Post-sentence Petition Of Brian Reeve Wandell

• Court: Court of Appeals of Washington
• Decided: June 10, 2013
• Docket: 68881-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Post-Sentence Review of ) No. 68881-2-1

BRIAN WANDELL, ) DIVISION ONE Co Respondent, ) UNPUBLISHED OPINION ~1~

CD Z^ —-

3a» a>rr STATE OF WASHINGTON, ) FILED: June 10, 2013 V? try c/3

Petitioner. o~ CD

Grosse, J. — The Sentencing Reform Act of 1981 (SRA), chapter 9.94A

RCW, permits modification of sentences only in specific, carefully delineated

circumstances. SRA sentences can be modified only if they meet the

requirements of the SRA provisions relating directly to the modification of

sentences. Here, as Brian Wandell's counsel conceded at oral argument, no

provision of the SRA allows the modification at issue here. The arguments

Wandell raises to justify the modification are without merit. Accordingly, we grant

the Department of Corrections' post-sentence petition and vacate the order

modifying Wandell's judgment and sentence.

FACTS

Brian Wandell pleaded guilty to one count of third degree rape of a child.

By judgment and sentence entered in March 2010, the court imposed 13 months

of confinement and 36 months of community custody. One of the conditions of

community custody prohibited Wandell from remaining "overnight in a residence

where minor children live or are spending the night." No. 68881-2-1/2

Wandell was released from prison to community custody on October 10,

2010. He received permission to transfer his supervision to the state of Missouri

pursuant to the Interstate Compact for Adult Offender Supervision (ICAOS),

RCW 9.94A.745. By order dated January 6, 2012, the sentencing court modified

Wandell's community custody provisions to add the following provision: "The

Missouri Department of Corrections shall be given explicit authority to modify any

of Mr. Wandell's community custody provisions, including those contained in

App[endix] A, as necessary for supervision and treatment purposes." The record

indicates that Wandell sought the modification so the Missouri Department of

Corrections could remove the prohibition on overnights stays in the presence of

minor children and he would be able to move in with his wife and children in their

Missouri home.

The Washington State Department of Corrections (DOC) filed a post-

sentence petition seeking review of the sentencing court's order under RCW

9.94A.585(7), arguing that the sentencing court acted without lawful authority in

modifying Wandell's community custody provisions.

ANALYSIS

We review de novo whether a trial court exceeded its statutory authority

under the SRA.1 "When a trial court exceeds its sentencing authority under the

SRA, it commits reversible error."2 The "SRA permits modification of sentences only in specific, carefully

delineated circumstances."3 SRA sentences can be modified "only if they meet

1 State v. Smith, 159 Wn. App. 694, 699, 247 P.3d 775 (2011). 2 State v. Hale, 94 Wn. App. 46, 53, 971 P.2d 88 (1999). No. 68881-2-1/3

the requirements of the SRA provisions relating directly to the modification of

sentences."4 "Modification of a judgment is not appropriate merely because it appears, wholly in retrospect, that a different decision might have been

preferable."5 As Wandell's counsel conceded at oral argument, the SRA does not provide for the post-sentence addition of a community custody provision of

the sort the sentencing court added here. Accordingly, the court acted without

authority in modifying his sentence.

Further, because he now lives in Missouri, Wandell's community custody

is governed by the ICAOS. The modification of supervision authority for an

offender under the ICAOS "may be authorized only with the involvement and

concurrence of a state's compact administrator or the compact administrator's

designated deputies."6 In Washington, the secretary of corrections or an employee of DOC designated by the secretary is the compact administrator

under the ICAOS.7 The modification of Wandell's community custody conditions

runs afoul of the ICAOS rule because it was not made with DOC's concurrence.

To the extent Washington law would authorize modification of the community

custody conditions without DOC's concurrence, the law is superseded by the

ICAOS.8

3 State v. Shove. 113 Wn.2d 83, 86, 776 P.2d 132 (1989). 4 Shove, 113Wn.2dat89. 5 Shove, 113Wn.2dat88. 6 ICAOS Rule 2.101(c), found at http://www.interstatecompact.org. 7 RCW 9.94A.74502. 8 See RCW 9.94A.745, art. XIV(a)(2) ("All compacting states' laws conflicting with this compact are superseded to the extent of the conflict."). No. 68881-2-1/4

We reject Wandell's argument that the modification is a clerical error that

is permissible pursuant to CR 7.8(a). The record shows that the trial court

intended to impose the condition prohibiting Wandell from remaining overnight in

a residence where minor children live or are spending the night. Further, the trial

court did not have the treatment provider's recommendation before it when it

sentenced Wandell because Wandell had not moved to Missouri or seen the

provider at the time of sentencing. Accordingly, it could not have been the trial

court's intention to sentence Wandell in accordance with the treatment provider's

recommendation. CR 7.8(a) did not provide the trial court the authority to modify

the sentence as it did.9

We likewise reject Wandell's argument that the condition the trial court

added was necessary to prevent the sentence from infringing on his

constitutional right to parent his children and that the trial court accordingly had

the authority to correct the sentence pursuant to CrR 7.8(b)(5). That provision

allows a court to relieve a party from a final judgment or order for "[a]ny other

reason justifying relief from the operation of the judgment." Relief under this

provision is appropriate where the circumstance at issue is an extraordinary

circumstance that could not have been envisioned or dealt with at the time of

sentencing.10 Such is notthe case here. Finally, we reject Wandell's argument that we should deny DOC's post-

sentence petition because without the modification the sentence interferes with

his fundamental right to parent his children. Wandell failed to raise this

9 See State v. Davis. 160 Wn. App. 471, 478, 248 P.3d 121 (2011). 10 Smith. 159 Wn. App. at 701-02. No. 68881-2-1/5

constitutional challenge in a collateral attack on his sentence through, for

example, a personal restraint petition or a habeas corpus petition. Raising the

challenge in response to DOC's post-sentence petition is not appropriate.

We grant DOC's post-sentence petition and vacate the order modifying

Wandell's judgment and sentence.

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WE CONCUR:

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