To limit judges’ sentencing discretion, with a few recognized exceptions, the Sentencing Reform Act of 1981 (‘SRA’) provides appropriate ‘times for crimes’, based on an individual’s particular crime and prior convictions. Priors do include ‘out-of-state’ convictions. RCW 9.94A.525. Mr. Lewis pleaded guilty to multiple child porn counts. He had six prior convictions: 3 from Washington State and 3 from Australia.
If Mr. Lewis’ offender score included the Australian convictions, he would ‘max out’ at over 9 points (‘9+’) which would significantly increase the SRA guideline range. He challenged inclusion of the Australian convictions at his original sentencing, and was rejected, receiving 102 months on each count, to be served concurrently. He appealed to the WA Court of Appeals, arguing ‘out-of-state’ convictions did not include convictions in foreign countries. He lost again at the Court of Appeals level, and sought review from the WA Supreme Court (‘WSSC’).
The WSSC concluded that the text of the SRA was “ambiguous” on whether ‘out-of-state’ convictions included convictions entered by courts in foreign nations. Because there was “no helpful legislative history”, the WSSC utilized the ‘rule of lenity’ and reversed the Court of Appeals because the SRA was ambiguous. The rule of lenity holds that ‘ambiguous’ laws are strictly constructed in favor of the defendant. State vs. Hornaday, 105 Wn. 2d 120, 127 (1986).
Mr. Lewis will be resentenced with a significantly reduced offender score. The opinion is a plurality with 5 justices agreeing to the ‘ambiguity analysis’ with another 2 agreeing in the result by way of a concurring opinion. Justice Johnson’s concurring opinion maintains ‘out-of-state’ convictions purposefully do not include “out-of-country” convictions in its meaning. Justice Johnson believed the former term “plainly refers to convictions from other U.S. states”. He was joined by another Justice, sitting as a pro tem.
Chief Justice Stephens, joined by Justice Madden, dissented, and held the Australian counts are ‘comparable to’ WA offenses and should be counted under the authority of State vs. Morley, 134 Wn. 2d 588, 599 (1998), which held the term ‘out-of-state’ is “broad” and “reaches all foreign convictions”. Comparability analysis (i.e. is it a similar offense under WA law, and was given proper due process in its’ handling) would include counting the Australian offenses. According to the dissent, Mr. Lewis’ score was properly compared and tabulated.
Since the final vote was essentially 7-2, Mr. Lewis’ matter is done, and his prison sentence will likely be cut in half.