State Of Washington, Resp. v. Brandon M. Bigsby, App. , 196 Wash. App. 803 ( 2016 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73905-1-1 ro
Respondent,
DIVISION ONE
v.
O
BRANDON BIGSBY, PUBLISHED OPINION "
Appellant. FILED: November 28, 2016
Spearman, J. — Under the Sentencing Reform Act, a trial court has
authority to enforce the requirements of sentences that it imposes. The trial court
sanctioned Brandon Bigsby for failing to meet a sentence requirement. Bigsby
challenges the sanction, arguing that, because he was on community custody
under the supervision of the Department of Corrections (DOC), only DOC had
authority to sanction him. But, because the trial court also had authority to
impose sanctions, we affirm.
FACTS
Bigsby pleaded guilty to possession of a controlled substance. The trial
court sentenced him to 75 days confinement and 12 months community custody
under DOC supervision. As conditions of community custody, the trial court
ordered Bigsby to obtain a chemical dependency evaluation and comply with
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treatment recommendations. The court set a review hearing for August 5, 2015.
The trial court informed Bigsby that it would issue a warrant for his arrest if he
failed to appear for the hearing. The court also informed Bigsby that if, at the
review hearing, he failed to produce paperwork showing that he had obtained a
drug evaluation and begun treatment he would go back to jail for 30 to 60 days.
Bigsby received credit for time served and completed his term of
confinement on May 27, 2015. Over the next two months, he violated several
conditions of community custody. The DOC alleged that Bigsby absconded from
supervision, used controlled substances, failed to report to his community
corrections officer (CCO), failed to attend a training program, failed to complete a
substance abuse treatment program, and failed to abide by monitoring for drug
use. DOC took Bigsby into custody, found him guilty of all violations, and
imposed a sanction of 18 days confinement.
Bigsby was serving this sanction on August 5, the day of his review
hearing. He did not attend the hearing or communicate with the trial court. The
court issued a bench warrant for his arrest.
DOC released Bigsby on August 10. Bigsby failed to report to his CCO
and DOC took him back into custody until September 8. DOC then held Bigsby
under the trial court's bench warrant.
On September 14, 2015, Bigsby appeared in court for a review hearing.
He had not completed a chemical dependency evaluation or begun treatment.
Bigsby argued that he would have gotten a drug evaluation as soon as he was
released from DOC custody on August 10, if he had not been detained under the
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trial court's bench warrant. He also argued that, because he was under the
supervision of DOC, only DOC had authority under the Sentencing Reform Act
(SRA) chapter 9.94A RCW to impose sanctions.
The trial court found that Bigsby violated the conditions of the judgment
and sentence by failing to get a drug evaluation.1 The court imposed a sanction
of 30 days confinement and set another review hearing for December 14. The
court stated that, if Bigsby was not yet in treatment by that time, it would set
further periodic review hearings and impose sanctions for any noncompliance.
Bigsby served the sanction imposed. He failed to appear for the
December 14 review hearing but appeared for a hearing on December 31. He
has failed to appear for subsequent review hearings and a bench warrant for his
arrest is outstanding.
DISCUSSION
Bigsby appeals the trial court's sanction. He asserts that, under the 2008
amendments to the SRA, only DOC may enforce conditions of community
custody.
As a preliminary matter, we note that Bigsby's appeal is moot because he
has already served the sanction imposed by the trial court. See In re Cross, 99
Wash. 2d 373, 376-77, 662 P.2d 828 (1983) (stating that a case is moot "if a court
can no longer provide effective relief) (citing State v. Turner. 98 Wash. 2d 731, 733,
658 P.2d 658 (1983)). But we may consider a moot issue if it involves a matter of
1 Bigsby asserts that the trial court sanctioned him for failing to appear at the August 5
review hearing. Brief of App. at 4-5. This misconstrues the record. The trial court sanctioned
Bigsby for failing to complete a chemical dependency evaluation.
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"'continuing and substantial public interest.'" id. (quoting Sorenson v. City of
Bellinqham. 80Wn.2d 547, 558, 496 P.2d 512 (1972)). To determine whether an
issue presents a matter of substantial public interest, we consider (1) whether the
issue is of a public nature, (2) whether a determination is necessary to guide
public officers, and (3) whether the question is likely to recur, jd.
Whether the trial court may sanction an offender on community custody is
an issue that affects the public. It appears that Washington courts have not
addressed the issue since the 2008 amendments to the SRA and a
determination is necessary to provide guidance to public officers. The likelihood
of recurrence is high, as even in this case Bigsby may face further sanctions. We
conclude that Bigsby's appeal presents an issue of substantial and continuing
public interest that warrants review.
Bigsby asserts that, under the SRA as amended in 2008, only DOC may
sanction offenders who are under DOC supervision. The State contends that the
trial court and DOC continue to have concurrent authority to impose sanctions,
as they did prior to the 2008 amendments.
Interpretation of the sanction provisions of the SRA is a question of law
that we review de novo. State v. Ashenbemer, 171 Wash. App. 237, 246, 286 P.3d
984 (2012) (citing State v. Gonzalez. 168 Wash. 2d 256, 263, 226 P.3d 131 (2010)).
Our goal in interpreting a statute is to discern and implement the intent of the
legislature. \± We discern legislative intent from the statute's plain language,
related provisions, and the statutory scheme as a whole, jd. (citing State v.
Enqel, 166 Wash. 2d 572, 578, 210 P.3d 1007 (2009)).
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Bigsby relies on RCW 9.94A.6332, a 2008 amendment to the SRA that
outlines procedures for imposing sanctions based on the sentencing scheme
applicable to the offender's crime. After addressing several sentencing schemes
not applicable here, the statute provides that "[i]n any other case, if the offender
is being supervised by the department, any sanctions shall be imposed by the
department. . . ." RCW 9.94A.6332(7). The statute further states that "[i]f the
offender is not being supervised by the department, any sanctions shall be
imposed by the court. . . ." RCW 9.94A.6332(8). Bigsby contends that by its plain
language, RCW 9.94A.6332 only authorizes the trial court to impose sanctions
when an offender is not under DOC supervision.
The State relies on RCW 9.94B.040(1), which authorizes the trial court to
impose sanctions "[i]f an offender violates any condition or requirement of a
sentence . . . ." The State asserts that, based on the previous version of this
statute, this court determined that the trial court and DOC have concurrent
jurisdiction to impose sanctions in State v. Gamble, 146 Wash. App. 813, 820, 192
P.3d 399 (2008).
In that case, the trial court sentenced Gamble to a term of community
custody and imposed conditions related to substance abuse treatment. Id. at
815. Gamble violated the conditions and the trial court imposed a sanction. Id at
815-16. The statutes governing Gamble's sentence expressly authorized DOC to
impose sanctions but were silent as to the trial court's authority. Id. at 817.
Gamble argued that the specific grant of sanctioning authority to DOC indicated
that DOC was the only entity that could impose sanctions. Id.
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This court considered Gamble's argument in light of former RCW
9.94A.634(1) recodified as 9.94B.040 (Laws of 2008, ch. 23, §56). Id at 818.
That statute expressly authorized the trial court to impose sanctions "[i]f an
offender violates any condition or requirement of a sentence . . . ." |d (quoting
former RCW 9.94A.634(1)). The Gamble court held that this provision
"unambiguously demonstrates that the superior courts retain authority ... to
enforce the conditions of the sentences that they impose." id By expressly
granting DOC authority to impose sanctions in specific circumstances, the
legislature may have signaled that this was the preferred procedure in those
cases. Id at 818-19. But we determined that we could only conclude that DOC
had sole sanctioning authority in those circumstances by ignoring former RCW
9.94A.634(1). Id at 819. Giving effect to both statutory grants of authority, we
held that the trial court and DOC have concurrent sanctioning authority. \± at
820.
Former RCW 9.94A.634(1) was recodified as RCW 9.94B.040 as part of
the SRA's 2008 amendments. Laws of 2008, ch. 23, §56. The text of the statute
did not change. The statute states: "If an offender violates any condition or
requirement of a sentence, the court may modify its order of judgment and
sentence and impose further punishment in accordance with this section." RCW
9.94B.040.
The State argues that Gamble controls in this case. It asserts that, just as
former RCW 9.94A.634 authorized a trial court to impose sanctions under the
previous provisions of the SRA, RCW 9.94B.040(1) authorizes a trial court to
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impose sanctions under the current SRA.2 Bigsby argues that Gamble does not
control. He contends that the recodified statute, RCW 9.94B.040, only applies to
crimes committed before the current community custody provisions took effect.
We agree with the State.
Bigsby relies on RCW 9.94B.010(1), which states that ch. 9.94B RCW
"codifies sentencing provisions that may be applicable to sentences for crimes
committed prior to July 1, 2000." But, while the statute refers to pre-2000
offenses, it does not state that the chapter applies only to those offenses. By
stating that the chapter "may be applicable," RCW 9.94B.010(1) is permissive as
to pre-2000 offenses. See State v. Bartholomew, 104 Wash. 2d 844, 848, 710 P.2d
196 (1985) (stating that, unlike the word "'shall,'" the word "'may'" indicates
discretion or permission) (quoting, e.g., Crown Cascade. Inc., v. O'Neal, 100
Wash. 2d 256, 668 P.2d 585 (1983)). And the statute is silent as to post-2000
offenses.
At oral argument, Bigsby also argued that RCW 9.94B.040 only applies to
pre-2000 offenses because any other reading is incompatible with RCW
9.94A.6332. Chapter 9.94A.6332(7) states that "if the offender is being
supervised by the department, any sanctions shall be imposed by the
2 The State relies on Ashenberner, 171 Wash. App. 237, to support the proposition that
Gamble continues to apply. The Ashenberner court relied on Gamble and RCW 9.94B.040(1) to
conclude that the court has authority to impose sanctions for violation of a restitution order. ]d. at
250. Butthe underlying crimes in that case were committed prior to July 1, 2000. Jd at 239.
Ashenberner does not address whether RCW 9.94B.040(1) applies to crimes committed after that
date.
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department." Bigsby contends that reading RCW 9.94B.040(1) to authorize the
trial court to impose sanctions renders RCW 9.94A.6332 meaningless.
We read the provisions of the SRA together. Ashenberner, 171 Wash. App.
at 246 (citing Millav v. Cam, 135 Wash. 2d 183, 199, 955 P.2d 271 (1990)). Where
provisions of an act appear to conflict, we may discern legislative intent by
examining the legislative history of the enactments. Gorman v. Garlock, Inc., 155
Wash. 2d 198, 211, 118 P.3d 311 (2005) (citing Timberline Air Serv.. Inc., v. Bell
Helicopter-Textron, Inc., 125 Wash. 2d 305, 312, 884 P.2d 920 (1994)).
In this case, the legislature provided statements addressing both
applicability and intent. Laws of 2008, ch. 231, §6, §55. The legislature enacted
the 2008 amendments to the SRA in 61 sections. Laws of 2008, ch. 231. The
statutes at issue, RCW 9.94A.6332 and RCW 9.94B.040, were enacted in
sections 18 and 56. Laws of 2008, ch. 231, §18, §56. Section 55 addresses
applicability and states that "[sjections 6 through 58 of this act apply to all
sentences imposed or reimposed on or after August 1, 2009, for any crime
committed on or after the effective date of this section." Laws of 2008, ch. 231,
§55(1). The statement of intent specifies that "[sjections 7 through 58 of this act
are intended to simplify the supervision provisions of the sentencing reform act
and increase the uniformity of its application. These sections are not intended to
either increase or decrease the authority of sentencing courts or the department
relating to supervision . . . ." Laws of 2008, ch. 231, §6.
We conclude that RCW 9.94B.040(1) applies to crimes committed after
the 2008 amendments took effect and that those amendments did not divest the
8
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trial court of authority to enforce the conditions of a sentence that it imposes. By
granting specific sanctioning authority to DOC, the "legislature may ... have
intended that this be the preferred procedure for enforcing community custody
conditions .. . ." Gamble, 146 Wash. App. at 818-19. But as the SRA also
expressly grants the sentencing court authority to impose sanctions, the trial
court did not err in sanctioning Bigsby for failing to comply with sentence
conditions.
In the event that he does not prevail, Bigsby requests that we deny any
claim for costs of appeal. We may consider whether to impose appellate costs
when the issue is raised in the appellant's brief. State v. Sinclair, 192 Wash. App.
380, 388-89, 367 P.3d612 (2016) review denied, 185 Wash. 2d 1034, 377 P.3d
(2016) (citing RAP 14.4). When the trial court has determined that the appellant
is indigent, indigency is presumed to continue throughout the appeal. ]d at 393.
The trial court determined that Bigsby was indigent. The State makes no
argument concerning appellate costs and presents no evidence to rebut the
presumption that Bigsby is indigent. We decline to award costs of appeal to the
State.
Affirmed.
WE CONCUR: