                                                                                            40URT OF APPEALS
                                                                                        2013 A 1G ! 3
                                                                                                            10' 28
    IN THE COURT OF APPEALS OF THE STATE OF
                                                                          WASHINAS1i
                                                                                '                             rOJ
                                            DIVISION II                                 S
                                                                                                DE F'   Y
In re Post -Sentence Review of                                       No. 43009 6 II
                                                                               - -


DOMINIC COMBS,                                                   PUBLISHED OPINION


                               Respondent.




        BJORGEN, J. —The      Department of Corrections (DOC)petitions this court for review of

Dominic Combs's drug offender sentencing alternative (DOSA) sentence, requesting this court

to remand Combs's sentence for      removal of time served credits. The DOC argues that the


sentencing court lacked statutory authority to credit Combs for time served and, alternatively,
that the credits granted were inconsistent with RCW 9.
                                                    171.We agree, and we reverse and
                                                      94A.
remand Combs's sentence for the DOC to recalculate time served credits consistently with this

opinion.

                                               FACTS


        In June 2011, Combs pleaded guilty to methamphetamine possession and the sentencing
court   imposed   a   24 month residential treatment based
                         -                           -           DOSA   sentence.     On July 14, a

residential treatment   facility admitted   Combs into   care.   Nine days later, Combs refused to

submit to urinalysis and absconded from treatment entirely. After he absconded, and while on

community custody under his DOSA sentence, the State charged Combs with second degree




1 A DOSA sentence is an alternative punishment for drug related offenses under certain
circumstances and may be either prison based
                                       -             or                         based.
                                                          residential treatment -           See RCW
660.
9.
 94A.
No. 43009 6 II
          - -



burglary and jailed him. The State held Combs in jail on that charge from September 8 to
October 20, 2011.

         Combs admitted failing to comply with his treatment, and the court revoked the DOSA

sentence, imposing a midpoint, standard range sentence of 18 months' confinement. The court

also credited Combs with 160 days' time served, representing the time from his commission of

the crime of methamphetamine possession on May 13 to imposition of 18 months' confinement

on    October 18.   Of this period, however, 47 days represented the time he had absconded by

failing to report to his treatment facility and another 42 days represented the time he was in jail
on    the unrelated   burglary charges.     Combs began serving the amended sentence on the

methamphetamine charges on October 21, 2011.

         The DOC notified the court, the prosecutor, and Combs by letter, informing them that it

believed the credit for time served      was   miscalculated. Specifically, the DOC requested the

prosecutor to ask the court to reduce the time served credit by the 47 days after Combs
absconded from treatment and the 42 days he was in jail on the burglary charge. The prosecutor

declined and took the position that Combs was induced to stipulate to revocation of his DOSA by
                   -

the prosecutor's agreement to 160 days' time served credit.. For that reason, the prosecutor felt
bound to the calculation and would not seek to correct it.

         The DOC now petitions this court for post-
                                                  sentence review of the time -served credits

2
    Because this is a post-sentence petition rather than direct appeal, we may consider material in
the
  appendix not        contained in the    general   record.   Compare RAP 16. 8(
                                                                          d)(with RAP
                                                                            10),
                                                                            1
a)(
10.8).
   3(

3 A formal petition or motion in the trial court is not required, and the DOC's correspondence,
informing the court of the legal bases for the DOC's objections, is adequate. In re Sentence of
Chatman, 59 Wn..
               App. 258, 264 65,796 P. d 755 (1990).
                             -       2
                                                     2
No. 43009 6 11
          - -



under RCW 9. ).
          585( 4A.
             7
             9

                                                      Sul


       The DOC requests removal of Combs's credits for time served for two reasons. First, it

argues that the sentencing court lacked statutory authority to credit Combs for time served and

that a grant of such authority would violate the separation of powers doctrine. Second, it argues

that the credits granted by the court were inconsistent with the standards of RCW 9.
                                                                                  171.
                                                                                   94A.

                                   1. TRIAL COURT JURISDICTION


A.     Standard of Review


       DOC brings this petition under RCW 9. ), restricts our review to errors
                                          585( 4A.which
                                             7
                                             9

of law.    Both the prosecutor and Combs argue that the petition impermissibly raises a factual

issue. The issues raised by the petition, however, are those of statutory authority, the separation

of powers doctrine, and    compliance   with the statutory standards for time served credits. The


questions of statutory authority and the separation of powers doctrine are purely legal issues.

The inquiry into compliance with sentencing standards involves the interpretation of the

Sentencing Reform Act (SRA),
                           which also is a question of law. State v.
                                                                   Jones, 172 Wn. d 236,
                                                                                2

242, 257 P. d 616 (2011).These are legal issues and are properly raised by the DOC's petition.
          3

          We review questions of statutory interpretation de novo by ascertaining the legislature's

intent. State v. Jacobs, 154 Wn. d 596, 600, 115 P. d 281 (2005).Where a statute's meaning is
                               2                  3

plain on its face, we give effect to that meaning as expressing the intent of legislature. Jacobs,
154 Wn. d at 600. We determine the statute's plain meaning from the ordinary meaning of its
      2

language, as well as from the statute's general context, related provisions, and the statutory


4Chapter 9.4A RCW.
          9
                                                  3
No. 43009 6 II
          - -



scheme as a whole. Jacobs, 154 Wn. d at 600. Absent a specialized statutory definition, we
                                 2

give   a   term its   plain   and   ordinary meaning   ascertained from   a   standard   dictionary. State v.

Watson, 146 Wn. d 947, 954, 51 P. d 66 (2002). We interpret statutes to give effect to all
              2                 3


language in the statute and to render no portion meaningless or superfluous. State v. J. .,149
                                                                                       P

Wn. d 444, 450, 69 P. d 318 (2003). We also interpret statutes to harmonize them. henever
  2                 3                                                           w

possible. State v. Powell, 167 Wn. d 672, 695 96, 223 P. d 493 (2009),
                                 2            -        3             overruled on other

grounds by State v. Siers, 174 Wn. d 269, 271, 274 P. d 358 (2012).
                                 2                  3

B.         Statutory Authority Following DOSA Revocation

           In Washington, the SRA prescribes the authority to sentence in felony cases. State v.

Skillman, 60      Wn.    App. 837, 839, 809 P. d 756 ( 1991). The SRA limits the trial court's
                                             2


sentencing authority to that expressly found in the statutes. State v. Furman, 122 Wn. d 440,
                                                                                     2

456, 858 P. d 1092 (1993).
          2

           The principal statute governing resentencing after revocation of a DOSA sentence is
RCW 9. ),states:
    660( 4A.which
       7
       9

                  a)The court may bring any offender sentenced under this section back
           into court at any time on its own initiative to evaluate the offender's progress in
           treatment or to determine if any violations of the conditions of the sentence have
           occurred.
                   b)If the offender is brought back to court, the court may modify the
           conditions of the community custody or impose sanctions under (c)of this
           subsection.
                   c) court may order the offender to serve a term of total confinement
                      The
           within the standard range of the offender's current offense at any time during the
s
    Combs points out that RCW 9. )
                              505( 4A.requires the sentencing court to give the offender
                                 6
                                 9
credit for all confinement time served for the same offense before sentencing. However, Combs
was sentenced when his DOSA alternative was imposed. The issues presented by this appeal all
arose after that point. Therefore, RCW 9. ) not guide the resolution of this
                                        505( 4A. does
                                              6
                                              9
appeal.

                                                         M
No. 43009 6 II
          - -



       period of community custody if the offender violates the conditions or
       requirements of the sentence or if the offender is failing to make satisfactory
       progress in treatment.
              d) offender ordered to serve a term of total confinement under (c)
                  An                                                                of
       this subsection shall receive credit for any time previously served under this
       section.


Subsections (a), and ( )
              b)( c expressly authorize the trial court to take certain actions in modifying

or revoking a DOSA sentence. Subsection (d), one most pertinent to this petition, states that
                                          the

an offender shall receive credit for time served, without specifying who determines or imposes

the credit.


        Subsection ( d) covers only offenders sentenced under subsection ( c), provision
                                                                             a

expressly and exclusively vesting its authority in the trial court. Other provisions of the SRA,

however, " oll"or deny credit for terms of confinement or community custody for various
         t

reasons, among which is     absconding from required supervision.        Subsection (4)of RCW

171
9. mandates that "[
  94A.            for terms of confinement or community custody, the date for the

tolling of the sentence shall be established by the entity responsible for the confinement or

supervision."

        At first blush, the authority simply to set the date of tolling would not necessarily imply

the authority to order or deny various credits for time served. However, RCW 9. ),
                                                                             171( 4A.2)
                                                                                1
                                                                                9                     (

and (3)impose specific, mandatory standards directing when and to what extent terms of
confinement or community custody under the SRA are tolled. The application of these standards
and the resulting time served credits depends on the date of any tolling, a determination
                                             171( 4A. In addition, the DOC has the
exclusively within DOC's authority under RCW 9. 4).
                                                9

most information on an offender's conduct in different jurisdictions in the State. Therefore, any

ambiguity in RCW 9. )( which entity imposes credits for time served on a
                 d)
                 660( 4A.regarding
                    7
                    9
                                                 5
No.43009 6 II
         - -



DOSA revocation should be resolved in favor of the DOC. Any other result risks the strained

and absurd consequences that statutory construction is designed to avoid. J. .,149 Wn. d at
                                                                           P         2

450. Under RCW 9.
               d)
               660( 4A.the DOC, not the trial court, has authority to impose credits
                  7)(
                  9

for time served in a DOSA revocation.


       Combs argues that this court reached a contrary holding in State v. Davis, 160 Wn. App.

471, 474, 248 P. d 121 ( 2011). Davis, however, merely held that "the trial court erred in
               3


ordering that Davis was not entitled to credit for time served while on DOSA community

custody." Davis,   160 Wn. App. at 477.     This holding was based on a repealed provision in

former RCW 9. 2002), does not address the jurisdictional question decided here.
           660 (
             94A.  and

Thus, our ruling does not conflict with the decision in Davis.

C.     Separation of Powers

       The DOC argues that the trial court's order violates the separation of powers doctrine

because it prevents the DOC from applying the tolling statute to Combs's sentence. We hold

that the DOC has authority to calculate credits for time served under applicable statutes, and we

remand for it to exercise that   authority. Therefore, it is not necessary to reach the argument

based on separation of powers.

                          II. THE CREDITS GRANTED WERE ERRONEOUS


       Apart from the jurisdictional question, the DOC argues that the credits for time served

allowed by the trial court were contrary to the standards of RCW 9.
                                                                 171. The prosecutor
                                                                   94A.

concedes that the credits were erroneous. We agree.

       RCW 9. ) (2)
           171( 4A.and
              1
              9        state that a term of confinement or community custody shall

be tolled by any period of time during which the offender has absented himself from

                                                 R
NO   A
         IIIIZIN



confinement or supervision without prior approval. Under this statute, credit should not have

been granted for the 47 days in which Combs absconded by failing to report to his treatment

facility.

         Subject to a number of inapplicable exceptions, RCW 9.
                                                             a)
                                                             171( 4A.states that any
                                                                3)(
                                                                9

period of community custody shall be tolled during any period of time the offender is in

confinement. Thus, credit should not have been granted for the 42 days Combs was in jail on the

burglary charges.

         Granting credit for time served for these two periods was inconsistent with RCW

171.
9.
 94A.


                                           III. EFFECT OF PLEA AGREEMENT


         As noted above, the prosecutor argues against remand for removal of the incorrect

calculation because it believes Combs was induced to stipulate to his DOSA revocation by the

160 days time -served credit. For a number of reasons, this argument does not benefit Combs in
this proceeding.

         First, Combs does          not raise this   argument in his response   to the DOC'
                                                                                          s   petition.   The


DOC raises the issue of inducement only to explain why it argues against remand.

          Second, plea agreements are contracts, and the law imposes on the prosecutor an implied

promise     to act in      good   faith.    State v. Harrison, 148 Wn. d 550, 556, 61 P. d 1104 (2003).
                                                                     2                 3

Where the parties have agreed to an unlawful sentence based on mutual mistake, the defendant

may elect to withdraw his plea; but specific performance may not be used to bind the court to
enforce     an   illegal   sentence.       State v. Barber, 170 Wn. d 854, 872 73, 248 P. d 494 (2011).
                                                                  2            -        3

Specific performance is available to compel the State to follow through with its promises, but not

                                                           7
10=
  111111     6   1




to compel the imposition of an illegal sentence in cases of mutual mistake. Barber, 170 Wn. d
                                                                                          2
at 872 73.
       -


       Here, there is   no   allegation   that the prosecutor acted in bad faith.   Rather, Combs

stipulated to the revocation of his DOSA based on a good faith miscalculation. Under Barber,

these circumstances do not require preservation of an erroneous sentence.

                                           IV. CONCLUSION


       The trial court's order allowing 160 days time -served credit is reversed and remanded.

The DOC shall calculate any time served credits consistently with this opinion.



                                                          GEN

We concur:                                           By


Q INN-
     BRINTNALL, J.

                             L
     ANSON, A. .
            J.
             C
Jo
