Facts: Petitioner James Ervin was convicted in the Superior Court for King County of violating a protection order and sentenced. Ervin appealed his sentence, asserting that his offender score had been improperly calculated by the trial court insofar as two previous felony convictions had been included in calculating the score that should not have been included under Washington Revised Code §9.94A.525(2)(c), which “washes out” previous felony convictions for purposes of calculating an offender score if the offender has spent five consecutive years or more subsequent to their last date of release from confinement in the community without committing any crime resulting in a conviction. The Washington Court of Appeals affirmed Ervin’s sentence, ruling that the seventeen days Ervin spent in jail subsequent to his release for violating a term of his probation interrupted the five year “wash out” period as it represented time outside the community.

Question(s): Did the time Ervin spent in jail for violating the terms of his probation prevent his previous felony convictions from “washing out?”

Conclusion: Justice Owens’ opinion for a unanimous Court vacated Ervin’s sentence and remanded the case for resentencing, holding that Ervin’s probation violation did not interrupt §9.94A.525(2)(c)’s “wash out” period as Ervin’s probation violation was not a crime resulting in a conviction and although Ervin’s time in jail could be construed as time outside the community, such a construction would also interrupt the “wash out” period of those who were arrested but against whom charges were never filed or who were ultimately acquitted. As the Court concluded that this was likely not the intent of the legislature, the Court reversed the Washington Court of Appeals.

Docket No. 83244-7 (from Court of Appeals Division I Case No. 60474-1)

Petitioner: James Ervin

(Counsel: Maureen Marie Cyr)

Respondent: State of Washington

(Counsel: James Morrissey Whisman and Michael John Pellicciotti)

Briefs:

Argument: Tuesday, June 29, 2010 10:00am

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

Decided: Thursday, September 9th, 2010

Prevailing Party: James Ervin (Petitioner)

Vote: 9-0

Citation: Pending

Court: Madsen1 Court (2010-)

Madsen

Johnson

Alexander

Sanders

Chambers

Owens
(Majority)

Fairhurst

Johnson

Stephens