at school.

29 NEW SECTION. Sec. 2. A new section is added to chapter 9.94A

30 RCW to read as follows:

31 In any criminal case wherein an offender has been sentenced as

32 a persistent offender prior to the effective date of this act, the

33 offender shall have a resentencing hearing if a current or past

34 conviction for robbery in the second degree or assault in the

35 second degree was used as a basis for the finding that the

36 offender was a persistent offender. The prosecuting attorney for

37 the county in which any offender was sentenced as a persistent

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_1 offender shall review each sentencing document. If a current or

_2 past conviction for robbery in the second degree or assault in the

_3 second degree was used as a basis for a finding that an offender

_4 was a persistent offender, the prosecuting attorney shall, or the

_5 offender may, make a motion for relief from sentence to the

_6 original sentencing court.

_7 The sentencing court shall grant the motion if it finds that a

_8 current or past conviction for robbery in the second degree or

_9 assault in the second degree was used as a basis for a finding

10 that the offender was a persistent offender and shall immediately

11 set an expedited date for resentencing. At resentencing, the court

12 shall sentence the offender as if robbery in the second degree and

13 assault in the second degree were not most serious offenses at the

14 time the original sentence was imposed.

15 This section expires July 1, 2003.

16 NEW SECTION. Sec. 3. This act is necessary for the immediate

17 preservation of the public peace, health, or safety, or support of

18 the state government and its existing public institutions, and

19 takes effect July 1, 2001.

‑‑‑ END ‑‑‑

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