IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83721-4-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION HUSSEIN SALIM ALI,
Appellant.
SMITH, C.J. — RCW 9.94A.505(6) provides defendants credit for all time
served in confinement on a criminal charge, regardless of whether that time is
served before or after sentencing. Hussein Ali was charged with two counts of
first degree child molestation and agreed to a stipulated bench trial on
documentary evidence. Before trial, Ali absconded from the United States and
was eventually apprehended in the Netherlands. Ali was held in custody in the
Netherlands while he contested extradition but once extradited, the trial court
refused to grant Ali credit for his time served in confinement abroad. It also
indicated its intention to waive all discretionary fees because Ali is indigent, but it
failed to do so in the written sentence. We conclude the court erred in not
granting Ali credit for time served and in failing to waive discretionary fees in the
written sentence and remand. No. 83721-4-I/2
FACTS
Hussein Ali was charged with two counts of first degree child molestation
in 2017. Ali waived his right to a jury trial and stipulated in December 2017 to a
bench trial on agreed documentary evidence. The court accepted the stipulation
and continued the bench trial until March 1, 2018.
Ali fled the country before his trial date and the court issued a warrant for
his arrest. Ali was eventually apprehended in the Netherlands in June 2019 and
held in custody for over two years while he contested extradition proceedings. In
November 2021, following several appeals, the Dutch Supreme Court issued a
final ruling in support of extradition and Ali was extradited back to the United
States. At a warrant return hearing in November 2022, the State added a third
charge—third degree assault of a child.
At his bench trial in February 2022, Ali pleaded guilty to all three charges.
The court followed the parties’ agreed recommendation and sentenced Ali to
concurrent indeterminate sentences of 96 months to life on each of the two first
degree child molestation counts. The court also imposed lifetime community
custody on those counts, 12 months community custody for the third degree
assault of a child count, and mandatory legal financial obligations (LFOs). The
court stated its intent to waive all discretionary fees at Ali’s sentencing hearing.
The written judgment and sentence, however, nonetheless imposed community
custody supervision fees.
2 No. 83721-4-I/3
Ali requested 901 days credit for the time he spent in custody in the
Netherlands. The court refused to grant this request. It explained: I can’t find the logic or the justice or the common sense to give somebody credit for being in custody in another nation while fighting extradition to the United States. ... I’m not going to give him credit for his extradition proceedings. He was on the run for 1,345 days. He spent 902 of those days in custody in the Netherlands. He was enjoying himself and living a life, presumably, for 443 of those days or doing something. I’m not giving him credit for the 902 days. I just don’t think it’s appropriate. I don’t think it’s right.
Ali appeals.
ANALYSIS
Ali raises two issues on appeal. He contests the trial court’s refusal to
provide him credit for time served in the Netherlands, asserting that he is entitled
to credit for pre-sentence detention. He also contends that the court erred when
it imposed community custody supervision fees on him in his judgment and
sentence when it had previously indicated its intent to waive those fees. We
agree with Ali and remand for entry of an amended judgment and sentence.
Credit for Time Served
Ali contends that he has a constitutional right and a statutory right, under
RCW 9.94A.505(6), to credit for time served in the Netherlands. The State
asserts that RCW 9.95.060 and RCW 9.94A.507(4) permit a court to deny credit
for a serious sex offense and that there is no federal right to credit for time
served. We conclude that Ali has a statutory right to credit and therefore decline
to reach whether a constitutional right to credit exists.
3 No. 83721-4-I/4
RCW 9.94A.505(6) mandates that defendants receive credit for all time
served in confinement on a criminal charge, whether that time is served before or
after sentencing. State v. Enriquez-Martinez, 198 Wn.2d 98, 101, 492 P.3d 162
(2021). It provides that “[t]he sentencing court shall give the offender credit for all
confinement time served before the sentencing if that confinement was solely in
regard to the offense for which the offender is being sentenced.” RCW
9.94A.505(6). This right to credit includes time spent in custody in another
jurisdiction so long as the detention time is solely in regard to the Washington
offense. State v. Brown, 55 Wn. App. 738, 757, 780 P.2d 880 (1989). We
review de novo a trial court’s decision to award a defendant credit for time
served. State v. Swiger, 159 Wn.2d 224, 227, 149 P.3d 372 (2006).
Here, the plain language of RCW 9.94A.505(6) requires that Ali receive
credit for his time spent in confinement in the Netherlands. The statute does not
specify where confinement occurs, only that it needs to be “solely in regard to the
offense.” In this case, it is undisputed that Ali’s confinement in the Netherlands
was solely because of his Washington charges.
Still, the State urges us to conclude that RCW 9.95.060 and RCW
9.94A.507(4) preclude Ali from receiving credit. But neither of those statutes is
applicable here. RCW 9.95.060—which concerns when a sentence begins to
run—applies only to convicted persons: “When a convicted person . . . . If such
convicted person . . . .”) (Emphases added). Ali had not yet been convicted
when he fled the country. Likewise, RCW 9.94A.507(4)—which provides
4 No. 83721-4-I/5
guidelines for sentencing of sex offenders—concerns persons “sentenced” under
subsection three of that section and requires they serve their sentence in a
Washington State facility: “A person sentenced under subsection (3) . . .”
(Emphasis added). Again, Ali had not yet been convicted and therefore had not
been sentenced when he fled the country.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83721-4-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION HUSSEIN SALIM ALI,
Appellant.
SMITH, C.J. — RCW 9.94A.505(6) provides defendants credit for all time
served in confinement on a criminal charge, regardless of whether that time is
served before or after sentencing. Hussein Ali was charged with two counts of
first degree child molestation and agreed to a stipulated bench trial on
documentary evidence. Before trial, Ali absconded from the United States and
was eventually apprehended in the Netherlands. Ali was held in custody in the
Netherlands while he contested extradition but once extradited, the trial court
refused to grant Ali credit for his time served in confinement abroad. It also
indicated its intention to waive all discretionary fees because Ali is indigent, but it
failed to do so in the written sentence. We conclude the court erred in not
granting Ali credit for time served and in failing to waive discretionary fees in the
written sentence and remand. No. 83721-4-I/2
FACTS
Hussein Ali was charged with two counts of first degree child molestation
in 2017. Ali waived his right to a jury trial and stipulated in December 2017 to a
bench trial on agreed documentary evidence. The court accepted the stipulation
and continued the bench trial until March 1, 2018.
Ali fled the country before his trial date and the court issued a warrant for
his arrest. Ali was eventually apprehended in the Netherlands in June 2019 and
held in custody for over two years while he contested extradition proceedings. In
November 2021, following several appeals, the Dutch Supreme Court issued a
final ruling in support of extradition and Ali was extradited back to the United
States. At a warrant return hearing in November 2022, the State added a third
charge—third degree assault of a child.
At his bench trial in February 2022, Ali pleaded guilty to all three charges.
The court followed the parties’ agreed recommendation and sentenced Ali to
concurrent indeterminate sentences of 96 months to life on each of the two first
degree child molestation counts. The court also imposed lifetime community
custody on those counts, 12 months community custody for the third degree
assault of a child count, and mandatory legal financial obligations (LFOs). The
court stated its intent to waive all discretionary fees at Ali’s sentencing hearing.
The written judgment and sentence, however, nonetheless imposed community
custody supervision fees.
2 No. 83721-4-I/3
Ali requested 901 days credit for the time he spent in custody in the
Netherlands. The court refused to grant this request. It explained: I can’t find the logic or the justice or the common sense to give somebody credit for being in custody in another nation while fighting extradition to the United States. ... I’m not going to give him credit for his extradition proceedings. He was on the run for 1,345 days. He spent 902 of those days in custody in the Netherlands. He was enjoying himself and living a life, presumably, for 443 of those days or doing something. I’m not giving him credit for the 902 days. I just don’t think it’s appropriate. I don’t think it’s right.
Ali appeals.
ANALYSIS
Ali raises two issues on appeal. He contests the trial court’s refusal to
provide him credit for time served in the Netherlands, asserting that he is entitled
to credit for pre-sentence detention. He also contends that the court erred when
it imposed community custody supervision fees on him in his judgment and
sentence when it had previously indicated its intent to waive those fees. We
agree with Ali and remand for entry of an amended judgment and sentence.
Credit for Time Served
Ali contends that he has a constitutional right and a statutory right, under
RCW 9.94A.505(6), to credit for time served in the Netherlands. The State
asserts that RCW 9.95.060 and RCW 9.94A.507(4) permit a court to deny credit
for a serious sex offense and that there is no federal right to credit for time
served. We conclude that Ali has a statutory right to credit and therefore decline
to reach whether a constitutional right to credit exists.
3 No. 83721-4-I/4
RCW 9.94A.505(6) mandates that defendants receive credit for all time
served in confinement on a criminal charge, whether that time is served before or
after sentencing. State v. Enriquez-Martinez, 198 Wn.2d 98, 101, 492 P.3d 162
(2021). It provides that “[t]he sentencing court shall give the offender credit for all
confinement time served before the sentencing if that confinement was solely in
regard to the offense for which the offender is being sentenced.” RCW
9.94A.505(6). This right to credit includes time spent in custody in another
jurisdiction so long as the detention time is solely in regard to the Washington
offense. State v. Brown, 55 Wn. App. 738, 757, 780 P.2d 880 (1989). We
review de novo a trial court’s decision to award a defendant credit for time
served. State v. Swiger, 159 Wn.2d 224, 227, 149 P.3d 372 (2006).
Here, the plain language of RCW 9.94A.505(6) requires that Ali receive
credit for his time spent in confinement in the Netherlands. The statute does not
specify where confinement occurs, only that it needs to be “solely in regard to the
offense.” In this case, it is undisputed that Ali’s confinement in the Netherlands
was solely because of his Washington charges.
Still, the State urges us to conclude that RCW 9.95.060 and RCW
9.94A.507(4) preclude Ali from receiving credit. But neither of those statutes is
applicable here. RCW 9.95.060—which concerns when a sentence begins to
run—applies only to convicted persons: “When a convicted person . . . . If such
convicted person . . . .”) (Emphases added). Ali had not yet been convicted
when he fled the country. Likewise, RCW 9.94A.507(4)—which provides
4 No. 83721-4-I/5
guidelines for sentencing of sex offenders—concerns persons “sentenced” under
subsection three of that section and requires they serve their sentence in a
Washington State facility: “A person sentenced under subsection (3) . . .”
(Emphasis added). Again, Ali had not yet been convicted and therefore had not
been sentenced when he fled the country. RCW 9.94A.505(6) controls and
mandates Ali receive credit for his time spent in confinement with regard to this
offense.
Discretionary Supervision Fees
Ali asserts that the court waived all discretionary fees at sentencing and
that the judgment and sentence erroneously ordered him to pay DOC supervision
fees. The State concedes that the supervision fees should be stricken from the
judgment and sentence.
Supervision fees are discretionary legal financial obligations (LFOs),
waivable by the trial court. State v. Bowman, 198 Wn.2d 609, 629, 498 P.3d 478
(2021). It is procedural error for a court to impose a discretionary fee where it
had otherwise agreed to waive such fees. Bowman, 198 Wn.2d at 629.
At sentencing, the court stated: “I’ll order the $500 victim penalty
assessment, the DNA fee, all other fines, fees, costs, and assessments waived.”
Though the court stated its intent to waive “all other fines, fees, costs, and
assessments,” the judgment and sentence did not reflect this decision. Because
the court indicated its intent to waive discretionary fees on the record, the court
5 No. 83721-4-I/6
committed a scrivener’s error by not waiving the fees in the judgment and
sentence.
We remand for the trial court to credit Ali for time served in confinement in
the Netherlands and to amend the judgment and sentence to strike discretionary
fees.
WE CONCUR: