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       IN THE COURT OF APPEALS OF THE STATE                                             OF RUhIMGMA
                                                                                                0F' 8ASH1 3GT0 i
                                                     DIVISION II
                                                                                                    E   ITY
STATE OF WASHINGTON,                                                                  No. 43818- 6- I

                                         Respondent,


           V.



CLARK ALLEN TELLVIK,                                                          UNPUBLISHED OPINION


                                          11




           LEE, J. —       Clark Allen Tellvik appeals the sentence imposed after he pleaded guilty to

first degree trafficking in         stolen     property.   Tellvik contends that the Clark County prosecuting

attorney breached the plea agreement by failing to argue at sentencing that Tellvik was entitled

to credit for time served while incarcerated in King County on another charge for which he was

sentenced concurrently, and that the trial court erred by failing to credit Tellvik' s sentence with

this   additional    time.    Because the plea agreement offered credit for time served solely on the

Clark County offense and the trial court properly awarded that credit, we _
                                         _                                affirm.

                                                            FACTS


           Tellvik   was     charged      with   various   offenses   in Clark, Yakima,       and   King       counties.   In


exchange for his plea of guilty in each case, the prosecutor agreed to recommend concurrent
DOSAI

            sentences as     long   as   Tellvik   was   found   eligible   for   such sentences.   Tellvik was deemed


DOSA eligible.




1
    Drug   Offender    Sentencing        Alternative, RCW 9. 94A. 660.
No. 43818 -6 -II



         After a King County judge imposed the recommended DOSA sentence following

Tellvik' s plea of guilty to second degree burglary, Tellvik appeared in Clark County and pleaded

guilty to first degree     trafficking in       stolen   property.      The plea agreement provided that the State


would recommend a DOSA sentence including 36.75 months of incarceration and 36.75 months

of   community custody.          The    plea     agreement      added     that "[ t] his offer includes credit for time


served   in custody solely      on   this   case,   up to the date   of   sentencing."     Clerk' s. Papers ( CP) at 17.


         At Tellvik' s sentencing in Clark County on July 18, 2012, the defense and the State

disagreed   about   the   amount of credit          for time   served   that Tellvik   should receive.     The prosecutor


argued that Tellvik was entitled to credit only for the 49 days he was in the Clark County jail in

2010 and 2011 before his arrest in King County, while defense counsel contended that Tellvik

was entitled to credit for some of the time he spent in the King County jail following that arrest.

         The   parties    explained         that Tellvik' s    King County        arrest   occurred   on
                                                                                                           July   31,   2011.


Because of that arrest, Tellvik did not make a Clark County court date in August 2011, and Clark

County    issued   a no -bail warrant on            August 30, 2011.        After his sentencing in King County on

April 20, 2012, Tellvik was in the custody. of the Department of Corrections '(DOC) until his

transport to Clark County on May 18, 2012.

         Defense counsel argued that issuance of the no -bail warrant meant that Tellvik was being

held in King County on the Clark County matter and that he was therefore entitled to presentence

credit   from the date      of   the    warrant       through the       present   sentencing date.         The prosecutor


responded that Tellvik was not entitled to credit for any time served in the King County jail or in

DOC custody before his return to Clark County, even though the King and Clark County

sentences   were    to    run   concurrently.          While the negotiating prosecutor apparently had been



                                                                2
No. 43818- 6- 11




willing to include credit for the time Tellvik spent in DOC custody before his return to Clark

County, the current prosecutor did not believe that this additional time was allowed under the

law.


            The trial court rejected both parties' arguments and awarded Tellvik 137 days for time


served, which included the 49 days he served in Clark County before his King County arrest and

the time he remained in custody after his King County sentencing until his Clark County

sentencing.       The court rejected defense counsel' s argument that this result effectively imposed

consecutive sentences and breached the plea agreement.


            On appeal, Tellvik argues that the State breached the plea agreement by failing to

recommend the amount of presentence credit it had initially promised and that the trial court
                                                                                                 2
miscalculated      the   amount of presentence credit         to    which   he   was entitled.



                                                       DISCUSSION


            A   plea agreement   is   a contract    between the State       and    the defendant.    State v. Sledge, 133


Wn.2d 828; 838 -39, 947 P. 2d 1199 ( 1997). Because plea agreements concern fundamental rights


of   the   accused, constitutional      due   process considerations come            into play. Sledge, 133 Wn.2d at


839.       Consequently, a claim of error based on breach of a plea agreement involves an issue of

constitutional magnitude         that may be        raised   for the first time       on appeal.     State v. Walsh, 143


Wn.2d 1,        8, 17 P3d 591 ( 2001);        see   RAP 2. 5(   a)(   3) ( providing that " manifest error affecting a


constitutional right" may be raised for first time on appeal).



2
    Tellvik has filed     a pro se statement of additional grounds (               SAG).   However, Tellvik provides
only a list of citations supporting appellate counsel' s argument; therefore, we do not address the
SAG separately.



                                                                3
No. 43818 -6 -II



         When a defendant claims constitutional error, the court previews the merits of the claim


to determine   whether   the   argument          is   likely   to   succeed.    State v. Sanchez, 146 Wn.2d 339, 346,


46 P. 3d 774 ( 2002).      The          error   is    considered " manifest"           under    RAP 2. 5( a)( 3) if the facts


necessary to review the claim are in the record and the defendant shows actual prejudice.

Sanchez, 146 Wn.2d at 346. A defendant asserting a breach of a plea agreement can show actual

prejudice if the trial court did not sentence the defendant in accordance with the plea agreement.

Sanchez, 146 Wn.2d at 346.


         The plea agreement in this case explains that the State' s offer " includes credit for time

served   in custody solely     on   this    case,     up to the date       of   sentencing."     CP   at   17.   The agreement


does not otherwise specify the amount of credit that the State will recommend. At sentencing, it

became apparent that the parties were disputing how to calculate this offer of credit and that the
                                                                                                                                   3
prosecutor   was   proposing        a    calculation      different than         a   previous   prosecutor       had   proposed.



Given the language in the plea agreement, we do not see this dispute as a breach of that

agreement.     Instead, we determine whether the trial court properly resolved the offer of credit

and   therefore   sentenced    Tellvik in             accordance        with   the law.    See In re Pers. Restraint of

Costello, 131 Wn.     App.     828, 833, 129 P. 3d 827 ( 2006) (                     sentencing court has no authority to

credit offender for more pretrial detention time than he is entitled to by law).

         As stated, Tellvik contends that he is entitled to credit both his King and Clark County

sentences with the time he spent in the King County jail after issuance of the Clark County no-


3
    The record does not support Tellvik' s argument on appeal that the initial prosecutor promised
him credit for his King County jail time. The record shows instead that the initial Clark County

calculation included the presentence time spent in DOC custody that the trial court ultimately
awarded.




                                                                    M
No. 43818 -6 -II



bail   warrant on      August 30, 2011,           until   his sentencing in   King County       on   April 20, 2012. Tellvik


contends       that the governing           statute,   RCW 9. 94A.505( 6),       does not prohibit a sentencing court

from granting credit for all time served before sentencing when that confinement is served on

concurrent sentences.




             RCW 9. 94A.505( 6) provides that the sentencing court must give an 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."      RCW 9. 94A. 505( 6) thus codifies the


constitutional requirement that an offender is entitled to credit for time served before sentencing,

while not       allowing double       credit      toward any     sentence     arising from any       conviction.    In re Pers.


Restraint of Phelan, 97 Wn.2d 590, 597, 647 P. 2d 1026 ( 1982);                           Costello, 131 Wn. App. at 832.

Under this statute, credit is not allowed for time served on other charges, even if the sentence is

concurrent          with   the   sentence    on    those    charges.   13B SETH A. FINE AND DOUGLAS J. ENDS,


WASHINGTON PRACTICE:                  CRIMINAL LAW, §             3603   at    320 ( 2d   ed.   1998).       If the offender is


confined on two charges simultaneously, however, any time not credited toward one charge must

be   credited       toward the    other.    13B WASH. PRAC.,        supra, §    3603 at 320.


             Case law      supports   this interpretation of RCW 9. 94A.505( 6)              and     its   predecessors.   See In


re Pers. Restraint ofSchillereff, 159 Wn.2d 649, 651 -52, 152 P. 3d 345 ( defendant not entitled to

credit       Washington      sentence with presentence confinement               due to Texas      conviction),    cent. denied, .


551 U. S. 1135 ( 2007); Phelan, 97 Wn.2d at 597 ( petitioner not entitled to credit for jail time


served while awaiting probation revocation hearing because that time was not served exclusively

on     the   principal     underlying      charge);    State v. Stewart, 136 Wn. App. 162, 163 -64, 149 P. 3d 391

 2006) ( the fact that concurrent sentences were imposed on the same date did not entitle a




                                                                   9
No. 43818 -6 -II




defendant to credit on each sentence with the time served from his charging date on the first

cause number - ntil
             u                sentencing.),        review    denied, 162 Wn.2d 1006 ( 2007);         Costello, 131 Wn. App.

at   833 (   sentence credit      is   not allowed       for jail time       served on other charges);    State v. Davis, 69


Wn.     App.        634, 641,    849 P. 2d 1283 ( 1993) ( " When concurrent sentences are imposed, the'


defendant is         not entitled     to   credit   for time   served on other sentences." );       State v. Watson, 63 Wn.


App.    854,    859, 822 P. 2d 327 ( 1992) ( while the Sentencing Reform Act implements a defendant' s

constitutional right to receive credit for any time that he has been held in custody by reason of

that   charge,      it does   not authorize         giving   credit   for time   being   served on other sentences);   State v.


Williams, 59 Wn.          App.    379, 381 -82, 796 P. 2d 1301 ( 1990) ( trial               court properly declined to apply

jail credit for robbery conviction when defendant was detained for robbery charge and parole

violation at same time and was given jail credit on the probation violation).


             Tellvik offers no caselaw to support his position that he is entitled to credit both his King

County and Clark County sentences with some of the time he spent in the King County jail

before his sentencing in that county. We reject Tellvik' s interpretation of RCW 9. 94A.505( 6) as

well as his argument that the denial of double credit renders the King and Clark County
                                                                                       4
sentences       consecutive       and       thus    violates   the    plea   agreement.       The State recommended that


Tellvik' s Clark County sentence run concurrently with his King and Yakima County sentences,

and    the trial     court accepted        that    recommendation.           RCW 9. 94A.589; CP 22, 25.       The trial court




4
     Had the plea agreement promised the double credit that Tellvik seeks, we would have been
required       to   remand      for   withdrawal       of    the   plea    due to   mutual   mistake.   State v. Barber, 170
Wn.2d 854, 873, 248 P. 3d 494 ( 2011).                        Specific performance is not available where the parties
have agreed to a sentence that is contrary to law. Barber, 170 Wn.2d at 873.



                                                                       G
No. 43818 -6 -II



did not err in awarding Tellvik 137 days of presentence credit against his sentence for trafficking
                          5
in   stolen   property.


          Affirmed.


          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.

                                                                                         91 .
                                                                            i/      Lee, J.
We concur:




                          orswick, C. J.




5
     The State does   not challenge        this   credit on appeal.   We assume that the time Tellvik spent in
DOC custody following his King County sentencing until his transport to Clark County has not
been credited against his King County sentence.



                                                             7
