                                                                                  FILED 

                                                                                JAN 8, 2015 

                                                                       In the Office of the Clerk of Court 

                                                                     W A State Court of Appeals, Division III 





                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION THREE

     THE STATE OF WASHINGTON,                      )
                                                   )         No. 31803-6-III
                          Respondent,              )
                                                   )
            v.                                     )
                                                   )
     VERNON RAY JOHNSON JR.,                       )         UNPUBLISHED OPINION
                                                   )
                          Appellant.               )

            SIDDOWAY, C.J. - Vernon Johnson appeals the trial court's failure at sentencing

     to credit him with 276 days spent in jail before pleading guilty to vehicular assault and

     possession of a stolen vehicle. While the State argued at sentencing that credit was not

     warranted in light of felony warrants served on Mr. Johnson for unrelated out-of-state

1
   crimes, it concedes on appeal that he was entitled to credit for the time served.


l           We do not entirely accept the State's concession, because it is not clear that the

     constitutionally mandated day-for-day credit to which Mr. Johnson is entitled was

\    required to be satisfied at the sentencing of the Washington crimes. There is a

     constitutional mandate that must be satisfied at some time, however, and because the

     State now regards this sentence as an appropriate time and it appears that the




1
     No. 3IS03-6-In
     State v. Johnson


     constitutional mandate was not brought to the sentencing court's attention, we remand



I
.~
 I
     with instructions for the court to reconsider the issue of credit for time served consistent

     with this opinion .

                           FACTS AND PROCEDURAL BACKGROUND
1
,
            Vernon Johnson pleaded guilty to vehicular assault and possession of a stolen

     motor vehicle. He was seriously injured in the incident giving rise to the charges and was

     hospitalized from February 19,2012, the date of the incident, until September 21,2012.
.~

I    He was arrested upon his release from the hospital on September 21 and was served that
I    same day with two outstanding felony warrants for unrelated matters in Oregon and
1
     Missouri.

            On May 23, 2013, Mr. Johnson pleaded guilty to the two Washington charges.

     Before sentencing, Mr. Johnson's lawyer asked that his client receive credit for the 276

     days served in jail from the date he was arrested on the underlying charges. l The State

     took the position that Mr. Johnson should only receive credit for time served "ifhe is

     legally entitled to credit under the Sentencing Reform Act." It explained:




            1 Walla Walla chose not to arrest Mr. Johnson immediately, "[b]ecause the
     medical bills were just so excessive." Report of Proceedings (RP) at 17. While Mr.
     Johnson's lawyer indicated at one point that she was researching whether Mr. Johnson
     should receive credit for the time he was bedridden, hospitalized, and possibly restrained,
     she agreed by the time of sentencing that her client had not been confined during his
     hospitalization and was not entitled to credit for that time period.

                                                  2
No. 31803-6-II1
State v. Johnson


      The State's position is that under the SRA, someone is only entitled to
      credit for time served if they are held in confinement only on the charge
      that they are being sentenced for. And in Mr. Johnson's case, when he was
      arrested on September 21st, he was also served with a felony warrant from
      Missouri and I believe Oregon. They are two totally unrelated charges,
      separate and apart from the charges in the case before the Court ....
              The State's position is he shouldn't be receiving credit unless the
      Sentencing Reform Act specifically requires he receive that credit. And
      [RCW 9.94A.505(6)], which is cited in my memorandum, he would not be
      entitled to credit since September the 21 st of 20 12.

Report of Proceedings (RP) at 16-17.

      [PROSECUTOR]: So that's essentially the State's recommendation and
      we simply ask that he be given credit for what he is entitled to receive.

      THE COURT: And what is that in your mind?



      [PROSECUTOR]: If the holds from Oregon and Missouri are still in effect
      then he doesn't receive any credit for time served pending sentencing.

      THE COURT: And who is going to give him credit for that time?

      [PROSECUTOR]: I don't know what the Oregon sentencing guidelines or
      Missouri guidelines require. But there are separate cases that come after
      this that can certainly run their credit concurrent with his sentence here,
      whatever the Court imposes. They could give him credit for time served in
      the jail here, since he was held on their holds. But I don't know what their
      sentencing guidelines require. I'm simply looking at the Washington cases
      and what the Sentencing Reform Act requires.

      THE COURT: So it is conceivable he gets no credit at all for any of that
      time?

      [PROSECUTOR]: That would depend on what the other states require.
      Specifically the State's relying on a Washington Supreme Court case, [In
      Re: Schillereff 159 Wn.2d 649, 152 PJd 345 (2007)], where the defendant
      in that case had charges in Texas, and similar charges there, and he was


                                           3

No. 31803-6-III
State v. Johnson


          arrested on a warrant, brought to Texas, brought back to Washington to
          address his charges there, and he wasn't given any credit for time served
          since his return back to Washington because he was being held on more
          than one matter when he was returned to Washington.

                  So there is authority to support that. In addition to the language of
          the statute, to the plain language.

RP at 18-19.

          Mr. Johnson's lawyer argued in response that the trial court should give her

client credit for time served toward the Washington crimes, observing that her

client "was not able to answer to the other [Missouri and Oregon] detainers and

since he could not leave the jail and go to the other states that wanted him, he had

no choice to be here, and doing the time that he has." RP at 21. The trial court

made a comment in response that while obscure, at least as transcribed, suggests

that it might have believed that not giving credit was compelled by the statute:

"All right. The last example of an intuitive answer that seems to make sense is

contradicted by the State case, and statutory law." Id.

          In thereafter announcing its ruling, the trial court accepted the State's

recommended sentence. It then stated that it was "not going to give any credit for days

served for the reasons stated by the State in their Memorandum and in argument here

under existing statutory and case law." RP at 24. Mr. Johnson appeals his judgment and

sentence solely on the ground that the trial court erred in denying him credit for time

served.


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No. 31803-6-III
State v. Johnson


                                          ANALYSIS

       Whether a defendant is entitled to credit for time served is a question oflaw, and

is therefore reviewed de novo. State v. Swiger, 159 Wn.2d 224,227, 149 P.3d 372

(2006).

          "Failure to allow credit [for time served] violates due process, equal protection,

and the prohibition against multiple punishments." State v. Cook, 37 Wn. App. 269, 271,

679 P .2d 413 (1984). As explained in Cook, "if credit is not allowed those unable to

obtain release pending trial may serve longer sentences than those who are released.

Additionally, the total of the [presentence] detention time plus the imposed sentence

might exceed the statutory maximum penalty if credit is not allowed." Id. at 271 (citing

Reanier v. Smith, 83 Wn.2d 342, 517 P.2d 949 (1974) and In re Trambitas, 96 Wn.2d

329,635 P.2d 122 (1981».

       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.

The statute has been held to reflect the constitutional mandate. In re Pers. Restraint of

Costello, 131 Wn. App. 828, 832, 129 P.3d 827 (2006) (citing former RCW

9.94A.120(17), now renumbered as RCW 9.94A.505(6». Credit is not permitted for time

served on other charges. Costello, 131 Wn. App. at 833. However, if the offender is

confined on two charges simultaneously, "any time not credited towards one charge must

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No. 31803-6-III
State v. Johnson


be credited towards the other." 13B SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON

PRACTICE: CRIMINAL LA W § 3603 (2 ed. & Supp. 2013-2014).

        The language ofRCW 9.94A.505(6) is mandatory in only one sense: it requires

the sentencing court to give the offender credit for confinement time served if the

confinement was solely in regard to the criminal counts that are before the court for

sentencing-which is to say, ifit will be the only opportunity for the court to give the

defendant the constitutionally-mandated day-for-day credit. It permits the court to give

the offender credit for confinement time served if the confinement was in regard to other

charges as well and the credit has so far not been applied to any other sentence.

       In this case, the parties appear to now agree that imposing the sentence for Mr.

Johnson's Washington charges was an appropriate time to ensure that he receives the

constitutionally mandated day-for-day credit for his 276 days of pre-trial confinement.

We do not entirely accept the State's concession of error, because we do not think that it

was the only possible time. Cj In re Pers. Restraint ofSchaupp, 66 Wn. App. 45, 48-51,

831 P.2d 156 (1992) (ordering the Department of Corrections to apply credit for a portion

of defendant's pretrial confinement to a Franklin County conviction after the defendant

was sentenced on the last charge for which he had been held, but where neither

sentencing court had given him all the day-for-day credit to which he was constitutionally

entitled).




                                             6
    No. 31803-6-III
    State v. Johnson


           From review of the record and the present position of the parties, it appears that

    the trial court was not fully informed of its discretion when it was called on to determine

    whether to credit Mr. Johnson with the time he served in presentence confinement. We

    therefore remand with instructions to reconsider the credit issue consistent with this

    OpInIOn.

           A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.


I
I
I   WE CONCUR: 





                                                  Lawrence-Berrey, J.




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