AN
ACT Relating to sentencing persistent sex offenders; amending RCW 9.94A.030;
and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that an ambiguity may exist regarding whether out-of-state
convictions or convictions under prior Washington law, for sex offenses that
are comparable to current Washington offenses, count when determining whether
an offender is a persistent offender. This act is intended to clarify the
legislature's intent that out-of-state convictions for comparable sex offenses
and prior Washington convictions for comparable sex offenses shall be used to
determine whether an offender meets the definition of a persistent offender.
Sec.
2. RCW
9.94A.030 and 2000 c 28 s 2 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Collect," or any derivative thereof, "collect and remit,"
or "collect and deliver," when used with reference to the department,
means that the department, either directly or through a collection agreement
authorized by RCW 9.94A.145, is responsible for monitoring and enforcing the
offender's sentence with regard to the legal financial obligation, receiving
payment thereof from the offender, and, consistent with current law, delivering
daily the entire payment to the superior court clerk without depositing it in a
departmental account.
(2)
"Commission" means the sentencing guidelines commission.
(3)
"Community corrections officer" means an employee of the department
who is responsible for carrying out specific duties in supervision of sentenced
offenders and monitoring of sentence conditions.
(4)
"Community custody" means that portion of an offender's sentence of
confinement in lieu of earned release time or imposed pursuant to RCW
9.94A.120(2)(b), 9.94A.650 through 9.94A.670, 9.94A.137, 9.94A.700 through
9.94A.715, or 9.94A.383, served in the community subject to controls placed on
the offender's movement and activities by the department. For offenders placed
on community custody for crimes committed on or after July 1, 2000, the
department shall assess the offender's risk of reoffense and may establish and
modify conditions of community custody, in addition to those imposed by the
court, based upon the risk to community safety.
(5)
"Community custody range" means the minimum and maximum period of
community custody included as part of a sentence under RCW 9.94A.715, as
established by the commission or the legislature under RCW 9.94A.040, for crimes
committed on or after July 1, 2000.
(6)
"Community placement" means that period during which the offender is
subject to the conditions of community custody and/or postrelease supervision,
which begins either upon completion of the term of confinement (postrelease
supervision) or at such time as the offender is transferred to community
custody in lieu of earned release. Community placement may consist of entirely
community custody, entirely postrelease supervision, or a combination of the
two.
(7)
"Community service" means compulsory service, without compensation,
performed for the benefit of the community by the offender.
(8)
"Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other sentence
conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or
46.61.524. Where the court finds that any offender has a chemical dependency
that has contributed to his or her offense, the conditions of supervision may,
subject to available resources, include treatment. For purposes of the
interstate compact for out-of-state supervision of parolees and probationers,
RCW 9.95.270, community supervision is the functional equivalent of probation
and should be considered the same as probation by other states.
(9)
"Confinement" means total or partial confinement.
(10)
"Conviction" means an adjudication of guilt pursuant to Titles 10 or
13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of
a plea of guilty.
(11)
"Crime-related prohibition" means an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the
offender has been convicted, and shall not be construed to mean orders
directing an offender affirmatively to participate in rehabilitative programs
or to otherwise perform affirmative conduct. However, affirmative acts
necessary to monitor compliance with the order of a court may be required by
the department.
(12)
"Criminal history" means the list of a defendant's prior convictions
and juvenile adjudications, whether in this state, in federal court, or
elsewhere. The history shall include, where known, for each conviction (a)
whether the defendant has been placed on probation and the length and terms
thereof; and (b) whether the defendant has been incarcerated and the length of
incarceration.
(13)
"Day fine" means a fine imposed by the sentencing court that equals
the difference between the offender's net daily income and the reasonable
obligations that the offender has for the support of the offender and any
dependents.
(14)
"Day reporting" means a program of enhanced supervision designed to
monitor the offender's daily activities and compliance with sentence
conditions, and in which the offender is required to report daily to a specific
location designated by the department or the sentencing court.
(15)
"Department" means the department of corrections.
(16)
"Determinate sentence" means a sentence that states with exactitude
the number of actual years, months, or days of total confinement, of partial
confinement, of community supervision, the number of actual hours or days of
community service work, or dollars or terms of a legal financial obligation.
The fact that an offender through earned release can reduce the actual period
of confinement shall not affect the classification of the sentence as a
determinate sentence.
(17)
"Disposable earnings" means that part of the earnings of an offender
remaining after the deduction from those earnings of any amount required by law
to be withheld. For the purposes of this definition, "earnings"
means compensation paid or payable for personal services, whether denominated
as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any
other provision of law making the payments exempt from garnishment, attachment,
or other process to satisfy a court-ordered legal financial obligation,
specifically includes periodic payments pursuant to pension or retirement programs,
or insurance policies of any type, but does not include payments made under
Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74
RCW.
(18)
"Drug offender sentencing alternative" is a sentencing option
available to persons convicted of a felony offense other than a violent offense
or a sex offense and who are eligible for the option under RCW 9.94A.660.
(19)
"Drug offense" means:
(a)
Any felony violation of chapter 69.50 RCW except possession of a controlled
substance (RCW 69.50.401(d)) or forged prescription for a controlled substance
(RCW 69.50.403);
(b)
Any offense defined as a felony under federal law that relates to the
possession, manufacture, distribution, or transportation of a controlled
substance; or
(c)
Any out-of-state conviction for an offense that under the laws of this state
would be a felony classified as a drug offense under (a) of this subsection.
(20)
"Earned release" means earned release from confinement as provided in
RCW 9.94A.150.
(21)
"Escape" means:
(a)
Escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful
failure to return from work release (RCW 72.65.070), or willful failure to be
available for supervision by the department while in community custody (RCW
72.09.310); or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as an escape under (a) of this
subsection.
(22)
"Felony traffic offense" means:
(a)
Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding
a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW
46.52.020(4)); or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a felony traffic offense under (a)
of this subsection.
(23)
"Fine" means a specific sum of money ordered by the sentencing court
to be paid by the offender to the court over a specific period of time.
(24)
"First-time offender" means any person who has no prior convictions
for a felony and is eligible for the first-time offender waiver under RCW
9.94A.650.
(25)
"Home detention" means a program of partial confinement available to
offenders wherein the offender is confined in a private residence subject to
electronic surveillance.
(26)
"Legal financial obligation" means a sum of money that is ordered by
a superior court of the state of Washington for legal financial obligations
which may include restitution to the victim, statutorily imposed crime victims'
compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or
interlocal drug funds, court-appointed attorneys' fees, and costs of defense,
fines, and any other financial obligation that is assessed to the offender as a
result of a felony conviction. Upon conviction for vehicular assault while
under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or
vehicular homicide while under the influence of intoxicating liquor or any
drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment
to a public agency of the expense of an emergency response to the incident
resulting in the conviction, subject to RCW 38.52.430.
(27)
"Most serious offense" means any of the following felonies or a
felony attempt to commit any of the following felonies:
(a)
Any felony defined under any law as a class A felony or criminal solicitation
of or criminal conspiracy to commit a class A felony;
(b)
Assault in the second degree;
(c)
Assault of a child in the second degree;
(d)
Child molestation in the second degree;
(e)
Controlled substance homicide;
(f)
Extortion in the first degree;
(g)
Incest when committed against a child under age fourteen;
(h)
Indecent liberties;
(i)
Kidnapping in the second degree;
(j)
Leading organized crime;
(k)
Manslaughter in the first degree;
(l)
Manslaughter in the second degree;
(m)
Promoting prostitution in the first degree;
(n)
Rape in the third degree;
(o)
Robbery in the second degree;
(p)
Sexual exploitation;
(q)
Vehicular assault;
(r)
Vehicular homicide, when proximately caused by the driving of any vehicle by
any person while under the influence of intoxicating liquor or any drug as
defined by RCW 46.61.502, or by the operation of any vehicle in a reckless
manner;
(s)
Any other class B felony offense with a finding of sexual motivation;
(t)
Any other felony with a deadly weapon verdict under RCW 9.94A.125;
(u)
Any felony offense in effect at any time prior to December 2, 1993, that is
comparable to a most serious offense under this subsection, or any federal or
out-of-state conviction for an offense that under the laws of this state would
be a felony classified as a most serious offense under this subsection;
(v)(i)
A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and
(c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979,
RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June
11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11,
1986, until July 1, 1988;
(ii)
A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it
existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed
against a child under the age of fourteen; or (B) the relationship between the
victim and perpetrator is included in the definition of indecent liberties
under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27,
1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through
July 27, 1997.
(28)
"Nonviolent offense" means an offense which is not a violent offense.
(29)
"Offender" means a person who has committed a felony established by
state law and is eighteen years of age or older or is less than eighteen years
of age but whose case is under superior court jurisdiction under RCW 13.04.030
or has been transferred by the appropriate juvenile court to a criminal court
pursuant to RCW 13.40.110. Throughout this chapter, the terms
"offender" and "defendant" are used interchangeably.
(30)
"Partial confinement" means confinement for no more than one year in
a facility or institution operated or utilized under contract by the state or
any other unit of government, or, if home detention or work crew has been
ordered by the court, in an approved residence, for a substantial portion of
each day with the balance of the day spent in the community. Partial
confinement includes work release, home detention, work crew, and a combination
of work crew and home detention.
(31)
"Persistent offender" is an offender who:
(a)(i)
Has been convicted in this state of any felony considered a most serious
offense; and
(ii)
Has, before the commission of the offense under (a) of this subsection, been
convicted as an offender on at least two separate occasions, whether in this
state or elsewhere, of felonies that under the laws of this state would be
considered most serious offenses and would be included in the offender score
under RCW 9.94A.360; provided that of the two or more previous convictions, at
least one conviction must have occurred before the commission of any of the
other most serious offenses for which the offender was previously convicted; or
(b)(i)
Has been convicted of: (A) Rape in the first degree, rape of a child in the
first degree, child molestation in the first degree, rape in the second degree,
rape of a child in the second degree, or indecent liberties by forcible
compulsion; (B) murder in the first degree, murder in the second degree,
homicide by abuse, kidnapping in the first degree, kidnapping in the second
degree, assault in the first degree, assault in the second degree, assault of a
child in the first degree, or burglary in the first degree, with a finding of
sexual motivation; or (C) an attempt to commit any crime listed in this
subsection (31)(b)(i); and
(ii)
Has, before the commission of the offense under (b)(i) of this subsection, been
convicted as an offender on at least one occasion, whether in this state or
elsewhere, of an offense listed in (b)(i) of this subsection or any federal
or out-of-state offense or offense under prior Washington law that is
comparable to the offenses listed in (b)(i) of this subsection. A
conviction for rape of a child in the first degree constitutes a conviction
under (b)(i) of this subsection only when the offender was sixteen years of age
or older when the offender committed the offense. A conviction for rape of a
child in the second degree constitutes a conviction under (b)(i) of this
subsection only when the offender was eighteen years of age or older when the
offender committed the offense.
(32)
"Postrelease supervision" is that portion of an offender's community
placement that is not community custody.
(33)
"Restitution" means a specific sum of money ordered by the sentencing
court to be paid by the offender to the court over a specified period of time
as payment of damages. The sum may include both public and private costs.
(34)
"Risk assessment" means the application of an objective instrument
supported by research and adopted by the department for the purpose of
assessing an offender's risk of reoffense, taking into consideration the nature
of the harm done by the offender, place and circumstances of the offender
related to risk, the offender's relationship to any victim, and any information
provided to the department by victims. The results of a risk assessment shall
not be based on unconfirmed or unconfirmable allegations.
(35)
"Serious traffic offense" means:
(a)
Driving while under the influence of intoxicating liquor or any drug (RCW
46.61.502), actual physical control while under the influence of intoxicating
liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or
hit-and-run an attended vehicle (RCW 46.52.020(5)); or
(b)
Any federal, out-of-state, county, or municipal conviction for an offense that
under the laws of this state would be classified as a serious traffic offense under
(a) of this subsection.
(36)
"Serious violent offense" is a subcategory of violent offense and
means:
(a)(i)
Murder in the first degree;
(ii)
Homicide by abuse;
(iii)
Murder in the second degree;
(iv)
Manslaughter in the first degree;
(v)
Assault in the first degree;
(vi)
Kidnapping in the first degree;
(vii)
Rape in the first degree;
(viii)
Assault of a child in the first degree; or
(ix)
An attempt, criminal solicitation, or criminal conspiracy to commit one of
these felonies; or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a serious violent offense under (a)
of this subsection.
(37)
"Sex offense" means:
(a)
A felony that is a violation of:
(i)
Chapter 9A.44 RCW other than RCW 9A.44.130(11);
(ii)
RCW 9A.64.020;
(iii)
RCW 9.68A.090; or
(iv)
A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal
solicitation, or criminal conspiracy to commit such crimes;
(b)
Any conviction for a felony offense in effect at any time prior to July 1,
1976, that is comparable to a felony classified as a sex offense in (a) of this
subsection;
(c)
A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135;
or
(d)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a sex offense under (a) of this
subsection.
(38)
"Sexual motivation" means that one of the purposes for which the
defendant committed the crime was for the purpose of his or her sexual
gratification.
(39)
"Standard sentence range" means the sentencing court's discretionary
range in imposing a nonappealable sentence.
(40)
"Statutory maximum sentence" means the maximum length of time for
which an offender may be confined as punishment for a crime as prescribed in
chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other
statute defining the maximum penalty for a crime.
(41)
"Total confinement" means confinement inside the physical boundaries
of a facility or institution operated or utilized under contract by the state
or any other unit of government for twenty-four hours a day, or pursuant to RCW
72.64.050 and 72.64.060.
(42)
"Transition training" means written and verbal instructions and
assistance provided by the department to the offender during the two weeks
prior to the offender's successful completion of the work ethic camp program.
The transition training shall include instructions in the offender's requirements
and obligations during the offender's period of community custody.
(43)
"Victim" means any person who has sustained emotional, psychological,
physical, or financial injury to person or property as a direct result of the
crime charged.
(44)
"Violent offense" means:
(a)
Any of the following felonies:
(i)
Any felony defined under any law as a class A felony or an attempt to commit a
class A felony;
(ii)
Criminal solicitation of or criminal conspiracy to commit a class A felony;
(iii)
Manslaughter in the first degree;
(iv)
Manslaughter in the second degree;
(v)
Indecent liberties if committed by forcible compulsion;
(vi)
Kidnapping in the second degree;
(vii)
Arson in the second degree;
(viii)
Assault in the second degree;
(ix)
Assault of a child in the second degree;
(x)
Extortion in the first degree;
(xi)
Robbery in the second degree;
(xii)
Drive-by shooting;
(xiii)
Vehicular assault; and
(xiv)
Vehicular homicide, when proximately caused by the driving of any vehicle by
any person while under the influence of intoxicating liquor or any drug as
defined by RCW 46.61.502, or by the operation of any vehicle in a reckless
manner;
(b)
Any conviction for a felony offense in effect at any time prior to July 1,
1976, that is comparable to a felony classified as a violent offense in (a) of
this subsection; and
(c)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a violent offense under (a) or (b)
of this subsection.
(45)
"Work crew" means a program of partial confinement consisting of
civic improvement tasks for the benefit of the community that complies with RCW
9.94A.135.
(46)
"Work ethic camp" means an alternative incarceration program as
provided in RCW 9.94A.137 designed to reduce recidivism and lower the cost of
corrections by requiring offenders to complete a comprehensive array of
real-world job and vocational experiences, character-building work ethics
training, life management skills development, substance abuse rehabilitation,
counseling, literacy training, and basic adult education.
(47)
"Work release" means a program of partial confinement available to
offenders who are employed or engaged as a student in a regular course of study
at school.
