                                                                      FILED
                                                                  DECEMBER 14, 2017
                                                                In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




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

 IN THE MATTER OF THEPOST-                    )
 SENTENCE PETITION OF                         )        No. 35065-7-III
                                              )
ANTHONY LUCIO.                                )        UNPUBLISHED OPINION
                                              )

      FEARING, C.J. -In a post-sentence review petition (PSP), pursuant to RCW

9.94A.585(7), the Washington State Department of Corrections (DOC) asks this court to

review the community custody portion of Anthony Lucio's sentence on a conviction for

criminal mischief. DOC argues that a criminal mischief charge does not qualify for

community custody. We disagree.

                                         FACTS

      Our record tells nothing about the underlying crimes. Anthony Lucio committed

the crimes on July 10, 2016.

      On July 11, 2016, the State of Washington charged Anthony Lucio with attempted

malicious mischief in the first degree (public service interruption) under RCW

9A.48.070(l)(b), assault in the third degree against a law enforcement officer under
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RCW 9A.36.031(1)(g), and obstructing a law enforcement officer under RCW

9A.76.020. The information alleged that Lucio physically damaged or tampered with an

emergency vehicle and assaulted a law enforcement officer. The information provided

no further background for the crime.

      On November 21, 2016, the trial court found Anthony Lucio guilty, upon a plea,

of one count of attempted malicious mischief in the first degree and one count of criminal

mischief while armed. Note that the second conviction is for a crime other than the three

crimes charged in the information. We do not know what facts allegedly supported a

conviction for criminal mischief while armed. The court declared in paragraph 2.1 of the

judgment and sentence:

             2.1 Current Offenses: The defendant is guilty of the following
      offenses, based upon a Guilty Plea on November 21.2016:
             Count Crime RCW (w/subsection) Class Date of Crime
               1      Malicious Mischief in the First Degree (Public Service
                      Interruption)
                                    9A.48.070(l)(b)      B      07/10/2016
               1     Attempt        9A.28.020           SA      07/10/2016
               2     Criminal Mischief While Armed
                                    9A.84.010(2)(b)      C      07/10/2016

PSP Ex. 1 at 1. Paragraph 2.3 of the judgment and sentence notes that the maximum

sentence for criminal mischief is twelve months.

      On November 21, 2016, the trial court sentenced Anthony Lucio to twenty months

on the charge of attempted malicious mischief and one year on the charge of criminal

mischief, with the two sentences to run concurrently. The trial court added a twelve-

month community custody term to the criminal mischief conviction. Paragraph 4.2 of the

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judgment and sentence reads, in relevant part:

               4.2 Community Custody. (To determine which offenses are eligible
       for or required for community custody see RCW 9.94A.701)
               (A) The defendant shall be on community custody for:

             Count(s) __l__l2 months (for crimes against a person, drug offenses,
      or offenses involving the unlawful possession of a firearm by a street gang
      member or associate)
             Note: combined term of confinement and community custody for
      any particular offense cannot exceed the statutory maximum. RCW
      9.94A.701.

PSP Ex. 1 at 6.

       On November 23, 2016, DOC received a copy of Anthony Lucio's judgment and

sentence. As is its custom, DOC reviewed the judgment and sentence imposed on Lucio.

DOC concluded that the trial court committed error, when imposing a community

custody term on Lucio, because the crime of criminal mischief does not qualify for

community custody. In December of 2016, DOC staff e-mailed the deputy prosecuting

attorney handling the prosecution and asked him to request the trial court to amend the

sentence. On January 4, 2017, DOC counsel further notified the superior court and the

parties of the alleged error. DOC counsel again asked the prosecuting attorney to amend

the sentence. The prosecuting attorney disagreed and contended that the law warranted

the imposition of community custody.

                                     PROCEDURE

       On February 15, 2017, DOC filed this post-sentence petition with our court. This

court appointed counsel for Anthony Lucio.


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           This court directed Anthony Lucio and the Grant County Prosecuting Attorney to

    file a response. Both parties filed responses. The prosecuting attorney, on behalf of the
I   State of Washington, disagreed with DOC. Lucio agreed with DOC's position and raised

I
I
    a new argument regarding whether the court might impose community custody for one

    year. Lucio noted that the maximum sentence for criminal mischief is twelve months,

    and, when one adds his prison sentence and community custody time, the total sentence is

    two years. Lucio asked this court to strike the community custody sentence on this

    additional ground. We, in tum, requested a response from DOC and the State of

    Washington as to Lucio's request.

                                     LAW AND ANALYSIS

          Issue 1: Whether we may entertain Anthony Lucio 's request, to vacate the

    community custody portion of his sentence, in the setting ofDOC 's petition for correction

    ofsentence?

           Answer 1: No.

           DOC filed this petition for post-sentence review pursuant to RCW 9.94A.585.

    The statute reads:

                   (7) The department may petition for a review of a sentence
           committing an offender to the custody or jurisdiction of the department.
           The review shall be limited to errors oflaw. Such petition shall be filed
           with the court of appeals no later than ninety days after the department has
           actual knowledge of terms of the sentence. The petition shall include a
           certification by the department that all reasonable efforts to resolve the
           dispute at the superior court level have been exhausted.



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We must decide whether this statute authorizes the offender to challenge a portion of his

sentence as part of the proceeding initiated by DOC's petition.

       Anthony Lucio recognizes that post-sentence reviews are typically confined to the

issue raised by DOC. Nevertheless, Lucio observes that he challenges the same section

of the judgment challenged by DOC, that section being the imposition of twelve months'

community custody. Lucio therefore contends he may forward his argument as part of

DOC's petition.

       We disagree. Whereas, Anthony Lucio seeks the same relief as sought by DOC,

he raises a separate legal issue. His response requires this court to engage in an analysis

of a distinct legal question.

       RCW 9.94A.585(7) allows DOC to petition the court for review. The statute

creates a unique action initiated in the Court of Appeals. The legislature created the

action to resolve the conundrum DOC faces when it discovers an error in the judgment

and sentence. In re Sentence of Chatman, 59 Wn. App. 258,264, 796 P.2d 755 (1990).

No language in the statute allows the offender to assert a petition or new argument.

       Anthony Lucio argues that this court may not affirm an erroneous sentence such

that we are compelled to address his request for correction. This argument assumes too

much. Any ruling in response to DOC' s petition will merely grant or deny the petition.

The ruling will not affirm Anthony Lucio's judgment and sentence as a whole.

       We recognize that present review of Anthony Lucio's contention may save the

parties and the court the time and expense of a personal restraint petition being filed by

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     Lucio. Nevertheless, Lucio will need to initiate whatever avenues remain available to

     him to correct any erroneous sentence.

            Issue 2: Whether the crime of criminal mischiefmay carry a sentence of

     community custody?

           Answer 2: Yes.

!           DOC is not authorized to either correct or ignore a final judgment and sentence
iI   that may be erroneous. Dress v. Department of Corrections, 168 Wn. App. 319,322,279
!'
Ii   P.3d 875 (2012). The department may petition the Court of Appeals for review of an

j    alleged error of law in a judgment and sentence within ninety days of having knowledge

!    of the terms of such a sentence. Dress v. Department of Corrections, 168 Wn. App. at

     322. The legislature designed RCW 9.94A.585(7) to alleviate the dilemma previously

I    facing DOC: enforcing what it considers to be an unlawful sentence or ignoring the

     sentence imposed by the trial court. Dress v. Department of Corrections, 168 Wn. App.

     at 326-27.

            The question presented by DOC's petition involves solely a legal issue. This court

     must decide whether it agrees with DOC that the trial court lacked authority to impose a

     term of community custody on Anthony Lucio as a result of the conviction for criminal

     mischief.

           RCW 9.94A.701 controls the issue. The statute directs the superior court to

     impose a term of community custody, in addition to prison time, on an offender on a

     conviction for certain crimes. The statute reads in relevant part:

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No. 35065-7-111
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                  (3) A court shall, in addition to the other terms of the sentence,
          sentence an offender to community custody for one year when the court
          sentences the person to the custody of the department for:
                  (a) Any crime against persons under RCW 9.94A.411 (2);
                  (b) An offense involving the unlawful possession of a firearm under
          RCW 9.41.040, where the offender is a criminal street gang member or
          associate;
                  (c) A felony offense under chapter 69.50 or 69.52 RCW, committed
          on or after July 1, 2000; or
                  (d) A felony violation ofRCW 9A.44.132(1) (failure to register) that
          is the offender's first violation for a felony failure to register.

(Emphasis added.) Subsection (3)(a) is the only relevant subsection ofRCW 9.94A.701

for purposes of our review. This court ~ust determine if Anthony Lucio's conviction for

criminal mischief consists of a crime against a person under RCW 9 .94A.411 (2).

          RCW 9.94A.701(3)(a) references crimes against persons under RCW

9.94A.411(2). On November 21, 2016, when the trial court sentenced Anthony Lucio,

the latter statute listed numerous crimes against persons, including:

                 CRIMES AGAINST PERSONS

                Riot (if against person) [RCW 9A.84.0I0]

RCW 9 .94A.411 (2) did not list criminal mischief as a crime against a person. When the

legislature first enacted RCW 9.94A.411(2), no crime labeled as "criminal mischief'

existed. The crime of "criminal mischief' has since been substituted for the crime of

"riot."

          In 2013, the legislature amended RCW 9A.84.010 with the term "criminal

mischief' being replaced for "riot." LAWS OF 2013 ch. 20, § 1. The amendment did not

change any elements of the crime, however. The amendment did not alter the language

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No. 35065-7-111
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of the statute. The House Bill Analysis for the 2013 bill noted that the crime carried a

maximum sentence of one year confinement and up to one year in community custody.

HOUSE PUBLIC SAFETY COMM., H.B. ANALYSIS ON SUBSTITUTE S.B. 5021 at 1, 63d Leg.,

Reg. Sess. (Wash. 2013).

       Despite amending the name of the crime found in RCW 9A.48.010 during 2013,

the legislature never amended RCW 9.94A.411(2) to substitute, as a crime against a

person, "criminal mischief' for "riot." DOC contends that the failure of the legislature to

update RCW 9.94A.411(2) to list "criminal mischief' means the legislature chose not to

include "criminal mischief' in the list of crimes against persons. Therefore, according to

DOC, "criminal mischief' is not a crime against a person eligible for community custody

under RCW 9.94A.701(3)(a).

       The State of Washington, through the Grant County Prosecuting Attorney, resists

the petition. The prosecuting attorney argues that the legislature, when it renamed the

crime of"riot" to "criminal mischief' in 2013, never intended to remove from

community custody eligibility whatever crime is described in RCW 9A.48.010. We

agree with the State.

       This court's fundamental purpose in construing a statute is to ascertain and carry

out the intent of the legislature. In re Marriage o/Schneider, 173 Wn.2d 353,363,268

P.3d 215 (2011). In so doing, the court relies on many tested, commonsensical, and

intelligent principles to divine the meaning of the statute, principles employed when



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interpreting other important and even sacred texts. State v. Jimenez, 200 Wn. App. 48,

52,401 P.3d 313 (2017).

      DOC's argument is overly technical. DOC's position inappropriately promotes

form over substance. State v. Olson, 126 Wn.2d 315,318,893 P.2d 629 (1995). The

2013 amendment to RCW 9A.48.010 did not change the nature of the subject crime. The

change in the label of the crime from "riot" to "criminal mischief' should not impact the

consequences behind a conviction for the crime unless the legislature expressly so states.

The legislature never suggested that the crime described in RCW 9A.48.010 should not

remain eligible for imposition of community custody. Any failure, in 2013, to amend

RCW 9.94A.411(2)(a)'s list of crimes against persons was an understandable oversight

because of numerous interlocking terms in criminal sentencing statutes.

      One rule of statutory construction directly applicable to the issue before this court

arises from a statute. RCW 1.12.028 declares:

              If a statute refers to another statute of this state, the reference
      includes any amendments to the referenced statute unless a contrary intent
      is clearly expressed.

      The legislature apparently noticed its oversight. The legislature passed a bill this

year amending RCW 9.94A.411(2)'s list of crimes against persons demanding one year

of community custody. LAWS OF 2017, ch. 266 § 5(2)(a) (eff. July 23, 2017). RCW

9.94A.411(2)(a) now reads, in part:

             CRIMES AGAINST PROPERTY/OTHER CRIMES

             Criminal Mischief (if against person) (RCW 9A.84.010)

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No. 35065-7-111
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       Anthony Lucio argues that the 2017 bill confirms that the legislature earlier

purposefully declined to include the crime of"criminal mischief' as a crime subject to

community custody. We disagree. RCW 1.12.028 directs this court to assume otherwise.

       Our analysis does not end with the conclusion that a conviction for the crime of

criminal mischief subjects the offender to community custody. RCW 9.94A.411(2) only

permits community custody for the crime of criminal mischief"if against person." Under

RCW 9A.84.010, the offender may commit the crime of criminal mischief against either

a person or against property. RCW 9A.84.010 declares:

             ( 1) A person is guilty of the crime of criminal mischief if, acting
      with three or more other persons, he or she knowingly and unlawfully uses
      or threatens to use force, or in any way participates in the use of such force,
      against any other person or against property.

(Emphasis added.)

      ·Rew 9A.84.010 does not identify the characteristics that distinguish criminal

mischief against a person from criminal mischief against property. No case law admits

guidelines for determining whether the offender commits criminal mischief against a

person or property.

      Paragraph 2.1 of the felony judgment and sentence entered in November 2016

declares Anthony Lucio guilty of criminal mischief while armed but does not mention

whether Lucio committed the crime against person or property. Anthony Lucio was

armed when he committed the crime. While one might expect the offender to more likely

be armed when committing a crime against person as opposed to against property, such a

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No. 35065-7-III
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conclusion would be speculative. The State substituted the crime of criminal mischief for

the original charges of assaulting a law enforcement officer and obstructing a law

enforcement officer. The earlier charges may suggest that Lucio committed the crime of

criminal mischief against a person.

        We conclude that Anthony Lucio committed his crime of criminal mischief

against a person for another ground. In paragraph 4.2 of the judgment and sentence, the

court specifically orders community custody on a finding that the crime was "against a

person." Neither Anthony Lucio nor DOC argue that the crime was one only against

property.

                                              CONCLUSION

        We deny DOC's petition to modify Anthony Lucio's sentence.

        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.



                                                Fearing, C.J.

WE CONCUR:

l ...                  ~                  I
        '-JC"-':,U •
Lawrence-Berrey,       1:   ...........
                                                Pennell, J.




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