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COURT OF APPEALS

D! VISIMIVI 11

2014 FEB 20 AM 9* 24

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, 

Respondent, 

V. 

CHRIS ALLEN FORTH, 

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UNPUBLISHED OPINION

WORSWICK, C. J. — On November 8, 1994, a jury found Chris Allen Forth guilty of first

degree child molestation and bail jumping. The trial court imposed a special sex offender

sentencing alternative (SSOSA) sentence that allowed Forth to serve his 75 month sentence

under community supervision, subject to certain conditions. In 1995, Forth appealed his first

degree child molestation conviction to this court. While his appeal was pending in this court, 

Forth fled the State and we granted the State' s motion to dismiss his appeal. We issued a

mandate from that appeal on November 18, 1996. Forth was later arrested pursuant to a bench

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At Forth' s February 3, 2012 SSOSA revocation hearing, the trial court found that Forth

had failed to complete court- ordered treatment and failed to report to his community corrections

officer as directed. The trial court entered an order revoking Forth' s SSOSA sentence and

committing him to 75 months of incarceration and 36 months of community custody. Forth

timely appealed the trial court' s SSOSA revocation order, asserting that ( 1) the trial court failed

to credit him for time he served in an Idaho jail while awaiting extradition to Washington. 

On October 30, 2012, our Supreme Court ordered this court to recall our mandate and to

reinstate Forth' s original appeal. On December 4, 2012, we reinstated Forth' s original appeal, in

which he argued (2) the trial court erred by admitting child hearsay evidence without weighing

on the record each of the nine factors for determining the hearsay statements' reliability under

State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 ( 1984); and ( 3) sufficient evidence did not support

his conviction. We consolidated Forth' s original appeal with his appeal from the trial court' s

SSOSA revocation order and allowed the parties to file supplemental briefing. Forth filed a

supplemental brief in which he asserts that (4) his trial counsel was ineffective for stipulating to

the reliability of the child victim' s hearsay statements, ( 5) his appellate counsel was ineffective

for failing to obtain the entire verbatim record of proceedings of Forth' s trial, and ( 6) appellate

counsel' s failure to obtain the entire trial record violated his state constitutional right to appeal. 

Forth has also filed a statement of additional grounds for review (SAG), in which he

asserts ( 7) the trial court erred by failing to credit him with time he had served in the community

before revocation of his SSOSA sentence. We affirm Forth' s convictions. but remand to the trial

court for a determination of whether Forth was serving time in Idaho solely in regard to the

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Washington offense for which he sought credit and, if so, a recalculation of the credit for time

served that Forth is entitled to under RCW 9. 94A.505( 6). 

FACTS

Forth and Tina Bennett married in 1982 and had two children; JAB and TB. 1 Forth and

Tina dissolved their marriage in 1988, and Tina later married Donald Bennett.2 Under the terms

ofthe parties' dissolution decree, JAB and TB spent a majority of their time living in Pendleton, 

Oregon with Tina and visited Forth for four weeks every summer and on every other holiday. In

the summer of 1991, JAB and TB went to visit Forth in Puyallup, Washington. After TB

returned to Pendleton and started the first grade, she became more aggressive and began

physically " striking out at people, mostly boys." Report ofProceedings (RP) ( Nov, 2, 1994) at

7. 

One evening in August 1992, TB climbed onto Donald' s lap, gave him a hug, and asked

for " special attention." RP ( Nov. 2, 1994) at 7. Tina and Donald asked TB what she had meant

by " special attention," and TB responded, "[ S] pecial attention like ... daddy Chris gives her." 

RP ( Nov. 2, 1994) at 8. When Tina and Donald again asked TB what she had meant by " special

attention," TB became frustrated and went to her bedroom. Tina went.to TB' s bedroom and

asked her again what she had meant by "special attention," but TB said that she couldn' t tell her. 

After Tina assured TB that she could tell her anything, TB revealed that Forth had touched her

1 We refer to the juvenile victim and her brother by their initials to protect their privacy interests. 

2 Because Tina and Donald Bennett share a last name, we refer to each individual by their first

name for clarity, intending no disrespect. 

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inappropriately during her visit with him in the summer of 1991. Specifically, TB stated that

Forth had touched her breasts and vaginal area with his hands and his mouth. TB also described

a " toilet game" that she said occurred in Forth' s bathroom, where Forth had directed her to

urinate in his mouth. RP (Nov. 2, 1994) at 11. Tina reported TB' s allegations to the Oregon

Children' s Services Division (CSD). . 

CSD caseworker Linda Olson interviewed TB on August 21, 1992. Using anatomically

correct drawings of a female child and a male adult, TB described to Olson the same incidents of

Forth' s sexual misconduct that she had disclosed to Tina. TB told Olson that the incidents

occurred during her visit with Forth in the summer of 1991. 

On July 14, 1993, the State charged Forth with one count of first degree child

molestation. The State later amended its information to include a bail jumping charge, after

Forth failed to appear at an October 20, 1993 hearing. 

Before trial, the trial court held a hearing to determine the admissibility of TB' s hearsay

statements to Tina and Olson. The trial court ruled that TB' s hearsay statements to Tina and

Olson were admissible at trial, stating: 

Well, the Court at this point makes evidentiary rulings only and in this case, like

every other case, the jurors will be free to believe all or part or none of the

testimony of any witness who testifies in the case. The child' s competence to

testify has been conceded, so we' ll state the jurors will either believe or disbelieve

the child. We then get to the mother and to Linda Olson. 

The Court, of course, can take judicial notice and note that there are

always motivations, ex- husband, ex -wife, there can be lots of animosity or maybe

not such animosity and all different gradiations [ sic] and variations. Other than

the obvious fact that this ex- husband and ex -wife, I didn' t detect any particular

motivation to do anything other than what a mother should do. That doesn' t mean

I' m putting a stamp of accuracy on any particular witness, but I didn' t see

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anything other than the ex- husband, ex -wife syndrome to detract from the

testimony of mother. And of course whether she should or should not be

believed, again, can be argued to the jury. 

As far as Ms. Olson, all of us are handicapped by the allegations that

something happened in 1991. It, whatever it was, was disclosed in 1992 and

people had to act upon it, or they did act upon it in 1992. It' s now November 1, 

1994 and we all have to struggle with that, and whether that hurts or helps the

state, whether that hurts or helps the defense, remains to be seen. 

I find that any inconsistencies or problems with Linda Olson' s report are

simply things where there can be problems and both sides can argue whether

these are problems that should cause anybody to particularly believe or disbelieve

a particular witness. 

The Court will rule that the hearsay statements of the mother and of Linda

Olson are admissible.... . 

We' ll note an exception to the defense on the Court' s ruling and as I say, I

don' t know if a cautionary instruction is appropriate or not, but I' ll certainly

consider it. 

RP ( Nov. 1, 1994) at 57 -59. 

At trial, TB, Tina, and Olson testified consistently with the facts as stated above. 

Additionally, Tina testified that she and Donald had driven to Seattle from Pendleton a couple of

weeks after July 4, 1991, to drop off JAB and TB with Forth for a four -week visit. On crossexamination, Tina testified that during the pendency of her marriage dissolution in 1988, she had

taken TB to a doctor after suspecting that TB had been sexually abused, but the doctor

determined that there was no evidence of such sexual abuse. Tina stated that she became

concerned about possible sexual abuse in 1988, when TB told her that " daddy had spanked her

down there." RP (Nov. 2, 1994) at 32. She further stated that she didn' t tell Forth about her

suspicions in 1988 because " it didn' t seem important," and because she was embarrassed to tell

Forth about her suspicions after the doctor' s examination revealed no evidence of sexual abuse. 

RP ( Nov. 2, 1994) at 32 -33. 

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Prior to Donald' s testimony, the State requested that the trial court allow Donald to

testify about TB' s statement that she had asked him for " special attention." Outside the presence

of the jury, Donald stated that TB had asked him for "special attention," that he did not know

what she had meant by the statement, that TB never told him what she had meant by the

statement, and that TB did not talk to him about her allegations of Forth' s sexual misconduct. 

Following this inquiry, defense counsel stipulated to the admissibility of TB' s hearsay statement

to Donald. 

Forth testified that he drove to Pendleton in late June of 1991 to stay with his

grandmother for her 80th birthday party and for a family reunion. He further testified that Tina

dropped off JAB and TB at his grandmother' s house on July 6 or July 7, and that he drove the

children to Puyallup a couple of days later. Forth stated that his visitation with the children

continued until July 16, 1991, at which point he drove the children back to Tina' s home in

Pendleton. The testimony of defense witnesses Joe Forth, Forth' s older brother; Cory Haugsted, 

Forth' s half - brother; Myrna Coan, Forth' s mother; and William Coan, Forth' s stepfather, all

substantially supported Forth' s testimony regarding the timeline of JAB and TB' s visit with him

in the summer of 1991. In addition, Joe Forth and Myrna Coan both testified that the bathroom

in Forth' s home was too small for Forth to lie on the floor in the manner that TB had alleged. 

The jury returned verdicts finding Forth guilty of first degree child molestation and bail

jumping. The trial court imposed a SSOSA sentence that allowed Forth to serve his 75 month

sentence under community supervision, subject to certain conditions. 

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On April 26, 1995, Forth filed a timely notice of appeal challenging his first degree child

molestation conviction. In November 1995, while Forth' s appeal was still pending review in this

court, the State filed a petition in the trial court to revoke Forth' s SSOSA sentence. Forth failed

to' appear for his SSOSA revocation hearing and a bench warrant was issued for his arrest.3 On

April 23, 1996, the State filed a motion with this court to dismiss Forth' s appeal, asserting that he

waived his right to appeal by fleeing this court' s jurisdiction. On June 5, 1996, a commissioner

of this court entered an order conditionally dismissing Forth' s appeal. We dismissed Forth' s

appeal on August 8, 1996, and issued our mandate on November 18, 1996. Forth was arrested

on December 16, 2011. 

Following a February 3, 2012 SSOSA revocation hearing, the trial court entered an order

revoking Forth' s SSOSA sentence, finding that he had failed to complete treatment and had

failed to report to his community corrections officer as directed. Forth asserted at the revocation

hearing that he was entitled to six months and three days credit for time served in Idaho on the

bench warrant. The trial court disagreed, stating: 

You were sitting in the Idaho jail because you went to another jurisdiction, and

we had to extradite you back here. You don' t get credit for the time you spent in

the Idaho jail. You only get credit for the time you spent in our state and our jail. 

RP ( Feb. 3, 2012) at 11 - 12. On February 8, 2012, Forth timely appealed the trial court' s order

revoking his SSOSA sentence. 

3 For reasons that are unclear from the record on appeal, Forth' s bench warrant was quashed; a

second bench warrant for his arrest issued in December 1998. It was revealed at the February 3, 

2012 SSOSA revocation hearing that Forth had fled to Idaho and had assumed the name " John

Conrad" until his arrest on December 16, 2011. 

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On April 12, 2012, Forth filed a motion with this court to recall the mandate from his

1995 appeal, which motion we denied on June 27, 2012. Forth filed in our Supreme Court a

motion for discretionary review of the order denying his motion to recall our mandate. On

October 30, 2012, our Supreme Court ordered this court to recall our mandate and to reinstate

Forth' s appeal. On December 4, 2012, we reinstated Forth' s appeal, consolidated that appeal

with his appeal from the trial court' s SSOSA revocation order, and allowed the parties to file

supplemental briefing. 

ANALYSIS

I. CHILD HEARSAY EvIDENCE

Forth first contends that the trial court erred by admitting evidence of TB' s hearsay

statements to Tina and Olson. Specifically, Forth argues that we should reverse his first degree

child molestation conviction because the trial court failed to evaluate on the record the nine Ryan

factors for determining the reliability of child hearsay statements. Because evidence presented at

the child hearsay hearing supports the trial court' s conclusion that TB' s hearsay statements were

reliable, and thus admissible under former RCW 9A.44. 120 ( 1991), we disagree. 

We review a trial court' s decision to admit child hearsay evidence for an abuse of

discretion. State v. Borboa, 157 Wn.2d 108, 121, 135 P. 3d 469 ( 2006). A trial court abuses its

discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for

untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003). The child
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hearsay statute, former RCW 9A.44. 120, 4 governed the admissibility of TB' s out -of -court

statements and provided in relevant part: 

A statement made by a child when under the age of ten describing any act of

sexual contact performed with or on the child by another or describing any

attempted act of sexual contact with or on the child by another, not otherwise

admissible by statute or court rule, is admissible in evidence in dependency

proceedings under Title 13 RCW and criminal proceedings, including juvenile

offense adjudications, in the courts of the state of Washington if: 

1) The court finds, in a hearing conducted outside the presence of the

jury, that the time, content, and circumstances of the statement provide sufficient

indicia of reliability; and

2) The child either: 

a) Testifies at the proceedings; or

b) Is unavailable as a witness: PROVIDED, That when the child is

unavailable as a witness, such statement may be admitted only if there is

corroborative evidence of the act. 

Because TB testified at trial, the issue before us is whether her statements were

sufficiently reliable to be admitted through the testimony of Tina and Olson. In determining

whether the time, content, and circumstances of a child' s hearsay statements provide sufficient

indicia of reliability, a trial court applies the nine Ryan factors. State v. Woods, 154 Wn.2d 613, 

623, 114 P. 3d 1176 ( 2005) ( citing Ryan, 103 Wn.2d 165). Those factors include: 

1) whether the child had an apparent motive to lie, ( 2) the child' s general

character, ( 3) whether more than one person heard the statements, ( 4) the

spontaneity of the statements, ( 5) whether trustworthiness was suggested by the

timing of the statement and the relationship between the child and the witness, ( 6) 

4

The language of former RCW 9A.44. 120 remains substantially the same in its current form. 

The current statute now contains language allowing for the admission of child hearsay evidence

where the out -of -court statement sought to be admitted described " any act of physical abuse of

the child by another that results in substantial bodily harm as defined by RCW 9A.04. 110." 

LAWS OF 1995, ch. 76, § 1. 

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whether the statements contained express assertions of past fact, ( 7) whether the

child' s lack of knowledge could be established through cross - examination, (8) the

remoteness of the possibility of the child' s recollection being faulty, and ( 9) 

whether the surrounding circumstances suggested the child misrepresented the

defendant' s involvement. 

Woods, 154 Wn.2d at 623 ( citing Ryan, 103 Wn.2d at 175 -76). A trial court need not determine

that every Ryan factor is satisfied before admitting child hearsay evidence under former RCW

9A.44. 120; it is sufficient ifthe evidence before the trial court shows that the Ryan factors are

substantially met." State v. Swan, 114 Wn.2d 613, 652, 790 P-.2d 610 ( 1990). 

Here, Forth does not contend that the evidence presented at the child hearsay hearing

failed to support the trial court' s ruling on the admissibility of TB' s hearsay statements to Tina

and Olson. Instead, he argues only that the trial court abused its discretion by admitting TB' s

hearsay statements without weighing on the record each of the nine Ryan factors. But a trial

court need not find that every Ryan factor weigh in favor of reliability, so long as the factors are

substantially met." Swan, 114 Wn.2d at 652. Moreover, we will affirm a trial court' s

admission of child hearsay evidence where the reliability of the evidence is apparent from the

record. State v. Stevens, 58 Wn. App. 478, 487, 794 P.2d 38 ( 1990). Here, the record contains

sufficient evidence that the Ryan factors were substantially met and, thus, the trial court did not

abuse its discretion by admitting those statements at trial. 

II. SUFFICIENCY OF THE EVIDENCE

Next, Forth asserts that sufficient evidence did not support his first degree child

molestation conviction. Again, we disagree. 

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Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements ofthe crime beyond a reasonable doubt when viewing the evidence in the

light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006). A

defendant claiming insufficiency of the evidence admits the truth of the State' s evidence and all

inferences that reasonably can be drawn from the evidence. State V. Salinas, 119 Wn.2d 192, 

201, 829 P.2d 1068 ( 1992). Circumstantial evidence and direct evidence are equally reliable. 

State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). We defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. 

State v. Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992). 

To convict Forth of first degree child molestation, the State had to prove beyond a

reasonable doubt the essential elements of former RCW 9A.44.083 ( 1990), which statute

provided in relevant part, "A person is guilty of child molestation in the first degree when the

person has sexual contact with another who is less than twelve years old and not married to the

perpetrator and the perpetrator is at least thirty -six months older than the victim." And former

RCW 9A.44.010 ( 1988) defined " sexual contact" as " any touching of the sexual or other intimate

parts of a person done for the purpose of gratifying sexual desire of either party." 

Forth does not assert that the State failed to present evidence in support of the elements of

first degree child molestation but, instead, contends that no rational jury could have found his

guilt beyond a reasonable doubt in light of the conflicting evidence regarding the timing of TB' s

visitation with him in the summer of 1991: Forth also contends that the State' s evidence with

regard to the " bathroom game" incident failed to support his first degree child molestation

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conviction in light of defense witnesses' testimony regarding the bathroom' s size. Forth' s

contentions essentially ask this court to reweigh the evidence and to evaluate the credibility of

witnesses. But we defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence. State v. Cord, 103 Wn.2d 361, 367, 693 P. 2d

81 ( 1985). Accordingly, Forth' s argument regarding the sufficiency of the evidence used to

convict him is meritless and we do not address it further here. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, Forth asserts in his supplemental brief that his trial counsel was ineffective for

stipulating to the admissibility of TB' s hearsay statement through the testimony of Donald, and

that his original counsel on appeal was ineffective for failing to order a complete transcription of

his trial record. We disagree. 

We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126

Wn. App. 297, 319, 106 P. 3d 782 ( 2005). To prevail on an ineffective assistance of counsel

claim, Forth must show both that ( 1) counsel' s performance was deficient and ( 2) the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006). 

Performance is deficient if, after considering all the circumstances, it falls below an objective

standard ofreasonableness. State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995). 

Prejudice results if the outcome ofthe trial would have been different had defense counsel not

rendered deficient performance. McFarland, 127 Wn.2d at 337. If Forth fails to establish either

prong of this test, our inquiry ends and we need not consider the other prong. State v. 

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Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996). We strongly presume that counsel is

effective and the defendant must show the absence of any legitimate strategic or tactical reason

supporting defense counsel' s actions. McFarland, 127 Wn.2d at 337. To rebut this

presumption, the defendant bears the heavy burden of "establishing the absence of any

conceivable legitimate tactic explaining counsel' s performance. "' State v. Grier, 171 Wn.2d 17, 

42, 246 P. 3d 1260 ( 2011) ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80

2004)). 

A. Trial Counsel

Forth asserts that his trial counsel was ineffective for stipulating to the admissibility of

TB' s out -of -court statement to Donald because the statement was not admissible under former

RCW 9A.44. 120. Although Forth is correct that TB' s statement regarding " special attention" did

not describe any " act of sexual contact performed with or on the child by another," at least with

regard to Donald who testified that TB never explained to him what the statement meant, it is for

this very reason that he cannot demonstrate that his trial counsel' s stipulation prejudiced him. 

Moreover, because Tina also testified as to TB' s initial statement regarding " special attention," 

Donald' s testimony was cumulative and therefore did not prejudice Forth. Accordingly, Forth

cannot show that the outcome of his trial would have been different had his counsel objected to

the admissibility of TB' s statement to Donald and, thus, he fails to demonstrate that his trial

counsel rendered.ineffective assistance. 

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B. Appellate Counsel

Next, Forth asserts that his original appellate counsel was ineffective for failing to order a

complete verbatim transcription of his trial record. Specifically, Forth asserts that his appellate

counsel was ineffective for failing to order a transcription ofjury voir dire, opening statements, 

and closing arguments.5 Absent a record of these proceedings, however, we cannot evaluate

whether the outcome of Forth' s appeal would be different had his original appellate counsel

ordered a' transcription of these records. State v. Burke, 132 Wn. App. 415, 419, 132 P. 3d 1095

2006) ( citing McFarland, 127 Wn.2d at 335). Accordingly, on the record before us, Forth fails

to demonstrate ineffective assistance of appellate counsel. 

IV. RIGHT To APPEAL

Forth also argues that his appellate counsel' s failure to order a complete verbatim

transcript of the trial proceedings deprived him of his right to appeal under article I, section 22, 

of our State Constitution. We disagree. 

A criminal defendant is `constitutionally entitled to a ` record of sufficient

completeness' to permit effective appellate review of his or her claims." State v. Tilton, 149

Wn.2d 775, 781, 72 P. 3d 735 ( 2003) ( quoting State v. Thomas, 70 Wn. App. 296, 298, 852 P. 2d

1130 ( 1993) ( quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d

21 ( 1962)). However, a " record of sufficient completeness" does not necessarily equate with a

5 In his supplemental brief, Forth asserts that these records are no longer available as reporter' s

notes may be destroyed after 15 years under RCW 36.23. 070. It has not escaped our attention

that Forth' s absconsion likely contributed to his inability to now provide a complete verbatim

transcript of trial. 

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complete verbatim transcript oftrial. Tilton, 149 Wn.2d at 781. And the absence of a portion of

the trial record is not reversible error unless the defendant can demonstrate prejudice. State v. 

Miller, 40 Wn. App. 483, 488, 698 P. 2d 1123 ( 1985). Again, on the record before us, Forth

cannot demonstrate any prejudice resulting from the absence of a portion of his trial record. 

Accordingly, he cannot show that he was deprived of his article I, section 22 right of appeal and

we affirm his convictions. 

V. ORDER REVOKING SOOSA SENTENCE

Next, Forth challenges the trial court' s order revoking his SSOSA sentence, asserting that

the trial court erred by failing to credit him for time served in an Idaho jail while awaiting

extradition back to Washington State. Because the trial court erred by ruling as a matter of law

that Forth was not entitled to credit for time served in an out -of -state correctional facility, we

remand to the trial court for a determination of whether Forth was serving time in Idaho solely in

regard to the Washington offense for which he sought credit and, if so, to recalculate his credit

for time served. 

We review de novo a trial court' s decision to award an offender credit for time served. 

State v. Swiger, 159 Wn.2d 224, 227, 149 P. 3d 372 ( 2006). When interpreting a statute, our duty

is to implement the intent of the legislature. State v. Thompson, 151 Wn.2d 793, 801, 92 P. 3d

228 ( 2004). Where a statute' s meaning is. plain on its face, we must give effect to that meaning

as expressing the legislature' s intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005). 

We determine a statute' s plain meaning from the ordinary meaning of the statute' s language, as

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well as from the general context of the statute, its related provisions, and from the statutory

scheme as a whole. Jacobs, 154 Wn.2d at 600. 

RCW 9. 94A.505( 6) provides, "The sentencing court shall give the offender credit for all

confinement time served before the sentencing ifthat confinement was solely in regard to the

offense for which the offender is being sentenced." A trial court may not award credit for time

served on other charges. In re Pers. Restraint ofPhelan, 97 Wn.2d 590, 597, 647 P. 2d 1026

1982). By its plain language, RCW 9. 94A.505( 6) requires sentencing courts to credit offenders

with all confinement time served before sentencing if such confinement was solely in regard to

the offense being sentenced. And the statute does not contain any language limiting such credit

to time served in a Washington State facility. The State argues, however, that RCW 9. 95. 0606

precludes Forth from receiving credit for time served in an out -of -state jail while awaiting his

extradition to Washington. But RCW 9. 95. 900( 2) states that RCW 9.95. 060 applies to " any

felony offense committed before July 1, 1984, and to any offense sentenced under RCW

9.94A.507 and committed on or after July 1, 2001." Here, Forth committed his offense in 1991

6 RCW 9. 95. 060 provides in relevant part: 

When a convicted person seeks appellate review of his or her conviction and is at

liberty on bond pending the determination of the proceeding by the supreme court

or the court of appeals, credit on his or her sentence will begin from the date such

convicted person is returned to custody.... If such convicted person does not

seek review of the conviction, but is at liberty for a period of time subsequent to

the signing of the judgment and sentence, or becomes a fugitive, credit on his

sentence will begin from the date such convicted person is returned to custody. 

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and, thus, RCW 9. 95. 060 does not apply to his sentence. Accordingly, we do not consider the

State' s argument regarding RCW 9. 95. 060. Instead, we rely on the plain language of RCW

9. 94A.505( 6) to hold that the sentencing court was required to credit Forth with time he served in

an Idaho jail, provided that Forth served such time solely in regard to the Washington offense

being sentenced. 

Here, the record is unclear as to whether Forth had been serving time in an Idaho jail

solely for his Washington offense because the trial court foreclosed any further presentation of

evidence on that issue by ruling as a matter of law that Forth was not entitled to credit for time

served in an out -of -state facility. Similarly, it is unclear how much time Forth had served in the

Idaho jail while awaiting his extradition.

7

Accordingly, we remand to the trial court for a

determination of whether Forth was setving time in Idaho solely in regard to the Washington

offense for which he sought credit and, if so, to recalculate the credit for time served that Forth is

entitled to under RCW 9.94A.505( 6). 

VI. SAG

In his SAG, Forth argues that the trial court erred by failing to credit him with time he

served on community custody before the revocation of his suspended sentence. But our Supreme

Court has held that a defendant is not entitled to credit against his sentence for time spent in the

community under a SSOSA before the defendant' s suspended sentence was revoked. State v. 

7 The trial court must resolve these factual issues on remand. 

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Pannell, 173 Wn.2d 222, 224, 267• P.3d 349 ( 2011). Following Pannell, we reject Forth' s SAG

argument. 

We affirm Forth' s convictions but remand to the trial court to determine whether Forth' s

confinement in Idaho was solely in regard to his Washington offense and, if so, to recalculate the

credit to which Forth is entitled under RCW 9. 94A.505( 6). 

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. 

U7,- r-nncTtr• 

Worswick, C. J. 

M.