State Of Washington v. Chris A. Forth ( 2014 )

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COURT OF APPEALS
D! VISIMIVI 11
2014 FEB 20 AM 9* 24
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 19429 -5 -II
Respondent, Consolidated With
V. No. 43041 -0 -II
CHRIS ALLEN FORTH,
UNPUBLISHED OPINION
WORSWICK, C. J. — On November 8, 1994, a jury found Chris Allen Forth guilty of first
degree child molestation and bail jumping. The trial court imposed a special sex offender
sentencing alternative (SSOSA) sentence that allowed Forth to serve his 75 month sentence
under community supervision, subject to certain conditions. In 1995, Forth appealed his first
degree child molestation conviction to this court. While his appeal was pending in this court,
Forth fled the State and we granted the State' s motion to dismiss his appeal. We issued a
mandate from that appeal on November 18, 1996. Forth was later arrested pursuant to a bench
warrant on December 16, 2011.
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At Forth' s February 3, 2012 SSOSA revocation hearing, the trial court found that Forth
had failed to complete court- ordered treatment and failed to report to his community corrections
officer as directed. The trial court entered an order revoking Forth' s SSOSA sentence and
committing him to 75 months of incarceration and 36 months of community custody. Forth
timely appealed the trial court' s SSOSA revocation order, asserting that ( 1) the trial court failed
to credit him for time he served in an Idaho jail while awaiting extradition to Washington.
On October 30, 2012, our Supreme Court ordered this court to recall our mandate and to
reinstate Forth' s original appeal. On December 4, 2012, we reinstated Forth' s original appeal, in
which he argued ( 2) the trial court erred by admitting child hearsay evidence without weighing
on the record each of the nine factors for determining the hearsay statements' reliability under
State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 ( 1984); and ( 3) sufficient evidence did not support
his conviction. We consolidated Forth' s original appeal with his appeal from the trial court' s
SSOSA revocation order and allowed the parties to file supplemental briefing. Forth filed a
supplemental brief in which he asserts that (4) his trial counsel was ineffective for stipulating to
the reliability of the child victim' s hearsay statements, ( 5) his appellate counsel was ineffective
for failing to obtain the entire verbatim record of proceedings of Forth' s trial, and ( 6) appellate
counsel' s failure to obtain the entire trial record violated his state constitutional right to appeal.
Forth has also filed a statement of additional grounds for review ( SAG), in which he
asserts ( 7) the trial court erred by failing to credit him with time he had served in the community
before revocation of his SSOSA sentence. We affirm Forth' s convictions. but remand to the trial
court for a determination of whether Forth was serving time in Idaho solely in regard to the
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Washington offense for which he sought credit and, if so, a recalculation of the credit for time
served that Forth is entitled to under RCW 9. 94A. 505( 6).
FACTS
Forth and Tina Bennett married in 1982 and had two children; JAB and TB. 1 Forth and
Tina dissolved their marriage in 1988, and Tina later married Donald Bennett.2 Under the terms
of the parties' dissolution decree, JAB and TB spent a majority of their time living in Pendleton,
Oregon with Tina and visited Forth for four weeks every summer and on every other holiday. In
the summer of 1991, JAB and TB went to visit Forth in Puyallup, Washington. After TB
returned to Pendleton and started the first grade, she became more aggressive and began
out at people, mostly boys." Report of Proceedings ( RP) ( Nov, 2, 1994) at
physically " striking
7.
One evening in August 1992, TB climbed onto Donald' s lap, gave him a hug, and asked
for " special attention." RP ( Nov. 2, 1994) at 7. Tina and Donald asked TB what she had meant
by " special attention," and TB responded, "[ S] pecial attention like ... daddy Chris gives her."
RP ( Nov. 2, 1994) at 8. When Tina and Donald again asked TB what she had meant by " special
attention," TB became frustrated and went to her bedroom. Tina went.to TB' s bedroom and
asked her again what she had meant by " special attention," but TB said that she couldn' t tell her.
After Tina assured TB that she could tell her anything, TB revealed that Forth had touched her
1
We refer to the juvenile victim and her brother by their initials to protect their privacy interests.
2 Because Tina and Donald Bennett share a last name, we refer to each individual by their first
name for clarity, intending no disrespect.
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inappropriately during her visit with him in the summer of 1991. Specifically, TB stated that
Forth had touched her breasts and vaginal area with his hands and his mouth. TB also described
a " toilet game" that she said occurred in Forth' s bathroom, where Forth had directed her to
urinate in his mouth. RP ( Nov. 2, 1994) at 11. Tina reported TB' s allegations to the Oregon
Children' s Services Division (CSD). .
CSD caseworker Linda Olson interviewed TB on August 21, 1992. Using anatomically
correct drawings of a female child and a male adult, TB described to Olson the same incidents of
Forth' s sexual misconduct that she had disclosed to Tina. TB told Olson that the incidents
occurred during her visit with Forth in the summer of 1991.
On July 14, 1993, the State charged Forth with one count of first degree child
molestation. The State later amended its information to include a bail jumping charge, after
Forth failed to appear at an October 20, 1993 hearing.
Before trial, the trial court held a hearing to determine the admissibility of TB' s hearsay
statements to Tina and Olson. The trial court ruled that TB' s hearsay statements to Tina and
Olson were admissible at trial, stating:
Well, the Court at this point makes evidentiary rulings only and in this case, like
every other case, the jurors will be free to believe all or part or none of the
witness who testifies in the case. The child' s competence to
testimony of any
testify has been conceded, so we' ll state the jurors will either believe or disbelieve
the child. We then get to the mother and to Linda Olson.
The Court, of course, can take judicial notice and note that there are
always motivations, ex- husband, ex -wife, there can be lots of animosity or maybe
not such and all different gradiations [ sic] and variations. Other than
animosity
the obvious fact that this ex- husband and ex -wife, I didn' t detect any particular
motivation to do anything other than what a mother should do. That doesn' t mean
I' m putting a stamp of accuracy on any particular witness, but I didn' t see
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anything other than the ex- husband, ex -wife syndrome to detract from the
testimony of mother. And of course whether she should or should not be
believed, again, can be argued to the jury.
As far as Ms. Olson, all of us are handicapped by the allegations that
something happened in 1991. It, whatever it was, was disclosed in 1992 and
people had to act upon it, or they did act upon it in 1992. It' s now November 1,
1994 and we all have to struggle with that, and whether that hurts or helps the
state, whether that hurts or helps the defense, remains to be seen.
I find that any inconsistencies or problems with Linda Olson' s report are
simply things where there can be problems and both sides can argue whether
these are problems that should cause anybody to particularly believe or disbelieve
a particular witness.
The Court will rule that the hearsay statements of the mother and of Linda
Olson are admissible.... .
We' ll note an exception to the defense on the Court' s ruling and as I say, I
don' t know if a cautionary instruction is appropriate or not, but I' ll certainly
consider it.
RP ( Nov. 1, 1994) at 57 -59.
At trial, TB, Tina, and Olson testified consistently with the facts as stated above.
Additionally, Tina testified that she and Donald had driven to Seattle from Pendleton a couple of
weeks after July 4, 1991, to drop off JAB and TB with Forth for a four -week visit. On cross-
examination, Tina testified that during the pendency of her marriage dissolution in 1988, she had
taken TB to a doctor after suspecting that TB had been sexually abused, but the doctor
determined that there was no evidence of such sexual abuse. Tina stated that she became
concerned about possible sexual abuse in 1988, when TB told her that " daddy had spanked her
down there." RP ( Nov. 2, 1994) at 32. She further stated that she didn' t tell Forth about her
suspicions in 1988 because " it didn' t seem important," and because she was embarrassed to tell
Forth about her suspicions after the doctor' s examination revealed no evidence of sexual abuse.
RP ( Nov. 2, 1994) at 32 -33.
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Prior to Donald' s testimony, the State requested that the trial court allow Donald to
TB' s statement that she had asked him for " special attention." Outside the presence
testify about
of the jury, Donald stated that TB had asked him for " special attention," that he did not know
what she had meant by the statement, that TB never told him what she had meant by the
statement, and that TB did not talk to him about her allegations of Forth' s sexual misconduct.
Following this inquiry, defense counsel stipulated to the admissibility of TB' s hearsay statement
to Donald.
Forth testified that he drove to Pendleton in late June of 1991 to stay with his
grandmother for her 80th birthday party and for a family reunion. He further testified that Tina
dropped off JAB and TB at his grandmother' s house on July 6 or July 7, and that he drove the
children to Puyallup a couple of days later. Forth stated that his visitation with the children
continued until July 16, 1991, at which point he drove the children back to Tina' s home in
Pendleton. The testimony of defense witnesses Joe Forth, Forth' s older brother; Cory Haugsted,
Forth' s half brother; Myrna Coan, Forth' s mother; and William Coan, Forth' s stepfather, all
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substantially supported Forth' s testimony regarding the timeline of JAB and TB' s visit with him
in the summer of 1991. In addition, Joe Forth and Myrna Coan both testified that the bathroom
in Forth' s home was too small for Forth to lie on the floor in the manner that TB had alleged.
The jury returned verdicts finding Forth guilty of first degree child molestation and bail
jumping. The trial court imposed a SSOSA sentence that allowed Forth to serve his 75 month
sentence under community supervision, subject to certain conditions.
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On April 26, 1995, Forth filed a timely notice of appeal challenging his first degree child
molestation conviction. In November 1995, while Forth' s appeal was still pending review in this
court, the State filed a petition in the trial court to revoke Forth' s SSOSA sentence. Forth failed
to' appear for his SSOSA revocation hearing and a bench warrant was issued for his arrest. 3 On
April 23, 1996, the State filed a motion with this court to dismiss Forth' s appeal, asserting that he
waived his right to appeal by fleeing this court' s jurisdiction. On June 5, 1996, a commissioner
of this court entered an order conditionally dismissing Forth' s appeal. We dismissed Forth' s
appeal on August 8, 1996, and issued our mandate on November 18, 1996. Forth was arrested
on December 16, 2011.
Following a February 3, 2012 SSOSA revocation hearing, the trial court entered an order
revoking Forth' s SSOSA sentence, finding that he had failed to complete treatment and had
failed to report to his community corrections officer as directed. Forth asserted at the revocation
hearing that he was entitled to six months and three days credit for time served in Idaho on the
bench warrant. The trial court disagreed, stating:
You were sitting in the Idaho jail because you went to another jurisdiction, and
we had to extradite you back here. You don' t get credit for the time you spent in
the Idaho jail. You only get credit for the time you spent in our state and our jail.
RP ( Feb. 3, 2012) at 11 - 12. On February 8, 2012, Forth timely appealed the trial court' s order
revoking his SSOSA sentence.
3 For reasons that are unclear from the record on appeal, Forth' s bench warrant was quashed; a
second bench warrant for his arrest issued in December 1998. It was revealed at the February 3,
2012 SSOSA revocation hearing that Forth had fled to Idaho and had assumed the name " John
Conrad" until his arrest on December 16, 2011.
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On April 12, 2012, Forth filed a motion with this court to recall the mandate from his
1995 appeal, which motion we denied on June 27, 2012. Forth filed in our Supreme Court a
motion for discretionary review of the order denying his motion to recall our mandate. On
October 30, 2012, our Supreme Court ordered this court to recall our mandate and to reinstate
Forth' s appeal. On December 4, 2012, we reinstated Forth' s appeal, consolidated that appeal
with his appeal from the trial court' s SSOSA revocation order, and allowed the parties to file
supplemental briefing.
ANALYSIS
I. CHILD HEARSAY EvIDENCE
Forth first contends that the trial court erred by admitting evidence of TB' s hearsay
statements to Tina and Olson. Specifically, Forth argues that we should reverse his first degree
child molestation conviction because the trial court failed to evaluate on the record the nine Ryan
factors for determining the reliability of child hearsay statements. Because evidence presented at
the child hearsay hearing supports the trial court' s conclusion that TB' s hearsay statements were
reliable, and thus admissible under former RCW 9A.44. 120 ( 1991), we disagree.
We review a trial court' s decision to admit child hearsay evidence for an abuse of
discretion. State v. Borboa, 157 Wash. 2d 108, 121, 135 P.3d 469 ( 2006). A trial court abuses its
discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for
untenable reasons. State v. Rohrich, 149 Wash. 2d 647, 654, 71 P.3d 638 ( 2003). The child
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hearsay statute, former RCW 9A.44. 120,4 governed the admissibility of TB' s out -of - ourt
c
statements and provided in relevant part:
A statement made by a child when under the age of ten describing any act of
sexual contact performed with or on the child by another or describing any
attempted act of sexual contact with or on the child by another, not otherwise
admissible by statute or court rule, is admissible in evidence in dependency
proceedings under Title 13 RCW and criminal proceedings, including juvenile
offense adjudications, in the courts of the state of Washington if:
1) The court finds, in a hearing conducted outside the presence of the
jury, that the time, content, and circumstances of the statement provide sufficient
indicia of reliability; and
2) The child either:
a) Testifies at the proceedings; or
b) Is unavailable as a witness: PROVIDED, That when the child is
unavailable as a witness, such statement may be admitted only if there is
corroborative evidence of the act.
Because TB testified at trial, the issue before us is whether her statements were
sufficiently reliable to be admitted through the testimony of Tina and Olson. In determining
whether the time, content, and circumstances of a child' s hearsay statements provide sufficient
indicia of reliability, a trial court applies the nine Ryan factors. State v. Woods, 154 Wash. 2d 613,
623, 114 P.3d 1176 ( 2005) ( citing Ryan, 103 Wash. 2d 165). Those factors include:
1) whether the child had an apparent motive to lie, ( 2) the child' s general
character, ( 3) whether more than one person heard the statements, ( 4) the
spontaneity of the statements, ( 5) whether trustworthiness was suggested by the
and the witness, 6)
timing of the statement and the relationship between the child
(
4
The language of former RCW 9A.44. 120 remains substantially the same in its current form.
The current statute now contains language allowing for the admission of child hearsay evidence
where the out - - ourt statement sought to be admitted described " any act of physical abuse of
of c
the child by another that results in substantial bodily harm as defined by RCW 9A.04. 110."
LAWS OF 1995, ch. 76, § 1.
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whether the statements contained express assertions of past fact, ( 7) whether the
child' s lack of knowledge could be established through cross -examination, ( 8) the
remoteness of the possibility of the child' s recollection being faulty, and ( 9)
whether the surrounding circumstances suggested the child misrepresented the
defendant' s involvement.
Woods, 154 Wash. 2d at 623 ( citing Ryan, 103 Wash. 2d at 175 -76). A trial court need not determine
that every Ryan factor is satisfied before admitting child hearsay evidence under former RCW
9A.44. 120; it is sufficient if the evidence before the trial court shows that the Ryan factors are
substantially met." State v. Swan, 114 Wash. 2d 613, 652, 790 P-.2d 610 ( 1990).
Here, Forth does not contend that the evidence presented at the child hearsay hearing
failed to support the trial court' s ruling on the admissibility of TB' s hearsay statements to Tina
and Olson. Instead, he argues only that the trial court abused its discretion by admitting TB' s
hearsay statements without weighing on the record each of the nine Ryan factors. But a trial
court need not find that every Ryan factor weigh in favor of reliability, so long as the factors are
substantially met." Swan, 114 Wash. 2d at 652. Moreover, we will affirm a trial court' s
admission of child hearsay evidence where the reliability of the evidence is apparent from the
record. State v. Stevens, 58 Wn. App. 478, 487, 794 P.2d 38 ( 1990). Here, the record contains
sufficient evidence that the Ryan factors were substantially met and, thus, the trial court did not
abuse its discretion by admitting those statements at trial.
II. SUFFICIENCY OF THE EVIDENCE
Next, Forth asserts that sufficient evidence did not support his first degree child
molestation conviction. Again, we disagree.
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Sufficient evidence exists to support a conviction if any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the
light most favorable to the State. State v. Hosier, 157 Wash. 2d 1, 8, 133 P.3d 936 ( 2006). A
defendant claiming insufficiency of the evidence admits the truth of the State' s evidence and all
inferences that reasonably can be drawn from the evidence. State V. Salinas, 119 Wash. 2d 192,
201, 829 P.2d 1068 ( 1992). Circumstantial evidence and direct evidence are equally reliable.
State v. Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 ( 1980). We defer to the trier of fact on
issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.
State v. Walton, 64 Wash. App. 410, 415 -16, 824 P.2d 533 ( 1992).
To convict Forth of first degree child molestation, the State had to prove beyond a
reasonable doubt the essential elements of former RCW 9A.44. 083 ( 1990), which statute
provided in relevant part, " A person is guilty of child molestation in the first degree when the
person has sexual contact with another who is less than twelve years old and not married to the
perpetrator and the perpetrator is at least thirty -
six months older than the victim." And former
RCW 9A.44. 010 ( 1988) defined " sexual contact" as " any touching of the sexual or other intimate
parts of a person done for the purpose of gratifying sexual desire of either party."
Forth does not assert that the State failed to present evidence in support of the elements of
first degree child molestation but, instead, contends that no rational jury could have found his
guilt beyond a reasonable doubt in light of the conflicting evidence regarding the timing of TB' s
visitation with him in the summer of 1991: Forth also contends that the State' s evidence with
regard to the " bathroom game" incident failed to support his first degree child molestation
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conviction in light of defense witnesses' testimony regarding the bathroom' s size. Forth' s
contentions essentially ask this court to reweigh the evidence and to evaluate the credibility of
witnesses. But we defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence. State v. Cord, 103 Wash. 2d 361, 367, 693 P.2d
81 ( 1985). Accordingly, Forth' s argument regarding the sufficiency of the evidence used to
convict him is meritless and we do not address it further here.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Forth asserts in his supplemental brief that his trial counsel was ineffective for
stipulating to the admissibility of TB' s hearsay statement through the testimony of Donald, and
that his original counsel on appeal was ineffective for failing to order a complete transcription of
his trial record. We disagree.
We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126
Wn. App. 297, 319, 106 P.3d 782 ( 2005). To prevail on an ineffective assistance of counsel
claim, Forth must show both that ( 1) counsel' s performance was deficient and ( 2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wash. 2d 311, 344 -45, 150 P.3d 59 ( 2006).
Performance is deficient if, after considering all the circumstances, it falls below an objective
standard of reasonableness. State v. McFarland, 127 Wash. 2d 322, 334 -35, 899 P.2d 1251 ( 1995).
Prejudice results if the outcome of the trial would have been different had defense counsel not
rendered deficient performance. McFarland, 127 Wash. 2d at 337. If Forth fails to establish either
prong of this test, our inquiry ends and we need not consider the other prong. State v.
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Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 ( 1996). We strongly presume that counsel is
effective and the defendant must show the absence of any legitimate strategic or tactical reason
supporting defense counsel' s actions. McFarland, 127 Wash. 2d at 337. To rebut this
presumption, the defendant bears the heavy burden of "establishing the absence of any
conceivable legitimate tactic explaining counsel' s performance. "' State v. Grier, 171 Wash. 2d 17,
42, 246 P.3d 1260 ( 2011) ( quoting State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80
2004)).
A. Trial Counsel
Forth asserts that his trial counsel was ineffective for stipulating to the admissibility of
TB' s out -of - ourt statement to Donald because the statement was not admissible under former
c
RCW 9A.44. 120. Although Forth is correct that TB' s statement regarding " special attention" did
not describe any " act of sexual contact performed with or on the child by another," at least with
regard to Donald who testified that TB never explained to him what the statement meant, it is for
this very reason that he cannot demonstrate that his trial counsel' s stipulation prejudiced him.
Moreover, because Tina also testified as to TB' s initial statement regarding " special attention,"
Donald' s testimony was cumulative and therefore did not prejudice Forth. Accordingly, Forth
cannot show that the outcome of his trial would have been different had his counsel objected to
the admissibility of TB' s statement to Donald and, thus, he fails to demonstrate that his trial
counsel rendered.ineffective assistance.
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B. Appellate Counsel
Next, Forth asserts that his original appellate counsel was ineffective for failing to order a
complete verbatim transcription of his trial record. Specifically, Forth asserts that his appellate
counsel was ineffective for failing to order a transcription of jury voir dire, opening statements,
and closing arguments. 5 Absent a record of these proceedings, however, we cannot evaluate
whether the outcome of Forth' s appeal would be different had his original appellate counsel
ordered a' transcription of these records. State v. Burke, 132 Wash. App. 415, 419, 132 P.3d 1095
2006) ( citing McFarland, 127 Wash. 2d at 335). Accordingly, on the record before us, Forth fails
to demonstrate ineffective assistance of appellate counsel.
IV. RIGHT To APPEAL
Forth also argues that his appellate counsel' s failure to order a complete verbatim
transcript of the trial proceedings deprived him of his right to appeal under article I, section 22,
of our State Constitution. We disagree.
A criminal defendant is ` constitutionally entitled to a ` record of sufficient
completeness' to permit effective appellate review of his or her claims." State v. Tilton, 149
Wash. 2d 775, 781, 72 P.3d 735 ( 2003) ( quoting State v. Thomas, 70 Wash. App. 296, 298, 852 P.2d
1130 ( 1993) ( quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d
21 ( 1962)). However, a " record of sufficient completeness" does not necessarily equate with a
5 In his supplemental brief, Forth asserts that these records are no longer available as reporter' s
notes may be destroyed after 15 years under RCW 36.23. 070. It has not escaped our attention
that Forth' s absconsion likely contributed to his inability to now provide a complete verbatim
transcript of trial.
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complete verbatim transcript of trial. Tilton, 149 Wash. 2d at 781. And the absence of a portion of
the trial record is not reversible error unless the defendant can demonstrate prejudice. State v.
Miller, 40 Wn. App. 483, 488, 698 P.2d 1123 ( 1985). Again, on the record before us, Forth
cannot demonstrate any prejudice resulting from the absence of a portion of his trial record.
Accordingly, he cannot show that he was deprived of his article I, section 22 right of appeal and
we affirm his convictions.
V. ORDER REVOKING SOOSA SENTENCE
Next, Forth challenges the trial court' s order revoking his SSOSA sentence, asserting that
the trial court erred by failing to credit him for time served in an Idaho jail while awaiting
extradition back to Washington State. Because the trial court erred by ruling as a matter of law
that Forth was not entitled to credit for time served in an out - f - tate correctional facility, we
o s
remand to the trial court for a determination of whether Forth was serving time in Idaho solely in
regard to the Washington offense for which he sought credit and, if so, to recalculate his credit
for time served.
We review de novo a trial court' s decision to award an offender credit for time served.
State v. Swiger, 159 Wash. 2d 224, 227, 149 P.3d 372 ( 2006). When interpreting a statute, our duty
is to implement the intent of the legislature. State v. Thompson, 151 Wash. 2d 793, 801, 92 P.3d
228 ( 2004). Where a statute' s meaning is. plain on its face, we must give effect to that meaning
as expressing the legislature' s intent. State v. Jacobs, 154 Wash. 2d 596, 600, 115 P.3d 281 ( 2005).
We determine a statute' s plain meaning from the ordinary meaning of the statute' s language, as
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well as from the general context of the statute, its related provisions, and from the statutory
scheme as a whole. Jacobs, 154 Wash. 2d at 600.
RCW 9. 94A. 505( 6) provides, " The 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." A trial court may not award credit for time
served on other charges. In re Pers. Restraint ofPhelan, 97 Wash. 2d 590, 597, 647 P.2d 1026
1982). By its plain language, RCW 9. 94A.505( 6) requires sentencing courts to credit offenders
with all confinement time served before sentencing if such confinement was solely in regard to
the offense being sentenced. And the statute does not contain any language limiting such credit
0606
to time served in a Washington State facility. The State argues, however, that RCW 9. 95.
precludes Forth from receiving credit for time served in an out -of state jail while awaiting his
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extradition to Washington. But RCW 9. 95. 900( 2) states that RCW 9.95. 060 applies to " any
felony offense committed before July 1, 1984, and to any offense sentenced under RCW
9. 94A. 507 and committed on or after July 1, 2001." Here, Forth committed his offense in 1991
6 RCW 9. 95. 060 provides in relevant part:
When a convicted person seeks appellate review of his or her conviction and is at
liberty on bond pending the determination of the proceeding by the supreme court
or the court of appeals, credit on his or her sentence will begin from the date such
convicted person is returned to custody.... If such convicted person does not
seek review of the conviction, but is at liberty for a period of time subsequent to
the signing of the judgment and sentence, or becomes a fugitive, credit on his
sentence will begin from the date such convicted person is returned to custody.
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and, thus, RCW 9. 95. 060 does not apply to his sentence. Accordingly, we do not consider the
State' s argument regarding RCW 9. 95. 060. Instead, we rely on the plain language of RCW
9. 94A.505( 6) to hold that the sentencing court was required to credit Forth with time he served in
an Idaho jail, provided that Forth served such time solely in regard to the Washington offense
being sentenced.
Here, the record is unclear as to whether Forth had been serving time in an Idaho jail
solely for his Washington offense because the trial court foreclosed any further presentation of
evidence on that issue by ruling as a matter of law that Forth was not entitled to credit for time
served in of state
an out - - facility. Similarly, it is unclear how much time Forth had served in the
7
Idaho jail while awaiting his extradition. Accordingly, we remand to the trial court for a
determination of whether Forth was setving time in Idaho solely in regard to the Washington
offense for which he sought credit and, if so, to recalculate the credit for time served that Forth is
entitled to under RCW 9. 94A.505( 6).
VI. SAG
In his SAG, Forth argues that the trial court erred by failing to credit him with time he
served on community custody before the revocation of his suspended sentence. But our Supreme
Court has held that a defendant is not entitled to credit against his sentence for time spent in the
community under a SSOSA before the defendant' s suspended sentence was revoked. State v.
7 The trial court must resolve these factual issues on remand.
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Pannell, 173 Wash. 2d 222, 224, 267• P. 3d 349 ( 2011). Following Pannell, we reject Forth' s SAG
argument.
We affirm Forth' s convictions but remand to the trial court to determine whether Forth' s
confinement in Idaho was solely in regard to his Washington offense and, if so, to recalculate the
credit to which Forth is entitled under RCW 9. 94A.505( 6).
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.
Worswick, C. J.
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