Many clients approach me on the question of when prior felony convictions “Washout” from a Defendant’s offender scores. The recent case of State v. Gauthier is a good place to answer that question.
In Gauthier, the WA Court of Appeals Division I decided (1) the prosecutor’s closing arguments were fair, (2) Gauthier received effective assistance of counsel, and (3) trial court properly calculated Gauthier’s offender score.
At trial, Mr. Gauthier was found guilty of Rape in the Second Degree. On appeal, he argued that the trial court improperly calculated his offender score by failing to recognize that his prior convictions “washed out” pursuant to RCW 9.94A.525(2)(c).
Some background is necessary. Under the “washout” provision, RCW 9.94A.535(2)(c), prior “Class C” felony convictions are excluded in a defendant’s offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of the judgment and sentence, the offender spent five consecutive years “in the community” without committing any crime that subsequently results in a conviction.
In Gauthier’s case, he had five prior class C felony convictions. His last release date happened in June 2007. However, he did not remain crime free for five years. He was charged with the Rape Second Degree on March 13, 2009, and taken into custody to the King County Correctional Facility on July 23, 2010. There, he remained through his first trial on May 2011 which resulted in a conviction. He was subsequently sentenced on July 8, 2011. Consequently, the sentencing court properly calculated his offender score as a five (5) based on his five prior class C felony convictions.
Furthermore, at his sentencing on February 14, 2014, Gauthier argued that his five prior class C felonies should not be included in his offender score because he spent 43 months in custody before he was convicted again on the present offense. He claimed that under the “washout” statute, the “in the community” phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with credit for all time served back to July 2010, the date he was first arrested.
Here, and similar to the trial court, the WA Court of Appeals rejected Gauthier’s arguments and also rejected Gauthier’s reliance on State v. Ervin, a somewhat recent case where the WA Supreme Court decided in favor of the defendant James Erwin’s arguments that his 17 days of custody did not interrupt the requisite 5-year washout period:
“We have found no case, and Gauthier cites to none, where Ervin’s limited holding was applied to time spent in confinement while awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier’s interpretation creates an absurd scenario—a defendant’s offender score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confident the legislature did not intend.”
Simply put, if Gauthier had remained in the community for five years after June 2007 and remained crime free for those five years, his prior class C felony convictions would not count in his offender score after June 2012. It would have “washed out” under RCW 9.94A.535(2)(c). However, Gauthier’s 43 months in custody rendered hopeless any arguments that his priors would wash out.
The Court of Appeals upheld affirmed the trial court’s Judgment & Sentence and sentenced him to 120 months of prison.