State Of Washington v. Joseph E. Ellison ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
November 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49413-2-II
Respondent,
v. UNPUBLISHED OPINION
JOSEPH ELI ELLISON,
Appellant.
MAXA, A.C.J. – Joseph Ellison appeals the sentence for his first degree escape
conviction, challenging his offender score calculation. He argues, and the State concedes, that
the trial court improperly added a point to his offender score for being on community custody
when he committed the offense. Instead of being on community custody, Ellison was in an
alternative to confinement (ATC) program and therefore was “in custody.”
We accept the State’s concession, vacate Ellison’s sentence, and remand for resentencing.
FACTS
On June 29, 2015, Ellison pleaded guilty to one count of unlawful possession of a
controlled substance (methamphetamine). The sentencing court imposed an ATC sentencing
option. On July 1, Ellison attended the ATC orientation, where he signed an address verification
form and signed a form setting out the rules and conditions of the program. One condition was
that he check in every week day for a period of 30 days, and the form stated that the failure to
No. 49413-2-II
report to the ATC could result in an escape charge. When Ellison failed to check in on July 6
and 7, the ATC program director tried to contact Ellison and learned that he did not reside at the
address he listed on his address verification form.
The State charged Ellison with first degree escape. A jury convicted him as charged.
The trial court calculated his offender score as a 4, including one point for committing the
offense while on community custody. The court then imposed a residential drug offender
sentencing alternative. Ellison appeals the calculation of his offender score.
ANALYSIS
RCW 9.94A.525(19) authorizes the trial court to add a point to a defendant’s offender
score if the defendant’s conviction is for an offense committed while he or she was on
community custody. RCW 9.94A.030(5) defines community custody as “that portion of an
offender’s sentence of confinement in lieu of earned release time or imposed as part of a
sentence under this chapter and served in the community subject to controls placed on the
offender’s movement and activities by the [Department of Corrections].”
Here, when Ellison committed first degree escape he was subject to an ATC sentencing
option authorized as an alternative to confinement under RCW 9.94A.680. Because the ATC
program is a substitute for confinement, Ellison was still “in custody” for purposes of RCW
9A.76.110, the first degree escape statute. See State v. Breshon, 115 Wash. App. 874, 878, 63 P.3d
871 (2003) (holding that a defendant ordered to participate in a sentencing alternative to total
confinement is in custody for purposes of RCW 9A.76.110). In fact, Ellison had to have been in
custody to be convicted of first degree escape. RCW 9A.76.110(1) provides that a person is
guilty of first degree escape if he or she knowingly escapes “from custody.”
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No. 49413-2-II
The State concedes that Ellison was not on community custody at the time he committed
first degree escape. We agree, and we hold that the trial court erred in adding a point to Ellison’s
offender score based on the incorrect finding that he was on community custody.
Ellison requests that we simply remove the additional point from his offender score. But
the appropriate remedy for a miscalculated offender score is to remand for resentencing with the
correct offender score. See In Re Pers. Restraint of Call, 144 Wash. 2d 315, 333, 28 P.3d 709
(2001).
Accordingly, we vacate Ellison’s sentence and remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
JOHANSON, J.
MELNICK, J.
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