In re the Post-Sentence Review of: Gabriel Lee Bercier

• Court: Court of Appeals of Washington
• Decided: November 26, 2013
• Docket: 31622-0
• Status: Published

Opinion

I FILED I NOV. 26, 2013

In the Office of the Clerk of Court I W A State Court of Appeals, Division III

I I I I

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON I I DIVISION THREE f i i In re Post-Sentence Review of: ) No. 31622-0-111 )

GABRIEL LEE BERCIER, )

Respondent, )

)

) I ; STATE OF WASHINGTON, ) PUBLISHED OPINION ! ) I Respondent, ) t v. ) k ) I DEPARTMENT OF CORRECTIONS, ) ) Petitioner. )

BROWN, J. - The Department of Corrections petitions under RCW 9.94A.585(7)

for review of an amended order revoking Gabriel Lee Bercier's residential treatment­

based DOSA1 sentence and imposing a standard range prison sentence without credit

for community custody time served. Because RCW 9.94A.660(7)(d)'s plain language

provides credit for "any time previously served under this section," including community

custody served in the form of a residential treatment-based DOSA sentence, we grant

1 The drug offender sentencing alternative is an either prison-based or residential treatment-based alternative sentence available for drug offenders in some cases. See RCW 9.94A.660, .662, .664. No. 31622-0-111 In re Post-Sentence Review of Bercier

the department's post-sentence review petition.

FACTS

In June 2012, Mr. Bercier pleaded guilty to methamphetamine possession. The

sentencing court imposed 24 months' community custody in the form of a residential

treatment-based DOSA sentence. In January 2013, after he failed to comply with

residential treatment, the sentencing court issued an order revoking his DOSA sentence

and imposing a standard range prison sentence under RCW 9.94A.660(7)(c). The

order included a notation prohibiting Mr. Bercier from receiving credit for community

custody time served. Without success, the department contacted the court and parties

seeking an amended order striking this notation. In April 2013, the sentencing court

issued an amended order retaining the notation while adding a post-revocation

community custody term.

The department petitioned this court for post-sentence review under RCW

9.94A.585(7). This court requested supplemental briefing on the applicability of In re

Post-Sentence Review of Combs, 176 Wn. App. 112,308 P.3d 763 (2013). After

considering the supplemental briefing we decide the department's petition on statutory

interpretation grounds.

ANALYSIS

The issue is whether the sentencing court erred by prohibiting Mr. Bercier from

receiving credit for community custody time served. The department contends the

sentencing court erred by disregarding RCW 9.94A.660(7)(d)'s plain language providing

credit for "any time previously served under this section," including community custody

No. 31622-0-111 In re Post-Sentence Review of Bercier

served in the form of a residential treatment-based DOSA sentence. 2 Mr. Bercier

agrees. The State disagrees, construing subsection (7)(d) as providing credit solely for

jail or prison time served.

Upon the department's post-sentence review petition, we review the sentencing

court's decision solely for legal error. RCW 9.94A.585(7); RAP 16.18(a). Statutory

interpretation is a legal issue we examine de novo. Multicare Med. Ctr. v. Oep't of Soc.

& Health SeNs., 114 Wn.2d 572,582 n.15, 790 P.2d 124 (1990). When interpreting a

statute, we must "discern and implement" our legislature's intent. State v. J.P., 149

Wn.2d 444,450,69 P.3d 318 (2003); see State ex rei. Great N. Ry. v. R.R. Comm'n of

Wash., 52 Wash. 33, 36, 100 P. 184 (1909). If the statute's meaning is plain, we must

effectuate it as an expression of our legislature's intent. Oep't of Ecology v. Campbell &

Gwinn, LLC, 146 Wn.2d 1,9,43 P.3d 4 (2002); Walker v. City of Spokane, 62 Wash.

312,318, 113 P. 775 (1911).

If an offender qualifies, the sentencing court may impose community custody in

the form of a residential treatment-based DOSA sentence. See RCW 9.94A.660, .664.

If an offender violates DOSA conditions or requirements, the sentencing court "may

order the offender to serve a term of total confinement within the standard range of the

offender's current offense at any time. during the period of community custody." RCW

9. 94A.660(7)(c). Where the sentencing court chooses to impose a standard range

2 In hindsight, the department might have avoided this dispute by construing Mr. Bercier's residential treatment-based DOSA sentence as total confinement. See RCW 9.94A.030(51) (defining total confinement as "confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day").

prison sentence under subsection (7)(c), the offender "shall receive credit for any time

previously served under this section." RCW 9.94A.660(7)(d). We agree with the

department that RCW 9.94A.660(7)(d),s plain language provides credit for community

custody served in the form of a residential treatment-based DOSA sentence. The

sentencing court erred by prohibiting Mr. Bercier from receiving credit for community

custody time served.

Additionally, Mr. Bercier argues the sentencing court lacked statutory authority to

revoke his DOSA sentence and impose a post-revocation community custody term.

The department did not raise this issue in its petition. An offender may not raise a new

issue in response to a post-sentence review petition; instead, the offender must raise

the new issue in a collateral attack, if at all. In re Post-Sentence Review of Wandell,

_ Wn. App. _,311 P.3d 28,31 (2013). Therefore, we do not reach Mr. Bercier'S

additional argument.

Finally, the department moves to supplement the record with exhibits

documenting how it would assign Mr. Bercier credit for DOSA sentence time served.

Even without the exhibits, the record is sufficiently complete for us to decide the

department's petition on its merits. See RAP 9.10, 16.18(d). Therefore, we deny the

department's motion.

Motion to supplement record denied. Post-sentence review petition granted.

Remanded with instructions to provide Mr. Bercier credit for community custody

served in the form of a residential treatment-based DOSA sentence.

Brown, J.

WE CONCUR: