Personal Restraint Petition Of James Stephen Coon, Jr. ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
May 10, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint No. 48171-5-II
Petition of
James Stephen Coon, Jr.
UNPUBLISHED OPINION
Petitioner.
WORSWICK, P.J. — James Coon, Jr. seeks relief from personal restraint following his
2013 convictions of second degree unlawful possession of a firearm, felony harassment, and
failure to register as a sex offender. He claims (1) the Department of Corrections (DOC) is
increasing his term of punishment by retaining him in prison past his early release date, (2) the
sentencing court erred in calculating his offender score, and (3) the combination of his
confinement term and community custody term unlawfully exceeds the statutory maximum
sentence. We hold that (1) petitioner has failed to show that the DOC did not credit him with
community custody time while he was awaiting release, (2) the sentencing court properly
calculated his offender score, and (3) the sentencing court must correct petitioner’s sentence for
failing to register as a sex offender so it does not exceed the statutory maximum. Thus, we grant
this petition in part and remand for correction of petitioner’s judgment and sentence for failure to
register as a sex offender.
Petitioner pleaded guilty on February 26, 2013, to the above noted offenses. Response at
App. A and C. The sentencing court imposed 43 months of incarceration to be served
48171-5-II
concurrently and 36 months of community custody.1 Response at App. A. In calculating
petitioner’s offender score, the sentencing court counted two points for the current offenses as
directed under RCW 9.94A.525 and RCW 9.94A.589.
On July 17, 2015, petitioner had served his confinement time and reached his early
release date. Petition at 4. Nonetheless, because of notification requirements, the DOC did not
release petitioner to the community until August 24, 2015. See Felony Offender Reporting
System, DOC No. 746939. On September 16, 2015, petitioner filed a habeas corpus petition in
Grays Harbor Superior Court and that court transferred the petition to this court for consideration
as a personal restraint petition. Petition, at 2-3. On October 5, 2015, we accepted that transfer
and opened this as a personal restraint petition.
(1) Release from Confinement
Petitioner first claims that the DOC violated his constitutional rights by not releasing him
to community custody on his earned release date. But petitioner has failed to sustain his burden
on this claim.
A personal restraint petition must include as grounds for the requested relief a statement
of the facts supporting the claim of unlawful restraint and the evidence available to support these
factual allegations. RAP 16.7(a)(2); In re Pers. Restraint of Williams, 111 Wash. 2d 353, 365, 759
P.2d 436 (1988). The petitioner must state with particularity facts that, if proven, would entitle
him to relief, and he must present evidence showing that his factual allegations are based on
1
Petitioner’s judgment and sentence for failing to register as a sex offender imposes 43 months’
incarceration and 36 months’ community custody. Pierce County Case No. 12-1-03457-7,
Petition at App. A. Petitioner’s judgment and sentence for unlawful possession of firearm and
felony harassment imposes 43 months’ incarceration only. Pierce County Case No. 13-1-00324-
6. Petition at App. C.
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more than speculation and conjecture. In re Pers. Restraint of Rice, 118 Wash. 2d 876, 886, 828
P.2d 1086, cert. denied, 506 U.S. 958 (1992). Where the petition relies on conclusory
allegations, this court must decline to determine its validity. In re Pers. Restraint of Cook, 114
Wash. 2d 802, 813-14, 792 P.2d 506 (1990).
RCW 9.94A.729(5)(a) directs the DOC to transfer a prisoner to community custody in
lieu of early release when that prisoner will be subject to supervision. Petitioner asserts, without
any evidence, that the DOC did not follow this statute but instead arbitrarily increased his term
of confinement until it could satisfy the statutory notification requirements required before
release to community custody. But without evidence to support this assertion, petitioner’s claim
fails. We assume the DOC followed the statutory dictates and properly credited petitioner’s
additional prison time against his term of community custody. See Blick v. State, 182 Wash. App.
24, 31-32, 328 P.3d 952 (2014) (DOC can deny early release if statutory requirements are not
satisfied); In re Pers. Restraint of Crowder, 97 Wash. App. 598, 601, 985 P.2d 944 (1999) (release
101 days after early release date proper). On this issue, petitioner fails to show unlawful
restraint.
(2) Offender Score Calculation
Petitioner claims that the sentencing court erred in counting his second degree unlawful
possession of a firearm and felony harassment offenses when calculating his offender score for
his failure to register as a sex offender conviction. He reasons that his sex offender registration
violation occurred on May 11, 2012, before his other violations on January 22, 2013, and,
therefore, they should not have been included in his offender score calculation.
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But petitioner is mistaken. RCW 9.94A.525 instructs the sentencing court to count all
prior and current offenses in the offender score. A prior conviction is one that existed before the
current sentencing date. RCW 9.94A.589. Current offenses are those entered or sentenced on
the same date. Here, even though petitioner committed his offenses on different dates, his
convictions were entered and sentenced on the same date. Petitioner fails to show any error and
therefore fails to show unlawful restraint.
(3) Statutory Maximum Sentence
Petitioner claims that the sentencing court erred in imposing 36 months’ community
custody and 43 months’ incarceration for his failure to register as a sex offender conviction
because the combined total exceeds the statutory maximum sentence of 60 months for a class C
felony. The State concedes error and we accept its concession.
RCW 9A.20.21(1)(c) limits the maximum sentence that a sentencing court may impose
for a class C penalty to 60 months of confinement. Because petitioner had only one prior
conviction for failing to register as a sex offender, his conviction for that offense is a class C
felony. RCW 9A.44.132(1)(a)(ii). Because petitioner’s total sentence exceeds the statutory
maximum allowed, it renders that judgment and sentence facially invalid. State v. Bruch, 182
Wash. 2d 854, 866, 346 P.3d 724 (2015) (sentencing court must reduce period of community
custody so as not to exceed statutory maximum sentence); In re Pers. Restraint of Snively, 180
Wash. 2d 28, 30, 32,320 P.3d 1107 (2014) (in an otherwise untimely petition, the relief allowed for
facial invalidity is correction of the sentence, not withdrawal of a plea). Here, the sentencing
court must reduce petitioner’s community custody term from 36 to 17 months.
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We grant this petition in part and remand for correction of petitioner’s judgment and
sentence for failing to register as a sex offender.
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, J.
We concur:
Bjorgen, C.J.
Melnick, J.
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