[No. 60474-1-I. Division One. April 13, 2009.]
Maureen M. Cyr (of Washington Appellate Project), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Daniel Kalish, Deputy, for respondent.
Written by: Judge Grosse.
Concurred by: Judge Appelwick, Judge Schindler.
¶1 GROSSE, J. -- A defendant incarcerated for violating his misdemeanor probation is not considered "in the community" for purposes of the wash out provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Here, the defendant violated probation during the five-year period that he was crime free. We hold that his confinement for that violation removed him from the community and precluded his prior felony convictions from washing out. The trial court is affirmed.
FACTS
¶2 A jury convicted James Ervin of a felony violation of a no contact order stemming from an incident in June 2006. Ervin had two previous felony convictions: second degree possession of stolen property and first degree rendering criminal assistance, committed on January 27, 1991 and March 31, 1994, respectively. Ervin was released from confinement for the 1994 offense in October of that same year. Before a full five years had elapsed, on April 15, 1999, Ervin committed the misdemeanor offense of domestic violence criminal trespass, for which he received a suspended sentence and probation. In 2002, he violated his probation and was sentenced to 25 days' incarceration. Three years later, on July 28, 2005, he committed fourth degree assault, a misdemeanor. In sentencing on the current 2006 felony conviction, the trial court calculated Ervin's offender score as a 3, a figure arrived at by counting the two prior felony convictions. Ervin appeals contesting only his offender score.
ANALYSIS
¶3 Ervin challenges the inclusion of the two prior felony convictions in his criminal history arguing that the prior convictions washed out because he spent five years in the community, from 1999 to 2005, without committing a crime. The State argues that although Ervin did not commit a crime within five years, his confinement for the probation violation in 2002 interrupted his time "in the community." RCW 9.94A.525(2)(c) provides:
Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. Ervin argues that confinement for a misdemeanor probation violation does not remove him from the community. He relies on In re Personal Restraint of Nichols, which held that time spent in the community did not include time spent incarcerated for misdemeanors. Class C prior felony convictions . . . shall not be included in the offender score if, since the last date of release from confinement . . . pursuant to a felony conviction, . . . the offender had spent five consecutive years in the community without being convicted of any felonies.» [1-3] ¶4 The term "community" is not defined in the statute. Our paramount duty is to give effect to legislative intent when construing statutes. To fulfill the legislature's intent we must construe the statute as a whole, giving effect to all of its language, considering the provisions in relation to each other, and harmonizing them whenever possible. An offender's failure to inform the department of court-ordered treatment upon request by the department is a violation of the conditions of supervision if the offender is in the community and an infraction if the offender is in confinement, and the violation or infraction is subject to sanctions. Likewise, other sections of the SRA suggest that if one is in custody, one is not "in the community." ¶5 We find that when one reads the statute naturally, the conclusion is inescapable that the legislature necessarily intended to exclude those who are incarcerated pursuant to a probation violation from being considered "in the community" under this statute. Thus, an offender, such as Ervin, in misdemeanor confinement does not fall within the wash out parameters set forth by the legislature. ¶6 We affirm the judgment and sentence. SCHINDLER, C.J., and APPELWICK, J., concur.