## 40URTOFAPPEALS 2013 A 1G ! 3 10'28 IN THE COURT OF APPEALS OF THE STATE OF

# WASHIN ' AS1i rOJ DIVISION II S DE F' Y In re Post -

Sentence Review of DOMINIC COMBS, No. 43009 - 6 - II PUBLISHED OPINION Respondent.

BJORGEN,J. —



### The Department of Corrections (DOC)petitions this court for review of Dominic Combs's drug offender sentencing alternative (DOSA)sentence,requesting this court

to remand Combs's sentence for removal of time served credits. The DOC argues that the 

### sentencing court lacked statutory authority to credit Combs for time served and,alternatively, that the credits granted were inconsistent with RCW 9. 94A 171.We agree,and we reverse and remand Combs's sentence for the DOC to recalculate time served credits consistently with this opinion. FACTS 

### In June 2011,Combs pleaded guilty to methamphetamine possession and the sentencing

court imposed a 24 - month residential treatment - based DOSA sentence. On July 14, a residential treatment facility admitted Combs into care. Nine days later, Combs refused to 

### submit to urinalysis and absconded from treatment entirely. After he absconded,and while on community custody under his DOSA sentence,the State charged Combs with second degree

1 A DOSA sentence is an alternative punishment for drug related offenses under certain circumstances and may be either prison - based or residential treatment - based. See RCW 9. 94A 660.No.43009 - 6 - II 

### burglary and jailed him. The State held Combs in jail on that charge from September 8 to October 20,2011. Combs admitted failing to comply with his treatment,and the court revoked the DOSA sentence,imposing a midpoint,standard range sentence of 18 months' confinement. The court also credited Combs with 160 days'time served,representing the time from his commission of the crime ofmethamphetamine possession on May 13 to imposition of 18 months' confinement

on October 18. Of this period,however,47 days represented the time he had absconded by 

### failing to report to his treatment facility and another 42 days represented the time he was injail

on the unrelated burglary charges. Combs began serving the amended sentence on the methamphetamine charges on October 21,2011. 

### The DOC notified the court,the prosecutor,and Combs by letter,informing them that it believed the credit for time served was miscalculated. Specifically,the DOC requested the 

### prosecutor to ask the court to reduce the time served credit by the 47 days after Combs absconded from treatment and the 42 days he was injail on the burglary charge. The prosecutor 

### declined andtook -

the positionthat Combs was induced to stipulateto revocation ofhis DOSA by 

### the prosecutor's agreement to 160 days'time served credit..For that reason,the prosecutor felt bound to the calculation and would not seek to correct it. 

### The DOC nowpetitions this courtfor post- sentence review ofthe time - served credits

2 

### Because this is a post-

sentence petition rather than direct appeal,we may consider material in the appendix not contained in the general record. Compare RAP 16. 18( d)( 0), with RAP 10. 3( a)( 8). 

### 3 A formal petition or motion in the trial court is not required,and the DOC' s correspondence, informing the court ofthe legal bases for the DOC' s objections,is adequate. In re Sentence of Chatman,59 Wn..

App.258,264 -

65,796 P.

2d 755 (1990). 2No.43009 - 6 - 11 under RCW 9.

94A. 585( 7). Sul The DOC requests removal of Combs's credits for time served for two reasons. First,it argues that the sentencing court lacked statutory authority to credit Combs for time served and that a grant ofsuch authority would violate the separation ofpowers doctrine. Second,it argues thatthe credits granted by the courtwere inconsistent with the standards ofRCW 9. 94A 171. 1. TRIAL COURT JURISDICTION A. Standard of Review DOC brings this petition under RCW 9. 94A. 585( 7), which restricts our review to errors of law. 

### Both the prosecutor and Combs argue that the petition impermissibly raises a factual issue. The issues raised bythe petition,however,are those of statutory authority,the separation of powers doctrine, and compliance with the statutory standards for time served credits. The 

### questions of statutory authority and the separation of powers doctrine are purely legal issues. The inquiry into compliance with sentencing standards involves the interpretation of the Sentencing Reform Act (SRA), which also is a question oflaw. State v. Jones,172 Wn.

2d 236, 242,257 P.

3d 616 ( 2011). These are legal issues and are properly raised bythe DOC's petition. We review questions of statutory interpretation de novo by ascertaining the legislature's intent. State v.Jacobs,154 Wn. 2d 596,600,115 P.

3d 281 (2005).

Where a statute's meaning is 

### plain on its face,we give effect to that meaning as expressing the intent of legislature. Jacobs, 154 Wn. 2d at 600. We determine the statute's plain meaning from the ordinary meaning of its 

### language, as well as from the statute's general context, related provisions, and the statutory 

### 4Chapter 9.

94A RCW. 3No.43009 - 6 - II scheme as a whole. Jacobs, 154 Wn. 2d at 600. Absent a specialized statutory definition,we give a term its plain and ordinary meaning ascertained from a standard dictionary. State v. Watson, 146 Wn.

2d 947, 954, 51 P. 3d 66 (2002).We interpret statutes to give effect to all 

### language in the statute and to render no portion meaningless or superfluous. State v.J. P., 149 Wn. 2d 444,450,69 P.

3d 318 ( 2003).We also interpret statutes to harmonize them. whenever possible. State v. Powell, 167 Wn. 2d 672,695 -

96,223 P.

3d 493 (2009),

overruled on other grounds by State v.Siers,174 Wn. 2d 269,271,274 P.

3d 358 ( 2012). B. Statutory Authority Following DOSA Revocation 

### In Washington,the SRA prescribes the authority to sentence in felony cases. State v. Skillman, 60 Wn. App. 837, 839, 809 P. 2d 756 (1991). The SRA limits the trial court's 

### sentencing authority to that expressly found in the statutes. State v.Furman, 122 Wn. 2d 440, 456,858 P.

2d 1092 ( 1993). 

### The principal statute governing resentencing after revocation of a DOSA sentence is RCW 9.

94A. 660( 7), which states: 

### a) The court may bring any offender sentenced underthis section back into court at any time on its own initiative to evaluate the offender's progress in treatment or to determine if any violations ofthe conditions ofthe sentence have occurred. 

### b) If the offender is brought back to court,the court may modify the conditions of the community custody or impose sanctions under (c)of this subsection. 

### c) The court may order the offender to serve a term oftotal confinement within the standard range ofthe offender's current offense at any time during the

s 

### Combs points out that RCW 9. 94A. 505( 6) requires the sentencing court to give the offender credit for all confinement time served for the same offense before sentencing. However,Combs 

### was sentenced when his DOSA alternative was imposed. The issues presented by this appeal all

arose after that point. 

### Therefore, RCW 9. 94A. 505( 6) does not guide the resolution of this appeal.

MNo.43009 - 6 - II period of community custody if the offender violates the conditions or requirements of the sentence or if the offender is failing to make satisfactory progress in treatment. d) An offender ordered to serve a term oftotal confinement under ( c) of this subsection shall receive credit for any time previously served under this section. 

### Subsections (

a), ( b) and ( c) expressly authorize the trial court to take certain actions in modifying 

### or revoking a DOSA sentence. Subsection ( d), the one most pertinent to this petition,states that an offender shall receive credit for time served,without specifying who determines or imposes the credit. Subsection (d)covers only offenders sentenced under subsection (c), a provision 

### expressly and exclusively vesting its authority in the trial court. Other provisions of the SRA, however, " toll" or deny credit for terms of confinement or community custody for various

reasons, among which is absconding from required supervision. Subsection (4)of RCW 

### 9. 94A. 171 mandates that "[

for terms of confinement or community custody,the date for the 

### tolling of the sentence shall be established by the entity responsible for the confinement or supervision." 

### At first blush,the authority simply to set the date oftolling would not necessarily imply 

### the authority to order or deny various credits fortime served. However,RCW 9. 94A. 171( 1), ( 2) 

### and (3)impose specific, mandatory standards directing when and to what extent terms of 

### confinement or community custody underthe SRA are tolled. The application ofthese standards and the resulting time served credits depends on the date of any tolling, a determination exclusively within DOC' s authority under RCW 9. 94A. 171( 4).

In addition,the DOC has the most information on an offender's conduct in differentjurisdictions in the State. Therefore,any 

### ambiguity in RCW 9. 94A. 660( 7)( d)

regarding which entity imposes credits for time served on a

5No.43009 - 6 - II DOSA revocation should be resolved in favor ofthe DOC. Any other result risks the strained and absurd consequences that statutory construction is designed to avoid. J. P., 149 Wn. 2d at 450. Under RCW 9. 94A. 660( 7)( d)

the DOC,not the trial court,has authority to impose credits for time served in a DOSA revocation. Combs argues that this court reached a contrary holding in State v.Davis,160 Wn.App. 471, 474, 248 P.

3d 121 (2011). Davis, however, merely held that "the trial court erred in ordering that Davis was not entitled to credit for time served while on DOSA community custody." Davis, 160 Wn.App. at 477. This holding was based on a repealed provision in former RCW 9.

94A. 660 (

2002), and does not address the jurisdictional question decided here. Thus,our ruling does not conflict with the decision in Davis. C. Separation of Powers 

### The DOC argues that the trial court's order violates the separation of powers doctrine 

### because it prevents the DOC from applying the tolling statute to Combs's sentence. We hold that the DOC has authority to calculate credits fortime served under applicable statutes,and we remand for it to exercise that authority. Therefore, it is not necessary to reach the argument based on separation ofpowers. II.THE CREDITS GRANTED WERE ERRONEOUS 

### Apart from the jurisdictional question,the DOC argues that the credits for time served allowed by the trial court were contrary to the standards of RCW 9. 94A 171.The prosecutor concedes that the credits were erroneous. We agree. 

### RCW 9.

94A. 171(1)

and ( 2) state that a term ofconfinement or community custody shall 

### be tolled by any period of time during which the offender has absented himself from

RNO A IIIIZIN

confinement or supervision without prior approval. Under this statute, credit should not have been granted for the 47 days in which Combs absconded by failing to report to his treatment facility. Subject to a number of inapplicable exceptions, RCW 9. 94A. 171( 3)( a)

states that any 

### period of community custody shall be tolled during any period of time the offender is in confinement. Thus,credit should not have been granted for the 42 days Combs was injail on the burglary charges. Granting credit for time served for these two periods was inconsistent with RCW 9. 94A 171. III. EFFECT OF PLEA AGREEMENT 

### As noted above,the prosecutor argues against remand for removal of the incorrect calculation because it believes Combs was induced to stipulate to his DOSA revocation by the 

### 160 days time -

served credit. For a number ofreasons,this argument does not benefit Combs in this proceeding. First,Combs does not raise this argument in his response to the DOC' s petition. The DOC raises the issue ofinducement onlyto explain why it argues against remand. 

### Second,plea agreements are contracts,and the law imposes on the prosecutor an implied promise to act in good faith. State v. Harrison, 148 Wn. 2d 550, 556,61 P.

3d 1104 (2003). 

### Where the parties have agreed to an unlawful sentence based on mutual mistake,the defendant 

### may elect to withdraw his plea;but specific performance may not be used to bind the court to enforce an illegal sentence. State v. Barber, 170 Wn. 2d 854, 872 -

73,248 P.

3d 494 (2011). 

### Specific performance is availableto compel the Stateto followthrough with its promises,but not

710= 111111 6 1 

### to compel the imposition of an illegal sentence in cases ofmutual mistake. Barber,170 Wn. 2d at 872 - 73. Here, there is no allegation that the prosecutor acted in bad faith. Rather, Combs 

### stipulated to the revocation of his DOSA based on a good faith miscalculation. Under Barber, these circumstances do not require preservation ofan erroneous sentence. IV.CONCLUSION The trial court's order allowing 160 days time - served credit is reversed and remanded. The DOC shall calculate any time served credits consistently with this opinion.

We concur: 

# By GEN

Q INN- BRINTNALL,J. 

# Jo ANSON,A.

C J. L