State Of Washington, V William N. Schenck Iii ( 2013 )

FILED
GURT OF APPEA S
S
D. .10,4 II
M
2013 FEB 26 AH 10: 22
STYE Q W, -
4 f11GTGN
IN THE COURT OF APPEALS OF THE STATE OF W
TY
DIVISION II
STATE OF WASHINGTON, No. 42451 7 II
- -
Respondent,
VA
WILLIAM N. SCHENCK, III, UNPUBLISHED OPINION
WORSWICK, C. . —
J William Schenck appeals a 2011 order finding that he had eight
violations of his community placement conditions and imposing 480 days of confinement. He
argues that we should reverse these violations because (1)RCW 72. 9.
270(
8 does
0 ) not apply
retroactively to him, 2)
( RCW 72. 9.
270(
8 violates ex post facto prohibitions, 3) trial court
0 ) ( the
failed to make findings of fact, and ( ) evidence supports one violation.
4 no
In his pro se statement of additional grounds, Schenck argues that ( )the statute does not
1
apply to him because he was on community placement not community custody,2)
.( the
sentencing court imposed no geographic restrictions on him, 3) preapproved release address
( the
provision did not apply to him because he served his maximum sentence and was not seeking
early release, 4) did not willfully violate any condition,5)
( he ( imposing geographic restrictions
on him amounted to unconstitutional banishment, 6) sentencing court erred in imposing 24
( the
months of community placement when it only had authority to impose 12 months, and (7)the
court erred in finding two urinalysis requirement violations because both encompassed the same
conduct. We affirm.
No. 42451 7 II
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FACTS
The Department of Corrections (Department)released Schenck to community placement
in May 2010 after Schenck served his entire 120 month sentence for his 2002 conviction of
-
solicitation to commit first degree murder. State v. Schenck, 169 Wn. App. 633, 637, 640, 281
P. d 321 (2012).On October 28,2010,the Cowlitz County Superior Court sentenced Schenck
3
to 20 days of confinement for failing to reside in Thurston County and report to the Department
in Thurston County. 169 Wn.App. at 642. Schenck appealed this decision and this court
affirmed, finding, inter alia, 1)
( RCW 72. 9.
s)' " requirement was not
270(
8 county of origin"
0
impermissively retroactively applied to Schenck because Schenck's release from prison after the
statute's effect was the precipitating event and because Scheck did not have a vested interest in
release to Cowlitz County, and ( ) " ounty of origin"requirement did not violate ex post
2 the c
facto prohibitions.' 169 Wn. App. at 644 651.
-
While his 2010 appeal was pending, the superior court found eight additional community
placement violations for violations documented in reports dated November 24,2010, January 3,
This court refused to consider Schenck's statement of additional grounds because Schenck's
community placement had expired on May 7,2012, and there was no relief this court could
as
provide. 169 Wn.App. at 637 n. . Schenck argued that ( his
2 1) placement should be
12 months, not 24 months; 2)
( community placement conditions did not apply to him because he
was on postrelease supervision; 3)
( only those conditions explicitly stated on his judgment and
sentence applied to him; and (4) court should not toll his community placement during this
this
litigation and appeal. 169 Wn. App. at 637 n. .
2
2
No. 42451 7 II
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2011, and January 27, 2011. On March 25, 2011, the superior court ordered Schenck to serve
480 days in jail for these violations. Schenck appeals.
DISCUSSION
This court previously addressed two of the issues Schenck raises in this appeal. State v.
Schenck, 169 Wn.App. at 633. That decision is binding as to Schenck's retroactivity and ex post
facto claims. See Folsom v. County ofSpokane, 111 Wn. d 256, 759 P. d 1196 (1988)court
2 2 (
will only reconsider an identical legal issue in a subsequent appeal in the same case if the
holding of the prior appeal is clearly erroneous and applying the law of the case doctrine would
result in a manifest injustice).
2
The November 24, 2010 report listed three violations:
1) Failing to report to the Department of Corrections in Thurston County,
Washington as directed since 11/ 2/
2010. 2
2) Leaving Thurston County without permission on or about 11/ 2/
2010. 2
3) Failure to make himself available for urinalysis testing as directed by his
supervising Community Corrections Officer since 11/ 2/
2010.
2
Clerk's Papers (CP)at 5.
The January 3,2011 report listed two violations:
1) Failing to report to assigned [Community Corrections Officer] within 24
hours of release from custody on or about 1/3/
2010.
0
2) Remaining in Cowlitz County without permission since on or about
2010.
01/ 3/
0
CP at 10.
The January 27; 2011 report listed three violations:
1) Failing to report to assigned Community Corrections Officer since on or
about 01/ 0/
2011.
1
2) Failure to be available for random urinalysis testing since on or about
2011
01/ 0/in Thurston County, WA.
1
3) Remaining in Cowlitz County without permission on or about 01/ 1/
2011.
2
CP at 23.
3
No. 42451 7 I1
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As to Schenck's claim that the superior court failed to enter findings of fact in support of
the violations and that the record does not support one of the violations, there is no relief this
court can provide as Schenck has served his community placement and is no longer under the
Department's jurisdiction. 169 Wn. App. at 637 n. . I] a court can no longer provide
2 "[f
effective relief," issue is moot. In the Matter of Cross, 99 Wn. d 373, 376 77,662 P. d 828
an 2 - 2
1983).And we will not review a moot issue unless it involves " atters of continuing and
m
3
substantial public interest." 99 Wn. 2d at 377. All the claims Schenck raises in his statement of
additional grounds are unique to him and not of substantial public interest. This court will not
address the merits of his claims. 169 Wn. App. at 637 n. ( iting State v. Sansone, 127 Wn.
2c
App. 630, 636, 111 P. d 1251 (2005)).
3 There being no addressable claims, the superior court's
decision is affirmed.
We affirm.
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
040;
2.6:it is so ordered.
0
Worswick, C. .
J
3
The criteria for deciding if a matter is of substantial public interest are "( the public or private
1)
nature of the question presented; 2) desirability of an authoritative determination which will
( the
provide future guidance to public officers; and (3) likelihood that the question will recur."
the
Dunner v. McLaughlin, 100 Wn. d 832, 838, 676 P. d 444 ( 984).
2 2 1
0