City of Aberdeen v. Regan (dissenting)
Annotate this Case
Download PDF
City of Aberdeen v. Regan (Francis James) No. 82476-2 SANDERS, J. (dissenting) Francis James Regan was charged with fourth degree assault and criminal trespass. A jury acquitted him of both charges. At that time, Regan was on probation for a previous conviction. A condition of Regan s probation required that he commit [n]o criminal violations of law . . . . Clerk s Papers (CP) at 62. Despite his acquittal, the city of Aberdeen argued that that Regan violated his probation by committing fourth degree assault and criminal trespass. The municipal court held Regan was guilty of a criminal trespass by preponderance of the evidence notwithstanding the acquittal.1 Regan was sentenced to five days incarceration. The dispute on this appeal is the meaning of [n]o criminal violations of law. Id. Regan argues the use of criminal in the phrase means the city has to prove he committed a crime i.e., that Regan was guilty beyond a reasonable doubt. However, the majority instead holds criminal merely denotes the violation of a criminal law, 1 The municipal court did not expressly identify the standard it applied, but stated [e]ven though he was acquitted at trial, certainly enough evidence was produced for this Court to find that he violated his probation. CP at 35. However, at a previous hearing on August 17, 2006, the court stated that probation was violated if the violation was more likely than not, a common articulation of the preponderance of the evidence standard. CP at 30. No. 82476-2 and thus it is not problematic that Regan was actually acquitted. I. No criminal violations of law Regan s interpretation, which was also adopted by the superior court, conforms to the language of the probation condition. Regan reasons, without criminal, a violation of law could refer to any act by which a defendant actually transgresses the law. This interpretation provides no evidentiary standard. But adding the modifier, a criminal violation of law, requires that the violation be a crime. And to be guilty of a crime, one must be convicted through the production of evidence sufficient to demonstrate guilt beyond a reasonable doubt. Thus, criminal requires a beyond a reasonable doubt burden of proof and the court cannot apply a lesser burden. The majority disagrees, deconstructing the phrase, word by word, to finally conclude criminal violations of law does not refer to any specific burden of proof, but only to whether Regan actually committed acts that, if proved by a preponderance, would violate criminal law. Majority at 6-11. However, this reasoning ignores the very language of the condition. The majority s use of criminal in the phrase merely denotes that the condition is limited to violations of criminal law. Id. at 11 (emphasis added). For the majority s analysis to be accurate, the phrasing would have to read no violations of criminal law, not no criminal violations of law. Here the adjective criminal does not modify law, but rather violations or 2 No. 82476-2 violations of law. The phrase violations of law is underlined on the probation form, indicating that phrase is one unit and criminal modifies that unit. See CP at 62 ( [n]o criminal violations of law ). Again, a criminal violation of law requires that the violation be a crime and a crime requires proof beyond a reasonable doubt. CP at 58. II. Rule of lenity Having reviewed the language of the probation condition, the arguments of the parties, and the five pages it took the majority to explain the clear meaning of criminal violations of law, I believe it is obvious that the inarticulate language used in Regan s probation condition is at least ambiguous. Since the language of Regan s probation condition is ambiguous, we must construe it in his favor. Where two possible constructions are permissible, the rule of lenity requires us to construe the statute strictly against the State in favor of the accused. Staats v. Brown, 139 Wn.2d 757, 769, 991 P.2d 615 (2000) (quoting State v. Gore, 101 Wn.2d 481, 485-86, 681 P.2d 227 (1984)). The result is no different here where Regan is bound by a probation condition rather than a statute. The rule of lenity applies with no less force: [T]he citizen is entitled to fair notice of what sort of conduct may give rise to punishment. McNally v. United States, 483 U.S. 350, 375, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987), superseded by statute on other grounds as stated in United States v. Berg, 710 F. Supp. 438 (E.D.N.Y. 1989). As the superior court adeptly reasoned, a person with a suspended sentence should be able to clearly 3 No. 82476-2 understand the conditions and terms of the judgment and sentence. CP at 55. The Court of Appeals conceded the language of the probation condition might be ambiguous but neglected to apply the rule of lenity because the trial court has broad discretion in determining the conditions and whether the probationer violated them. City of Aberdeen v. Regan, 147 Wn. App. 538, 541 n.1, 195 P.3d 1015 (2008). I certainly disagree. Discretion is exercised when the condition is originally imposed. There is no discretion to modify or create a new condition to be applied retroactively. Furthermore, this discretion does not trump the probationer s due process right to notice of the conditions of his or her probation prior to the revocation hearing. In re Pers. Restraint of Blackburn, 168 Wn.2d 881, 883, 232 P.3d 1091 (2010). III. Conclusion The language [n]o criminal violations of law can be interpreted to require a criminal conviction on proof beyond a reasonable doubt and certainly to exclude an acquittal. At worst, the language is ambiguous. A probationer is entitled to fair notice of the conduct that will result in revocation of his or her probation. An ambiguity must be resolved in favor of the defendant. Regan s acquittal from the criminal allegations precluded the court from revoking his probation. 4 No. 82476-2 I dissent. AUTHOR: Justice Richard B. Sanders WE CONCUR: 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
