 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,
                                                   No. 78076-0-I
                      Respondent,
                                                   DIVISION ONE
               v.
                                                   PUBLISHED OPINION
 SALLYEA 0. McCLINTON,

                      Appellant.                   FILED: August 26, 2019


       APPELWICK, C.J.   —   In 1997, McClinton was convicted of first degree rape

while armed with a deadly weapon, attempted first degree rape, and first degree

burglary. In November 2017, the trial court issued a bench warrant for McClinton

based on his alleged violations of community custody conditions.         Before the

hearing on his alleged violations, he moved to transfer his case to the Department

of Corrections. The trial court denied his motion, found him in violation of three

community custody conditions, and ordered him to serve 30 days of confinement.

McClinton argues that he was denied equal protection because he did not receive

the same procedural benefits as offenders who committed their underlying crime

after July 1, 2000. We affirm.

                                      FACTS

       In 1997, Sallyea McClinton was convicted of first degree rape while armed

with a deadly weapon, attempted first degree rape, and first degree burglary. The

trial court sentenced him to a total of 202 months of confinement. It also sentenced
No. 78076-0-1/2


him to community placement for two years or up to the period of earned release,

whichever was longer.

        In 2013, McClinton was released from prison and began a term of

community custody. State v. McClinton, No. 76001-7-I, slip. op. at I (Wash. Ct.

App. Mar. 5, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/76001 7

.PDF.      Since that time, he has repeatedly violated his community custody

conditions.    Most recently, in November 2017, the trial court issued a bench

warrant for McClinton based on three alleged violations.         He was arrested on

January 1, 2018.

        After his arrest, McClinton filed a motion to transfer the hearing on his

alleged violations to the Department of Corrections (DCC), or, alternatively, to “limit

the court’s authority to the same authority as granted to the [DCC] to conduct

hearings and impose sanctions pursuant to RCW 9.94A.737.” He argued that

equal protection requires that he “be provided the same procedural protections and

sanctions regime as applied to offenders whose crimes were committed after July

1,2000.”

        On January 24, 2018, the trial court held a hearing on McClinton’s alleged

violations.   The court denied his motion to transfer the hearing, found him in

violation of 3 community custody conditions, and ordered him to serve 30 days of

confinement. McClinton appeals.

                                   DISCUSSION

        McClinton argues that he was denied equal protection because he was not

afforded the same procedural benefits as offenders who committed their


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No. 78076-0-1/3


underlying crime on or after July 1, 2000. He asserts that those offenders are

sanctioned through the DOC process, are entitled to a hearing within 5 days of

being held in confinement, and cannot be sentenced to more than 30 days of

confinement per hearing. In contrast, he points out that the court has sanction

authority over offenders who committed their underlying crime before July 1, 2000.

He contends that, if the court has sanction authority, “there is no set time within

which [an offender] has a right to a hearing,” and an offender “could be subject up

to 60 days in jail for each violation.”

       The State argues that this court should decline to review McClinton’s equal

protection claim because it is moot. McClinton concedes that his claim is~ moot,

but asks this court to reach the merits “because the case involves an issue of

substantial public interest that is likely to reoccur.”

  I.   Mootness

       A case is moot when we can no longer provide an appellant effective relief.

In re Det. of LaBeIle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986). This case is

technically moot, because McClinton’s confinement has ended.         In re Det. of

Swanson, 115 Wn.2d 21, 24, 804 P.2d 1(1990). As a general rule, an appellate

court will not review a moot case. In re Det. of H.N., 188 Wn. App. 744, 749, 355

P.3d 294 (2015). But, an appellate court may decide a moot case if it involves an

issue of substantial public interest. State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d

584 (2012). In deciding to review a moot issue, this court must consider (1) the

public or private nature of the issue, (2) the desirability of an authoritative




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No. 78076-0-114


determination that will provide future guidance to public officers, and (3) the

likelihood that the issue will recur. Id.

        The constitutionality of statutes relating to criminal sentencing presents an

issue of public interest.         at 908. And, while this court can no longer provide

McClinton effective relief, the issue will likely recur with other offenders who

committed their underlying crime before July 1, 2000 and violate their sentence

conditions.     Public officers would therefore benefit from an authoritative

determination on the question. Thus, we reach the merits of this case.

  II.   Equal Protection

        McClinton argues that he was denied equal protection when he was denied

the benefits of a DCC sanctions process.1           He explains that, under RCW

9.94A.6332(7), “statutory sanctioning authority is vested in [the] DCC for those

who committed their offense after July 1, 2000.” But, under RCW 9.94B.010(1)

and 9.94B.040(1), a court has authority to impose sanctions on an offender who

committed their underlying crime before July 1, 2000. He contends that he is

similarly situated to offenders who are sanctioned by the DCC, and, as a result,

should receive the same benefits as those offenders. He also argues that the

purposes of the statute vesting sanctioning authority in the DCC would have been


        1In his brief, McClinton does not specifically identify which statute violates
equal protection. Nor does he explicitly argue that the statute affording the benefits
of a DCC sanctions process should be applied retroactively to him. Rather, he
summarizes the different statutory schemes governing sanctions for offenders who
committed their underlying crime before July 1, 2000, and offenders who
committed their underlying crime on or after that date. In doing so, he argues that
there is no rational basis for denying him the benefits of a DCC process based on
the date of his offense.

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No. 78076-0-115


served by having the statutory change apply to him and others like him sentenced

before July 1, 2000. He identifies those purposes as “expedit[ing] the sanctions

process by preventing court backlog and [making] the sanctions process less

confusing by having [the] DCC take on this function.”

   A. Standard of Review

       The Washington Constitution article I, section 12, and the Fourteenth

Amendment to the United States Constitution ensure that persons similarly

situated as to the legitimate purposes of a law receive equal treatment. State v.

Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996).             Washington courts

construe the federal and state equal protection clauses identically. k1. This court

reviews constitutional challenges de novo. State v. Budd, 185 Wn.2d 566, 571,

374 P.3d 137 (2016).

       Strict scrutiny applies when the statutory classification at issue involves a

suspect class, or threatens a fundamental right. Manussier, 129 Wn.2d at 672-73.

Intermediate scrutiny applies when important rights or semisuspect classifications

are affected. k~. at 673. The most relaxed level of scrutiny, rational basis, applies

when a statutory classification does not involve a suspect or semisuspect class

and does not threaten a fundamental right.        McClinton concedes that persons

sanctioned under RCW 9.94B.040(1) are not a suspect or semisuspect class. He

also concedes that there is no fundamental right at issue. Thus, he concedes that

rational basis review applies.

       Under rational basis review, the challenged law must reflect a legitimate

state objective, and the law must not be wholly irrelevant to achieving that


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No. 78076-0-1/6


objective. Manussier, 129 Wn.2d at 673. The party challenging the classification

has the burden of showing that it is purely arbitrary. State v. Coria, 120 Wn.2d

156, 172, 839 P.2d 890 (1992).       Rational basis requires only that the means

employed by the statute be rationally related to a legitimate state goal; not that the

means of the challenged statute be the best way of achieving that goal. Manussier,

129 Wn.2d at 673.

   B. Sanctions Procedure

       The Sentencing Reform Act of 1981 (SRA), chapter 9.94A ROW, provides

that the law in effect at the time a crime was committed governs sentencing. ROW

9.94A.345. If an offender who committed an underlying crime before July 1, 2000

violates a condition or requirement of their sentence, “the court may modify its

order of judgment and sentence and impose further punishment.”                  ROW

9.94B.01 0; ROW 9.94B.040(1). The court may sanction the offender with up to 60

days of confinement for each violation. ROW 9.94A.633(1)(a).

       In contrast, if an offender who committed an underlying crime on or after

July 1, 2000 is being supervised by the DOC and violates a sentence condition,

“any sanctions shall be imposed by [the DOOj pursuant to ROW 9.94A.737.”2

      2  However, if the offender was sentenced under the drug offender
sentencing alternative, the special sex offender sentencing alternative, or the
parenting sentencing alternative, any sanctions shall be imposed by the court
under ROW 9.94A.660, 9.94A.670, or 9.94A.655, respectively.                    ROW
9.94A.6332(1)-(3). If an offender is being supervised by the DOC under RCW
9.92.060, 9.95.204, or 9.95.210, “upon receipt of a violation hearing report from
[the DCC], the court retains any authority that those statutes provide to respond to
a probationer’s violation of conditions.” ROW 9.94A.6332(7). And, if an offender
is not being supervised by the DCC and violates a sentence condition, “any
sanctions shall be imposed by the court pursuant to ROW 9.94A.6333.” ROW
9.94A.6332(8).

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No. 78076-0-1/7


RCW 9.94A.6332(7); see State v. Bi.qsby, 189 Wn.2d 210, 221, 399 P.3d 540

(2017) (RCW 9.94B.040, which allows a court to modify an order of judgment and

sentence, applies only to crimes committed prior to July 1, 2000). If the offender

is in total confinement before a hearing on the alleged violation, the DCC must

hold a hearing within 5 business days, but not less than 24 hours, after written

notice of the alleged violation. RCW 9.94A.737(6)(b). If the offender is not in total

confinement, the DCC must hold the hearing within 15 business days, but not less

than 24 hours, after written notice of the alleged violation. RCW 9.94A.737(6)(b).

The maximum sanction the DCC may impose for a “high level violation” is 30 days

of confinement per hearing. RCW 9.94A.737(4).

       The State Supreme Court explained these changes to the sanctions

procedure in Biqsby. Before July 1, 2000, the authority of the courts and the DCC

to sanction an offender for violating a sentence condition depended on whether

that offender was released on community custody or postrelease supervision.

Biqsby, 189 Wn.2d at 217.        The DCC could sanction offenders released on

community custody. k~. But, offenders who had completed their confinement and

were released on postrelease supervision were entitled to a court hearing if they

were accused of violating their sentences. k1. at 217-18. Therefore, the DCC had

to track an offender’s community custody or postrelease supervision status “to

determine whether it had statutory authorization to sanction the offender for

violating his or her sentence conditions.” Id. at 21 8.

       The governor at the time was concerned that splitting supervisory authority

between the courts and the DCC “hamstrung the [DCCJ’s ability to protect the


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No. 78076-0-1/8


community and resulted in many offenders escaping punishment because of the

significant backlog in the courts.” j.ç~ As a result, the legislature enacted the

Offender Accountability Act (OAA),3 which “consolidated postrelease supervision

into one term of community custody for offenses committed on or after July 1,

2000.” kI. While this change alleviated some of the DOC’s concerns, it caused

confusion for judges, lawyers, offenders, and the DOC. j.ç~ at 218-19. Despite

abolishing postrelease supervision for crimes committed on or after July 1, 2000,

the legislature kept the statutory provisions for postrelease supervision in place.

Id. at 219.

       To resolve this confusion, in 2008, the legislature revised the community

custody provisions.    j4.   It enacted new provisions “intended to simplify the

supervision provisions of the [SRA] and increase the uniformity of its application.”

Id. It also “converted all outstanding postrelease supervision terms into community

custody terms.” j~ But, the legislature was concerned that this conversion might

be unconstitutional. ki. As a result, it moved certain statutes relating to pre-OAA

sentences, including RCW 9.94B.040, to another chapter that may be applicable

to sentences for crimes committed before July 1, 2000.         kI.   The legislature

reaffirmed its intent that the provisions in statutes like RCW 9.94B.040 be a

supplement to the SRA. j~

   C. Rational Basis

       Under the rational basis test, this court must determine whether (1) the

legislation applies alike to all members within the designated class, (2) there are

       ~ RCW72.09.580, .590, .904.


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No. 78076-0-1/9


reasonable grounds to distinguish between those within and those without that

class, and (3) the classification has a rational relationship to the proper purpose of

the legislation. DeYounq v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d

919 (1998). To succeed with an equal protection challenge, McClinton must first

establish that he is similarly situated with other persons in a class who have

received different treatment under the same law. State v. Osman, 157 Wn.2d 474,

484, 139 P.3d 334 (2006).

       McClinton argues that the relevant class here consists of defendants (1)

who are under DCC supervision, (2) who were not sentenced to special sentencing

alternatives or conditions, and (3) against whom the State seeks to apply sanctions

for sentencing violations. But, by enacting the OAA and keeping in place the

statutes relating to pre-OAA sentencing, the legislature differentiated between two

categories of offenders based on the date of their crime. Different laws apply to

offenders who committed their underlying crime before July 1, 2000, and offenders

who committed their underlying crime on or after that date. Accordingly, McClinton

is not similarly situated to offenders who committed their underlying crime on or

after July 1, 2000.

       Essentially, McClinton argues that the legislature did not have a rational

basis for creating two classes of offenders based on the date of their crime. He

asserts that the State Supreme Court “identified that the purpose of vesting [the]

DCC with sanctioning authority as provided under [RCW] 9.94A.6332 was to

expedite the sanctions process by preventing court backlog,” and “make the

sanctions process less confusing by having [the] DCC take on this function.” He


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No. 78076-0-1/10


contends that sending McClinton through the DOC process would have served

both of these goals.

          In Addleman, the State Supreme Court noted that “{t}he legislature has the

power to shape the sentencing scheme without denying equal protection.” In re

Pers. Restraint of Addleman, 151 Wn.2d 769, 774, 92 P.3d 221 (2004). There,

Addleman had been sentenced under Washington’s former indeterminate

sentencing system. j.çj~ at 772 & ni. Under that system, the trial court determined

a defendant’s maximum sentence, while the minimum sentence was generally set

by the Board of Prison Terms and Paroles.         ki. Washington abandoned that

system when the legislature enacted the SRA. ~ at 772 ni. The former system

applied to a decreasing number of offenders, including Addleman, whose offenses

predated the SRA’s implementation. Id. In rejecting his equal protection claim and

finding that it “ha[d] been settled,” the court relied on Foster v. Wash. State Bd. of

Prison Terms and Parole, 878 F.2d 1233 (9th Cir. 1989). Addleman, 151 Wn.2d

at 774.

          Foster also involved an offender who committed his underlying crimes

before the SRA’s implementation. 878 F.2d at 1234. In addressing Foster’s equal

protection argument, the Ninth Circuit held, “There is no denial of equal protection

in having persons sentenced under one system for crimes committed before July

1, 1984 and another class of prisoners sentenced under a different system.” jç~ at

1235. It explained that “[i]mprovement in sentencing is [a] rational government

purpose.” Id.




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No. 78076-0-I/li


       The State Supreme Court is clear that the legislature can shape the

sentencing scheme without denying equal protection. Addleman, 151 Wn.2d at

774. And, as the Foster court held, improvement in sentencing is a rational

government purpose. 878 F.2d at 1235. Like Foster, McClinton is subject to

sanction laws that apply to only offenders who committed their underlying crimes

before July 1, 2000, while another class of prisoners is sanctioned under a different

system. Seej~.

       The purpose of the OAA was to prevent offenders on postrelease

supervision from escaping punishment due to clogged court dockets. Biqsby, 189

Wn.2d at 218. This is a rational government purpose. See Foster, 878 F.2d at

1235. All offenders who committed crimes after July 1, 2000 were subject to these

same provisions. All offenders committed crimes prior to July 1, 2000 remained

subject to judicial sanctions. Offenders within each class are treated similarly.

       Offenders are entitled to be punished based on the crimes and punishments

in effect when they committed their crimes. ~ RCW 9.94A.345. The authority

of the trial court to impose sanctions for violation of the terms of sentencing is part

of that law. ~ RCW 9.94B.01 0(2). Removing that judicial sentencing authority

in favor of executive branch sanctioning authority would potentially be a change in

the punishment for the crime. This gave the legislature legitimate concern that

converting all outstanding postrelease supervision terms into community custody

terms might be unconstitutional. Bicisby, 189 Wn.2d at 219. The legislature’s

concern about the constitutionality of this conversion was a rational basis for

keeping the pre-OAA sentencing laws in place for crimes committed before July 1,


                                             11
No. 78076-0-1/12


2000.    Therefore, to achieve the purpose of the statute the legislature had a

reasonable ground to create the two classes based on the date the underlying

crime was committed. Accordingly, the OAA does not violate equal protection on

the basis that it classifies offenders on whether they committed their crime before

or after July 1,2000.

        We affirm.



                                        4~~Z
WE CONCUR:



   ~A4                                 c—            _             ~




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