F LED

C,QIJI ' 

LIVISMIN11

OF APP'

H

r_

2013 JO I I APB 10: 40

S lA; 0N ' HiNG

BY.

E

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON,

Respondent,

V.

CLINTON ALLEN PRATHER,

No. 43437 -7 -II

UNPUBLISHED OPINION

QuiNN- BRINTNALL, J. — Clinton Prather appeals from the order clarifying his sentence

for his convictions for second degree assault, two counts of felony harassment, and second

degree malicious mischief. He argues that the trial court erred in (1) not reducing his term of

confinement to allow for his term of community custody and (2) not striking his firearm

sentencing enhancements because the State did not prove that the firearm was operational. We

affirm. I

On December 18, 2007, the trial court sentenced Prather for the convictions noted above.

On the second degree assault conviction, the court imposed 120 months of confinement, which

included a 36 -month firearm sentencing enhancement, to be followed by a term of community

custody of 18 to 36 months. On the two convictions for felony harassment, the court imposed 60

1

A commissioner of this court initially considered Prather's appeal as a motion on the merits

under RAP 18.14 and then transferred it to a panel ofjudges.
No. 43437 -7 -II

months of confinement, which included a 60 -month firearm sentencing enhancement. On the

second degree malicious mischief conviction, the court imposed 29 months of confinement. All

four sentences were ordered to run concurrently.

Prather filed a personal restraint petition in 2010, challenging his sentence. Cause No.

41475 -9 -II. We dismissed his petition. On discretionary review, our supreme court remanded

Prather'ssentence to the trial court to clarify it in light of In re Personal Restraint ofBrooks, 166

Wn.2d 664, 671 -73, 211 P.3d 1023 (2009). Cause No. 86316 -4.

At resentencing, Prather moved for relief from judgment under CrR 7. b)(8( 5), arguing

that the firearm enhancements should be stricken because the State did not prove that the firearm

was operational. He also argued that his term of confinement on the second degree assault

should be reduced to 84 months, so that his 18 to 36 months of community custody could fall

within his 120 -month statutory maximum sentence. On. May 30, 2012, the trial court entered the

following order clarifying judgment and sentence:

The judgment and sentence entered in court on DECEMBER 18, 2007 for

Count I, Assault in the Second Degree with a Firearm Enhancement, the

combination of time spent in actual incarceration and. time spent on community

custody shall not exceed 120 months, the rest of the Judgment and Sentence shall

remain in full force and effect.

The Court denies the defendant's CrR 7.8 motion, effective May 9, 2012

nunc pro tunc.

Clerk's Papers at 91.

First, Prather argues that the trial court erred in not reducing his term of confinement to

84 months, such that the combination of that term and his 18 to 36 months of community custody

would not exceed his 120 -month statutory maximum sentence. He contends that under RCW

9. 701(94A.) and Dress v. Department of Corrections, 168 Wn. App. 319, 325, 279 P.3d 875

2
No. 43437 -7 -II

2012), the trial court cannot leave the determination of the duration of his term of community

custody to the Department of Corrections.

RCW 9. 701(94A.) provides that "[t]he term of community custody ... shall be reduced

by the court whenever an offender'sstandard range term of confinement in combination with the

term of community custody exceeds the statutory maximum for the crime as provided in RCW

9A. 021." 20However, it does not apply to sentences first imposed before July 26, 2009, when

the statute was amended to add this language. State v. Franklin, 172 Wn.2d 831, 840, 263 P.3d

585 (2011). For those sentences

t]he department of corrections shall recalculate the term of community

custody and reset the date that community custody will end for each offender

currently in confinement or serving a term of community custody for a crime

specified in RCW 9. 701. 94A That recalculation shall not extend a term of

community custody beyond that to which an offender is currently subject.

Franklin, 172 Wn.2d at 841 (quoting LAWS of 2009, ch. 375, § 9).

Because Prather was first sentenced before July 26, 2009, it is up to the Department of

Corrections to assure that Prather'sterm of community custody ends when his combined terms

of confinement and community custody reach his statutory maximum sentence of 120 - months.

Dress is inapplicable: it rejected the Department of Correction'scontention that it could treat

Dress's sentences as consecutive even though the judgment and sentence provided, erroneously,

that the sentences were to be served concurrently. The trial court did not err in not reducing

Prather'sterm of confinement or in not reducing his term of community custody.

Second, Prather argues that the trial court erred in not striking his firearm sentencing

enhancements because the State did not prove beyond a reasonable doubt that the firearm was

3
No. 43437 -7 -II

operational. State v. Pierce, 155 Wn. App. 701, 714 n.11, 230 P.M 237 (2010). But in Pierce,

the State had alleged a deadly weapon enhancement, not a firearm enhancement, and the trial

court had not instructed the jury on the definition of firearm. In Prather'scase, the State alleged

firearm enhancements and the trial court properly instructed the jury on the definition of firearm.

In such a case, physical evidence of operability is not required. State v. Raleigh, 157 Wn. App.

728, 735 -36, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011). The investigating

officer'stestimony that the shotgun was operable was sufficient evidence for the jury to find that

Prather was armed with a firearm when he committed his crimes. State v. Green, 94 Wn.2d 216,

221, 616 P.2d 628 (1980).

We affirm the trial court's order clarifying Prather'sjudgment and sentence.

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. 040, 06.it is so ordered.

OUINN- BRINT'NALL, J.

We concur,: -'

PENOYR, J.

y ,

2

Prather also raises this argument in his statement of additional grounds.

4