40URT OF APPEALS

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. 171. 94A We agree, and we reverse and

remand Combs'ssentence 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. 660. 94A
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 of methamphetamine 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 in jail

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 in jail on the burglary charge. The prosecutor

declined and took - the position that Combs was induced to stipulate to revocation of his 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 now petitions this court for 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. d)(18(0), with RAP

10. a)(3( 8).

3 A formal petition or motion in the trial court is not required, and the DOC's correspondence,

informing the court of the 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).

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under RCW 9. 585(94A. 7).

Sul

The DOC requests removal of Combs'scredits 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 of such authority would violate the separation of powers doctrine. Second, it argues

that the credits granted by the court were inconsistent with the standards of RCW 9. 171. 94A

1. TRIAL COURT JURISDICTION

A. Standard of Review

DOC brings this petition under RCW 9. 585(94A. 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 by the 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 of law. State v. Jones, 172 Wn.2d 236,

242, 257 P.3d 616 (2011). These are legal issues and are properly raised by the 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.

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No. 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. 660(94A. 7), which states:

a) The court may bring any offender sentenced under this 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 of the conditions of the 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 of total confinement

within the standard range of the offender'scurrent offense at any time during the

s Combs points out that RCW 9. 505(94A. 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. 505(94A. 6) does not guide the resolution of this

appeal.

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No. 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 of total 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. 17194A. 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 of tolling would not necessarily imply

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

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

confinement or community custody under the SRA are tolled. The application of these standards

and the resulting time served credits depends on the date of any tolling, a determination

exclusively within DOC's authority under RCW 9. 171(94A. 4). In addition, the DOC has the

most information on an offender'sconduct in different jurisdictions in the State. Therefore, any

ambiguity in RCW 9. 660( d) 94A. 7)(regarding which entity imposes credits for time served on a

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No. 43009 -6 -II

DOSA revocation should be resolved in favor of the 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. 660( d) 94A. 7)(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. 660 ( 94A.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 for time 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 of powers.

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. 171. 94A The prosecutor

concedes that the credits were erroneous. We agree.

RCW 9. 171(94A. 1) and (2) state that a term of confinement or community custody shall

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

R
NO 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. 171( a) 94A. 3)(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 in jail on the

burglary charges.

Granting credit for time served for these two periods was inconsistent with RCW

9. 171. 94A

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 of reasons, 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 of inducement only to 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 available to compel the State to follow through with its promises, but not

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to compel the imposition of an illegal sentence in cases of mutual 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 of an 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. J. C L