40URT OF APPEALS
2013 A 1G ! 3
10' 28
IN THE COURT OF APPEALS OF THE STATE OF
WASHINAS1i
' rOJ
DIVISION II S
DE F' Y
In re Post -Sentence Review of No. 43009 6 II
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DOMINIC COMBS, PUBLISHED OPINION
Respondent.
BJORGEN, J. —The Department of Corrections (DOC)petitions this court for review of
Dominic Combs's drug offender sentencing alternative (DOSA) sentence, requesting this court
to remand Combs's sentence for removal of time served credits. The DOC argues that the
sentencing court lacked statutory authority to credit Combs for time served and, alternatively,
that the credits granted were inconsistent with RCW 9.
171.We agree, and we reverse and
94A.
remand Combs's sentence for the DOC to recalculate time served credits consistently with this
opinion.
FACTS
In June 2011, Combs pleaded guilty to methamphetamine possession and the sentencing
court imposed a 24 month residential treatment based
- - DOSA sentence. On July 14, a
residential treatment facility admitted Combs into care. Nine days later, Combs refused to
submit to urinalysis and absconded from treatment entirely. After he absconded, and while on
community custody under his DOSA sentence, the State charged Combs with second degree
1 A DOSA sentence is an alternative punishment for drug related offenses under certain
circumstances and may be either prison based
- or based.
residential treatment - See RCW
660.
9.
94A.
No. 43009 6 II
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burglary and jailed him. The State held Combs in jail on that charge from September 8 to
October 20, 2011.
Combs admitted failing to comply with his treatment, and the court revoked the DOSA
sentence, imposing a midpoint, standard range sentence of 18 months' confinement. The court
also credited Combs with 160 days' time served, representing the time from his commission of
the crime of methamphetamine possession on May 13 to imposition of 18 months' confinement
on October 18. Of this period, however, 47 days represented the time he had absconded by
failing to report to his treatment facility and another 42 days represented the time he was in jail
on the unrelated burglary charges. Combs began serving the amended sentence on the
methamphetamine charges on October 21, 2011.
The DOC notified the court, the prosecutor, and Combs by letter, informing them that it
believed the credit for time served was miscalculated. Specifically, the DOC requested the
prosecutor to ask the court to reduce the time served credit by the 47 days after Combs
absconded from treatment and the 42 days he was in jail on the burglary charge. The prosecutor
declined and took the position that Combs was induced to stipulate to revocation of his DOSA by
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the prosecutor's agreement to 160 days' time served credit.. For that reason, the prosecutor felt
bound to the calculation and would not seek to correct it.
The DOC now petitions this court for post-
sentence review of the time -served credits
2
Because this is a post-sentence petition rather than direct appeal, we may consider material in
the
appendix not contained in the general record. Compare RAP 16. 8(
d)(with RAP
10),
1
a)(
10.8).
3(
3 A formal petition or motion in the trial court is not required, and the DOC's correspondence,
informing the court of the legal bases for the DOC's objections, is adequate. In re Sentence of
Chatman, 59 Wn..
App. 258, 264 65,796 P. d 755 (1990).
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2
No. 43009 6 11
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under RCW 9. ).
585( 4A.
7
9
Sul
The DOC requests removal of Combs's credits for time served for two reasons. First, it
argues that the sentencing court lacked statutory authority to credit Combs for time served and
that a grant of such authority would violate the separation of powers doctrine. Second, it argues
that the credits granted by the court were inconsistent with the standards of RCW 9.
171.
94A.
1. TRIAL COURT JURISDICTION
A. Standard of Review
DOC brings this petition under RCW 9. ), restricts our review to errors
585( 4A.which
7
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of law. Both the prosecutor and Combs argue that the petition impermissibly raises a factual
issue. The issues raised by the petition, however, are those of statutory authority, the separation
of powers doctrine, and compliance with the statutory standards for time served credits. The
questions of statutory authority and the separation of powers doctrine are purely legal issues.
The inquiry into compliance with sentencing standards involves the interpretation of the
Sentencing Reform Act (SRA),
which also is a question of law. State v.
Jones, 172 Wn. d 236,
2
242, 257 P. d 616 (2011).These are legal issues and are properly raised by the DOC's petition.
3
We review questions of statutory interpretation de novo by ascertaining the legislature's
intent. State v. Jacobs, 154 Wn. d 596, 600, 115 P. d 281 (2005).Where a statute's meaning is
2 3
plain on its face, we give effect to that meaning as expressing the intent of legislature. Jacobs,
154 Wn. d at 600. We determine the statute's plain meaning from the ordinary meaning of its
2
language, as well as from the statute's general context, related provisions, and the statutory
4Chapter 9.4A RCW.
9
3
No. 43009 6 II
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scheme as a whole. Jacobs, 154 Wn. d at 600. Absent a specialized statutory definition, we
2
give a term its plain and ordinary meaning ascertained from a standard dictionary. State v.
Watson, 146 Wn. d 947, 954, 51 P. d 66 (2002). We interpret statutes to give effect to all
2 3
language in the statute and to render no portion meaningless or superfluous. State v. J. .,149
P
Wn. d 444, 450, 69 P. d 318 (2003). We also interpret statutes to harmonize them. henever
2 3 w
possible. State v. Powell, 167 Wn. d 672, 695 96, 223 P. d 493 (2009),
2 - 3 overruled on other
grounds by State v. Siers, 174 Wn. d 269, 271, 274 P. d 358 (2012).
2 3
B. Statutory Authority Following DOSA Revocation
In Washington, the SRA prescribes the authority to sentence in felony cases. State v.
Skillman, 60 Wn. App. 837, 839, 809 P. d 756 ( 1991). The SRA limits the trial court's
2
sentencing authority to that expressly found in the statutes. State v. Furman, 122 Wn. d 440,
2
456, 858 P. d 1092 (1993).
2
The principal statute governing resentencing after revocation of a DOSA sentence is
RCW 9. ),states:
660( 4A.which
7
9
a)The court may bring any offender sentenced under this section back
into court at any time on its own initiative to evaluate the offender's progress in
treatment or to determine if any violations of the conditions of the sentence have
occurred.
b)If the offender is brought back to court, the court may modify the
conditions of the community custody or impose sanctions under (c)of this
subsection.
c) court may order the offender to serve a term of total confinement
The
within the standard range of the offender's current offense at any time during the
s
Combs points out that RCW 9. )
505( 4A.requires the sentencing court to give the offender
6
9
credit for all confinement time served for the same offense before sentencing. However, Combs
was sentenced when his DOSA alternative was imposed. The issues presented by this appeal all
arose after that point. Therefore, RCW 9. ) not guide the resolution of this
505( 4A. does
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9
appeal.
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No. 43009 6 II
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period of community custody if the offender violates the conditions or
requirements of the sentence or if the offender is failing to make satisfactory
progress in treatment.
d) offender ordered to serve a term of total confinement under (c)
An of
this subsection shall receive credit for any time previously served under this
section.
Subsections (a), and ( )
b)( c expressly authorize the trial court to take certain actions in modifying
or revoking a DOSA sentence. Subsection (d), one most pertinent to this petition, states that
the
an offender shall receive credit for time served, without specifying who determines or imposes
the credit.
Subsection ( d) covers only offenders sentenced under subsection ( c), provision
a
expressly and exclusively vesting its authority in the trial court. Other provisions of the SRA,
however, " oll"or deny credit for terms of confinement or community custody for various
t
reasons, among which is absconding from required supervision. Subsection (4)of RCW
171
9. mandates that "[
94A. for terms of confinement or community custody, the date for the
tolling of the sentence shall be established by the entity responsible for the confinement or
supervision."
At first blush, the authority simply to set the date of tolling would not necessarily imply
the authority to order or deny various credits for time served. However, RCW 9. ),
171( 4A.2)
1
9 (
and (3)impose specific, mandatory standards directing when and to what extent terms of
confinement or community custody under the SRA are tolled. The application of these standards
and the resulting time served credits depends on the date of any tolling, a determination
171( 4A. In addition, the DOC has the
exclusively within DOC's authority under RCW 9. 4).
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most information on an offender's conduct in different jurisdictions in the State. Therefore, any
ambiguity in RCW 9. )( which entity imposes credits for time served on a
d)
660( 4A.regarding
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9
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No.43009 6 II
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DOSA revocation should be resolved in favor of the DOC. Any other result risks the strained
and absurd consequences that statutory construction is designed to avoid. J. .,149 Wn. d at
P 2
450. Under RCW 9.
d)
660( 4A.the DOC, not the trial court, has authority to impose credits
7)(
9
for time served in a DOSA revocation.
Combs argues that this court reached a contrary holding in State v. Davis, 160 Wn. App.
471, 474, 248 P. d 121 ( 2011). Davis, however, merely held that "the trial court erred in
3
ordering that Davis was not entitled to credit for time served while on DOSA community
custody." Davis, 160 Wn. App. at 477. This holding was based on a repealed provision in
former RCW 9. 2002), does not address the jurisdictional question decided here.
660 (
94A. and
Thus, our ruling does not conflict with the decision in Davis.
C. Separation of Powers
The DOC argues that the trial court's order violates the separation of powers doctrine
because it prevents the DOC from applying the tolling statute to Combs's sentence. We hold
that the DOC has authority to calculate credits for time served under applicable statutes, and we
remand for it to exercise that authority. Therefore, it is not necessary to reach the argument
based on separation of powers.
II. THE CREDITS GRANTED WERE ERRONEOUS
Apart from the jurisdictional question, the DOC argues that the credits for time served
allowed by the trial court were contrary to the standards of RCW 9.
171. The prosecutor
94A.
concedes that the credits were erroneous. We agree.
RCW 9. ) (2)
171( 4A.and
1
9 state that a term of confinement or community custody shall
be tolled by any period of time during which the offender has absented himself from
R
NO A
IIIIZIN
confinement or supervision without prior approval. Under this statute, credit should not have
been granted for the 47 days in which Combs absconded by failing to report to his treatment
facility.
Subject to a number of inapplicable exceptions, RCW 9.
a)
171( 4A.states that any
3)(
9
period of community custody shall be tolled during any period of time the offender is in
confinement. Thus, credit should not have been granted for the 42 days Combs was in jail on the
burglary charges.
Granting credit for time served for these two periods was inconsistent with RCW
171.
9.
94A.
III. EFFECT OF PLEA AGREEMENT
As noted above, the prosecutor argues against remand for removal of the incorrect
calculation because it believes Combs was induced to stipulate to his DOSA revocation by the
160 days time -served credit. For a number of reasons, this argument does not benefit Combs in
this proceeding.
First, Combs does not raise this argument in his response to the DOC'
s petition. The
DOC raises the issue of inducement only to explain why it argues against remand.
Second, plea agreements are contracts, and the law imposes on the prosecutor an implied
promise to act in good faith. State v. Harrison, 148 Wn. d 550, 556, 61 P. d 1104 (2003).
2 3
Where the parties have agreed to an unlawful sentence based on mutual mistake, the defendant
may elect to withdraw his plea; but specific performance may not be used to bind the court to
enforce an illegal sentence. State v. Barber, 170 Wn. d 854, 872 73, 248 P. d 494 (2011).
2 - 3
Specific performance is available to compel the State to follow through with its promises, but not
7
10=
111111 6 1
to compel the imposition of an illegal sentence in cases of mutual mistake. Barber, 170 Wn. d
2
at 872 73.
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Here, there is no allegation that the prosecutor acted in bad faith. Rather, Combs
stipulated to the revocation of his DOSA based on a good faith miscalculation. Under Barber,
these circumstances do not require preservation of an erroneous sentence.
IV. CONCLUSION
The trial court's order allowing 160 days time -served credit is reversed and remanded.
The DOC shall calculate any time served credits consistently with this opinion.
GEN
We concur: By
Q INN-
BRINTNALL, J.
L
ANSON, A. .
J.
C
Jo
Post-sentence Petition Of Dominc Lee Combs
Combined Opinion