Facts:  Respondent Yulanda Leach pleaded guilty to attempted assault of a child in the second degree, and was sentenced to 23.25 months confinement and between nine and 18 months community custody. The Department of Corrections petitioned for post-sentence review on the community custody component of the sentence, arguing “attempted assault” of a child is not a specifically enumerated offense for which a defendant can be sentenced to community custody according to Wash. Rev. Code §9.94A.715. The Washington Court of Appeals denied the Department of Correction’s petition, holding that attempted second degree assault of a child qualifies for a term of community custody and that the conviction can be included in the illustrative examples of “crimes against persons” found under Wash. Rev. Code §9.94A.411(2). The Supreme Court of Washington granted the Department of Corrections’ petition for review.

Questions:  Can a court sentence an offender to community custody for attempted second degree assault of a child, even though “attempted Assault” is not on the enumerated list of offenses described as “crimes against persons?” Should the list be viewed as illustrative examples, or as an exclusive and complete designation of crimes sufficient for community custody sentencing?

Conclusion:  Justice Richard B. Sanders’ opinion for the Court concluded that the Department of Corrections was correct in arguing a court cannot add “attempted assault” or any other anticipatory offenses to Wash. Rev. Code 9.94A.411(2) as judicial gloss because the statute presents an exhausted list of “crimes against persons.” Nothing in the statute suggests the list should be viewed as illustrative, and the legislature plainly meant for the 47 enumerated crimes to be the exclusive and complete list of “crimes against persons,” which does not include “attempted assault.” The Court remanded the case to the trial court for resentencing without community custody.

Docket No. 79432-4 (from Court of Appeals Division II Case No. 34282-1)

Petitioner: DOC

(Counsel: Robert M. McKenna, Ronda Denise Larson, Jay d. Geck, and Gregory J. Rosen)

Respondent: Postsentence Review of Leach

(Counsel: Mark T. Quigley, Gerald A. Horne, Dione J. Ludlow, and Michelle Luna-Green)

Briefs:

Argument: Thursday, May 24, 2007 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, August 2nd, 2007

Prevailing Party: DOC (Petitioner)

Vote: 9-0

Opinion: 161 Wn.2d 180 (2007)

Court: Alexander3 Court (2005-2007)

Alexander

Johnson

Madsen

Sanders

Bridge

Chambers

Owens

Fairhurst

Johnson