Filed
Washington State
Court of Appeals
Division Two
November 10, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52851-7-II
Respondent,
v.
JEROME WARD MOODY, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—A police officer found Jerome Ward Moody smoking in a church alcove.
Moody tossed away what the officer thought was a glass pipe, he then resisted arrest, and the
officer found methamphetamine in a cigarette pack that Moody was carrying. The State charged
Moody with felony methamphetamine possession, tampering with physical evidence, and resisting
arrest. He was convicted on all three charges after a jury trial.
The trial court sentenced Moody to 12 months and 1 day of confinement on the felony
methamphetamine possession and suspended his shorter misdemeanor sentences for tampering
with physical evidence and resisting arrest. The trial court also noted that all of these sentences
would be served concurrently. Moody appeals his sentence and requests remand to the trial court,
arguing the trial court could not order both concurrent and suspended sentences for his two
misdemeanor convictions. He also asks that we remand to correct a scrivener’s error that omits the
date in one section of his judgment and sentence. Finally, Moody asks us to remand for entry of
written findings of fact and conclusions of law as to his motion to suppress statements he made to
the officers, as required by CrR 3.5.
No. 52851-7-II
Regardless of whether Moody served his misdemeanor sentences concurrently with his
felony sentence or the trial court suspended his misdemeanor sentences, Moody is subject to no
further legal obligation as a result of his misdemeanor convictions that is not also required by his
felony conviction and, thus, there is no relief that this court can provide. The sentencing hearing
date appears elsewhere in the judgment and sentence. Although the trial court did not enter written
findings regarding its CrR 3.5 ruling, Moody fails to show he was prejudiced, the lack of a written
order is harmless, and remand for entry of written findings and conclusions is not necessary in
light of the trial court’s clear oral ruling. We affirm Moody’s sentence and we decline to remand.
FACTS
Moody was smoking in a church alcove. A police officer approached Moody, and Moody
told the officer he was smoking marijuana. The officer did not smell marijuana and asked Moody
to produce the pipe. The officer saw Moody make a tossing gesture with his hands and heard glass
break. The officer suspected Moody had discarded a glass methamphetamine pipe. Moody claimed
he was only smoking marijuana and that he must have stepped on glass in the alcove.
Another officer arrived and the officers arrested Moody. Moody initially resisted, he yelled
at officers, and pulled his arm away while being placed in handcuffs. While searching Moody
incident to the arrest, an officer pulled from Moody’s cigarette pack a piece of paper containing a
crystalline substance that later tested positive for methamphetamine. The State charged Moody
with a felony and two misdemeanors: felony possession of methamphetamine (count I), tampering
with physical evidence (for disposing of the suspected methamphetamine pipe) (count II), and
resisting arrest (count III).
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The trial court held an evidentiary hearing under CrR 3.5 to determine which of Moody’s
statements made to the police officer would be admissible. At the hearing, the trial court made
several verbal findings of fact and conclusions of law. First, referencing In re Personal Restraint
of Cross,1 the trial court examined whether the police officer’s act of showing Moody the
crystalline substance found in Moody’s cigarette pack was comparable to a “statement designed
to elicit an incriminating response.” 1 Verbatim Report of Proceedings (VRP) (Sept. 20, 2018) at
56.
The trial court explained that if the officers engage in conduct that they should know is
likely to elicit an incriminating response, then that amounts to interrogation. The trial court orally
found some of Moody’s postarrest statements inadmissible because they were made in response to
the police officer showing Moody the crystalline substance and they occurred before Moody was
read his Miranda2 rights:
[THE COURT:] There were some . . . spontaneous statements . . . that were made
prior to an arrest having occurred. The officer testified there was essentially, quote,
a barrage of statements that were made. . . .
....
. . . [T]he statements prior to the arrest were . . . not during custody, and
they were not the product or the result of an interrogation or a comment designed
to elicit an incriminating response. So prior to the arrest event, those statements
would be admissible.
Post-arrest, there were a number of statements that were made while in
custody, and the question is whether they were the product of interrogation.
....
. . . I do find the statements -- the ones that are not directly pertaining to the
contraband that was shown to the defendant, I find that those statements would have
been made irrespective of the showing of the contraband or the narcotics to the
defendant. . . . But certainly the statements that were made, the sort of immediate
response to the showing the narcotics, those . . . need to be suppressed . . . .
1
180 Wn.2d 664, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, 192
Wn.2d 1, 427 P.3d 621 (2018).
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966).
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No. 52851-7-II
. . . I think that the statements that were made when you’re showing the
narcotics but before he gets into the car for transport, those are clearly suppressed.
And that includes at a minimum . . . the remarks regarding the planting of the
evidence.
. . . What are the other statements that would be subject to this ruling I’m
making?
MS. HUGHES: . . . [I]t sounds like he made statements, these were planted
on me, it’s not mine. I think those are the two statements that [the officer] said that
. . . he thinks . . . was what was said by the defendant when he showed him.
....
THE COURT: . . . I will suppress those statements.
1 VRP (Sept. 20, 2018) at 56-62.
The trial court found that all other statements made during Moody’s arrest, on the way to
the jail, and at the jail, were spontaneous and not due to the officer’s questioning or interrogation.
Thus, the trial court held these statements could be admitted.
A jury convicted Moody on all three charges. At sentencing, the State recommended that
Moody be sentenced to 18 months in prison for the felony possession conviction, followed by 12
months of community custody. The State also recommended that the gross misdemeanor and
misdemeanor sentences for the evidence tampering and resisting arrest convictions be suspended.
On October 15, 2018, the trial court sentenced Moody to 12 months and 1 day in prison for the
felony possession conviction followed by 12 months of community custody.
The judgment and sentence shows Moody’s misdemeanor sentences for tampering with
evidence (count II, 364 days) and resisting arrest (count III, 90 days) were both suspended, but it
also shows that they were to run concurrent with the felony sentence. First, section 4.1A of the
judgment and sentence states that counts II and III “shall run concurrent with the sentence imposed
in Count I.” Clerk’s Papers at 13. Then in the same section, the judgment and sentence states that
these misdemeanor sentences would be suspended.
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No. 52851-7-II
Finally, section 1.1 of the judgment and sentence is left blank. It should list the date for the
sentencing hearing. The sentencing date appears in two other places on the judgment and
sentence—where the judge, attorneys, and Moody signed acknowledging the sentence and where
Moody’s fingerprints were taken.
ANALYSIS
I. SENTENCING
Moody argues that the trial court lacked authority to suspend his misdemeanor sentences
and simultaneously order that those sentences run concurrently with his sentence for felony
possession of methamphetamine. Moody asserts that his case must be remanded to clarify that he
has no continuing legal obligations on the two misdemeanor sentences. The State does not contend
that Moody has any continuing legal obligations under his misdemeanor sentences.
We decline to remand because Moody’s misdemeanor sentences are complete and he has
no further legal obligation as a result of his misdemeanor convictions that is not also required by
his felony conviction. There is no relief that this court can provide, so this issue is moot.
A. Suspended Sentences
Whether a sentencing court has imposed an unauthorized sentence is a question of law that
we review de novo. State v. Church, 5 Wn. App. 2d 577, 580, 428 P.3d 150, review denied, 192
Wn.2d 1020, 433 P.3d 812 (2019). “‘[I]llegal or erroneous sentences may be challenged for the
first time on appeal.’” State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State v.
Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)). But, generally, if we can no longer provide
effective relief, we will dismiss a case as moot. Wash. Off Highway Vehicle All. v. State, 176
Wn.2d 225, 232, 290 P.3d 954 (2012).
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No. 52851-7-II
During sentencing, a trial court has discretion to suspend a sentence, rather than impose
confinement, until the court orders otherwise. RCW 9.92.060(1);3 RCW 9.95.210(1)(a); see also
State v. Davis, 56 Wn.2d 729, 730, 355 P.2d 344 (1960). But a sentencing court that orders a
defendant to serve the maximum sentence for their conviction does not suspend any jail time. See
State v. Gailus, 136 Wn. App. 191, 201, 147 P.3d 1300 (2006). A sentencing court cannot order
probation or require compliance with conditions on the suspended sentence if it does not suspend
any jail time. Id. Thus, a sentencing court cannot simultaneously require a defendant to serve a full
sentence for a misdemeanor and suspend that same sentence with conditions or probation.
The maximum sentence for a misdemeanor is 90 days and the maximum sentence for a
gross misdemeanor is 364 days. RCW 9A.20.021(2), (3). Moody was sentenced to 364 days and
90 days for his two misdemeanor convictions, respectively. He was sentenced to 12 months and 1
day followed by 12 months of community custody for his felony conviction. The judgment and
sentence first states that the two misdemeanors would run concurrently with the 12-month felony
sentence. The judgment and sentence then states that the misdemeanor sentences would be
suspended so long as Moody complied with the terms of his probation, but the section imposing
probation is crossed off, so no probation was imposed.
If the trial court intended Moody to serve his misdemeanor sentences concurrently with his
felony possession sentence, Moody completed his misdemeanor sentences 90 days and 364 days
from the date of the judgment and sentence in October 2018. And if his misdemeanor sentences
were instead suspended, the terms of the suspended sentences would have expired 90 days and 364
3
RCW 9.92.060(1) excludes “murder, burglary in the first degree, arson in the first degree, robbery,
rape of a child, and rape.”
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No. 52851-7-II
days from the date that the judgment and sentence was entered in October 2018. RCW 9.92.064.
The State does not contend that there are any further legal obligations as a result of Moody’s
misdemeanor convictions that are not also required by his felony conviction, and Moody does not
identify any. Thus, we cannot provide any effective relief and this issue is moot. Wash. Off
Highway Vehicle All., 176 Wn.2d at 232.
B. Scrivener’s Error
Moody argues that the omission of the sentencing date from section 1.1 of the judgment
and sentence is a scrivener’s error that requires remand for correction. We disagree.
CrR 7.8(a) provides that “[c]lerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission may be corrected by the court at any
time of its own initiative or on the motion of any party and after such notice, if any, as the court
orders.” A scrivener’s error is one that, when amended, would correctly convey the intention of
the trial court as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d
121 (2011). When a scrivener’s error occurs in a judgment and sentence, the remedy is to remand
to the trial court for correction. In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701-02, 117
P.3d 353 (2005).
Section 1.1 of the judgment and sentence was left blank. We routinely remand for
correction of small clerical mistakes, such as incorrect dates, failing to cross off inapplicable
sentencing provisions, or imposing incorrect fees. But CrR 7.8(a) states that the court “may”
correct the error, not that the court “must” correct the error, making the decision discretionary. The
date of the judgment and sentence is undisputed and it appears elsewhere on the judgment and
sentence. As a result, remand for this reason is not necessary.
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No. 52851-7-II
II. CRR 3.5(C) HEARING
Moody argues that the trial court erred by failing to enter written findings of fact and
conclusions of law as required by CrR 3.5(c) and that remand is required for entry of written
findings and conclusions. Moody does not address whether he was prejudiced by the lack of written
findings, nor does he argue that the trial court’s ruling was somehow incorrect. The State argues
that the absence of written findings is harmless because the oral record is sufficient for appellate
review and, thus, the defendant is not prejudiced. We agree with the State.
CrR 3.5(c) imposes on the trial court a duty to enter a written order after a hearing regarding
the admissibility of certain statements. Specifically, CrR 3.5(c) requires the written order to
include “(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts;
and (4) [a] conclusion as to whether the statement is admissible and the reasons therefor.” Although
a trial court errs by failing to enter written findings of fact and conclusions of law as required by
CrR 3.5(c), such error is harmless if the trial court’s verbal findings are sufficient for appellate
review. State v. Bluehorse, 159 Wn. App. 410, 423, 248 P.3d 537 (2011); State v. Cunningham,
116 Wn. App. 219, 226, 65 P.3d 325 (2003).
Here, the trial court made adequate verbal findings during the evidentiary hearing. It is
clear why the trial court admitted some statements and not others. The trial court ruled that two of
Moody’s statements were inadmissible because they were made after the police officer showed
Moody the crystalline substance he found in Moody’s cigarette pack but before Moody was read
his Miranda rights. In ruling the statements were inadmissible, the trial court explained that the
statements could be considered the result of questioning designed to elicit an incriminating
response under Cross, 180 Wn.2d at 685 (holding that interrogation for the purposes of Miranda
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No. 52851-7-II
includes “any words or actions reasonably likely to elicit an incriminating response”). The trial
court ruled Moody’s other statements admissible because the trial court deemed them spontaneous
and not due to the officer’s questioning or interrogation.
The trial court provided explicit verbal findings that addressed facts and then applied the
law to the facts. The trial court’s verbal findings and conclusions are sufficient to permit appellate
review. Moody fails to show any prejudice from the absence of written findings and conclusions
after the CrR 3.5 hearing. Therefore, we hold that the trial court’s failure to enter written findings
and conclusions was harmless error and we decline to remand for entry of written findings and
conclusions.
CONCLUSION
We need not remand for resentencing, for correction of any error on the judgment and
sentence, or for entry of written findings of fact and conclusions of law under CrR 3.5. We affirm
Moody’s sentence and decline to remand.
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No. 52851-7-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, J.
We concur:
Lee, C.J.
Maxa, J.
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