* State Of Washington, Respondent V. Roland Kopp, Appellant

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NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ROLAND KOPP,
Appellant.
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No. 80958-0-I
DIVISION ONE
PUBLISHED OPINION
ANDRUS, A.C.J. — Roland Kopp appeals the trial court’s denial of his petition
to vacate a 2012 third degree assault conviction. 	We conclude RCW 9.94A.640
grants discretion to the trial court to grant or deny a motion to vacate a conviction,
even if an offender satisfies the statutory criteria. 	We further conclude the trial
court 	did 	not 	abuse 	its 	discretion 	in 	denying 	Kopp’s 	motion 	under 	the
circumstances of this case.
FACTS
In the early morning hours of August 7, 2011, K.S. was walking near the
Kirkland waterfront when she stopped to talk with a small group of people standing
outside of a closed restaurant.1 	Shortly thereafter, two people left, leaving K.S.
1 We take these facts from the probable cause certification, facts to which Roland Kopp stipulated
for purposes of sentencing in his plea agreement.
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No. 80958-0-I/2
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alone with Kopp and a man named Christopher Smith. The men invited K.S. into
the restaurant and locked the door behind her, and sexually assaulted her.
When K.S. was allowed to leave the restaurant, she called 911. 	The
responding officers found K.S. crying uncontrollably and lying on the sidewalk.
K.S. described both assailants and identified the restaurant in which the assault
had occurred.
The police located Kopp inside the restaurant and determined he matched
the description of one of K.S.’s assailants. A subsequent investigation uncovered
K.S.’s earrings and shoes in the restaurant, and DNA evidence linking Kopp to
K.S.
Based on this evidence, the State charged Kopp with one count of second
degree rape. 	In July 2012, Kopp pleaded guilty to an amended charge of third-
degree assault. 	In September 2012, Kopp was sentenced to 90 days electronic
home detention and 12 months of community custody. 	In December 2012, the
Department of Corrections notified the court that Kopp had completed the period
of electronic home detention, was working for his parents at the same restaurant
where the crime occurred, and had entered into a payment plan to pay off the legal
financial obligations. DOC closed its supervision of the case that same month.
In November 2019, Kopp moved to vacate his judgment and sentence
pursuant to RCW 9.94A.640. 	The State conceded that Kopp was eligible but
opposed the motion due to the “concerning nature of the overall incident.” 	The
court reviewed the records in the case, Kopp’s plea statement and plea agreement,
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and the certification for determination of probable cause and denied the motion.
The court concluded:
These documents detail the underlying criminal acts during which
Kopp, 	at 	his 	workplace, 	forced 	sexual 	intercourse 	with 	KS—a
stranger—against KS’s will, then left KS alone with another man who
committed 	similar 	acts 	against 	KS, 	and 	lied 	to 	police 	when
confronted about his criminal acts. 	Exercising its discretion under
RCW 9.94A.640(1), and based on the particular facts of this specific
case, the Court finds that it is not reasonable or appropriate to allow
Kopp to withdraw his guilty plea or to vacate his conviction.
Kopp appeals the denial of his motion to vacate his judgement and sentence.
ANALYSIS
Kopp first argues that RCW 9.94A.640(1) does not grant the court the
discretion to deny a motion to vacate a conviction if the offender is not statutorily
ineligible 	under 	RCW 	9.94A.640(2). 	We 	reject 	this 	interpretation 	of 	RCW
9.94A.640(1) because the plain language of the statute vests discretion in the trial
court to grant or deny such a motion.
We review questions of statutory interpretation de novo. 	State v. Taylor,
162 Wn. App. 791, 797, 259 P.3d 289 (2011) (citing State v, Alvarado, 164 Wn. 2d
556, 561, 192 P.3d 345 (2008)). 	Our purpose is to discern and implement the
intent of the legislature. Id. Where the meaning of a statute is plain, we must give
effect to that meaning. 	Id. 	We determine the plain meaning by considering the
statute in its entirety along with any related statutory provisions. Id.
RCW 9.94A.640(1) provides:
Every offender who has been discharged under RCW 9.94A.637
may apply to the sentencing court for a vacation of the offender’s
record of conviction. 	If the court finds the offender meets the tests
prescribed in subsection (2) of this section, the court may clear the
record of conviction … (emphasis added).
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Under RCW 9.94A.640(2),
An offender may not have the record of conviction cleared if:
(a) There are any criminal charges against the offender
pending in any court of this state or another state, or in any federal
court;
(b) The offense was a violent offense as defined in RCW
9.94A.030 or crime against persons as defined in RCW 43.43.830,
except the following offenses may be vacated if the conviction did
not 	include 	a 	firearm, 	deadly 	weapon, 	or 	sexual 	motivation
enhancement: 	(i) 	Assault 	in 	the 	second 	degree 	under 	RCW
9A.36.021; (ii) assault in the third degree under RCW 9A.36.031
when not committed against a law enforcement officer or peace
officer, and (iii) robbery in the second degree under RCW 9A.56.210.
(c) The offense is a class B felony and the offender has been
convicted of a new crime in this state, another state, or federal court
in the ten years prior to the application for vacation;
(d) The offense is a class C felony and the offender has been
convicted of a new crime in this state, another state, or federal court
in the five years prior to the application for vacation;
(e) The offense is a class B felony and less than ten years
have passed since the later of: (i) The applicant’s release from
community custody; (ii) the applicant’s release from full and partial
confinement; and (iii) the applicant’s sentencing date;
(f) The offense was a class C felony, other than a class C
felony described in RCW 46.61.502(6) or 46.61.504(6), and less than
five years have passed since the later of: (i) The applicant’s release
from community custody; (ii) the applicant’s release from full and
partial confinement; or (iii) the applicant’s sentencing date; or
(g) The offense was a felony described in RCW 46.61.502 or
46.61.504.
It is undisputed that Kopp’s conviction did not involve one of the listed
disqualifying crimes and that five years had passed since his conviction, during
which he was crime free. 	Kopp thus met “the tests prescribed in subsection (2)”
of RCW 9.94A.640(1). The first question on appeal is whether the statute requires
a sentencing court to vacate an offender’s conviction under these circumstances.
We conclude it does not.
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First, in interpreting these two provisions together, RCW 9.94A.640(2) is not
a list of eligibility requirements but is, instead, a list of criteria rendering an offender
ineligible for vacation of a conviction. The fact that Kopp is not statutorily ineligible
under RCW 9.94A.640(2) does not render him automatically eligible for this relief
under RCW 9.94A.640(1).
Second, the legislature provided that even if an offender is not disqualified
under RCW 9.94A.640(2), the sentencing court “may” vacate a conviction. When
the legislature uses the word “may” in a statute, it is generally considered to be
permissive and “operates to confer discretion.” 	State v. McMillan, 152 Wn. App.
423, 426-27, 217 P.3d 374 (2009) (citing Spokane County ex rel. Sullivan v.
Glover, 2 Wn.2d 162, 165, 97 P.2d 628 (1940)). 	Our Supreme Court has
previously noted that “[u]nder the vacation statute, the court in its discretion ‘may
clear the record of conviction’” In re Pers. Restraint of Carrier, 173 Wn.2d 791,
804, 272 P.3d 209 (2012) (emphasis added).
Kopp relies on State v. Haggard, 195 Wn.2d 544, 461 P.3d 1159 (2020) to
support 	his 	argument 	that 	the 	sentencing 	court’s 	discretion 	under 	RCW
9.94A.640(1) is limited to determining whether an offender is disqualified under
RCW 9.94A.640(2)(a) through (g). 	Haggard, however, does not support this
proposition. 	In that case, the Supreme Court was asked whether a dismissed
misdemeanor conviction qualified as a conviction for the purposes of calculating
an offender score under the Sentencing Reform Act (SRA). 195 Wn.2d at 546.
The court held that a “dismissal” under RCW 3.66.067 (deferral of sentence
and subsequent dismissal of charge) is legally distinct from a “vacation” under
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RCW 9.96.060 (vacating records of 	conviction for misdemeanor 	and gross
misdemeanor offenses). 	Id. at 553. 	The court noted that “[d]ismissing a charge
rests almost entirely on the discretion of a trial court” while “[v]acation entails
substantially more.” 	Id. at 554. 	After noting many of the crimes that render an
offender ineligible for the vacation of a conviction, the court stated that “[g]ranting
dismissal and vacation are both matters of discretion, but, as discussed above, the
vacation statute limits this discretion.” Id. at 555.
But the Haggard court, in stating that the legislature has limited the
sentencing court’s discretion, was referring to the fact that the legislature has
prohibited the court from vacating convictions for a set of listed crimes. Haggard
does not support the contention that the legislature limited the court’s discretion by
mandating the vacation of all other convictions.
RCW 9.94A.640, like the statute discussed in Haggard, provides that an
offender who committed a disqualifying crime cannot have that conviction vacated;
it does not contain an expression of the inverse proposition. 	Indeed, Kopp’s
argument is an illustration of the basic fallacy of the inverse: If A (offender was
convicted of a disqualifying crime), then B (offender’s conviction shall not be
vacated); if not A (offender was not convicted of a disqualifying crime); therefore
not B (offender’s conviction shall be vacated). See Wash. Fed. v. Gentry, 179 Wn.
App. 470, 485, 319 P.3d 823 (2014) (it is a logical fallacy to argue that the inverse
of what is stated in a statute is necessarily true).
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We conclude that even if an offender did not commit a disqualifying crime,
RCW 9.94A.640(1), by its plain language, vests the sentencing court with the
discretion to grant or deny a motion to vacate the offender’s record of conviction.
Kopp next argues the sentencing court erred in relying on the facts of the
crime in deciding to deny his motion to vacate. We review the sentencing court’s
decision to deny a motion to vacate for abuse of discretion. 	A court abuses its
discretion when its decision “‘is manifestly unreasonable or based upon untenable
grounds or reasons.’” 	State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)
(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). A decision
is based on untenable reasons if it “‘is based on an incorrect standard or the facts
do 	not 	meet 	the 	requirements 	of 	the 	correct 	standard’” 	and 	is 	manifestly
unreasonable if it “‘is outside the range of acceptable choices, given the facts and
the applicable legal standard.’” 	Lamb, 175 Wn.2d at 127 (quoting In re Marriage
of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)).
We conclude the sentencing court did not use an incorrect standard, the
facts to which Kopp stipulated support the court’s decision, and the denial was not
outside the range of acceptable choices. RCW 9.94A.640(1) requires an offender
to file the motion to vacate with “the sentencing court.” 	RCW 9.94A.530(2)
provides that this same sentencing court “may rely on no more information than is
admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or
at the time of sentencing.” In this case, Kopp stipulated to facts, as set out in the
probable cause certification and prosecutor’s summary, as the “real and material
facts” in accordance with RCW 9.94A.530. 	If Kopp agreed that the sentencing
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No. 80958-0-I/8
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court could rely on the facts in the probable cause certification when determining
the appropriate sentence, we can see no abuse of discretion in relying on those
same facts when deciding whether to vacate that conviction. 	We conclude the
sentencing court did not err in relying on facts in the probable cause certification
in exercising its discretion under RCW 9.94A.640(1).
Kopp contends the trial court erred in not considering that the second
degree rape charge was reduced to third degree assault and in not acknowledging
that Kopp complied with the conditions of his judgment and sentence. 	But the
record does not support this argument. The trial court explicitly stated it “carefully
reviewed the record in this case, including the motion, the State’s response, Kopp’s
reply to the State’s response, Kopp’s Statement of Defendant on Plea of Guilty,
the Certification for Determination of Probable Cause, and Kopp’s Felony Plea
Agreement . . . .” 	It is clear from these documents that Kopp pleaded guilty to a
reduced charge, and that Kopp completed the terms of his community custody.
The sentencing court simply decided that the aggravating facts of the crime
outweighed these mitigating facts. We cannot conclude this decision amounted to
an abuse of discretion.
Affirmed.
WE CONCUR:
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