  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DONNIEDURRETT,
                                                    No. 78246-1-I
                     Appellant,             )
                                            )       DIVISION ONE
               v.
                                            )       UNPUBLISHED OPINION
 STEPHAN SINCLAIR,
                                            )
               and                          )
 DEPARTMENT OF CORRECTIONS,                 )
 STATE OF WASHINGTON, a                     )
 government entity.                         )
                 Respondent.                )
__________________________________          )       FILED: July 29, 2019
          HAzELRIGG-HERNANDEz, J.   —   Donnie Durrett appeals a trial court order

denying his petition for a writ of habeas corpus.    He claims the Department of

 Corrections (DOC) failed to comply with the terms of his 2011 judgment and

sentence by refusing to run the community custody portion of an earlier sentence

concurrently with the confinement imposed in the 2011 cause.        But community

custody must be served in the community following a term of confinement, if

confinement is ordered.     And the statute required the DOC to toll Durrett’s

outstanding community custody during his confinement for the later offense. We

affirm.
No. 78246-1-1/2


                                          FACTS

           In 2007, a jury convicted Donnie Durrett of two counts of failure to register

as a sex offender.       The court imposed concurrent terms of 43 months to be

followed by a variable term of community custody.           After Durrett’s successful

appeal, the court resentenced him on a single count of failure to register on

October 21, 2011.         The court again imposed a sentence of 43 months of

confinement and clarified that the term of confinement in conjunction with

community custody could not exceed the statutory maximum of 60 months.1

       In a separate proceeding, on October 25, 2011, a jury convicted Durrett on

a new charge of failure to register, committed between November 2, 2009 and

January 29, 2010.        On December 9, 2011, the court imposed an exceptional

sentence, based on the parties’ stipulation, of 60 months, the statutory maximum,

with no community custody. Durrett’s purpose in stipulating to the exceptional

sentence was to avoid serving community custody upon his release.                At the

request of the defense, the court ordered the 2011 sentence to run concurrently

with the previous 2007 cause.            Defense counsel explained that she was

uncertain whether Durrett had any confinement time remaining on the 2007

cause, and wanted to avoid “confusion” following the recent remand for

resentencing on the 2007 cause.2 In fact, Durrett completed serving the term of



       1 Following a second appeal, in December 2012, the court amended the
term of community custody to 17 months.
       2 Based on her recollection of the file, the prosecutor believed Durrett had
served the confinement portion of the sentence imposed on the 2007 cause and
Durrett confirmed that he had only community custody remaining.

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No. 78246-1 -1/3


confinement on the 2007 matter and had been released to community custody

two years earlier, on September 8, 2009.~

       The DCC again released Durrett from its custody in 2015. The DCC then

took the position that while Durrett was not subject to supervision on the 2011

cause, he had remaining community custody time and was subject to supervision

on the earlier 2007 cause.

       Durrett filed a petition for a writ of habeas corpus in King County Superior

Court. The trial court dismissed the petition.4

                                    DISCUSSION

       A person may prosecute a writ of habeas corpus in the superior court to

challenge the lawfulness of government restraint. RCW 7.36 .010; In re Pers.

Restraint of Becker, 96 Wn. App. 902, 903, 982 P.2d 639 (1999), affd, 143

Wn.2d 491, 20 P.3d 409 (2001).           RCW 7.36.010 provides, “Every person

restrained of his or her liberty under any pretense whatever, may prosecute a writ

of habeas corpus to inquire into the cause of the restraint, and shall be delivered

therefrom when illegal.” We review a trial court’s ruling on a petition for habeas



        ~ As Durrett implicitly acknowledges, because he was serving community
custody on the 2007 matter when he committed the new offense of failure to
register, the court lacked authority to impose a concurrent sentence under RCW
9.94A.589 (2)(a), however, the DCC did not file a petition to correct the sentence.
See 9.94A.585(7).
        ~ The trial court dismissed Durrett’s petition for a writ with prejudice on the
merits. Likewise, we resolve his appeal on the merits and do not address the
State’s request to dismiss the appeal based on the fugitive disentitlement
doctrine. See City of Seattle v. Klein, 161 Wn.2d 554, 559, 166 P.3d 1149 (2007)
(doctrine applying presumption that defendant in criminal appeal who files an
appeal and flees the jurisdiction forfeits right to pursue appeal)

                                              3
No. 78246-1 -114


corpus for an abuse of discretion. Fathers v. Smith, 25 Wn.2d 896, 899-900, 171

P.2d 1012 (1946).

      As he argued below, Durrett claims the trial court ordered his sentence on

the 2011 cause to run concurrently with the remaining portion of his 17-month

term of community custody on the 2007 cause. And because he served more

than 17 months in custody on the 2011 offense, the DCC had no authority to

supervise him once it released him from custody in 2015.      He claims that by

tolling community custody while he served the sentence imposed on the 2011

cause, the DCC failed to comply with the terms of the 2011 sentence.

      Durrett’s claim fails for several reasons.    First, because Durrett had

outstanding community custody on the 2007 cause when he was confined on the

2011 cause, the DCC was required by statute to toll the remaining community

custody. RCW 9.94A.171(3)(a) provides, in relevant part:

      [A}ny period of community custody shall be tolled during any period of time
      the offender is in confinement for any reason unless the offender is
      detained pursuant to RCW 9.94A.740 or 9.94A.631 for the period of time
      prior to the hearing or for confinement pursuant to sanctions imposed for
      violation of sentence conditions, in which case, the period of community
      custody shall not toll.
      The exceptions to the tolling requirement involving violation of conditions

of sentence do not apply here. The DCC, therefore, properly tolled Durrett’s

community custody in accordance with the statute.

      Second, no authority supports Durrett’s position that imposition of a

concurrent sentence converted the community custody portion of Durrett’s prior

sentence into a period of confinement.    Several provisions of the Sentencing



                                          4
No. 78246-1-1/5


Reform Act (SRA)5 distinguish between periods of post-release supervision and

periods in confinement. Therefore, time spent in confinement cannot also be a

period of supervision under community custody.            Durrett’s interpretation of

concurrent sentencing would eviscerate these provisions.         For instance, RCW

9.94A.707(l), which applies to all sentences, provides that, “Community custody

shall begin: (a) Upon completion of the term of confinement; or (b) at the time of

sentencing if no term of confinement is ordered.”

       The SRA defines “confinement” as “total or partial confinement.” RCW

9. 94A. 030(8).

       “Partial confinement” means confinement for no more than one year in a
       facility or institution operated or utilized under contract by the state or any
       other unit of government, or, if home detention, electronic monitoring, or
       work crew has been ordered by the court or home detention has been
       ordered by the department as part of the parenting program or the
       graduated reentry program, in an approved residence, for a substantial
       portion of each day with the balance of the day spent in the community.
       Partial confinement includes work release, home detention, work crew,
       electronic monitoring, and a combination of work crew, electronic
       monitoring and home detention.
RCW 9.94.030(36).

       “Total confinement” means confinement inside the physical boundaries of
       a facility or institution operated or utilized under contract by the state or
       any other unit of government for twenty-four hours a day, or pursuant to
       RCW 72.64.050 and 72.64.060.
RCW 9.94A.030(52).

       On the other hand, the SRA defines “community custody” as “that portion

of an offender’s sentence of confinement in lieu of earned release time or

imposed as part of a sentence under this chapter and served in the community

       ~ Chapter 9.94A RCW.

                                             5
No. 78246-1-116


subject to controls placed on the offender’s movement and activities by the

department.” RCW 9.94A.030(5) (emphasis added).

       The Supreme Court’s decision in State v. Jones is instructive. 172 Wn.2d

236, 257 P.3d 616 (2011). In Jones, the court held that an offender who had

been confined longer than the original period of confinement (in that case, under

a void sentence) was not entitled to credit the excess time in confinement toward

an outstanding term of community custody. ki. at 245-46. The court reasoned

that allowing such a credit would conflict with the statute requiring tolling of

community custody during periods of confinement. ~ at 244-46; See former

RCW 9.94A.170(3) (1999).      The court further reasoned that allowing such a

credit would contravene the SRA’s definition of “community custody” as the time

actually spent under supervision in the community. ki. at 244. The reasoning in

Jones applies here. Allowing Durrett to serve the community custody portion of

his sentence in confinement would defeat the legislature’s intent with respect to

these provisions.

      Durrett points out that some individuals may serve the community custody

portion of their sentence in confinement. For instance, under RCW 9.94A.729(5),

when the DOC is unable to approve the individual’s release plan, it may refuse to

release that individual to community custody in lieu of earned early release time.

But these provisions involve offenders who do not become eligible for community

custody and clearly do not apply to Durrett, who was, in fact, eligible and

transferred to community custody before he was confined on the 2011 cause.




                                           6
No. 78246-1 -117


       Finally, the DCC asked the court below to make a finding that Durrett’s

petition was frivolous for purposes of ROW 4.24.430, which provides that

individuals serving criminal sentences who have filed three or more lawsuits

deemed frivolous are not entitled to fee waivers. The trial court declined to make

such a finding in dismissing Durrett’s petition.      Without a cross appeal or

reference to the court’s ruling below, the DCC again asks this court to find the

petition seeking a writ was a frivolous action and a “strike” for purposes of ROW

4.24.430.    In these circumstances, while we affirm the trial court’s order

dismissing Durrett’s petition, we decline to make such a finding.

      Affirmed.




      WE CONCUR:



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