LAU, J.
¶ 1 RCW 10.73.170 provides for state-funded postconviction DNA (deoxyribonucleic acid) testing to certain felons currently serving a "term of imprisonment." Convicted sex offender Kevin Slattum moved for DNA testing after he completed his indeterminate minimum sentence prison time and while on community custody for life. The State opposed the motion, contending in part that the word "imprisonment" means the legislature intended to narrowly define eligibility for postconviction DNA testing only to felons actually serving a sentence in a jail or prison facility but not community custody. The trial court granted Slattum's motion. Because the word "imprisonment" in RCW 10.73.170 is ambiguous, the rule of lenity requires us to construe this statute strictly against the State in favor of Slattum. We affirm the trial court.
¶ 2 Kevin Slattum, an Innocence Project Northwest client, moved for postconviction DNA testing in Snohomish County Superior Court under RCW 10.73.170, which allows felons "currently ... serving a term of imprisonment" to petition for such testing. RCW 10.73.170(1). Slattum filed his motion in June 2011 while serving an indeterminate life sentence for second degree rape of a child.
¶ 3 Slattum's community custody terms require that he remain under the control and jurisdiction of the Department of Corrections (DOC) and the authority of the Indeterminate Sentence Review Board (ISRB) for any time remaining between the date of release from total confinement and before the expiration of the statutory maximum sentence. The sentencing court, DOC, and ISRB may impose community custody conditions. If an offender violates any condition or requirement of community custody, the ISRB may revoke the offender's release to community custody and impose sanctions, including confinement
¶ 4 The State objected to Slattum's motion for postconviction DNA testing. It claimed that RCW 10.73.170 applies only to felons currently serving a "term of imprisonment." According to the State, Slattum was ineligible for postconviction DNA testing because he was not physically confined in prison. The trial court granted Slattum's motion for DNA testing, concluding that his community custody status satisfied RCW 10.73.170's "term of imprisonment" requirement. In its oral ruling, the court explained:
RP (July 29, 2011) at 38.
¶ 5 The court's written findings establish in relevant part:
The court concluded in its written ruling that Slattum qualified for DNA testing:
¶ 6 The trial court denied the State's motion to stay DNA testing pending appeal. Because DNA testing subsequently occurred, the State concedes that the issue raised on appeal is moot. However, the State argues that the trial court's application of RCW 10.73.170 to an offender serving a term of community custody is a matter of substantial public interest.
¶ 7 The parties agree the issue here is moot because DNA testing occurred. The State argues we should nevertheless review this case because it involves matters of continuing and substantial public interest. Specifically, the State contends that (1) "[t]he trial court's interpretation of [RCW 10.73.170] to include persons who are on community custody greatly expands the plain language of the statute;" (2) the trial court's interpretation "could result in an expenditure of funds far greater than intended by the Legislature"; and (3) this issue is likely to recur given the large number of requests for assistance the Innocence Project receives each month.
¶ 8 A case is moot "when it involves only abstract propositions or questions, the substantial questions in the trial court no longer exist, or a court can no longer provide effective relief." Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005). However,
Thomas v. Lehman, 138 Wn.App. 618, 622, 158 P.3d 86 (2007) (citing In re Pers. Restraint of Mines, 146 Wn.2d 279, 285, 45 P.3d 535 (2002)). Mootness is a question of law reviewed de novo. Wash., State Commc'n Access Project v. Regal Cinemas, Inc., ___ Wash.App. ___, 293 P.3d 413, 429 (2012).
¶ 9 We conclude these criteria support review in this case. This is a statutory interpretation question concerning the court's authority to require postconviction DNA
¶ 10 The sole issue on appeal is whether RCW 10.73.170 — which allows felons "currently ... serving a term of imprisonment" to request postconviction DNA testing — applies to an offender serving the community custody portion of his or her sentence. The State argues that the statute unambiguously applies only to offenders confined in a jail or prison facility. Slattum responds that "imprisonment" 's plain meaning includes lesser forms of restraint, including community custody. He also contends that the legislature has limited "imprisonment" 's meaning in other contexts but chose not to do so in the context of postconviction DNA testing.
¶ 11 Statutory interpretation is a question of law we review de novo. State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110 (2012). "In interpreting a statute, our fundamental objective is to ascertain and carry out the legislature's intent." Gray, 174 Wash.2d at 926, 280 P.3d 1110. Statutory interpretation begins with the statute's plain meaning. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). We discern plain meaning "from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009). If a statute's meaning is plain on its face, we give effect to that plain meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only if statutory language is ambiguous do we resort to aids of construction, including legislative history. Armendariz, 160 Wash.2d at 110-11, 156 P.3d 201. A provision is ambiguous if it is subject to more than one reasonable interpretation. Engel, 166 Wash.2d at 579, 210 P.3d 1007.
¶ 12 As discussed above, RCW 10.73.170(1) provides:
(Emphasis added.) The parties dispute the meaning of the term "imprisonment," which is not defined in RCW 10.73.170 or in Chapter 10.73's definitions section. Both parties argue that without a statutory definition, "imprisonment" must be given its conventional dictionary meaning. See State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010) ("When a statutory term is undefined, the words of a statute are given their ordinary meaning, and the court may look to a dictionary for such meaning."). The State cites several dictionary definitions to argue that imprisonment means incarceration in a jail or prison facility, while Slattum cites dictionary definitions to argue that imprisonment includes forms of restraint other than incarceration in a traditional prison.
¶ 13 The dictionary-based plain meaning definitions proposed by the parties are unhelpful. For example, Webster's Third New International Dictionary (2002), defines "imprison" as "to put in prison; confine in a jail"
¶ 14 We next consider the State's argument that our courts have distinguished community custody from imprisonment. The State cites two cases for this proposition. In In re Pers. Restraint Blackburn, 168 Wn.2d 881, 885, 232 P.3d 1091 (2010), our Supreme Court considered the required degree of specificity the DOC must use in a notice of violation before reclassifying an offender from community custody to total confinement. The court held, "[F]or DOC to lawfully reclassify an offender for imprisonment for a violation of an `obey all laws' condition of community custody, the notice must allege the facts and legal elements that DOC would have to prove to show an offender did not obey all laws." Blackburn, 168 Wash.2d at 886-87, 232 P.3d 1091 (emphasis added). The State argues that the court's use of the word "imprisonment" means it treated imprisonment the same as total confinement, thus distinguishing it from community custody. Blackburn is distinguishable because it did not address the critical question of whether imprisonment includes an offender released on community custody for purposes of postconviction DNA testing.
¶ 15 Similarly, the State argues that in State v. Anderson, 132 Wn.2d 203, 937 P.2d 581 (1997), our Supreme Court "rejected an argument that `imprisonment' as that term was used in RCW 9.95.062(3) was interchangeable with `confinement' as defined in RCW 9.94A.030(8)." Appellant's Br. at 15. Anderson is distinguishable because the statute at issue there expressly qualified the category of offenders eligible for jail time credit to offenders unable to obtain release. Anderson, 132 Wash.2d at 207-08, 937 P.2d 581. The statute at issue in Anderson, RCW 9.95.062(3), provided:
Anderson, 132 Wash.2d at 207-08, 937 P.2d 581 (emphasis added) (quoting RCW 9.95.062(3)). The court held, "RCW 9.95.062(3) authorizes jail time credit only if the defendant has been `unable to obtain release....' (emphasis added)." Anderson, 132 Wash.2d at 208, 937 P.2d 581. Defendant's release on bond to home detention disqualified him from jail time credit. Anderson, 132 Wash.2d at 208, 937 P.2d 581. RCW 10.73.170 contains no similar qualifying language. Blackburn and Anderson are unpersuasive.
¶ 16 As noted above, we discern the meaning of imprisonment in the context of the Sentencing Reform Act (SRA). The SRA defines "community custody" as "that portion of an offender's sentence of confinement... served in the community subject to controls placed on the offender's movement and activities by the [DOC]."
¶ 17 RCW 9.94A.030(5) (emphasis added). RCW 9.94A.707 provides:
RCW 9.94A.030(8).
RCW 9.94.030(35).
RCW 9.94A.030(51).
¶ 18 Slattum's second degree rape of a child conviction is a class A felony that carries a maximum penalty of life imprisonment. RCW 9A.44.076(2); RCW 9A.20.021(1)(a). Calculation of a crime's statutory maximum penalty includes both time imprisoned and time on community custody. State v. Sloan, 121 Wn.App. 220, 221, 87 P.3d 1214 (2004); RCW 9.94A.505(5) ("a court may not impose a sentence providing for a term of confinement or community custody that exceeds the statutory maximum for the crime...."). Thus, the SRA calculation of Slattum's maximum sentence includes time in prison and time on community custody.
¶ 19 We also note that offenders serving indeterminate sentences, like Slattum, are subject to the provisions in chapter 9.95 RCW that govern indeterminate sentences.
¶ 20 As the provisions quoted above show, Slattum faces potential sanctions for community custody violations, including possible return to prison for the remainder of his maximum life sentence. If community custody is revoked, Slattum would be entitled to jail time credit for time served on community custody. Given the SRA's treatment of community custody as a restrictive component of an offender's sentence, the State offers no rationale to support its contention that RCW 10.73.170 excludes offenders like Slattum released to community custody.
¶ 21 In addition, various felony and misdemeanor sentencing provisions demonstrate that the legislature is clear when specifying that imprisonment means confinement in a particular location. For example, RCW 3.66.060, which governs district courts' criminal jurisdiction, provides in part:
(Emphasis added). Similarly, RCW 9A.20.021(2), establishing the maximum sentences for gross misdemeanors committed on or after July 1, 1984, states:
(Emphasis added). See also RCW 9.92.090 (persons convicted of crimes involving fraud or intent to defraud who have two prior felony convictions "shall be punished by imprisonment in a state correctional facility for life"); RCW 74.08.331(1) (persons convicted of welfare fraud "shall be punished by imprisonment in a state correctional facility for not more than fifteen years"); RCW 29A.04.079 ("infamous crimes" punishable by "death in the state penitentiary or imprisonment in a state correctional facility"). The legislature is also clear when specifying that "term of imprisonment" means confinement in a particular location. See RCW 9.98.010(1) (providing for right to request disposition of other pending charges "[w]henever a person has entered upon a term of imprisonment in a penal or correctional institution of this state...."); RCW 9.100.010, art. III(a) (under Interstate Agreement on Detainers, a person who "has entered upon a term of imprisonment in a penal or correctional institution of a party state" may request final disposition of criminal charges) (emphasis added).
¶ 22 Unlike the statutes noted above, "term of imprisonment" in RCW 10.73.170 is not qualified by specific location. The legislature is presumed to know the statutory scheme. Bishop v. City of Spokane, 142 Wn.App. 165, 171, 173 P.3d 318 (2007). Because courts should assume the legislature "`means exactly what it says,'" the absence of specific location in RCW 10.73.170 indicates that the legislature did not intend to limit RCW 10.73.170's reach to offenders confined "in a jail or prison facility."
¶ 23 In State v. Anderson, 151 Wn.App. 396, 212 P.3d 591 (2009), the State similarly argued that "imprisonment" meant physical confinement in a prison or jail. Anderson, 151 Wash.App. at 403, 212 P.3d 591. The defendant argued that "imprisonment" meant "confinement" and thus included electronic home monitoring (EHM) because the SRA and case law defined "EHM" as partial confinement. Anderson, 151 Wash.App. at 403, 212 P.3d 591. While concluding that the term was ambiguous given the parties' competing authority, we noted that the defendant's interpretation was more persuasive than the State's, in part because the statute at issue (RCW 46.20.342) did not limit imprisonment to confinement in a particular location:
Anderson, 151 Wash.App. at 404-05, 212 P.3d 591 (footnote omitted). Similarly, RCW 10.73.170 contains no language limiting imprisonment to confinement in a jail or prison. The absence of limiting language in RCW 10.73.170 may indicate that the legislature intended to allow offenders like Slattum on community custody to petition for DNA testing.
¶ 24 The State cites no controlling law limiting term of imprisonment to a jail or prison facility for purposes of the postconviction DNA testing statute. Nothing in the statute itself supports that contention. The parties cite competing legislative history,
¶ 25 The State argues that the rule of lenity does not apply here because RCW 10.73.170 "is procedural, and does not provide for any criminal sanctions." Appellant's Reply Br. at 3. The State cites no Washington authority limiting the use of the rule of lenity to statutes that may result in criminal convictions. No Washington authority limits its application here.
¶ 26 Washington courts have historically applied the rule when interpreting statutes that do not provide for criminal sanctions. In In re Pers. Restraint of Greening, 141 Wn.2d 687, 698, 9 P.3d 206 (2000), our Supreme Court applied the rule of lenity as an alternative ground to accept the defendant's interpretation of RCW 10.73.100, which provides exceptions to the one-year time bar for personal restraint petitions. Specifically, the court considered former RCW 10.73.100(6), which provides that the one-year time bar does not apply to a petition or motion based on the ground that "[t]here has been a significant change in the
¶ 27 Relevant to Slattum's case, our appellate courts have also applied the rule of lenity in the community custody/probation/postconviction context. In State v. Parent, 164 Wn.App. 210, 267 P.3d 358 (2011), we considered RCW 9.95.210, which governs imposition of probationary sentences. The statute provides in relevant part:
RCW 9.95.210(1)(a). We found the statute ambiguous with respect to the maximum length of probationary sentence to which a defendant who received consecutive terms of imprisonment could be sentenced. Parent, 164 Wash.App. at 213-14, 267 P.3d 358. Thus, we applied the rule of lenity:
Parent, 164 Wash.App. at 213-14, 267 P.3d 358 (emphasis added) (footnote and internal quotation omitted) (quoting Staats v. Brown, 139 Wn.2d 757, 769, 991 P.2d 615 (2000)).
¶ 28 In State v. Davis, 160 Wn.App. 471, 248 P.3d 121 (2011), Division Two considered whether a defendant was entitled to credit for time served while out in the community serving part of his drug offender sentencing alternative (DOSA) sentence. The relevant statute provided:
Former RCW 9.94A.660(5) (2002). The statute was silent on whether time spent in the community serving a DOSA counts toward credit for time served. Davis, 160 Wash. App. at 477, 248 P.3d 121. The court held, "As Davis was serving part of his sentence on community custody, the court cannot sentence him to serve that time again. And even if the statutory language is ambiguous, the rule of lenity requires this court to construe the statute in Davis's favor." Davis, 160 Wash.App. at 477, 248 P.3d 121 (emphasis added).
¶ 29 In In re Sentence of Kindberg, 97 Wn.App. 287, 983 P.2d 684 (1999), we applied the rule of lenity as an alternative ground to construe two statutes in the defendant's favor. The statutes at issue — RCW 9.94A.120(9)(a) and RCW 9.94A.190(3) — addressed when defendants must serve all terms of confinement in the custody of DOC and when the court must sentence offenders to community placement rather than community supervision. We explained:
Kindberg, 97 Wash.App. at 290-91, 983 P.2d 684. We found that the statutes, when read together and applied to the defendant's particular situation, were ambiguous. Kindberg, 97 Wash.App. at 291, 983 P.2d 684. We found Kindberg's interpretation more convincing after considering legislative history. Kindberg, 97 Wash.App. at 292-94, 983 P.2d 684. We also concluded, "Finally, we note that where two criminal statutes, when read together, are susceptible to more than one reasonable, but irreconcilable, interpretation, the rule of lenity applies. Under that rule, we must strictly construe the statutes in favor of the defendant. Our construction is consistent with the rule." Kindberg, 97 Wash.App. at 294, 983 P.2d 684 (emphasis added) (citations omitted).
¶ 30 We note also that underpinning the State's position on this issue is its prediction that allowing persons on community custody to petition for DNA testing would cause unreasonable expenditure of public funds. But the State ignores the statute's strict substantive requirements.
State v. Riofta, 166 Wn.2d 358, 366, 209 P.3d 467 (2009). As our Supreme Court noted in Riofta, "In contrast to the statute's lenient procedural requirements, its substantive standard is onerous." Riofta, 166 Wash.2d at 367, 209 P.3d 467 (emphasis added).
Riofta, 166 Wash.2d at 369 n. 4, 209 P.3d 467.
¶ 31 The statute imposes the following substantive requirements:
RCW 10.73.170(2). Whether incarcerated in prison or serving the community custody portion of the sentence, a petitioner must meet these strict requirements before a court grants the request for DNA testing.
¶ 32 Because the word "imprisonment" in RCW 10.73.170 is ambiguous, the rule of lenity requires us to construe this statute
WE CONCUR: APPELWICK and GROSSE, JJ.
Both the house and senate bill reports mention "incarcerated" persons. See S.B. REP. on Substitute S.B. 5896, 57th Leg., Reg. Sess. (Wash.2001) ("Innocent persons are presently incarcerated for crimes they did not commit.... The substitute [bill] provides the appropriate mechanism to ensure that DNA testing can take place to determine if innocent persons are presently incarcerated for crimes they did not commit. This is limited in scope to control the costs."); S.B. REP. on H.B. 5896 57th Leg., Reg. Sess. (Wash.2001) ("Permits certain incarcerated felons to request postconviction [DNA] testing under certain circumstances.... This bill expands current law to include incarcerated felons."). But the final bill report does not mention incarceration and merely summarizes the bill as applying to "currently imprisoned" felons. 2001 FINAL LEGISLATIVE REPORT ON SECOND SUBSTITUTE S.B. 5896, 57th Leg., Reg. Sess. (Wash.2001). We conclude the legislative history sheds no light on whether a person serving the community custody portion of his or her sentence is currently serving a "term of imprisonment" for purposes of RCW 10.73.170.