[No. 35158-7-II. Division Two. August 21, 2007.]
[1] Statutes — Amendment — Contravention of Prior Judicial Construction — Prospective Application. The legislature may effectively overrule an authoritative judicial construction of a statute by amending the statute prospectively. [2] Statutes — Construction — Retroactivity — Amendment — Test. A statutory amendment will not be applied retroactively unless retroactive application is constitutionally permissible under the circumstances and (1) it is intended by the legislature to apply retroactively, (2) it is curative in that it clarifies or technically corrects ambiguous statutory language, or (3) it is remedial in nature. [3] Statutes — Construction — Retroactivity — Amendment — Clarifying Amendment — Ambiguity in Original Statute — Supreme Court Holding. A statutory amendment will not be applied retroactively as a clarifying amendment if the Supreme Court has held that the statute it amends is unambiguous. [4] Statutes — Construction — Retroactivity — Amendment — Curative Amendment — Judicial Construction of Original Statute. In light of separation of powers considerations, a curative amendment will not be applied retroactively if it contravenes an authoritative judicial construction of the original statute that the amendment clarifies or technically corrects. [5] Juveniles — Juvenile Justice — Jurisdiction — Adult or Juvenile — Violent Crimes — Statutory Provisions — Age of Offender — 2005 Amendment — Retroactivity. Laws of 2005, ch. 290, § 1, which amended RCW 13.04.030(1)(e)(v) to change the automatic juvenile court decline triggering event for certain violent crimes from the juvenile's age at the time the criminal proceedings are instituted to the juvenile's age at the time of committing the offense, applies prospectively only. [6] Sexual Offenses — Special Sex Offender Alternative — Revocation — Review — Standard of Review. A trial court's revocation of a special sex offender sentencing alternative is reviewed for an abuse of discretion. [7] Sexual Offenses — Special Sex Offender Alternative — Revocation — Proof — In General. A special sex offender sentencing alternative may be revoked if there is proof to reasonably satisfy the court that the offender has violated a condition of the suspended sentence. [8] Statutes — Construction — Review — Standard of Review. Issues of statutory interpretation are reviewed de novo. [9] Statutes — Construction — Legislative Intent — Statutory Language — Plain Meaning. A court will not construe a plain and unambiguous statute. If a statute's language is plain and unambiguous, the statute is enforced in accordance with its plain meaning. [10] Sexual Offenses — Special Sex Offender Alternative — Revocation — Factors — Victim's Opinion. A trial court determining whether to revoke a special sex offender sentencing alternative under former RCW 9.94A.670(10) (2002) need not consider the victim's opinion regarding whether the suspended sentence should be revoked. [11] Sexual Offenses — Special Sex Offender Alternative — Revocation — Validity — Multiple Violations. A trial court may revoke a special sex offender sentencing alternative under former RCW 9.94A.670(10) (2002) upon proof that the offender committed multiple violations of the conditions of the suspended sentence, exhibited additional risk factors, and began reoffending immediately after release from an earlier incarceration arising from other condition violations. Nature of Action: An offender convicted upon a plea of guilty to one count of first degree rape of a child moved to withdraw the guilty plea or, in the alternative, for relief from judgment on a claim that the prosecution was improperly referred to adult criminal court. The offender was originally charged with four counts of first degree rape of a child. The crimes were committed when the defendant was between 11 and 15 years old, but the investigation was not concluded until after he turned 16. The offender was charged as an adult on October 17, 2002, after he turned 16, under the 1998 version of the automatic juvenile court decline statute, which provided for automatic jurisdiction in adult criminal court over juveniles 16 and 17 years old charged with certain violent crimes. On December 4, 2002, under a plea agreement, the State dropped three of the four counts and filed an amended information charging only one count of first degree rape of a child. The offender pleaded guilty to the charge in adult court. On March 11, 2003, the adult criminal court sentenced the offender to 160 months of confinement, which it suspended upon granting a special sex offender sentencing alternative. On August 5, 2005, the State moved to modify and/or revoke the suspended sentence because the offender had committed four violations of its conditions. The adult criminal court did not revoke the suspended sentence but, instead, punished the offender for his violations by sentencing him to 120 days in jail. On December 21, 2005, the State again moved to revoke the offender's suspended sentence because he had subsequently committed 10 violations of its conditions, exhibited additional risk factors, and began reoffending immediately after his release from the earlier confinement sanction. On July 11, 2006, after holding a hearing on the revocation motion, the adult criminal court revoked the suspended sentence and sentenced the offender to 123 months of confinement. In separate proceedings, on March 11, 2004, the Supreme Court held that the automatic juvenile court decline statute unambiguously refers to an offender's age at the time charges are filed. In 2005, the legislature amended the statute to provide for automatic juvenile court declination when the juvenile is 16 or 17 years old on the date the charged offense is alleged to have been committed. Superior Court: The Superior Court for Clark County, No. 02-1-02076-3, Robert L. Harris, J., on July 13, 2006, entered a judgment denying the offender's motion to withdraw his guilty plea. The offender subsequently sought review of the judgment and of the order revoking the special sex offender sentencing alternative. Court of Appeals: Holding that the amendment to the automatic juvenile court decline statute was not retroactive and did not apply to the offender; that the trial court was not required to consider the opinion of the victims' mother in deciding whether to revoke the special sex offender sentencing alternative, and that trial court did not abuse its discretion by revoking the sentencing alternative, the court affirms the trial court's judgment and revocation order. John A. Hays-, for appellant. Arthur D. Curtis-, Prosecuting Attorney, and Michael C. Kinnie-, Deputy, for respondent. ¶1 HUNT, J. — Marquis Ramirez appeals the trial court's revocation of his special sex offender sentencing alternative (SSOSA) ¶2 Holding that the statutes on which Ramirez relies do not apply, we affirm. FACTS I. SPECIAL SEX OFFENDER SENTENCING ALTERNATIVE ¶3 On October 17, 2002, the State charged 16-year-old Ramirez A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim. A. SSOSA Imposition ¶4 On March 11, 2003, the adult court sentenced Ramirez to 160 months confinement, which it suspended when it imposed a SSOSA. The SSOSA required Ramirez (1) to spend 180 days in jail; (2) to enter into, to cooperate with, to attend fully, and to complete successfully three years of a sex offender treatment program; (3) to report to a community corrections officer (CCO); (4) to receive permission from the Department of Corrections for residence location, living arrangements, and employment location and arrangements; (5) not to violate any criminal laws; (6) not to possess, to use, or to deliver drugs prohibited by the Uniform Controlled Substances Act, chapter 69.50 RCW; (7) not to possess or to use any pornographic material or equipment; and (8) not to enter into or to frequent business establishments that cater to minor children, such as a mall, without adult accompaniment. B. SSOSA Revocation ¶5 On August 5, 2005, the State moved to modify and/or to revoke Ramirez's SSOSA because he had committed four violations: (1) failing to report for a day-reporting check-in appointment, (2) failing to maintain employment by failing to report to work, (3) failing to attend scheduled treatment group sessions and failing to notify the treatment provider of his absence, and (4) using controlled substances. The trial court did not revoke Ramirez's SSOSA at this time. Instead, it punished him for violating his SSOSA by sentencing him to 120 days in jail. ¶6 On December 21, 2005, the State again moved to revoke Ramirez's SSOSA because he subsequently had violated its terms. This time, the State alleged 10 violations: (1) failing to report as directed for a chemical dependency screening appointment, (2) failing to participate in chemical dependency treatment, (3) failing to report for a day-reporting check-in appointment, (4) failing to attend scheduled sex-offender group treatment on November 22, 2005, (5) failing to attend scheduled sex-offender group treatment group on December 13, 2005, (6) using controlled substances, (7) entering a mall, (8) attending a strip show, (9) possessing pornography, and (10) failing to pay at least $20 per month toward his legal financial obligations. ¶7 On July 11, 2006, the trial court held a hearing on the State's December 21, 2005 motion to determine whether to revoke Ramirez's SSOSA. CCO Anthony Shaver testified that (1) Ramirez used a controlled substance, as evidenced by an urinalysis test; (2) Ramirez's treatment providers informed him (Shaver) that Ramirez had failed to report for chemical dependency appointments and sex offender treatment group; (3) Ramirez's work supervisor told him (Shaver) that Ramirez had failed to report to work; (4) Ramirez admitted during a polygraph examination that he had gone to the mall unaccompanied by an adult; (5) after reviewing the payment records, he (Shaver) discovered that Ramirez had not made a financial payment since November 9, 2004; and (6) Ramirez failed to comply with basic reporting requirements. ¶8 Dr. Daniel J. Baker testified that Sterling Laboratories had performed Ramirez's urinalysis test and had found codeine and a marijuana metabolite present in his urine sample. CCO Michael Bacon testified that when he arrested Ramirez for violating his SSOSA, he found pictures of a naked woman's breasts on Ramirez's mobile phone. Helen Scott, Ramirez's mother, testified that she took Ramirez's paychecks and that she did not pay all his court-ordered payments. ¶9 Shaver, Pat Connell and Scott Alan Senn, two of Ramirez's treatment providers, and Tiffany Merrill, the victims' mother, testified on Ramirez's behalf that they did not believe revoking Ramirez's SSOSA was the appropriate sanction. But Shaver also testified that he was worried about his department's liability if Ramirez remained on the SSOSA. And although Connell and Senn testified that they did not believe the trial court should revoke Ramirez's SSOSA, they believed that a jailterm was the appropriate punishment for Ramirez's SSOSA violations. ¶10 The trial court made the following oral findings on the record: Ramirez (1) failed to enter into and to complete a drug treatment program; (2) failed to maintain current attendance with his sexual deviancy treatment program; (3) used a controlled substance (codeine and marijuana), as proven by laboratory testing; (4) was released from jail in late October, and immediately began exhibiting risk factors, for which he had been previously penalized in July, thus demonstrating that his previous incarceration had no lasting or meaningful effect; and (5) possessed a picture of a nude female. The trial court further found, "When you add together all of these risk factors, it's an intolerable risk to be placed back into the community. The community is entitled under the law of protection." Report of Proceedings at 284. ¶11 In its written order, the trial court found that Ramirez had committed the State's alleged violations 1-7 and 10, had pictures of nude women on his mobile phone (additional risk factors), and had begun reoffending immediately after his release from an earlier confinement sanction for four previous SSOSA violations. The trial court revoked Ramirez's SSOSA and sentenced him to 123 months' confinement. II. 2005 LEGISLATIVE AMENDMENT TO JUVENILE AUTOMATIC DECLINE STATUTE ¶12 On March 11, 2004, our Supreme Court held that former RCW 13.04.030(1)(e)(v) (1) Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings: . . . . (e) Relating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through . . . . (v) The juvenile is sixteen or seventeen years old and the alleged offense is: . . . . (C) . . . rape of a child in the first degree . . . committed on or after July 1, 1997. LAWS OF 2000, ch. 135, § 2 did not amend subsection (1) of RCW 13.04.030 and therefore, we cite to the 1998 version of the statute. ¶13 During the 2005 regular legislative session, the legislature passed and the governor signed House Bill 2064, amending former RCW 13.04.030 (1)(e)(v) to read: "The juvenile is sixteen or seventeen years old on the date the alleged offense is committed . . . ." RCW 13.04.030(1)(e)(v) (emphasis added). This amendment changed the automatic juvenile court decline triggering event from the juvenile's age at the time of the criminal proceedings (former versions) to the juvenile's age at the time he committed the offense (current version). As a result, under the 2005 amended statute, the adult criminal court now has exclusive original jurisdiction over juvenile offenders aged 16 or 17 when they commit specific offenses, including, as here, first degree child rape. LAWS OF 2005, ch. 290, § 1. III. MOTION TO WITHDRAW GUILTY PLEA ¶14 On April 24, 2006, Ramirez moved to withdraw his adult court guilty plea to one count of first degree child rape. In the alternative, he moved for relief from judgment under Criminal Rule (CrR) 7.8(b)(4) or (5). On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: . . . . (4) The judgment is void; or (5) Any other reason justifying relief from the operation of the judgment. ¶15 On May 23, the trial court heard arguments on Ramirez's motion. He argued that (1) the version of the automatic decline statute that applied to him was ambiguous and (2) the 2005 legislative amendment was merely a clarifying amendment and, therefore, should apply retroactively such that the juvenile court retained jurisdiction over him because he was not yet 16 when he committed the charged crime. The State countered that there was no such legislative history for the 2005 amendment and, therefore, the trial court could not apply the 2005 amendment retroactively. ¶16 The trial court ruled that former RCW 13.04.030 was unambiguous and, under former RCW 13.04.030, the adult court had jurisdiction over Ramirez. Accordingly, the trial court denied Ramirez's motions to withdraw his plea or, in the alternative, to grant him relief from judgment. ¶17 Ramirez appeals the trial court's denial of his motion to withdraw his guilty plea, revocation of his SSOSA, and imposition of his sentence. ANALYSIS I. DENIAL OF MOTION TO WITHDRAW GUILTY PLEA ¶18 Relying on RCW 13.04.030(1)(e)(v), effective July 24, 2005, Ramirez contends that the trial court erred in denying his 2006 motion to withdraw his 2002 guilty plea to first degree child rape because: (1) he was under 16 years old when he committed the crime; (2) thus, the juvenile court should not have declined jurisdiction; (3) the adult court lacked subject matter jurisdiction to accept his guilty plea; and (4) therefore, his sentence is void. This argument fails. ¶19 Specifically, Ramirez argues that Laws of 2005, chapter 290, § 1, which amended former RCW 13.04.030(1)(e)(v), was curative and, therefore, it retroactively provides exclusive adult court jurisdiction over only those juveniles who were 16 or 17 years old "on the date the alleged offense is committed," here, first degree child rape. See RCW 13.04.030(1)(e)(v). Ramirez asserts that the 2005 amendment was curative because the legislature intended to reverse the court's misinterpretation of the previous version of the statute in Salavea. Ramirez is incorrect. Ramirez does not cite a retroactivity clause, nor does he cite legislative history indicating that the legislature intended the amendments to apply retroactively. Rather, he argues that the legislature intended the amendments to clarify the legislature's original intent and, thus, the amendments must be retroactive. We acknowledge that the Final Bill Report for House Bill 2064 characterized the 2005 amendment as "clarifying," and the Senate bill report summarizes the testimony in support as follows: "The bill reflects the original intent of the legislature and corrects the courts' misinterpretation of the law." FINAL BILL REP. on H.B. 2064, at 1, 59th Leg., Reg. Sess. (Wash. 2005). This statement, however, is not conclusive authority that the legislature intended the bill to be curative, clarifying, or retroactive. On the contrary, generally, we will not turn to the comments of a single legislator to establish legislative history. In re Bankruptcy of F.D. Processing, Inc., 119 Wn.2d 452, 461, 832 P.2d 1303 (1992). Moreover, even when the legislature specifically enacts a law to "correct" what it deems to be an erroneous judicial interpretation of a statute, the new legislation does not thereby reach back in time to "correct" the previous law when the court interpreted the previous law as unambiguous. Rather, the new legislation prospectively amends the statute to escape the court's erroneous interpretation of its predecessor version. See 1000 Va. Ltd P'ship. v. Vertecs Corp., [I]f the legislature wanted the age element in RCW 13.04.030(1)(e)(v) to refer to age at the time of commission, it could have used language indicating this. As we have previously held, the court "cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language." We . . . find the statute unambiguously refers to age at the time of the proceedings. Salavea, 151 Wn.2d at 144 (footnote omitted) (quoting State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003)). ¶22 Thus, although our legislature adopted the 2005 amendment in response to the Supreme Court's holding in Salavea, In a recent Washington Supreme Court case, State v. Salavea, the court found that whether an offense may be transferred to adult court is determined by the date the prosecutor files the charges rather than the date of the offense. The court looked at the statute and found that if the Legislature intended that the determination of whether to automatically transfer a case to adult court be based on the age of the offender at the time the offense took place, it could have used language to indicate this intent. FINAL BILL REP., at 1, 59th Leg., Reg. Sess. (Wash. 2005). ¶23 We hold, therefore, that because the 2005 legislative change to former RCW 13.04.030(1)(e)(v) was not a clarification of existing law, it was not a curative amendment, it does not apply retroactively, and the juvenile court properly declined jurisdiction. II. SSOSA REVOCATION ¶24 Ramirez next argues that the trial court abused its discretion when it revoked his SSOSA sentence. Ramirez asserts that the trial court did not give great weight to the victims' mother's opinion concerning whether Ramirez's SSOSA sentence should be revoked, which he contends RCW 9.94A.670(4) requires. This argument also fails. A. Standards of Review B. No Abuse of Discretion ¶27 Ramirez does not contest that he breached his SSOSA conditions. Instead, he argues that the trial court abused its discretion in revoking his SSOSA because it did not give great weight to his victims' mother's statement that the trial court should not revoke it. He argues that because RCW 9.94A.670(4) requires the trial court to consider the victim's opinion about whether the offender should receive a treatment disposition, the statute also requires the trial court to consider the victim's opinion when revoking a suspended sentence under RCW 9.94A.670(10). Former RCW 9.94A.670(4) provided: After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section. If the court determines that this alternative is appropriate, the court shall then impose a sentence or, pursuant to RCW 9.94A.712, a minimum term of sentence, within the standard sentence range. If the sentence imposed is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension: . . . . ¶29 Former RCW 9.94A.670(10) (2002) The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked. Under this statute's plain language, the trial court must consider only whether the offender violated the SSOSA conditions or whether the offender failed to make satisfactory treatment progress. Ramirez cites no authority for his position that the trial court also must consider the victim's opinion, nor have we found any. ¶30 On the contrary, as our Supreme Court pointed out, "Unlike at a sentencing hearing, law enforcement representatives and victims are neither present nor invited to speak at a SSOSA revocation hearing. Compare RCW 9.94A.670(4) with RCW 9.94A.670(10)." State v. Canfield, 154 Wn.2d 698, 705, 116 P.3d 391 (2005). Because this statute is unambiguous, we enforce it in accordance with its plain meaning. Armendariz, 160 Wn.2d at 110. Although here the trial court took testimony from the victims' mother, it was not required to give it "great weight" under the statute's plain meaning, contrary to Ramirez's contention. And this is the sole ground on which Ramirez argues that the trial court abused its discretion. ¶32 Accordingly, we hold that the trial court did not abuse its discretion by revoking Ramirez's SSOSA. ¶33 Affirmed. BRIDGEWATER and QUINN-BRINTNALL, JJ., concur.