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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                       No. 30104-4-III

       Siddoway, A.C.J. (dissenting)  --  Before we decided State v. Yon, 159 Wn. App. 

195, 246 P.3d 818 (2010), it appears -- and Mr. Page has not argued otherwise -- that the 

State regularly read and applied RCW 77.15.260(2), which defines unlawful trafficking in 

fish, shellfish, or wildlife, as creating a unit of prosecution that was a defendant's 

offering or selling one or more items at a particular place and time.  Read in that manner, 

if a defendant offered or sold more than one item, the value of the items could be 

aggregated in determining whether their wholesale value exceeded two hundred fifty 

dollars and therefore supported a charge of first degree trafficking, a class C felony.  

RCW 77.15.260(2)(b).  A wholesale value short of two hundred fifty dollars was 

chargeable as second degree trafficking, a gross misdemeanor.  RCW 77.15.260(3).  

       In Yon, we construed the unit of prosecution as being the offer or sale of a single 

fish or wildlife item.  As a result, if a defendant offers or sells multiple items each having 

a value of less than two hundred fifty dollars but aggregating more, he or she can be 

charged with multiple counts of second degree trafficking, but not first degree trafficking.   

No. 30104-4-III  --  dissent 
State v. Page

I note that the legislature recently amended RCW 77.15.260 to allow the State the option 

in the future of aggregating transactions that "are part of a common scheme or plan" in 

determining the degree of unlawful trafficking involved.  Laws of 2012, ch. 176, § 19 
(Substitute S.B. 6135, 62nd Leg., Reg. Sess. (Wash. 2012) (effective June 7, 2012)).1

       Mr. Page was charged pursuant to the State's understanding of the statute at the 

time.  He did not challenge the unit of prosecution.  His appeal was pending at the time 

Yon was filed, and we invited the parties to address its application.  State v. Page, noted 

at 161 Wn. App. 1036, 2011 WL 1758636, at *3.  The State conceded that, in light of 

Yon, the trial court had erred.  Id.  Relying on our authority to direct the trial court to

enter convictions for a lesser included offense as long as the jury made findings sufficient 

to support those convictions, we affirmed Mr. Page's convictions but remanded with 

directions that he be resentenced for the crimes as misdemeanors.  Id. at *4.

       It is against this background that Mr. Page argues that due process required that he 

be given the option of bail forfeiture when resentenced.  He suggests that we look to State 

v. Hunter, 102 Wn. App. 630, 9 P.3d 872 (2000) for the appropriate due process analysis.  

Although Hunter found no due process violation itself, it cited the U.S. Supreme Court's 

decision in BMW of North America, Inc. v. Gore for the proposition that "[c]itizens must 

       1 The recent amendments also increase second degree trafficking to a class C 
felony and first degree trafficking to a class B felony.  Laws of 2012, ch. 176, § 19.

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No. 30104-4-III  --  dissent 
State v. Page

have notice not only of what conduct is criminal but also of the severity of the penalty."  

102 Wn. App. at 638 (citing 517 U.S. 559, 574, 116 S. Ct. 1589, 134 L. Ed. 2d 809

(1996)).  But Hunter, BMW, and the cases on which BMW relies all involved cases in 

which a defendant faced a penalty that proved unknowable in an absolute sense, either 

because a statute was unconstitutionally vague, as was asserted in Hunter; because state 

law provided no guideposts for punitive damages as in BMW; or because newly-enacted 

sentencing guidelines or a newly-construed statute were applied retroactively as in Miller

v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987) and Bouie v. City of 

Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), two decisions relied 

upon by BMW, 517 U.S. at 574 n.22.  Here, any uncertainty Mr. Page faced as to what 

might prove to be the appropriate penalty in his case was not unknowability in an 

absolute sense.  He knew the crime with which he was charged and knew the penalty 

provided for the crime.  He was on notice of the lesser included offense of misdemeanor 

trafficking and its penalty.  He faced uncertainty, but uncertainty within known 

parameters: uncertainty whether his attorney would make the best arguments and present 

the best evidence; the same uncertainty as to the performance of the prosecution;

uncertainty as to the court's rulings and the decision-making of the jury; and uncertainty 

whether, as occurred here, he might benefit from the fortuity of favorable intervening law 

and a prosecutor's decision to concede a point rather than fight it.  This everyday 

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No. 30104-4-III  --  dissent 
State v. Page

uncertainty is not a deprivation of due process. 

       It is more appropriate, I believe, to look to our well-settled case law, of which Mr. 

Page (like all defendants) was on notice, that if the State's evidence falls short of proving 

the crime charged, the matter is subject to remand for resentencing on any lesser included 

offense that was necessarily found. State v. Gilbert, 68 Wn. App. 379, 385, 842 P.2d 

1029 (1993).  In this case, the State's evidence fell short because it misconstrued the 

statute as to the unit of prosecution and was therefore unable to prove the required 

wholesale value.  In my view it is of no moment that the State's proof fell short because it 

misread the statute rather than because it misjudged the strength of its evidence.  It was 

within the power of Mr. Page, with counsel, to assess both independently.

       Mr. Page credibly contends that had he known he faced only misdemeanor 

charges, he would have forfeited bail.  But any defendant facing resentencing on a lesser 

included offense following remand could credibly contend that the lesser charge, if 

originally charged, would have presented more attractive options.  Prejudice alone does 

not establish a due process violation.  For these reasons, I respectfully dissent.

                                                ___________________________________
                                                Siddoway, A.C.J.

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