                                   FILE
                         COURT OF APFEALbUiV
                          STATE OF V/A'i^'iN^ =. -:i •
                          2013 APP 29 Ai'10: 03




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                NO. 68042-1-1

                     Respondent,                    DIVISION ONE


                    v.



BENNETT REEDY,                                      UNPUBLISHED OPINION

                     Appellant.                      FILED: April 29, 2013



       Lau, J. — Bennett Reedy appeals the trial court's order denying his petition for

relief from registration as a sex offender. Reedy acknowledges that he did not spend 10

consecutive crime-free years in the community since his last date of release from

custody as required by statute, but he argues the trial court erred in declining to

exercise its equitable powers to establish an earlier "constructive release date."

Appellant's Br. at 23. Finding no error, we affirm.

                                            FACTS

       In August 1994, Bennett Reedy pleaded guilty to one count of third degree rape

and one count of unlawful imprisonment. On August 26,1994, the trial court sentenced

Reedy to concurrent sentences of 14 months and 3 months, respectively, with credit for
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309 days served. Based solely on the 14-month incarceration term ordered, Reedy's

expected release date was December 24, 1994.1 The court's judgment and sentence
ordered that "Mr. Reedy may only be released to CCO [(community corrections officer)]

when appropriate housing has been arranged. See Appendix F." Appendix F provided:

       [Reedy] may be released to the CCO as soon as appropriate living arrangements
       can be made (which would require a plan appropriate to ensure that he will be
       available for the court for supervision throughout the 24 months community
       placement period).
               Congregate care facility placement is a condition of release. Mr. Reedy
       shall remain in a congregate care facility throughout 24 mo. period.

The court also ordered Reedy to register as a sex offender.

       Due to the congregate care condition,2 Reedy remained in custody beyond his
early release date. On October 21, 1994, defense counsel filed a motion to modify the

judgment and sentence and to release Reedy because congregate care could not be

arranged before December 24. The motion stated in relevant part:

              5. King County Jail will not release the defendant because of language in
       the original Judgment and Sentence stating, "Mr. Reedy may only be released to
       CCO when appropriate housing has been arranged."
              6. Department of Corrections will not release Mr. Reedy based upon the
       above quoted language in two Judgment and Sentences.
              7. The Community Corrections Officer assigned to Mr. Reedy, Barbara
       McPhee, has not been able to find appropriate housing and treatment due in part
       to Mr. Reedy's custody status.
              8. Department of Corrections, without further action by the court, will hold
       Mr. Reedy until December 24, 1994.



       1This date was Reedy's "maximum" release date, meaning his release date if he
received no earned early release credits. In fact, Reedy had earned 155 days' early
release credit as of August 1994.

       2 Under WAC 51-50-0308, congregate care facilities are buildings or structures
"in which people are cared for or live in a supervised environment... or in which people
are detained for penal or correctional purposes or in which the liberty of the occupants
is restricted."
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       On October 24, the court signed an order for Reedy's immediate release. Reedy

was released for a two-day period. But the court vacated its October 24 order after

learning that Reedy was in Department of Corrections (DOC) custody rather than in

King County jail. Reedy was then reincarcerated at DOC and not released on his

maximum release date of December 24, 1994.

       In January 1995, the court scheduled a new sentencing review hearing to

address Reedy's "post-release residence in congregate care facility." On February 16,

the court modified Reedy's community placement to allow for his conditional release for

an assessment at a congregate care facility:

      The defendant may be temporarily released to the care of DOC ... to be
      interviewed by RTS [(residential treatment specialist)] (should RTS not come to
      the jail) and then subsequently released to RTS once placement has been made.
      Defendant shall abide by all conditions of his CCO and RTS during community
      placement.

Reedy was unable to arrange housing at a congregate care facility, apparently due to

lack of space. On March 1, 1995, the court modified the judgment and sentence to

permit Reedy's immediate release but required him to report daily to DOC and reside at

a congregate care facility when space became available. Reedy was released from

custody that day.

      On February 17, 2005—just short of 10 years after his release from custody on

the 1994 rape conviction—Reedy was arrested and charged with fourth degree

assault/domestic violence. Reedy pleaded guilty to the offense. Reedy has since been

convicted of felony violation of a protection order/domestic violence (May 2005), failure

to register as a sex offender (May 2008), and fourth degree assault/domestic violence

(May 2011).

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      In March 2008, Reedy moved for relief from registration as a sex offender under

former RCW 9A.44.140 (1)(c) and (3)(a).3 He argued that for legal and equitable
reasons, the court should find he met RCW 9A.44.140's requirement that petitioners

spend 10 consecutive years in the community without being convicted of any new

offenses:

              Had Mr. Reedy been released, as required, on December 24, 1994 the
      maximum release date possible under his sentencing range, he would have been
      eligible for automatic de-registration under RCW 9.94A.140(1)(c). The offense
      barring his automatic de-registration occurred on February 15, 2005,
      approximately 13 days before he would have been eligible even given that his
      term of total confinement exceeded the maximum in his standard range. The
      equities in this case require that Mr. Reedy be relieved of his requirement to
      register as a sex offender.

No action was taken on this motion. Reedy renewed his motion in November 2011,

relying on RCW 9A.44.140(3)4 and RCW 9A.44.142(1)(b).5 The court denied the


      3The version of this statute applicable when Reedy requested relief from
registration in 2008 provided in relevant part:
        (1) The duty to register under RCW 9A.44.130 shall end:

             (c) For a person convicted of a class C felony . . . ; Ten years after the last
      date of release from confinement, if any, (including full-time residential treatment)
      pursuant to the conviction, or entry of the judgment and sentence, if the person
      has spent ten consecutive years in the community without being convicted of any
      new offenses.

            (3)(a) . . . [A]ny person having a duty to register under RCW 9A.44.130
      may petition the superior court to be relieved of that duty, ifthe person has spent
      ten consecutive years in the community without being convicted of any new
      offenses. . . .
Former RCW 9A.44.140 (2006) (emphasis added).

      4The version of this statute applicable when Reedy renewed his motion in 2011
is the same as the current version:
              For a person convicted in this state of a class C felony, a violation of RCW
      9.68A.090 or 9A.44.096, or an attempt, solicitation, or conspiracy to commit a
      class C felony, and the person does not have one or more prior convictions for a
69866-4-1/5



motion, finding that Reedy had not spent 10 consecutive years in the community without

being convicted of a disqualifying offense.

                                        ANALYSIS

       Reedy's 1994 third degree rape conviction requires him to register as a sex

offender. RCW 9A.44.130(1 )(a); RCW 9.94A.030(46)(a)(i); RCW 9A.44.060. Third

degree rape is a class C felony. RCW 9A.44.060(2). A class C felony sex offender's

duty to register automatically ends "ten years after the last date of release from

confinement, if any, (including full-time residential treatment) pursuant to the conviction,

or entry of the judgment and sentence, ifthe person has spent ten consecutive years in

the community without being convicted of a disqualifying offense during that time

period." RCW 9A.44.140(3).6 The 10-year registration period is mandatory. See RCW


       sex offense or kidnapping offense and the person's current offense is not listed in
       RCW 9A.44.142(5), the duty to register shall end ten years after the last date of
       release from confinement, if any, (including full-time residential treatment)
       pursuant to the conviction, or entry of the judgment and sentence, if the person
       has spent ten consecutive years in the community without being convicted of a
       disqualifying offense during that time period.
RCW 9A.44.140(3). The parties cite to different versions of the relevant sex offender
statutes throughout their appellate briefs. None of the amendments since 1994
materially affects our analysis and neither party asks us to decide which version applies,
so we refer to the current statutes in analyzing Reedy's claims.

       5This provision allows any person who is required to register under
RCW 9A.44.130 to petition the superior court to be relieved of that duty. Among other
requirements, the petitioner must show he or she "has spent ten consecutive years in
the community without being convicted of a disqualifying offense" and must show by
clear and convincing evidence that he or she is sufficiently rehabilitated to warrant relief
from the duty to register. RCW 9A.44.142(1 )(b), (4).

       6The State claims, "Alternatively, a superior court may grant a petition to relieve
an offender of the duty to register if, among other criteria, 'the person has spent ten
consecutive years in the community without being convicted of any new offenses.'"
Resp't's Br. at 7 (quoting former RCW 9A.44.140(3)(a) (2009)). This subsection now
69866-4-1/6



9A.44.140 ("The duty to register under RCW 9A.44.130 shall continue for the duration

provided in this section.") (emphasis added).

         Reedy concedes he did not spend 10 consecutive crime-free years in the

community because his February 2005 fourth degree assault/domestic violence offense

occurred less than 10 years after his March 1, 1995 release from custody. However, he

argues that he was illegally detained in custody beyond his release date and, thus,

"[p]ursuant to its equitable powers, the court had authority to establish a constructive

release date of December 24, 1994, and thereby grant the motion for relief from

registration, since Reedy spent ten years crime-free following that date." Appellant's Br.

at 18.


         This court addressed a similar issue in State v. Smith, 137 Wn. App. 431, 153

P.3d 898 (2007). There, Smith pleaded guilty to forgery and unlawful possession of

payment instruments. Smith, 137 Wn. App. at 434. At sentencing, he challenged the

State's calculation of his offender score, arguing that three prior class C felony

convictions from 1995 washed out under RCW 9.94A.525(2). Smith, 137 Wn. App. at

435. The version of that statute in effect at the time of sentencing provided in relevant

part:

         Class C prior felony convictions . . . shall not be included in the offender score if,
         since the last date of release from confinement. .. pursuant to a felony


appears in revised form at RCW 9A.44.142(1 )(b). We question whether this provision
applies to class C felony sex offenders, as their duty to register ends automatically once
they spend 10 consecutive crime-free years in the community under RCW
9A.44.140(3). RCW 9A.44.142(1)(b) more likely provides a mechanism for individuals
with longer registration periods (such as class A or B felony offenders) to petition for
early relief under specific circumstances. Regardless, under either RCW 9A.44.140(3)
or RCW 9A.44.142(1)(b), a class C felony sex offender cannot be relieved of his duty to
register as a sex offender until he has spent 10 crime-free years in the community.
69866-4-1/7



      conviction, if any, or entry of judgment and sentence, the offender had spent five
      consecutive years in the community without committing any crime that
      subsequently results in a conviction. . ..

Former RCW 9.94A.525(2) (2004).

      The parties agreed that Smith had been improperly sentenced for the 1995

convictions and that he should have been released in February 2000, but he was not

actually released until after that time. Smith, 137 Wn. App. at 435-36. Smith argued

that RCW 9.94A.525(2)'s five-year time clock should have started in February 2000

(which would cause his 1995 convictions to wash out) rather than when he was actually

released from custody at a later time (which would cause his 1995 convictions not to

wash out). Smith, 137 Wn. App. at 436. The trial court disagreed, finding that because

Smith failed to complete five consecutive crime-free years in the community since the

last date of release from confinement, his 1995 convictions did not wash out. Smith,

137Wn. App. at 436.

      On appeal, Smith challenged the trial court's inclusion of the 1995 convictions in

his offender score. He claimed that if he had been properly sentenced for those

convictions, he would have been released in February 2000. Smith, 137 Wn. App. at

439. We framed his argument as follows: "Smith argues that because his sentence

should have ended in February 2000, his continued confinement was not 'pursuant to a

felony conviction but rather pursuant to an erroneous [j]udgment and [s]entence.' Br. of

Appellant at 10. Thus, he argues, the five-year clock should have started in February

2000." Smith, 137 Wn. App. at 439-40 (alterations in original).
69866-4-1/8



       Smith essentially argued that the trial court should have used February 2000 as a

constructive release date because he should have been released at that time. We

rejected his argument:

               Smith does not contend that the sentencing court lacked jurisdiction to
       impose the sentence that extended past February 2000. Nor do we find any
       failure of the trial court's jurisdiction in imposing the overlong sentence. At most,
       the sentence was subject to challenge for legal error. And until an appellate
       court overturned his sentence, Smith's conviction and sentence remained valid.
       See In re Pers. Restraint of Fleming, 129 Wash.2d 529, 533, 919 P.2d 66 (1996)
       (subject matter jurisdiction exists where the court has the authority to adjudicate
       the type of controversy in the action and it continues to exist despite an
       erroneous interpretation of the law) (citing State v. Moen, 129 Wn.2d 535, 545,
       919P.2d69(1996)). .. .
              Moreover, even if we assume that the State wrongly held Smith after
       February 2000, the legislature intended to reward only those defendants who
       spend five consecutive years in the community without committing a crime.
       Smith cannot show five crime-free years. And although his incarceration past
       February 2000 is partially responsible for the problem, we have no way of
       knowing whether Smith would have remained crime-free for five years if he had
       been released in February 2000.

Smith, 137 Wn. App. at 440. We explicitly rejected Smith's "equity" argument:

              Finally, Smith argues that "equity entitles [him] to credit for the time he
      was wrongfully incarcerated, when applying the statutory wash[-]out provision."
      Br. of Appellant at 11. Citing In re Personal Restraint of Roach, 150 Wn.2d 29,
      74 P.3d 134 (2003), he argues that equity precludes the court from increasing his
      sentence because he was erroneously imprisoned beyond his release date. In
      Roach, the court adopted "an equitable doctrine of relief for a prisoner released
      from state custody due to the State's negligence." Roach, 150 Wn.2d at 30. But
      Smith was not released early due to the State's negligence; nor did the
      Department of Corrections hold him longer than it had authority to hold him.
      Smith's argument that equity precludes the court from including the 1995 class C
      felony convictions in his offender score is without merit.

Smith, 137 Wn. App. at 441 (alteration in original).

       Similarly, Reedy contends that the trial court should have used December 24,

1994, as a constructive release date because he should have been released on that

day. Like in Smith, Reedy does not contend that the trial court lacked jurisdiction to

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impose the sentence or the attached conditions. "At most, the sentence was subject to

challenge for legal error," and because no appellate court overturned Reedy's

conviction and sentence, they remained valid. Smith, 137 Wn. App. at 440. Even

assuming the State wrongly held Reedy after December 24, 1994, the plain language of

both RCW 9A.44.140(3) and RCW 9A.44.142(1)(b) indicates legislative intent to reward

only those offenders who spend 10 consecutive crime-free years in the community.

Reedy cannot show 10 consecutive crime-free years. Like in Smith, although Reedy's

incarceration past December 24, 1994, is "partially responsible for the problem, we have

no way of knowing whether" Reedy would have remained crime-free for 10 years had

he been released at that time. Smith, 137 Wn. App. at 440.

       Citing In re Personal Restraint of Roach, 150 Wn.2d 29, 74 P.3d 134 (2003), and

State v. Dalseg, 132 Wn. App. 854, 134 P.3d 261 (2006), Reedy argues he is entitled

by analogy to the "equitable doctrine of credit for time spent at liberty . . .." Appellant's

Br. at 18. Roach involved a defendant who was erroneously released prior to

completing his sentence due to the State's mistake. Roach, 150 Wn.2d at 31-32. Our

Supreme Court framed the issue as "whether principles of equity require that the

sentence of a mistakenly released prisoner be credited with time spent out of custody."

Roach, 150 Wn.2d at 33. Finding no statute on point, the court adopted the Ninth

Circuit's doctrine of credit for time spent at liberty, holding that "a convicted person is

entitled to credit against his sentence for time spent erroneously at liberty due to the

State's negligence, provided that the convicted person has not contributed to his

release, has not absconded legal obligations while at liberty, and has had no further

criminal convictions." Roach, 150 Wn.2d at 37.

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69866-4-1/10



       Dalseg addressed whether defendants who served their sentences on work

release at the State's recommendation were entitled to credit for time served when the

State later learned that the work release program failed to comply with statutory

requirements. Dalseg, 132 Wn. App. at 857. The court applied Roach's equitable

doctrine of credit for time spent at liberty by analogy and held, "If equity entitles a

convicted person to day-for-day credit for time spent at liberty due to the State's

mistake, equity should entitle him to credit for time spent in some lesser form of restraint

than the punishment actually imposed." Dalseg, 132 Wn. App. at 865.

       Reedy's case is analogous to Smith, not to Roach or Dalseg. Unlike in Roach

and Dalseg, Reedy was not released early or sentenced to a statutorily noncompliant

program due to the State's negligence. Reedy cites to no authority supporting his claim

that, as a matter of equity, the sentencing court had authority to establish a constructive

release date in determining whether he spent 10 consecutive crime-free years in the

community. State v. Logan, 102 Wn. App. 907, 911, 10 P.3d 504 (2000) ("'Where no

authorities are cited in support of a proposition, the court is not required to search out

authorities, but may assume that counsel, after diligent search, has found none.'")

(quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193

(1962)). While he cites examples of courts recognizing equitable doctrines, he fails to

suggest what analysis or standards we should apply before exercising our equitable

powers or establishing a new equitable doctrine.7 Also, unlike in Roach and Dalseg,


       7 By contrast, when our Supreme Court adopted the equitable doctrine of credit
for time spent at liberty, it supplied guidelines for the doctrine's application. See Roach,
150 Wn.2d at 37-38; see also Dalseg. 132 Wn. App. at 864-67 (applying Roach's
guidelines and analysis).
                                             -10-
here a contrary statute is on point. As discussed above, clear statutory language

provides that a class C felony sex offender's duty to register ends only when he or she

spends 10 crime-free years in the community. RCW 9A.44.140(3); RCW

9A.44.142(1)(b). We decline to exercise our equitable powers to contravene a clear

statutory directive. See State v. Jones, 172 Wn.2d 236, 247 n.7, 257 P.3d 616 (2011)

(declining to exercise equitable powers to contravene statutory scheme); State v.

Donaghe, 172 Wn.2d 253, 268 n.15, 256 P.3d 1171 (2011) (same).

                                     CONCLUSION

      The trial court properly declined to establish a constructive release date for

purposes of relief from registration as a sex offender. We affirm.




WE CONCUR:




     WJ^N^/JSM >




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