BILL REQ. #: S-0736.1
| State of Washington | 60th Legislature | 2007 Regular Session |
Read first time 01/17/2007. Referred to Committee on Judiciary.
AN ACT Relating to persistent offenders; reenacting and amending RCW 9.94A.030; adding a new section to chapter 9.94A RCW; prescribing penalties; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.94A.030 and 2006 c 139 s 5, 2006 c 124 s 1, 2006 c
122 s 7, and 2006 c 73 s 5 are each reenacted and amended to read as
follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Board" means the indeterminate sentence review board created
under chapter 9.95 RCW.
(2) "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.760, 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.
(3) "Commission" means the sentencing guidelines commission.
(4) "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.
(5) "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.505(2)(b), 9.94A.650 through 9.94A.670,
9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, 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.
(6) "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.850, for crimes committed on or after July 1, 2000.
(7) "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.
(8) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(9) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(10) "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.
(11) "Confinement" means total or partial confinement.
(12) "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.
(13) "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.
(14) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in
federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i)
whether the defendant has been placed on probation and the length and
terms thereof; and (ii) whether the defendant has been incarcerated and
the length of incarceration.
(b) A conviction may be removed from a defendant's criminal history
only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or
a similar out-of-state statute, or if the conviction has been vacated
pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct
from the determination of an offender score. A prior conviction that
was not included in an offender score calculated pursuant to a former
version of the sentencing reform act remains part of the defendant's
criminal history.
(15) "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.
(16) "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.
(17) "Department" means the department of corrections.
(18) "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 restitution 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.
(19) "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.
(20) "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.
(21) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of
a controlled substance (RCW 69.50.4013) 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.
(22) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(23) "Escape" means:
(a) Sexually violent predator escape (RCW 9A.76.115), 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.
(24) "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), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)); 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.
(25) "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.
(26) "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.
(27) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(28) "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.
(29) "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;)) Sexual exploitation;
(p)
(((q))) (p) Vehicular assault, when caused by the operation or
driving of a vehicle by a person while under the influence of
intoxicating liquor or any drug or by the operation or driving of a
vehicle in a reckless manner;
(((r))) (q) 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))) (r) Any other class B felony offense with a finding of
sexual motivation;
(((t))) (s) Any other felony with a deadly weapon verdict under RCW
9.94A.602;
(((u))) (t) 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))) (u)(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.
(30) "Nonviolent offense" means an offense which is not a violent
offense.
(31) "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.
(32) "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.
(33) "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.525; 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) any of the following
offenses with a finding of sexual motivation: 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, assault of a child in the second degree, or burglary in the
first degree; or (C) an attempt to commit any crime listed in this
subsection (33)(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.
(34) "Postrelease supervision" is that portion of an offender's
community placement that is not community custody.
(35) "Predatory" means: (a) The perpetrator of the crime was a
stranger to the victim, as defined in this section; (b) the perpetrator
established or promoted a relationship with the victim prior to the
offense and the victimization of the victim was a significant reason
the perpetrator established or promoted the relationship; or (c) the
perpetrator was: (i) A teacher, counselor, volunteer, or other person
in authority in any public or private school and the victim was a
student of the school under his or her authority or supervision. For
purposes of this subsection, "school" does not include home-based
instruction as defined in RCW 28A.225.010; (ii) a coach, trainer,
volunteer, or other person in authority in any recreational activity
and the victim was a participant in the activity under his or her
authority or supervision; or (iii) a pastor, elder, volunteer, or other
person in authority in any church or religious organization, and the
victim was a member or participant of the organization under his or her
authority.
(36) "Private school" means a school regulated under chapter
28A.195 or 28A.205 RCW.
(37) "Public school" has the same meaning as in RCW 28A.150.010.
(38) "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.
(39) "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.
(40) "Serious traffic offense" means:
(a) Nonfelony driving while under the influence of intoxicating
liquor or any drug (RCW 46.61.502), nonfelony 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.
(41) "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.
(42) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.130(((11))) (12);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than
RCW 9.68A.080; 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.835 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.
(43) "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.
(44) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(45) "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.
(46) "Stranger" means that the victim did not know the offender
twenty-four hours before the offense.
(47) "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.
(48) "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.
(49) "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.
(50) "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, when caused by the operation or driving
of a vehicle by a person while under the influence of intoxicating
liquor or any drug or by the operation or driving of a vehicle in a
reckless manner; 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.
(51) "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.725.
(52) "Work ethic camp" means an alternative incarceration program
as provided in RCW 9.94A.690 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.
(53) "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.
NEW SECTION. Sec. 2 A new section is added to chapter 9.94A RCW
to read as follows:
In any criminal case wherein an offender has been sentenced as a
persistent offender prior to the effective date of this act, the
offender shall have a resentencing hearing if a current or past
conviction for robbery in the second degree was used as a basis for the
finding that the offender was a persistent offender. The prosecuting
attorney for the county in which any offender was sentenced as a
persistent offender shall review each sentencing document. If a
current or past conviction for robbery in the second degree was used as
a basis for a finding that an offender was a persistent offender, the
prosecuting attorney shall, or the offender may, make a motion for
relief from sentence to the original sentencing court.
The sentencing court shall grant the motion if it finds that a
current or past conviction for robbery in the second degree was used as
a basis for a finding that the offender was a persistent offender and
shall immediately set an expedited date for resentencing. At
resentencing, the court shall sentence the offender as if robbery in
the second degree was not a most serious offense at the time the
original sentence was imposed.
This section expires July 1, 2009.