Post-sentence Petition Of Brian Reeve Wandell ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Post-Sentence )
Review of No. 68881-2-1
BRIAN WANDELL, ORDER DENYING MOTION
FOR RECONSIDERATION
Respondent, ) AND PUBLISHING OPINION
v.
FILED
Jul 23, 2013
STATE OF WASHINGTON, )
Court of Appeals
Division I
Petitioner. )
State of Washington
The respondent, Brian Wandell, has filed a motion for reconsideration
herein. The court has taken the matter under consideration and has determined
that the motion for reconsideration should be denied, and that the opinion of the
court be published.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and, it is further
ORDERED that the opinion of the court filed June 10, 2013, shall be
published and printed in the Washington Appellate Reports.
Done this 23rd day of July, 2013.
FOR THE COURT:
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Post-Sentence
Review of No. 68881-2-1
BRIAN WANDELL, DIVISION ONE |N^j
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Respondent, ] PUBLISHED OPINION
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STATE OF WASHINGTON,
FILED: June 10, 2013 V? in'co
Petitioner. C~i~
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Grosse, J. — The Sentencing Reform Act of 1981 (SRA), chapter 9.94A
RCW, permits modification of sentences only in specific, carefully delineated
circumstances. SRA sentences can be modified only if they meet the
requirements of the SRA provisions relating directly to the modification of
sentences. Here, as Brian Wandell's counsel conceded at oral argument, no
provision of the SRA allows the modification at issue here. The arguments
Wandell raises to justify the modification are without merit. Accordingly, we grant
the Department of Corrections' post-sentence petition and vacate the order
modifying Wandell's judgment and sentence.
FACTS
Brian Wandell pleaded guilty to one count of third degree rape of a child.
By judgment and sentence entered in March 2010, the court imposed 13 months
of confinement and 36 months of community custody. One of the conditions of
community custody prohibited Wandell from remaining "overnight in a residence
where minor children live or are spending the night."
No. 68881-2-1/2
Wandell was released from prison to community custody on October 10,
2010. He received permission to transfer his supervision to the state of Missouri
pursuant to the Interstate Compact for Adult Offender Supervision (ICAOS),
RCW 9.94A.745. By order dated January 6, 2012, the sentencing court modified
Wandell's community custody provisions to add the following provision: "The
Missouri Department of Corrections shall be given explicit authority to modify any
of Mr. Wandell's community custody provisions, including those contained in
App[endix] A, as necessary for supervision and treatment purposes." The record
indicates that Wandell sought the modification so the Missouri Department of
Corrections could remove the prohibition on overnights stays in the presence of
minor children and he would be able to move in with his wife and children in their
Missouri home.
The Washington State Department of Corrections (DOC) filed a post-
sentence petition seeking review of the sentencing court's order under RCW
9.94A.585(7), arguing that the sentencing court acted without lawful authority in
modifying Wandell's community custody provisions.
ANALYSIS
We review de novo whether a trial court exceeded its statutory authority
under the SRA.1 "When a trial court exceeds its sentencing authority under the
SRA, it commits reversible error."2
The "SRA permits modification of sentences only in specific, carefully
delineated circumstances."3 SRA sentences can be modified "only if they meet
1 State v. Smith, 159 Wash. App. 694, 699, 247 P.3d 775 (2011).
2 State v. Hale, 94 Wash. App. 46, 53, 971 P.2d 88 (1999).
No. 68881-2-1/3
the requirements of the SRA provisions relating directly to the modification of
sentences."4 "Modification of a judgment is not appropriate merely because it
appears, wholly in retrospect, that a different decision might have been
preferable."5 As Wandell's counsel conceded at oral argument, the SRA does
not provide for the post-sentence addition of a community custody provision of
the sort the sentencing court added here. Accordingly, the court acted without
authority in modifying his sentence.
Further, because he now lives in Missouri, Wandell's community custody
is governed by the ICAOS. The modification of supervision authority for an
offender under the ICAOS "may be authorized only with the involvement and
concurrence of a state's compact administrator or the compact administrator's
designated deputies."6 In Washington, the secretary of corrections or an
employee of DOC designated by the secretary is the compact administrator
under the ICAOS.7 The modification of Wandell's community custody conditions
runs afoul of the ICAOS rule because it was not made with DOC's concurrence.
To the extent Washington law would authorize modification of the community
custody conditions without DOC's concurrence, the law is superseded by the
ICAOS.8
3 State v. Shove. 113 Wash. 2d 83, 86, 776 P.2d 132 (1989).
4 Shove, 113Wn.2dat89.
5 Shove, 113Wn.2dat88.
6 ICAOS Rule 2.101(c), found at http://www.interstatecompact.org.
7 RCW 9.94A.74502.
8 See RCW 9.94A.745, art. XIV(a)(2) ("All compacting states' laws conflicting with
this compact are superseded to the extent of the conflict.").
No. 68881-2-1/4
We reject Wandell's argument that the modification is a clerical error that
is permissible pursuant to CR 7.8(a). The record shows that the trial court
intended to impose the condition prohibiting Wandell from remaining overnight in
a residence where minor children live or are spending the night. Further, the trial
court did not have the treatment provider's recommendation before it when it
sentenced Wandell because Wandell had not moved to Missouri or seen the
provider at the time of sentencing. Accordingly, it could not have been the trial
court's intention to sentence Wandell in accordance with the treatment provider's
recommendation. CR 7.8(a) did not provide the trial court the authority to modify
the sentence as it did.9
We likewise reject Wandell's argument that the condition the trial court
added was necessary to prevent the sentence from infringing on his
constitutional right to parent his children and that the trial court accordingly had
the authority to correct the sentence pursuant to CrR 7.8(b)(5). That provision
allows a court to relieve a party from a final judgment or order for "[a]ny other
reason justifying relief from the operation of the judgment." Relief under this
provision is appropriate where the circumstance at issue is an extraordinary
circumstance that could not have been envisioned or dealt with at the time of
sentencing.10 Such is notthe case here.
Finally, we reject Wandell's argument that we should deny DOC's post-
sentence petition because without the modification the sentence interferes with
his fundamental right to parent his children. Wandell failed to raise this
9 See State v. Davis. 160 Wash. App. 471, 478, 248 P.3d 121 (2011).
10 Smith. 159 Wash. App. at 701-02.
No. 68881-2-1/5
constitutional challenge in a collateral attack on his sentence through, for
example, a personal restraint petition or a habeas corpus petition. Raising the
challenge in response to DOC's post-sentence petition is not appropriate.
We grant DOC's post-sentence petition and vacate the order modifying
Wandell's judgment and sentence.
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WE CONCUR:
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