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

STATE OF WASHINGTON,                             No. 67173-1-1
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              Plaintiff,
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ESMOND HOLMES,                                                                           •Et      3:^>
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              Respondent,                                                                 "**"             "> •


WASHINGTON STATE                                 UNPUBLISHED OPINION
DEPARTMENT OF CORRECTIONS,
                                                 FILED: July 1,2013
              Appellant.


      Verellen, J. —The Washington State Department of Corrections (DOC)

appeared in Esmond Holmes' case to oppose his CrR 7.8(b) motion for relief from

judgment. The court determined the DOC had violated the ex post facto clause by

terminating Holmes' early release under former RCW 9.94A.737(2) (2007) and returning

him to confinement for the remainder of his sentence. Consistent with In re Personal

Restraint of Flint.1 we reverse the superior court and hold no ex post facto violation
occurred. The court also determined that the time Holmes spent in confinement for his

community custody violations should be credited toward his outstanding community




      1174Wn.2d 539, 551-52, 277 P.3d 657 (2012).
No. 67173-1-1/2


custody obligation. Consistent with State v. Jones.2 we reverse the superior court and
hold Holmes' community custody obligation should have been tolled.

       The DOC also contends the superior court lacked subject matter jurisdiction and

personal jurisdiction to award relief against it, as it was not a party to the criminal cause.

The superior court has subject matter jurisdiction to hear a CrR 7.8 motion. The DOC

waived its right to challenge personal jurisdiction by appearing voluntarily in the case

and opposing Holmes' CrR 7.8 motion on the merits.

       We reverse and remand to the superior court to determine Holmes' remaining

community custody obligation.

                                      BACKGROUND


       In 2003, Esmond Holmes pleaded guilty to second degree robbery, and the

superior court imposed a sentence of 63 months of confinement, followed by 18 to 36

months of community custody. The DOC later modified the community custody term to

18 months. Holmes earned "good time" credits and was released early from prison to

community custody on November 1, 2006. Holmes then violated the terms of his

community custody multiple times in May, July, August, October and November of

2007. At Holmes' sixth administrative hearing on December 13, 2007, the hearing

officer terminated his early release as authorized by former RCW 9.94A.737(2) (the

2007 statute).3 The hearing officer applied the 2007 statute, returning Holmes to

confinement to serve the remainder of his prison term (438 days of earned early

release).



       2 172 Wn.2d 236, 245-49, 257 P.3d 616 (2011).
       3 Laws of 2007, ch. 483, § 305. The legislature has since revised the statute.
Laws of 2008, ch. 231, § 20.
No. 67173-1-1/3


       The 2007 statute provided that, upon a third violation of community custody

conditions, an offender be returned to prison to serve the remainder of the sentence in

total confinement.4 Under the terms of the 2007 statute, Holmes served the remaining
438 days for his 2003 conviction and was released to community custody on

February 14, 2009.

       Before completing the community custody term for his 2003 felony, Holmes

committed another felony and received a new sentence. He returned to prison in April

2010. The DOC tolled the remaining community custody from the 2003 felony.

      After Holmes returned to prison in April 2010, he filed a CrR 7.8(b) motion pro se,

seeking relief from the DOC's decision to terminate his early release under the 2007

statute. He argued the 2007 statute violated the ex post facto clause. Holmes

requested the court to credit the sanction time (438 days) toward his outstanding

community custody term from the 2003 felony.

       The superior court granted Holmes' motion for appointment of counsel, and

counsel filed a CrR 7.8 motion setting forth similar grounds for relief. After argument by

counsel, the court determined the DOC's decision to terminate early release under the

2007 statute violated the ex postfacto clause.5 The court then ordered the DOC to


       4The 2007 statute read, "If an offender has not completed his or her maximum
term of total confinement and is subject to a third violation hearing for any violation of
community custody and is found to have committed the violation, the department shall
return the offender to total confinement in a state correctional facility to serve up to the
remaining portion of his or her sentence, unless it is determined that returning the
offender to a state correctional facility would substantially interfere with the offender's
ability to maintain necessary community supports or to participate in necessary
treatment or programming and would substantially increase the offender's likelihood of
reoffending."
      5The DOC asked the superior court to stay its ruling until the Supreme Court
decided Flint and Jones, which were pending at the time of the CrR 7.8 motion. The
court declined to do so, and relied on this court's opinions in State v. Madsen. 153 Wn.
No. 67173-1-1/4


credit the 438 days Holmes spent in prison to his outstanding community custody term.

Based on that credit, when Holmes was released from prison on August 27, 2012, he

had no remaining community custody to serve. The DOC appealed.

                                       DISCUSSION

                                       Jurisdiction

      The DOC contends the court did not have either subject matter jurisdiction to

grant the relief Holmes requested, or personal jurisdiction over the DOC, a nonparty

under the criminal cause.

      a. Subject Matter Jurisdiction

       In State v. Madsen.6 we addressed the same facts and procedural posture as in

Holmes' case. There, the defendant filed a motion under CrR 7.8(b) in King County

Superior Court, asserting the same 2007 statute violated the ex post facto clause.7 The
court agreed with the defendant and ordered the DOC to release him.8 On appeal, the
DOC made a similar jurisdictional argument to the one it now advances in Holmes'

case, that the superior court lacked jurisdiction to consider the defendant's motion

because under CrR 7.8, a superior court does not have "the power to grant post

conviction relief."9 The DOC argued the defendant must seek such relief in a personal
restraint petition under RAP 16.4(b) orvia a habeas corpus proceeding.10 In response


App. 471, 228 P.3d 24 (2009) and In re Personal Restraint of Knipplinq. 144 Wn. App.
639, 183 P.3d 365 (2008).
      6 153 Wn. App. 471, 475, 228 P.3d 24 (2009), overruled on other grounds by
Flint. 174Wn.2dat552.
       7idL
       8Id,
       9!cL
       10 Id.
No. 67173-1-1/5


to the DOC's jurisdictional argument, we reasoned that a motion in the superior court

under CrR 7.8(b) is the "functional equivalent" of a personal restraint petition in the

Court ofAppeals.11

       The superior court has subject matter jurisdiction to consider the merits of a

CrR 7.8 motion, or to transfer it to this court for consideration as a personal restraint

petition.12 In State v. Robinson.13 the Supreme Court noted that because of the
similarity between the relief sought under CrR 7.8 and via a personal restraint petition,

the superior court must exercise discretion in determining which motions to hear and

which to transfer: "[T]he trial court may serve as an initial screener, much like the chief

judge of the Court of Appeals would in a PRP, prior to either transferring the motion to

the Court ofAppeals or evaluating the merits of a motion."14 The superiorcourt had

subject matter jurisdiction to either hear and decide the motion, or to transfer it. In other

words, whether the superior court should have ruled on the merits or transferred the

motion is not a matter of subject matter jurisdiction rendering the decision of the

superior court void. Consistent with our opinion in Madsen. the superior court had

subject matter jurisdiction to hear Holmes' CrR 7.8 motion.15


       11JU
       12 CrR 7.8(c)(2); RAP 16.1.
       13 153 Wn.2d 689, 695-96, 107 P.3d 90 (2005).
       14 Jd at 696.
       15 The DOC relies on Conway v. Cranor. 37 Wn.2d 303, 304, 223 P.2d 452
(1950). That case stands for the simple proposition that superior courts have power to
issue writs of habeas corpus "'on behalf of any person in actual custody in their
respective counties.'" ]d. at 304 (emphasis omitted) (quoting Const, art. IV, § 6).
Holmes did not file a writ of habeas corpus. The existence of subject matter jurisdiction
in one context does not necessarily preclude it in another. Superior courts are courts of
general jurisdiction. Const, art. IV, § 6 ("The superior court shall also have original
jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been
by law vested exclusively in some other court."); see also Dress v. Wash. State Dep't. of
No. 67173-1-1/6


       b. Personal Jurisdiction

       DOC also contends the superior court lacked personal jurisdiction over it. DOC

argues that because Holmes did not file a personal restraint petition, and instead filed

the CrR 7.8 motion under the original criminal cause, DOC was not a party to the action.

Although it appeared in this case, opposed Holmes' CrR 7.8 motion and appealed, the

DOC nevertheless contends it lacked opportunity to adequately respond.16
       DOC's argument is without merit. A party waives the claim of lack of personal

jurisdiction by "consenting], expressly or impliedly, to the court's exercising

jurisdiction."17 DOC expressly consented to personal jurisdiction by filing a notice of
appearance,18 by opposing Holmes' CrR 7.8 motion on the merits, and by failing to raise
lack of personal jurisdiction before the superior court.19

                                  Ex Post Facto Violation

       The DOC argues that even if the superior court did have jurisdiction to hear

Holmes' motion, the court's decision on the merits must be vacated under Flint. The

Supreme Court in Flint determined the 2007 statute was triggered based upon the date




Corrections. 168 Wn. App. 319, 331-32, 279 P.3d 875 (2012) ("the 'actual custody'
requirement [of art. IV, § 6] is limited to 'writs of habeas corpus on petition by or on
behalf of any person in actual custody in their respective counties.'").
       16 At oral argument, the DOC stated its primary concern was the alleged risk that
use of the CrR 7.8 procedure, in conjunction with widely varying local court rules, does
not insure notice to the DOC, as the DOC is not a party to the criminal cause. But the
DOC's concerns over lack of predictability and lack of uniformity are best addressed to
the legislature or by pursuing a rule change rather than advancing strained arguments
which distort the essence of subject matter and personal jurisdiction.
       17 In re Marriage of Steele. 90 Wn. App. 992, 997-98, 957 P.2d 247 (1998).
       18 The DOC does not contend that it filed a special notice of appearance
asserting lack of personal jurisdiction.
       19 See Clerk's Papers at 53-58.
No. 67173-1-1/7


a defendant violated a community custody condition, not upon the date of the original
offense.20

               We therefore conclude that RCW 9.94A.737(2) was not in fact
       applied retroactively to Mr. Flint. (1) The statute was triggered by an event
       postdating commission of his offenses, i.e., the statute was triggered when
       he was subject to a third community custody hearing, which resulted from
       violation of the conditions of community custody. (2) The statute did not
       interfere with any vested rights that Mr. Flint held. (3) It did not attach new
       consequences to events completed before its enactment, because
       punishment was essentially the same before and after the statute's
       enactment, both as to the original sentence and as to consequences for
       community custody violations.'211

       Although the date of Holmes' original offense pre-dated RCW 9.94A.737, at least

three of his many violations of community custody conditions occurred after July 22,

2007, the effective date ofthe 2007 statute.22 Thus, under the express reasoning in
Flint, the DOC's termination of Holmes' early release under RCW 9.94A.737(2) did not

apply retroactively to him.23 We reverse the superior court's determination thatan ex
post facto violation occurred.

                                 Tolling of Community Custody

       Finally, the DOC contends that under State v. Jones24 and RCW 9.94A.171(3)(a),
we must vacate the superior court's order that Holmes' confinement for community

custody violations be credited toward his outstanding community custody term. The

DOC argues that while Holmes was released from prison in August 2012 for the 2009

felony, Holmes must still serve community custody time on the 2003 felony.


      20
           Flint. 174 Wn.2d at 551-52.

      21JU
      22 See Clerk's Papers at 33-35, 81.
      23 See Flint, 174 Wn.2d at 551-52.
      24 172 Wn.2d at 245-49 (overruling In re Pers. Restraint of Knippling. 144 Wn.
App. 639, 183 P.3d 365 (2008)).
No. 67173-1-1/8


      The Washington Supreme Court in Jones held that an offender who has been

confined longer than the original period of confinement (in that case, under a void

sentence) is not entitled to credit the excess time in confinement toward an outstanding

community custody term.25 The court reasoned that allowing such a credit would
eviscerate the community custody tolling statute, former RCW 9.94A. 170(3) (1999),

which provided that "any period of community custody, community placement, or

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

confinement for any reason."26 The court also reasoned that allowing such a credit
would contravene the definition of "community custody" in former RCW 9.94A.030(4) as

the time actually spent in the community:

               "[T]hat portion of an offender's sentence of confinement in lieu of
       earned release time or imposed pursuant to RCW 9.94A. 120(5), (6), (7),
       (8), (10) or (11), or RCW 9.94A.383, served in the community subject to
       controls placed on the offender's movement and activities by the
       department of corrections."t27]
       As the DOC recognizes, the tolling scheme is now different. The current tolling

statute, RCW 9.94A.171(3)(a), requires, in certain circumstances, that credit be given

for time spent in confinement. If an offender is "detained pursuant to RCW 9.94A.740 or

9.94A.631 for the period of time prior to the hearing or for confinement pursuant to

sanctions imposed for violation of sentence conditions ... the period of community

custody shall not toll."28 However, the tolling statute still provides that "sanctions that




       25 JU at 245-46.
       26 ]d at 245-46.
       27 li± at 244 (emphasis omitted) (quoting former RCW 9.94A.030(4)).
       28RCW9.94A.171(3)(a).

                                              8
No. 67173-1-1/9


result in the imposition of the remaining sentence or the original sentence will continue

to toll the period of community custody.29

       The DOC imposed on Holmes the remainder of his original sentence, to be spent

in confinement. The reasoning in Jones controls the outcome here. Allowing Holmes

credit for his time spent in confinement would eviscerate the tolling statute.

       We vacate the superior court's order that DOC credit Holmes' confinement

toward his community custody obligation. We reverse and remand for a determination

of Holmes' remaining community custody obligation.




WE CONCUR:




^-^yv




      29
           Id.
