State v. Mitchell

59 P.3d 717, 114 Wash. App. 713, 2002 Wash. App. LEXIS 3157
Court of Appeals of Washington·Decided December 23, 2002·No. No. 49496-1-I·Published·Cited by 7 cases

Opinion

Becker, C.J.

A judgment and sentence must be definite and certain. But a precise term of community custody cannot be specified at sentencing when it is contingent on the amount of early release time the defendant may earn while incarcerated. Appellant Mitchell contends that a sentence must at least state the maximum potential period of earned early release in order to notify the defendant as to the potential maximum period of community custody. We hold a sentence need not include this information to be definite and certain, and reject Mitchell’s request to remand his sentence.

“Community custody” is a portion of a sentence that is served in the community subject to controls placed on the [715] offender’s movement and activities by the Department of Corrections. RCW 9.94A.030(5). The period of time in which an offender is subject to the conditions of community custody is known as “community placement.”1 A term of community custody begins either upon completion of the term of confinement, or when an offender is transferred to community custody in lieu of earned release. RCW 9.94A.715(1). There are standard ranges for community custody depending on the offense.2

A jury convicted Mitchell on one count of possession of heroin. The date of the offense was April 14, 2001. The pertinent statute is RCW 9.94A.715(1). That statute required the court to sentence Mitchell to a term of community custody in addition to a term of confinement in prison because possession of heroin is a felony offense under chapter 69.50 RCW, the Uniform Controlled Substances Act. The statute provides that the court shall “sentence the offender to community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728(1) and (2), whichever is longer.” RCW 9.94A.715(1).

Mitchell’s sentence complies with the statute. It specifies a statutory term of community custody of 9 to 12 months “or for the entire period of earned early release awarded under RCW 9.94A.150,[3] whichever is longer.” This term of community custody is in addition to Mitchell’s 57-month term of confinement, a standard range sentence. Mitchell’s term of community custody will begin — at the latest — when he [716] completes his 57-month term of confinement. But if he earns early release, it will begin on the date on which he is transferred to community custody in lieu of earned release. RCW 9.94A.715(1). In the best-case scenario for him, he would earn early release from prison after 38 months. He would then spend the next 19 months in community custody. In the worst-case scenario for him, he would earn no early release, would be released from prison after 57 months, and would then spend 9 to 12 additional months in community custody.

On appeal Mitchell contends his sentence is flawed because it does not state the potential maximum period of community custody. Whether a sentence is sufficiently specific about a term of community custody is a question of law that is reviewed de novo. State v. Jones, 93 Wn. App. 14, 17-18, 968 P.2d 2 (1998).

A sentence must be “ ‘definite and certain.’ ” Jones, 93 Wn. App. at 17 (quoting Grant v. Smith, 24 Wn.2d 839, 840, 167 P.2d 123 (1946)). The Supreme Court applied this principle to community placement in State v. Broadaway, 133 Wn.2d 118, 942 P.2d 363 (1997). The judgment and sentence at issue in Broadaway contained boilerplate language stating that “Community placement is ordered for a community placement eligible offense . . . for the period of time provided by law.” Broadaway, 133 Wn.2d at 135. The judgment and sentence was deficient because the sentence did not specify that the term of community placement would be one year, as required by the pertinent statute. Broadaway, 133 Wn.2d at 135. “Where a sentence is insufficiently specific about the period of community placement required by law, remand for amendment of the judgment and sentence to expressly provide for the correct period of community placement is the proper course.” Broadaway, 133 Wn.2d at 136.

Broadaway compelled the result in State v. Nelson, 100 Wn. App. 226, 996 P.2d 651 (2000), the case on which Mitchell principally relies. The defendant in Nelson was found guilty of first degree manslaughter while armed with [717] a deadly weapon. According to the sentence, his statutory term of community placement could be two years if his conviction was for a “serious violent offense,” or one year for the deadly weapon finding. The uncertainty could not be resolved without consulting statutes to learn that first degree manslaughter is a serious violent offense. Nelson, 100 Wn. App. at 230. The applicable period of community placement could then be fixed at two years, but only after taking the additional step of calculating Nelson’s maximum potential earned early release award and perceiving that it was less than two years. Nelson, 100 Wn. App. at 231. The court remanded Nelson’s sentence with directions to amend the judgment and sentence to clearly state that the actual term of community placement was two years.

Although the length of the community placement term in Nelson was capable of definite statement, the court recognized that in other cases it would not be — specifically, where the defendant’s earned early release award is potentially for a longer period than the fixed period of community placement specified by the relevant statute. Nelson, 100 Wn. App. at 231. That is the situation here, unlike Nelson, where the defendant’s maximum earned early release award could not be longer than the two-year statutory term. Mitchell, through good conduct as an inmate, maybe able to earn early release from confinement. The potential period of his earned early release appears to be 19 months (one-third of the total sentence).4 This is greater than the fixed period of 9 to 12 months specified by statute. Because of this factual variation, Nelson’s holding is not directly applicable to Mitchell’s sentence.

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State v. Mitchell, 59 P.3d 717, 114 Wash. App. 713, 2002 Wash. App. LEXIS 3157 (Wash. Ct. App. 2002).

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