The State of Washington, Respondent, v. Karl Alan Schultz, Petitioner, 146 Wash. 2d 540

Owens, J. — At issue in this case is the postconviction validity of a no-contact order entered at arraignment and extended at sentencing in a domestic violence prosecution. Defendant Karl Alan Schultz contends that, because RCW 10.99.050(1) provides for entry of a postconviction no-contact order, the no-contact order entered at arraignment pursuant to RCW 10.99.040(3) was invalid upon his conviction for domestic violence assault, despite the trial judge’s notation at sentencing that the no-contact order was to remain in effect.

The Court of Appeals rejected Schultz’s argument and affirmed his conviction for nonfelony violation of a no-contact order. We affirm the Court of Appeals and hold that, under the plain language of the statutory scheme, a no-contact order entered at arraignment under RCW 10.99.040(3) remains in effect after a finding of guilt and until the defendant’s sentencing, when the court may extend it as a sentencing condition by indicating on the judgment and sentence that the order is to remain in effect.

FACTS On January 22, 1999, Schultz was charged in Everett Municipal Court with assault stemming from a domestic violence incident. At his arraignment on February 2, 1999, the court entered a no-contact order, forbidding Schultz to have any contact with Ermita T. Sucaldito for a period of one year. The order is entitled, “No Contact Order,” and it states that it was entered “pursuant to RCW 10.99.040, RCW 10.99.050, EMC 10.22.010 and EMC 10.22.020.” Ex. 1. On April 27, 1999, Schultz was found guilty of the assault.

On the “Finding and Sentence,” the trial judge checked item 17, “No Contact Order to remain in effect.” Ex. 6. Schultz resumed living with Sucaldito in June 1999, although both were aware that the no-contact order remained in effect. On August 10, 1999, the Everett Police Department received a 911 hang up call from the apartment that Schultz and Sucaldito shared. In a signed Everett Police Department Witness Statement, Sucaldito stated that the two had been fighting, that she had screamed for help and had tried to call 911, and that Schultz had covered her mouth, pushed her, and pulled the phone from the wall.

On August 13,1999, the State charged Schultz with “Violation of Domestic Violence No-Contact Order (pre-conviction),. . . proscribed by RCW 10.99.040, a felony.” Clerk’s Papers (CP) at 45. At trial in November 1999, the court granted Schultz’s motion to exclude evidence of the prior domestic violence assault conviction. The State introduced the February 2, 1999, no-contact order. After the State rested its case, Schultz moved to dismiss, contending that the no-contact order had expired upon Schultz’s conviction.

The State then sought to reopen its case to introduce the previously excluded finding and sentence, since that document contained the provision extending the no-contact order. The court asked Schultz if he intended to argue to the jury that the no-contact order had been invalidated by the subsequent conviction, and counsel said he had not planned to do so. The court then admitted the finding and sentence, ruling that the evidence would not go to the jury but would be necessary to complete the appellate record.

The court having denied Schultz’s motion to dismiss, the jury found Schultz guilty of the lesser included nonfelony offense of ‘Violation of No Contact Order.” CP at 9. Schultz appealed. The Court of Appeals affirmed in an unpublished per curiam decision but thereafter granted the State’s motion to publish. See State v. Schultz, 106 Wn. App. 328, 25 P.3d 436 (2001). This court thereafter granted Schultz’s petition for review.

ISSUE At sentencing in a domestic violence case, may the trial court extend as a sentencing condition a no-contact order entered pursuant to RCW 10.99.040(3) at arraignment, or does RCW 10.99.050(1) require the court to issue an entirely new no-contact order when the court decides to restrict the defendant’s contact with the victim as a sentencing condition? ANALYSIS Schultz contends that the pretrial no-contact order was a nullity upon his conviction.

He argues that the no-contact order was entered under RCW 10.99.040(3) and that only a no-contact order entered pursuant to RCW 10.99.050(1) could have been binding on him after his conviction. The validity of a pretrial no-contact order extended at sentencing is a question of law regarding statutory meaning. This court’s review is de novo. State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998). By statute, trial courts are authorized to enter no-contact orders at various stages in a domestic violence prosecution.

First, RCW 10.99.040(2) empowers the trial court to enter a no-contact order upon releasing, “before arraignment or trial,” a person charged with or arrested for domestic violence.

Second, RCW 10.99.040(3) provides that “[a]t the time of arraignment the court shall determine whether a no-contact order shall be issued or extended.” And third, “[w]hen a defendant is found guilty of a crime and a condition of the sentence restricts the defendant’s ability to have contact with the victim,” RCW 10.99.050(1) requires the “record [ing]” of “such condition.” Thus, the scheme gives a trial court the authority to enter a no-contact order at every possible juncture in the prosecution.

Under RCW 10.99.040(2) and (3), an order may be issued upon the defendant’s release prior to arraignment, it may be extended or initially entered at arraignment, or (where the defendant is released after arraignment) it may be issued after arraignment and prior to trial. Further, under RCW 10.99.050(1), even if the court has entered no prior order under RCW 10.99.040(2) or (3), it must do so at sentencing if the defendant’s contact with the victim is to be restricted as a sentencing condition. The no-contact order at issue in this case was entered at arraignment, as permitted in RCW 10.99.040(3).

At the time of the issuance of that order, former RCW 10.99.040(3) did “not expressly state the maximum duration of this type of order.” State v. Anaya, 95 Wn. App. 751, 754, 976 P.2d 1251 (1999). In Anaya, the only prior case addressing the duration of an order entered at arraignment, the Court of Appeals considered whether “violation of a no-contact order that was entered at arraignment in a domestic violence case [could] serve as a basis for criminal prosecution after the dismissal of that case[.]” Id. at 752-53 (emphasis added).

Looking closely at the statutory provisions, the Anaya court determined that “the language . . . indicate [d] that the order [was] dependent on the criminal charge.” Id. at 757. Concluding that “[t]he Legislature ha[d] not criminalized the violation of such an order after dismissal of the underlying charge,” the Anaya court “h[e]ld that the no-contact order entered at arraignment against Anaya expired upon the dismissal of the underlying domestic violence charge.” Id. at 760 (emphasis added).

In an amendment subsequent to the Anaya decision, the Legislature added to RCW 10.99.040(3) the qualification that “[t]he no-contact order shall terminate if the defendant is acquitted or the charges are dismissed.” Laws of 2000, ch. 119, § 18 (emphasis added). We reject Schultz’s assertion that the Anaya decision and the statutory scheme “support the conclusion that preconviction no-contact orders do not survive dismissal, acquittal, or a finding of guilt.” Pet. at 7.

While the Anaya decision and the amended statute plainly provide that dismissal or acquittal terminates a pretrial domestic violence no-contact order, neither Anaya nor the new statutory language addresses the precise question presented in this case: that is, whether a no-contact order entered at arraignment survives a finding of guilt and may be extended as a sentencing condition. The Anaya court’s determination that certain statutory language “indicate [d] that the order [was] dependent on the criminal charge” is not inconsistent with the conclusion that the order survives a finding of guilt on the charge.

That the amendment to RCW 10.99.040(3) specified that dismissal or acquittal would terminate the pretrial no-contact order likewise supports the State’s position here that the Legislature never intended an order entered at arraignment to terminate automatically upon a finding of guilt. Indeed, to adopt Schultz’s

interpretation of former RCW 10.99.040(3), we would have to ignore the implications of the Legislature’s post-Anaya amendment and, in effect, write into the former statute the qualification that the no-contact order would also terminate upon a finding of guilt. See Anaya, 95 Wn. App. at 756 (citing In re Custody of Smith, 137 Wn.2d 1, 12, 969 P.2d 21 (1998) (stating that the court “will not read qualifications into the statute which are not there”)). We decline to introduce into RCW 10.99.040(3) the requested qualification that such an order “do[es] not survive ... a finding of guilt.” Pet. at 7.

Not only does that qualification not appear in the statute, it could leave a victim unprotected, should there be any delay between a finding of guilt and the released defendant’s subsequent sentencing; such a circumstance would be contrary to the statutory aim of “assuring] the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide.” RCW 10.99.010. Schultz also maintains that nullification of the pretrial no-contact order is necessitated simply by the existence of RCW 10.99.050(1).

However, just as RCW 10.99.040(3) does not provide that a no-contact order entered at arraignment terminates upon a finding of guilt, RCW 10.99.050(1) does not say that, where the trial court restricts as a sentencing condition the defendant’s contact with the victim, the court ipso facto nullifies the prior no-contact order and must then enter an entirely new order.

Because RCW 10.99.050(1) requires only that the sentencing condition be “recorded” and that the victim be provided with a certified copy of the order, we cannot adopt Schultz’s more restrictive view that only a newly drafted order would satisfy RCW 10.99.050(1). See State v. Azpitarte, 140 Wn.2d 138, 141, 995 P.2d 31 (2000) (observing that where a statutory provision is “clear and unambiguous, its meaning is to be derived from the language of the statute alone and it is not subject to judicial construction”).

We therefore conclude that, where the trial court determines at sentencing that a defendant’s contact with the victim is to be restricted, RCW 10.99.050(1) maybe satisfied either by entry of a new no-contact order or by the court’s affirmative indication on the judgment and sentence that the previously entered no-contact order is to remain in effect. To infer, as Schultz has done, that a trial court may satisfy RCW 10.99.050(1) only by physically executing a completely new order is especially unreasonable in light of the order entered at his arraignment.

That order is not designated a pretrial or preconviction no-contact order, but simply bears the title “NO CONTACT ORDER.” Ex. 1. Moreover, the order provides that the defendant’s contact with the victim was restricted pursuant not only to RCW 10.99.040 but also to “RCW 10.99.050, EMC 10.22.010 and EMC 10.22.020.” Ex. 1 (emphasis added). Additionally, by bearing the legend prescribed in RCW 10.99.040(4)(d), the order simultaneously satisfies the legend requirement of former RCW 10.99.050(2), which is nothing more than the first sentence, verbatim, from the 10.99.040 legend. In sum, by advancing a narrow

interpretation of RCW 10.99.050(1), Schultz seeks to invalidate a no-contact order that he knew to be in effect and that could have differed from a newly issued order in no meaningful or prejudicial way. We conclude that the trial court satisfied the two requirements of RCW 10.99.050(1)—recording of the sentencing condition and notification of the victim—by affirmatively extending the order entered under RCW 10.99.040(3).

By placing an X in the space alongside item 17, “No Contact Order to remain in effect,” the trial judge recorded on the finding and sentence the elected sentencing condition; that condition remained fully recorded in the preexisting no-contact order, a certified copy of which had already been given to the victim. Ex. 6; see also Ex. 1. In this case the State could have properly charged Schultz with violation of the order entered under RCW 10.99.040(3) or .050(1).

CONCLUSION A no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant’s sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect.

The no-contact order entered under RCW 10.99.040(3) at Schultz’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date. The Court of Appeals properly affirmed Schultz’s conviction for violating a validly entered domestic violence no-contact order. We affirm the Court of Appeals. Madsen, Ireland, Bridge, and Chambers, JJ., concur. We refer throughout to the statutes in effect in 1999 when the no-contact order was entered against Schultz, extended at sentencing, and thereafter violated. RCW 10.99.040 and 10.99.050 have since been amended.

See Laws of 2000, ch. 119, §§ 18, 20. Finding no ambiguity in the relevant statutes, we reject Schultz’s invocation of the rule of lenity. See In re Post Sentencing Review of Charles, 135 Wn.2d 239, 250 n.4, 955 P.2d 798 (1998) (stating that “the rule only applies when a penal statute is ambiguous and legislative intent is insufficient to clarify the ambiguity”). Schultz speculates that the State charged him under RCW 10.99.040(3) because the finding and sentence lacked the legend required in RCW 10.99.050(2), see Pet. at 7-8, but the point is not well taken.

The finding and sentence was not a postconviction no-contact order; rather it served only to extend the existing order, which did in fact bear the appropriate legend.