### FILED JAN 8, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE THE STATE OF WASHINGTON, ) ) No. 31803-6-III Respondent, ) ) v. ) ) VERNON RAYJOHNSONJR., ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Vernon Johnson appeals thetrial court's failure at sentencing tocredithimwith 276 days spent injailbeforepleadingguilty to vehicular assault and possession ofa stolenvehicle. While the State argued at sentencingthat creditwas not warranted in light offelony warrants servedon

### Mr. Johnsonfor unrelated out-of-state crimes, itconcedes on appeal thathe was entitledto credit for the time served. We donotentirely acceptthe State's concession, because itis notclearthatthe constitutionallymandated day-for-day credittowhich

### Mr. Johnson is entitled was 

# l 1 

# \ requiredtobe satisfied atthe sentencingofthe Washington crimes. There is a constitutional mandate that mustbe satisfied at some time, however, andbecausethe State nowregardsthis sentence as anappropriate time and it appears thatthe 

# 1No. 3IS03-6-In State v. Johnson
constitutional mandate was not broughtto the sentencing court's attention, we remand 

# I with instructions for the courtto reconsider the issue ofcredit for time served consistent

.**~** with this opinion
. I FACTS AND PROCEDURAL BACKGROUND 

# 1 , Vernon Johnson pleaded guilty to vehicular assault and possession ofa stolen motorvehicle. He was seriously injured in the incident givingrise to the charges and was hospitalized from February 19,2012, the date ofthe incident, until September 21,2012
.

.**~** 

# I I Hewas arrested upon his release from the hospital on September 21 and was servedthat
same day with two outstanding felony warrants for unrelated matters in Oregon and 

# 1 Missouri. OnMay 23, 2013, Mr. Johnson pleaded guilty to the two Washington charges. Before sentencing, Mr. Johnson's lawyer asked that his clientreceive credit for the 276 days served injail from the date he was arrested on the underlying charges. l The State took the position that Mr. Johnson should only receive credit for time served "ifheis legally entitledto creditunder the SentencingReform Act." It explained:

1 Walla Walla chose not to arrest Mr. Johnson immediately, "[b]ecausethe medical bills werejust so excessive." Report ofProceedings (RP) at 17. While Mr. Johnson's lawyer indicated at one pointthat shewas researching whetherMr. Johnson should receive credit for the time hewas bedridden, hospitalized, and possibly restrained, she agreed bythe time ofsentencing that her clienthadnot been confined during his hospitalization and was not entitled to credit for thattime period. 2No. 31803-6-II1 State 

### v. Johnson
The State'sposition is that under the SRA, someone is only entitled to credit for time served ifthey are held in confinement only onthe charge that they are being sentenced for. And in Mr. Johnson's case, when he was arrested on September 21st, he was also served with a felony warrant from Missouri and I believe Oregon. They are two totally unrelated charges, separate and apart from the charges in the case before the Court
.... The State'sposition is he shouldn'tbe receiving creditunless the Sentencing Reform Act specifically requires he receive that credit. And [RCW 9.94A.505(6)], which is cited in my memorandum, he would not be entitled to credit since September the 21st of2012. Report ofProceedings (RP) at 16-17. [PROSECUTOR]: So that's essentially the State's recommendation and we simply ask that he be given credit for what he is entitled to receive. THE COURT: And what is that in your mind?
[PROSECUTOR]: Ifthe holds from Oregon and Missouri are still in effect then he doesn't receive any credit for time servedpending sentencing. THE COURT: And who is going to give him credit for that time? [PROSECUTOR]: I don'tknow what the Oregon sentencing guidelines or Missouri guidelines require. But there are separate cases that come after this that can certainlyruntheir credit concurrent with his sentence here, whatever the Court imposes. They could give him credit for time served in thejail here, since he was held on their holds. But I don't know what their sentencing guidelines require. I'm simply looking at the Washington cases and what the SentencingReform Actrequires. THE COURT: So it is conceivable he gets no credit at all for any ofthat time? [PROSECUTOR]: That would depend on what the other states require. Specifically the State's relying on a Washington Supreme Court case, [In Re: Schillereff 159 Wn.2d 649, 152 PJd 345 (2007)], where the defendant in that case had charges in Texas, and similar charges there, and he was 

### 3No. 31803-6-III State v. Johnson
arrested on a warrant, brought to Texas, brought back to Washington to address his charges there, and he wasn't given any credit for time served since his return backto Washington because he was being held onmore than one matter when he was returned to Washington. So there is authority to support that. In addition tothe language of the statute, to the plain language. RP at 18-19. Mr. Johnson's lawyer argued in response that the trial court should give her client credit for time servedtoward the Washington crimes, observingthat her client "was not able to answer to the other [Missouri and Oregon] detainers and since he could not leave thejail and go to the other states that wanted him, he had
no choice to be here, and doing the time that he has." RP at 21. The trial court made a comment in response that while obscure, at least as transcribed, suggests that it might have believed that not giving credit was compelled by the statute: "All right. The last example ofan intuitive answerthat seems to make sense is contradicted bythe State case, and statutory law." Id. In thereafter announcing its ruling, the trial court accepted the State's recommended sentence. Itthen stated that it was "not going to give any credit for days served for the reasons stated by the State in theirMemorandum and in argument here under existing statutory and case law." RP at 24. Mr. Johnson appeals hisjudgment and sentence solely on the ground that the trial court erred in denying him credit for time served.
4No. 31803-6-III State v. Johnson
ANALYSIS Whether a defendant is entitled to credit for time served is a question oflaw, and is therefore reviewed de novo. State v. Swiger, 159 Wn.2d 224,227, 149 P.3d 372 (2006). "Failure to allow credit [for time served] violates due process, equal protection, and the prohibition against multiple punishments." State v. Cook, 37 Wn. App. 269, 271, 679 P.2d 413 (1984). As explained in Cook, "ifcredit is not allowed those unable to obtain release pendingtrial may serve longer sentences than those who are released. Additionally, the total ofthe [presentence] detention time plus the imposed sentence might exceed the statutory maximum penalty ifcredit is not allowed." Id. at 271 (citing Reanier v. Smith, 83 Wn.2d 342, 517 P.2d 949 (1974) and In re Trambitas, 96 Wn.2d 329,635 P.2d 122 (1981». RCW 9.94A.505(6) provides: The sentencing court shall give the offender credit for all confinementtime served before the sentencing ifthat confinement was solely in regard to the offense for which the offender is being sentenced. The statute has been held to reflect the constitutional mandate. In re Pers. Restraintof Costello, 131 Wn. App. 828, 832, 129 P.3d 827 (2006) (citing former RCW 9.94A.120(17), nowrenumbered as RCW 9.94A.505(6». Credit is not permitted for time served on other charges. Costello, 131 Wn. App. at 833. However, ifthe offender is confined on two charges simultaneously, "any time not credited towards one charge must 5No. 31803-6-III 

### State v. 

### Johnson
be credited towards the other." 13B SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINALLAW § 3603 (2 ed. & Supp. 2013-2014). The language ofRCW 9.94A.505(6) is mandatory in only one sense: it 

### requires the sentencing court to give the offender credit for confinement time served ifthe confinement was solely in regard to the criminal counts that are before the court for sentencing-which is to say, ifitwill be the only opportunity for the court to give the defendant the constitutionally-mandated day-for-day credit. It

### permits the court to give the offender credit for confinement time served ifthe confinement was in regard to other charges as well and the credit has so far not been applied to any other sentence. In this case, the parties appear to now agree that imposingthe sentence for Mr. Johnson's Washington charges was an appropriate time to ensure that he receives the constitutionally mandated day-for-day credit for his 276 days ofpre-trial confinement. We do not entirely accept the State's concession oferror, because we do not thinkthat 

### it
was the onlypossible time. 

### CjIn re Pers. Restraint ofSchaupp, 66 Wn. App. 45, 48-51, 831 P.2d 156 (1992) (ordering the Department ofCorrections to apply credit for aportion ofdefendant'spretrial confinement to a Franklin County conviction after the defendant
was sentenced on the last charge for which he had been held, but where neither sentencing courthad given him all the day-for-day credit to which he was constitutionally entitled).

6No. 31803-6-III State v. Johnson
From review ofthe record and the presentposition ofthe parties, it appears that the trial court was not fully informed ofits discretion when it was called on to determine whether to credit Mr. Johnson with the time he served in presentence confinement. We therefore remand with instructions to reconsider the credit issue consistentwith this OpInIOn. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for publicrecord pursuantto RCW 2.06.040. 

# I I I WE CONCUR:

Lawrence-Berrey, J.

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