In the Matter of the Postsentence Review of: Tracey Jane Jeakins ( 2019 )

FILED
OCTOBER 17, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Postsentence Review of ) No. 36494-1-III
)
TRACEY JANE JEAKINS ) UNPUBLISHED OPINION
)
PENNELL, A.C.J. — On September 19, 2018, Tracey Jane Jeakins pleaded guilty
in Spokane County Superior Court to possession of a stolen motor vehicle. The superior
court sentenced Ms. Jeakins that same day, and exercised its authority to impose a first-
time offender waiver under RCW 9.94A.650. Because of an error in the judgment and
sentence, the Department of Corrections (DOC) filed a postsentence petition for review
under RCW 9.94A.585(7) and RAP 16.18.
No. 36494-1-III
In re Postsentence Review of Jeakins
FACTS AND ANALYSIS
At the time of Ms. Jeakins’s sentencing, the superior court also imposed several
conditions of community custody. However, the court did not specify the length of
community custody being imposed. The failure to specify a period of community custody
under RCW 9.94A.650(3) constituted an error of law. State v. Broadaway, 133 Wn.2d
118, 136, 942 P.2d 363 (1997).
When the DOC identifies a legal error in a judgment and sentence, it has 90 days
from the date in which it receives the judgment and sentence to file a petition for review
of the sentence with this court. RCW 9.94A.585(7); RAP 16.18(a)-(b). Prior to filing its
petition, the DOC must certify that “all reasonable efforts to resolve the dispute at the
superior court level have been exhausted.” RCW 9.94A.585(7).
In the present case, on October 15, 2018, approximately one month following
sentencing, the DOC sent an e-mail to the deputy prosecutor with its concerns as to the
lack of a community custody term in the judgment and sentence. From the record before
this court, it appears the prosecutor received the e-mail, but otherwise failed to respond.
Then on December 17, approximately one week prior to the expiration of the petition
filing deadline, the DOC sent a follow-up e-mail to the prosecutor. This second e-mail
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In re Postsentence Review of Jeakins
was also sent to Ms. Jeakins’s former trial counsel and the superior court’s judicial
assistant. 1 The DOC then filed the present petition in this court on December 18.
Upon filing its petition, the DOC mailed a copy to Ms. Jeakins at her last known
address, as required by RAP 16.18(c) and RAP 18.5(a). However, it does not appear that
Ms. Jeakins received actual notice of the petition. This court’s letters to the same address
notifying Ms. Jeakins of her right to counsel and a determination as to indigency, and
filing deadlines, were returned as undeliverable. This court was subsequently informed
that Ms. Jeakins no longer resides at that address, her location was unknown, and that she
had active warrants for her arrest. At present, those warrants remain active and unserved.
The failure to provide Ms. Jeakins with actual notice of the DOC’s petition
causes concern about Ms. Jeakins’s due process rights. However, the test for due process
is not whether actual notice is received, but whether the notice was sent in a manner
“reasonably calculated to reach the intended parties.” In re Saltis, 25 Wn. App. 214, 219,
1
We question whether waiting another two months, until less than a week
remained before the postsentence review filing deadline, to involve defense counsel and
the superior court satisfies the DOC’s duty to exhaust “all reasonable efforts.” Id. It often
takes a week or more of forewarning before the State can re-summons a defendant into
court and for the court to have room on its calendar to add another matter. Furthermore,
this statutory requirement was put in place in order to conserve the appellate court’s
limited resources, which does not happen when all the parties agree on the outcome of a
particular matter—as is the case here.
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In re Postsentence Review of Jeakins
607 P.2d 316 (1980) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
318, 70 S. Ct. 652, 94 L. Ed. 865 (1949)). Mailing notice to a party’s last known address
satisfies this requirement. Id.; City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 619,
70 P.3d 947 (2003). Accordingly, this court is permitted to resolve the DOC’s petition
without any participation by Ms. Jeakins.
As previously stated, Broadaway makes clear that the superior court was required
to specify the exact period of community custody being imposed. The DOC and the State
both agree. Accordingly, we grant the DOC’s petition.
The final question for this court is whether, on remand, the superior court can
amend the judgment and sentence and treat this as a scrivener’s error under CrR 7.8(a)
or whether the court must hold a resentencing hearing. Because the first-time offender
statute grants the superior court discretion to determine the term of community custody
being imposed, the superior court must conduct a resentencing in order to exercise its
discretion. See Broadaway, 133 Wn.2d at 136. 2 Because resentencing is a critical stage
in the proceedings for which the right to be present attaches, the superior court will not be
able to hold this hearing until Ms. Jeakins can be brought before the court in person.
2
Our decision about Ms. Jeakins’s presence would be different, if the period of
community custody was fixed by statute, and not discretionary, like it is for other crimes.
See State v. Ramos, 171 Wn.2d 46, 246 P.3d 811 (2011).
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State v. Rupe, 108 Wn.2d 734, 743, 743 P.2d 210 (1987).
CONCLUSION
The case is remanded to the superior court for partial resentencing in accordance
with the terms of this decision.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q
Pennell, A.C.J.
WE CONCUR:
Fearing, J.
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