                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         November 15, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46159-5-II

                                Respondent,

         v.

 CHARLES TEWEE,                                                UNPUBLISHED OPINION

                                Appellant.

       LEE, J. — Charles Tewee appeals from his resentencing for a 2010 conviction of first degree

child molestation. On remand, the sentencing court imposed the same sentence despite calculating

his offender score to be 10, rather than 9 as it was calculated at his first sentencing. Tewee appeals

the calculation of his offender score at 10, arguing that an extra point should not have been added

because he was not on community custody at the time he committed the child molestation.

Tewee’s argument is based on the statutory definition of “offender” as it existed when he was

previously sentenced to probation for two gross misdemeanor offenses, rather than the definition

of “offender” as it existed when he committed the current offense. Cf former RCW 9.94A.030(34)

(LAWS OF 2008, ch. 276, § 309) with former RCW 9.94A.030(31) (LAWS OF 2009, ch. 375, § 4).

       We hold that the statutory definition of “offender” as it existed when Tewee committed the

current offense controls. Because Tewee met that statutory definition of an “offender,” meaning

he was under “community custody” when he committed the current offense, we affirm.
No. 46159-5-II


                                              FACTS

        In December 2008, Tewee was sentenced on two counts of fourth degree assault, which

were gross misdemeanor offenses. Part of Tewee’s sentence for the gross misdemeanors was

suspended for 48 months on conditions reflected in a “Conditions of Probation” attached to his

judgment and sentence. Supp. Clerk’s Papers (CP) at 149, 152. The conditions of Tewee’s

probation included that he “shall not violate any federal, state or local criminal laws,” “shall be

under the supervision of a Community Corrections Officer of the Department of Corrections and

shall follow the conditions in this order and the rules imposed by the probation officer/Department

of Corrections.” Supp. CP at 152.

        Tewee was convicted of his current offense of first degree child molestation,1 committed

between January 1, 2010 and February 28, 2010. At sentencing, the sentencing court imposed an

exceptional sentence based on an aggravator that the jury found by special verdict. Tewee was

sentenced to 220 months to life.

        Tewee appealed. State v. Tewee, 176 Wn. App. 964, 309 P.3d 791 (2013). This court

affirmed the conviction but remanded for resentencing, noting, “Tewee is entitled to a full

resentencing on remand and the trial court has discretion to consider issues not raised at his initial

sentencing or in this appeal.” Id. at 970, 971 n.4.

        On remand, the State sought to add one point to Tewee’s offender score for Tewee having

committed the current offense while on community custody for the two gross misdemeanor assault

convictions. The sentencing court agreed and included in Tewee’s offender score one point for



1
    RCW 9A.44.083.



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No. 46159-5-II


being on community custody when he committed the current offense. Based on an offender score

that included a point for committing the current offense when on community custody, the

sentencing court imposed the same exceptional sentence as before—220 months to life. Tewee

appeals.

                                          ANALYSIS

       Tewee argues that the sentencing court erred in adding a point to his offender score based

on its finding that he was under community custody at the time he committed the current offense.

Specifically, Tewee argues that the statutory definition of “offender” that was in place when he

was sentenced on the two gross misdemeanor convictions did not include his status as a gross

misdemeanor probationer. Therefore, because he was not an “offender” on community custody,

the sentencing court erred in adding an extra point to his offender score. We disagree.

A.     LEGAL PRINCIPLES AND STATUTORY DEVELOPMENTS DEFINING “OFFENDER”

       The Sentencing Reform Act (SRA), chapter 9.94A RCW, governs the sentences imposed

by sentencing courts. State v. Coombes, 191 Wn. App. 241, 250, 361 P.3d 270 (2015), review

denied, 185 Wn.2d 1020 (2016). Any sentence imposed pursuant to the SRA must be in

accordance with the law that is in effect at the time when the current offense was committed. RCW

9.94A.345 (“Any sentence imposed under this chapter shall be determined in accordance with the

law in effect when the current offense was committed”)2; Coombes, 191 Wn. App. at 250 (“The

SRA provides that any sentence imposed under its authority must be in accordance with the law




2
 RCW 9.94A.345 was created as a new section in 2000, and became effective as of June 8, 2000.
Laws OF 2000, ch. 26, § 2. This statute has not been amended since it was created.



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No. 46159-5-II


in effect when the offense was committed”). We review a sentencing court’s interpretation of the

SRA de novo. State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011).

       RCW 9.94A.525(19) provides, “If the present conviction is for an offense committed while

the offender was under community custody, add one point. For purposes of this subsection,

community custody includes community placement or postrelease supervision, as defined in

chapter 9.94B RCW.” This has been the law since before Tewee was sentenced on his two gross

misdemeanor convictions.3

       At the time Tewee committed his current offense, “community custody” was defined as

“that portion of an offender’s sentence of confinement in lieu of earned release time or imposed as

part of a sentence and served in the community subject to controls placed on the offender’s

movement and activities by the department.” Former RCW 9.94A.030(5) (LAWS             OF   2008, ch.

231, § 23) (effective August 1, 2009).4 The definition of “offender,” under RCW 9.94A.030, was




3
  Former RCW 9.94A.525(19) in effect at the time Tewee was sentenced on his two gross
misdemeanors was subsequently amended, but the amendments do not affect the issue presented
here. See LAWS OF 2008, ch, 231, § 3 (effective date June 12, 2008).
4
  In his brief, Tewee states that the definition of community custody has not changed since he was
sentenced on his two misdemeanor convictions. He is correct to the extent that he meant that the
definition of community custody has not changed in a manner material to this appeal, but the
statutory definition has changed. The definition of “community custody” under the SRA when
Tewee was sentenced on his two gross misdemeanor convictions stated:

       “Community custody” means that portion of an offender’s sentence of confinement
       in lieu of earned release time or imposed pursuant to RCW 9.94A.505(2)(b),
       9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or
       9.94A.545, served in the community subject to controls placed on the offender’s
       movement and activities by the department. For offenders placed on community
       custody for crimes committed on or after July 1, 2000, the department shall assess
       the offender’s risk of reoffense and may establish and modify conditions of


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No. 46159-5-II


amended after Tewee was sentenced on his two gross misdemeanor convictions in 2008. It is

Tewee’s contention that under the 2008 definition, he was not an “offender.” Therefore, he could

not be considered under “community custody,” when he was on probation in 2010 and committed

the current offense. Br. of Appellant at 5-6.

       When Tewee was sentenced on his two gross misdemeanor convictions in 2008, “offender”

was defined as,

       [A] person who has committed a felony established by state law and is eighteen
       years of age or older or is less than eighteen years of age but whose case is under
       superior court jurisdiction under RCW 13.04.030 or has been transferred by the
       appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.
       Throughout this chapter, the terms “offender” and “defendant’ are used
       interchangeably.

Former RCW 9.94A.030(34) (LAWS OF 2008, ch. 276, § 309). But when Tewee committed the

current offense, “offender” was defined as,

       [A] person who has committed a felony established by state law and is eighteen
       years of age or older or is less than eighteen years of age but whose case is under
       superior court jurisdiction under RCW 13.04.030 or has been transferred by the
       appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. In
       addition, for the purpose of community custody requirements under this chapter,
       “offender” also means a misdemeanor or gross misdemeanor probationer convicted
       of an offense included in RCW 9.94A.501(1) and ordered by a superior court to
       probation under the supervision of the department pursuant to RCW 9.92.060,
       9.95.204, or 9.95.210. Throughout this chapter, the terms “offender” and
       “defendant” are used interchangeably.


       community custody, in addition to those imposed by the court, based upon the risk
       to community safety.

Former RCW 9.94A.030(5) (Laws OF 2008, ch. 276, § 309) (effective June 12, 2008). Current
RCW 9.94A.030(5) states: “‘Community custody’ means 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 subject to controls placed on the offender’s movement and activities by
the department.”



                                                5
No. 46159-5-II



Former RCW 9.94A.030(31) (LAWS OF 2009, ch. 375, § 4).5 Thus, the tension between these two

definitions for the purposes of this appeal is that after Tewee was sentenced on his two gross

misdemeanor convictions, but before he was sentenced on his current conviction, the legislature

added the following sentence to the definition of “offender”:

          In addition, for the purpose of community custody requirements under this chapter,
          “offender” also means a misdemeanor or gross misdemeanor probationer convicted
          of an offense included in RCW 9.94A.501(1) and ordered by a superior court to
          probation under the supervision of the department pursuant to RCW 9.92.060,
          9.95.204, or 9.95.210.

Former RCW 9.94A.030(31) (LAWS OF 2009, ch. 375, § 4).

B.        TEWEE WAS AN “OFFENDER”

          We hold that the outcome here is governed by RCW 9.94A.345, which requires sentences

be imposed based on the law in effect when the current offense was committed. Therefore, the

definition of “offender” at the time Tewee committed his current offense controls.




5
    The current definition states:

          “Offender” means a person who has committed a felony established by state law
          and is eighteen years of age or older or is less than eighteen years of age but whose
          case is under superior court jurisdiction under RCW 13.04.030 or has been
          transferred by the appropriate juvenile court to a criminal court pursuant to RCW
          13.40.110. In addition, for the purpose of community custody requirements under
          this chapter, “offender” also means a misdemeanant or gross misdemeanant
          probationer ordered by a superior court to probation pursuant to RCW 9.92.060,
          9.95.204, or 9.95.210 and supervised by the department pursuant to RCW
          9.94A.501 and ** 9.94A.5011. Throughout this chapter, the terms “offender” and
          “defendant” are used interchangeably.

RCW 9.94A.030(35).



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No. 46159-5-II


       Here, the current offense for first degree child molestation occurred between January 1,

2010 and February 28, 2010. Accordingly, the sentencing court was required to impose a sentence

that was in accordance with the law in effect between January 1, 2010 and February 28, 2010.

RCW 9.94A.345; Coombes, 191 Wn. App. at 250. The law defining “offender” in effect between

January 1, 2010 and February 28, 2010 defined “offender” as including “a misdemeanor or gross

misdemeanor probationer.” Former RCW 9.94A.030(31) (2009). Thus, at the time Tewee

committed the current offense, he met the statutory definition of an “offender” because he was on

probation for committing the two gross misdemeanors.6

       As Tewee recognizes in his briefing, whether he met the statutory definition of “offender”

is determinative of whether he was on “community custody” when he committed the current

offense. Consequently, we hold that the sentencing court did not err in determining that Tewee

was on community custody when he committed the current offense because he was serving a

portion of his sentence as a gross misdemeanor probationer in the community, subject to the

controls placed on his movement and activities by the Department of Corrections. Former RCW

9.94A.030(31) (2009) (defining “offender”); former RCW 9.94A.030(5) (2008) (defining

“community custody”).




6
  RCW 10.01.040 similarly supports this conclusion. It provides, “Whenever any criminal or penal
statute shall be amended or repealed, all offenses committed . . . while it was in force shall be
punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a
contrary intention is expressly declared in the amendatory or repealing act.” RCW 10.01.040.

       In the statutes at issue here, no contrary intention is expressly declared in the amendatory
or repealing language.



                                                7
No. 46159-5-II


        The sentencing court added one point to Tewee’s offender score because it concluded

Tewee was under community custody at the time he committed the current offense. This was

proper under RCW 9.94A.525(19) because the current offense was committed while Tewee was

on community custody. Therefore, we hold that the sentencing court did not err, and we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.


                                                                   Lee, J.
We concur:



                    Worswick, P.J.



                     Sutton, J.




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