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2015 APR-6 AHIhO'i

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

SALLYEA O. McCLINTON,

Appellant.

No. 71701-4-1

DIVISION ONE

PUBLISHED OPINION

FILED: April 6, 2015

Becker, J. — This appeal questions the authority of the Department of

Corrections to use GPS (Global Positioning System) monitoring to keep track of

a sex offender who is serving the community custody portion of a sentence

imposed for crimes committed in 1995. In 1995, the statutes regulating

supervision of community custody did not specifically provide the Department

with authority to use GPS monitoring. But they did give the Department the

responsibility to monitor court-imposed conditions of sentence. Here, the court

imposed geographical limitations on the offender's movements while in

community custody. We conclude it is within the Department's authority to

impose GPS monitoring to assure a 1995 sex offender complies with those courtimposed conditions.

A jury convicted appellant Sallyea McClinton of three offenses: first degree

rape while armed with a deadly weapon, attempted rape in the first degree, and
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first degree burglary. In 1997, the court imposed a sentence of 226 months in

prison followed by 24 months of community custody, as required by former

RCW 9.94A.120(9)(b) (1995).

McClinton began his term of community custody in June 2013. By the

terms of his sentence, he was under the supervision of community corrections

officers employed by the Department of Corrections.

In November 2013, a community corrections officer ordered McClinton to

report to have a GPS monitoring device installed on his person. McClinton

disregarded this order. A court determined that he had violated the conditions of

his sentence and imposed 240 days of confinement as a sanction. McClinton

appeals. He contends that the court was without authority to sanction him for

failing to submit to GPS monitoring because the Department lacked authority to

require it.

The issue is technically moot. Because McClinton has already served the

term of confinement imposed for this violation, we cannot afford relief. We

nevertheless exercise our discretion to hear the matter in order to provide an

authoritative determination of an issue that is likely to recur. In re Pers. Restraint

of Mattson, 166 Wn.2d 730, 736, 214 P.3d 141 (2009).

The issue requires the court to interpret sentencing statutes.

Interpretation of a statute is a question of law that appellate courts review de

novo. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245, 955 P.2d

798(1998).
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The terms of a defendant's sentence are governed by the version of the

Sentencing Reform Act in effect when the crime was committed. State v.

Medina. 180 Wn.2d 282, 287, 324 P.3d 682 (2014). McClinton's crimes were

committed in September and October of 1995. Our citations to the Act refer to

the version in effect at that time.

McClinton contends the analytical framework for his case is found in In re

Personal Restraint of Capello, 106 Wn. App. 576, 24 P.3d 1074, review denied,

145 Wn.2d 1006 (2001). Capello was convicted of a sex offense and sentenced

under the 1995 version of the Act. In 1995, only the sentencing court had

authority to impose conditions of community custody. The statute under which

Capello was sentenced, former RCW 9.94A.120 (1995), permitted but did not

require the court to order him to obtain the Department's preapproval of his

proposed residence location and living arrangements before he transferred to

community custody. Capello, 106 Wn. App. at 581. The Department asked the

court to include the preapproval condition in Capello's sentence, but the court

declined to do so. Capello, 106 Wn. App. at 579. Nevertheless, when Capello

became eligible for transfer to community custody, the Department insisted that

he obtain preapproval. Capello, 106 Wn. App. at 579.

The matter came before this court when Capello filed a personal restraint

petition. The Department claimed that it was authorized to impose the

preapproval condition as part of its statutory authority to develop an eligibility

program for community custody. This court rejected the Department's argument,
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holding that preapproval was a condition that only the trial court had authority to

impose:

Former RCW 9.94A.120(8)(c) provides that "the court" may order

"special" conditions of community placement. One of those special

conditions was preapproval of living arrangements. The SRA

defines community custody as a form of community placement.

And under former RCW 9.94A.120, the trial court had the authority

to impose conditions of community placement. There is nothing in

the SRA specifically authorizing DOC to independently impose any

of the statutorily listed special conditions of community placement.

While the definition of "community custody" acknowledges that an

offender is subject to DOC control during that period, it would be

inconsistent with RCW 9.94A.120 to interpret this as a grant of

independent authority to impose a special condition which the trial

court specifically declined to impose. . . . The statutory framework

of RCW 9.94A.120 evinces a legislative intent that the trial court,

not DOC, has exclusive discretion to decide whether or not to waive

the standard conditions enumerated in RCW 9.94A.120(8)(b), and

whether or not to impose the special conditions enumerated in

RCW9.94A.120(8)(c).

Capello, 106 Wn. App. at 583-84 (footnotes omitted).

McClinton argues that GPS monitoring, like preapproval, is a condition of

community custody that the Department lacks statutory authority to impose.1

"Just as the law in Capello's instance did not authorize the department to impose

additional conditions of community placement, the law in McClinton's instance

likewise did not authorize the department to impose additional conditions." Br. of

Appellant at 19.

A requirement to submit to GPS monitoring is not analogous to the

preapproval condition in Capello. The 1995 version of RCW 9.94A.120 does not

1A statute enacted in 1996, and therefore not applicable here, does give

the Department explicit authority to impose additional conditions of community

custody on sex offenders. RCW 9.94A.120 (1996). See Capello, 106 Wn. App.

at 584-85 (discussing how the 1996 amendments changed the law).
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itemize monitoring as either a mandatory or optional condition of community

custody.2 So, unlike in Capello, there is no statutory basis for McClinton's

argument that submission to monitoring is a condition of community custody that

only a trial court may impose.

Distinguishing Capello does not, however, answer McClinton's basic

contention that the Department lacks authority to order him to wear a GPS

tracking device. For sex offenders sentenced more recently, the Department

2The statute as it existed in 1995 sets forth a number of mandatory

conditions of community custody for a court to include in the sentence and some

optional conditions.

(b). . . Unless a condition is waived by the court, the terms

of community placement for offenders sentenced pursuant to this

section shall include the following conditions:

(i) The offender shall report to and be available for contact

with the assigned community corrections officer as directed;

(ii) The offender shall work at department of correctionsapproved education, employment, and/or community service;

(iii) The offender shall not consume controlled substances

except pursuant to lawfully issued prescriptions;

(iv) An offender in community custody shall not unlawfully

possess controlled substances;

(v) The offender shall pay supervision fees as determined by

the department of corrections; and

(vi) The residence location and living arrangements are

subject to the prior approval of the department of corrections during

the period of community placement.

(c) The court may also order any of the following special

conditions:

(i) The offender shall remain within, or outside of, a specified

geographical boundary;

(ii) The offender shall not have direct or indirect contact with

the victim of the crime or a specified class of individuals;

(iii) The offender shall participate in crime-related treatment

or counseling services;

(iv) The offender shall not consume alcohol; or

(v) The offender shall comply with any crime-related

prohibitions.

Former RCW 9.94A.120(9)(b)-(c) (1995).
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does have express authority to use GPS monitoring if it is appropriate to the

offender's individual circumstances:

(5) Ifthe offender was sentenced pursuant to a conviction for

a sex offense, the department may:

(b) Impose electronic monitoring. Within the resources

made available by the department for this purpose, the department

shall carry out any electronic monitoring using the most appropriate

technology given the individual circumstances of the offender. As

used in this section, "electronic monitoring" means the monitoring of

an offender using an electronic offender tracking system including,

but not limited to, a system using radio frequency or active or

passive global positioning system technology.

RCW 9.94A.704(5)(b); see Laws of 2008, ch. 231, § 10. But this express

authority was supplied by an amendment enacted in 2008. McClinton argues

that the only possible interpretation of the 2008 amendment is that it confers new

authority upon the Department that did not exist in 1995.

Where there has been doubt or ambiguity about the meaning of a statute,

an amendment by the Legislature may be interpreted as intended to clarify

existing law rather than change it. State v. Riles, 135 Wn.2d 326, 343, 957 P.2d

655 (1998), abrogated on other grounds by State v. Valencia, 169 Wn.2d 782,

239 P.3d 1059 (2010). In its brief in this case, the State initially argued that the

2008 amendment did not change the law but only clarified it to erase any doubt

about the Department's authority to impose GPS monitoring on sex offenders. At

oral argument before this court, however, the State tacked away from the 2008

amendment and instead homed in on a 1997 amendment interpreted in Riles as

the source of the Department's authority.
No. 71701-4-1/7

In Riles, the defendants argued that a trial court exceeded its authority by

requiring a sex offender, as a condition of sentence, to submit to polygraph

testing. The defendants in Riles were subject to a pre-1997 version of the

statute. Although the pre-1997 statute did not specifically permit or require

testing of any sort, the Supreme Court construed it as authorizing the use of

polygraph tests to monitor compliance with sentencing conditions. The 1997

amendment was key to the court's analysis. The 1997 amendment added new

language providing that for a sex offense committed on or after July 1, 1990, but

before June 6, 1996, it was mandatory to include among the conditions of

community custody that the offender "submit to affirmative acts necessary to

monitor compliance with the orders of the court as required by the department."

Former RCW 9.94A.120(9)(b)(vi) (1997); Laws OF 1997, ch.144, § 1. The court

found the 1997 enactment did not change the law. Despite its new language, the

1997 amendment did not provide authority that was previously lacking; rather, it

clarified that at least since 1990, the relevant statutes required monitoring of sex

offenders for compliance with sentence conditions.

In 1997, the Legislature amended RCW 9.94A.030 and

9.94A.120. The title to the amendment reads "AN ACT Relating to

assuring compliance with sentence conditions; and reenacting and

amending RCW 9.94A.030 and 9.94A.120." In two provisions,

RCW 9.94A.030(11) and 9.94A.120(14), new language was added

which authorizes a court to order affirmative acts necessary to

monitor compliance with sentencing conditions. Another

subsection, (vi), was added to RCW 9.94A.120(9)(b) making

mandatory the affirmative acts necessary to monitor compliance

with orders of the court. These amendments suggest the

Legislature intended to confirm the practice of allowing testing,

such as polygraphs, for monitoring compliance with sentencing

conditions. Where there has been doubt or ambiguity surrounding

a statute, amendment by the Legislature is interpreted as some
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indication of legislative intent to clarify, rather than to change,

existing law. A subsequent amendment can be further indication of

the statute's original meaning where the original enactment was

"ambiguous to the point that it generated dispute as to what the

Legislature intended." One can conclude from these amendments

that the Legislature intended to clarify and interpret the statute to

resolve any dispute concerning its actual meaning.56

56 See 1997 Final Legislative Report, S.B. 5519, 55th

Legis., Reg. Sess.:

Summary: The department is authorized to require an

offender to perform affirmative acts, such as drug or

polygraph tests, necessary to monitor compliance with

crime-related prohibitions and other sentence conditions.

Riles, 135 Wn.2d at 342-43 (some footnotes omitted).

We agree with the State's revised argument. The above passage in Riles

is dispositive on the issue of the Department's authority to use monitoring tools in

supervising McClinton. Therefore, it is unnecessary to determine whether such

authority can be deduced from the 2008 amendment. Because McClinton

committed his crimes in 1995 (between July 1, 1990, and June 6, 1996), under

Riles, he is subject to the 1997 clarifying amendment. He must "submit to

affirmative acts necessary to monitor compliance with the orders of the court as

required by the department."

Our conclusion that pre-1995 statutes authorized the Department to

require McClinton to submit to monitoring tools is further supported by a statute

that explicitly assigns the responsibility of "monitoring" sentence conditions to the

Department's community corrections officers:

"Community corrections officer" means an employee of the

department who is responsible for carrying out specific duties in

supervision of sentenced offenders and monitoring of sentence

conditions.

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No. 71701-4-1/9

Former RCW 9.94A.030(3) (1995). Ifthere were no way to monitor an offender's

compliance with the conditions of community custody, the imposition of such

conditions would be meaningless. See Riles, 135 Wn.2d at 341.

In addition, McClinton's sentence requires him to "report to and be

available for contact with the assigned community corrections officer as directed."

Clerk's Papers at 17; see former RCW9.94A.120(9)(b)(i) (1995). This

requirement is consistent with the statute that defines the Department's

supervisory role and requires the offender to "follow explicitly" the Department's

instructions:

All offenders sentenced to terms involving community supervision,

community service, community placement, or legal financial

obligation shall be under the supervision of the secretary of the

department of corrections or such person as the secretary may

designate and shall follow explicitly the instructions of the secretary

including reporting as directed to a community corrections officer,

remaining within prescribed geographical boundaries, notifying the

community corrections officer of any change in the offender's

address or employment, and paying the supervision fee

assessment.

Former RCW 9.94A.120(13) (1995).

The Department's instructions that must be explicitly followed include

"remaining within prescribed geographical boundaries." It is undisputed that in

sentencing McClinton, the court could require him to "remain within, or outside of,

a specified geographical boundary" as a condition of community custody.

Former RCW 9.94A.120(9)(c)(i) (1995). McClinton contends the court did not

prescribe any geographical boundaries. We disagree. Of the 17 conditions of

community custody that were imposed upon McClinton by the sentencing court,
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at least 2 can be enforced by instructions from the Department to remain within

prescribed geographical boundaries:

12. Do not attend X-rated movies, peep shows or adult book

stores without the approval of the sexual deviancy treatment

specialist or Community Corrections Officer.

15. Do not enter any business where alcohol is the primary

commodity for sale.

A GPS device can be useful to a community corrections officer who has the duty

to monitor McClinton's compliance with these geographical limitations.

The 1995 statutes not only generally authorize the Department to require

a sex offender to submit to the use of monitoring tools, they specifically

contemplate the use of electronic monitoring:

The department may require offenders to pay for special services

rendered on or after July 25, 1993, including electronic monitoring,

day reporting, and telephone reporting, dependent upon the

offender's ability to pay. The department may pay for these

services for offenders who are not able to pay.

Former RCW 9.94A.120(13) (1995). GPS tracking is a form of electronic

monitoring.

In summary, the statutes discussed above authorize the Department to

require McClinton to submit to GPS tracking if it is necessary to monitor his

compliance with the geographical limitations imposed by the court as conditions

of community custody. Because the community corrections officers assigned to

supervise McClinton had the authority to instruct him to submit to GPS

monitoring, the court properly sanctioned him for refusal to do so.

A second issue raised by McClinton is whether there was insufficient proof

to support the court's decision to sanction him for failing to provide a current

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No. 71701-4-1/11

address. Again, as he has already served the sanction, the issue is moot.

Unlike the issue of GPS monitoring, this claim is unlikely to recur and there is no

need for an authoritative determination to guide public officers in the future.

Therefore, we decline to address it.

Affirmed.

WE CONCUR:

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