                                                                                        FLED
                                                                               COURT OF APPEALS
                                                                                     DIVISION II

                                                                              2014 DEC 30     AM 9: 143 .
    IN THE COURT OF APPEALS OF THE STATE KTIVAMMTAN

                                                    DIVISION II                BY
                                                                                           P TY
 STATE OF WASHINGTON,                                                         No. 44393 -7 -II


                                        Appellant,                           Consolidated with:


           v.                                                                  No. 44396 -1 - II


 ADAM CHIEF LEWIS,
                                                                          PUBLISHED OPINION
                                        Respondent.




       LEE, J. —      The State appeals Adam Chief Lewis' sentence on two separate cases, arguing

that the trial court improperly calculated the amount of credit for time served. The trial court gave

Lewis ( 1) credit for time served that he had previously received credit for in an unrelated resolved

case and (2) credit for time served on an unrelated judgment and sentence. Because Lewis received

credit for time served more than once, we reverse and remand to the trial court to recalculate the


amount of credit for time served.

                                                        FACTS


        On May 13, 2011, Lewis was arrested in Clark County for numerous crimes. On May 26,

2011, Lewis was charged with first degree burglary and first degree robbery under cause number

11 - 1- 00815 -1 ( burglary charges) and first degree burglary, two counts of first degree assault, two

counts of first degree kidnapping, two counts of unlawful possession of a firearm under cause

number     11 - 1- 00816 -9 ( assault   charges).   Lewis remained incarcerated in the Clark County Jail.

         On August 10, 2011, while in pretrial incarceration for the burglary charges and assault

charges,   Lewis   was charged with        failure to   register as a sex offender ( cause number   11 - 1- 01336-
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7).    Lewis pleaded guilty to the failure to register as a sex offender charge on August 31, 2012,

and was sentenced to 50 months' confinement. The trial court calculated his credit for time served

on    the failure to   register conviction     starting   on   August 10, 2011 ( 387 days).         Lewis began serving

his sentence for the failure to register conviction on August 31, 2012.


          Lewis pleaded guilty to the burglary charges on October 26, 2012, and pleaded guilty to

the assault charges on November 5, 2012. 1 Lewis was sentenced on both the burglary charges and

the assault charges on December 14, 2012. At sentencing for the burglary charges and assault

charges, Lewis requested that his credit for time served be calculated based on the entire time he

had been incarcerated        since   his   original arrest on    May   13, 2011 ( 581 days). The trial court agreed


with    Lewis   and calculated       his   credit   for time   served at   581 days.      The State filed a motion for


reconsideration, which the trial court denied.


           The State    appeals   the   calculation of    Lewis'    s credit   for time   served.   The State argues that


Lewis should have received credit for only the period of time from his arrest until he was charged

with failure to register.


                                                        ANALYSIS


           The State argues that the trial court erred because the unambiguous language of the statute


governing calculation oftime served, RCW 9. 94A.505( 6), limits credit for time served to time served

on the charge for which the defendant is being sentenced. Lewis argues that the trial court properly

calculated his credit for time served based on the constitutional principles of equal protection




1 Lewis pleaded guilty to one count of first degree assault and one count unlawful possession of a
firearm. It appears that the other counts with which he was charged under cause number 11 - 1-
00816- 9 were dismissed.



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underlying the statute codifying the right to credit for time served. Based on both RCW 9.94A.505( 6)

and the constitutional principles underlying credit for time served, the trial court miscalculated Lewis'

credit for time served; at the time of sentencing, Lewis was not entitled to credit for any time served

after August 10, 2011.


        Here, we are required to address a question of statutory interpretation and application of a

constitutional     principle.        We     review questions            of    statutory interpretation de     novo.   State v.


Gonzalez, 168 Wn.2d 256, 263, 226 P. 3d 131,                       cent.     denied, 131 S. Ct. 318 ( 2010).    Similarly, we

review constitutional issues de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P. 3d 1055 ( 2010).

        A defendant is entitled to credit for time served based on constitutional principles of due


process and equal protection.               Reanier    v.   Smith, 83 Wn.2d 342, 346, 517 P. 2d 949 ( 1974).             And


RCW 9. 94A. 505( 6) '           simply represents the codification of the constitutional requirement that an

offender   is   entitled   to   credit   for time   served prior     to sentencing.'"     In re Pers. Restraint ofCostello,

131 Wn.    App.     828, 833, 129 P. 3d 827 ( 2006) ( quoting                   State v. Williams, 59 Wn. App. 379, 382,

796 P. 2d 1301 ( 1990)).             Our Supreme Court recently explained the constitutional principles

underlying credit for time served:

                    In [ Reanier, 83 Wn.2d             at   346], this court held that " an accused person,
        unable to or precluded from posting bail or otherwise procuring his release from
        confinement prior to trial" was entitled to credit for time served upon sentencing.
        The court based its decision on " principles of due process and equal protection"
        and on " potential          implications  jeopardy." [ Reanier, 83 Wn.2d at 347].
                                                      of    double
        It reasoned that a contrary decision would result in two separate sets of sentencing
        ranges —     one for " those unable to procure pretrial release from confinement and
        another      for those fortunate            enough    to   obtain such release" —        and concluded that
        such a      sentencing       regime would not survive rational                 basis   review. [   Reanier, 83
        Wn.2d at 346- 37]... .




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                     The Reanier decision absolutely bars the legislature from distinguishing
          between rich defendants and poor defendants for the purpose of credit for time
            served, but the legislature remains free to draw many other distinctions.

State v. Medina, 180 Wn.2d 282, 292 -93, 324 P. 3d 682 ( 2014).

          The legislature has codified the procedure for calculation of credit for time served in RCW


9. 94A. 505( 6). RCW 9. 94A.505( 6) states:


          The sentencing court shall give the offender credit for all confinement time served
          before the sentencing if that confinement was solely in regard to the offense for
          which the offender is being sentenced.

Our objective in interpreting a statute is to ascertain and carry out the legislature' s intent. State v.

Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013). We begin with the plain language of the statute.


Evans, 177 Wn.2d          at   192.    If the plain language of the statute is unambiguous, our inquiry ends.

State v. Armendariz, 160 Wn.2d 106, 110, 156 P. 3d 201 ( 2007).


            The Sentencing Reform Act does not generally authorize giving credit for time served on

other sentences.         State   v.   Watson, 63 Wn.        App.   854, 859, 822 P. 2d 327 ( 1992).      Under the plain


language of the statute, credit for time served refers solely to the offense for which the offender

received a      sentence.        Watson, 63 Wn.         App.     at    860.   Our courts have been clear that statute


governing       credit   for time      served   entitles    a   defendant to " nothing more than the constitution


require[ s]."     State   v.   Williams, 59 Wn.         App.     379, 382, 796 P. 2d 1301 ( 1990).        Neither RCW


9. 94A.505( 6) nor the constitution allow a defendant to receive " twice the amount of credit for the

time   he   or she   actually    served   in jail   while   awaiting trial    and   sentencing."   Williams, 59 Wn. App.

at 381.




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             In Williams, the defendant was charged with second degree robbery, and while awaiting

trial   he   was   detained   pursuant      to   suspension of       his   parole on a previous charge.         59 Wn. App. at

380. At sentencing on the robbery, the defendant requested credit for the 70 days of presentence

confinement.         Williams, 59 Wn.            App.    at   381.   The trial court denied the request because the 70


days of confinement would be credited toward the sentence he had received on the prior charge.

Williams, 59 Wn.           App.   at   382. On appeal the defendant argued that he was entitled to credit for


time    served under       former RCW 9. 94A. 120( 12) (                 1998) 2 because " but for" the robbery charge he

would not       have been incarcerated.            Williams, 59 Wn.           App.   at   381.   The court noted that such an


interpretation would lead to defendants being entitled to " twice the amount of credit for the time

he   or she     actually   served      in jail   while   awaiting trial       and   sentencing," a result the court labeled


absurd.       Williams, 59 Wn. App. at 381.

             With the foregoing principles in mind, we turn to the trial court' s calculation of Lewis' s

credit for time served. As an initial matter, there are three distinct time periods that factor into the

calculation of       Lewis'   s credit     for time      served.     The first period is from May 13, 2011 ( the date

Lewis was originally arrested and started serving time in pretrial confinement for the burglary

charges and assault charges) until                August 9, 2011.            The second period is from August 10, 2011


 the date Lewis was charged with failure to register as a sex offender and began serving time in

pretrial confinement for the burglary charges, assault charges, and failure to register charges) until

August 31, 2012 ( the date Lewis                 was sentenced on          the failure to   register charge).   The third period




2 The legislature recodified former RCW 9. 94A. 120 as RCW 9. 94A.505 in Laws of 2001, ch. 10,
   6. The language of the statute remained the same.




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is from September 1, 2012 (the date Lewis began serving time for the failure to register conviction)

until December 14, 2012 ( the date Lewis was sentenced on the burglary charges and assault

charges).




         Under the plain language of the statute, Lewis would not be entitled to credit for any of the

time he served prior to his sentencing on December 14. RCW 9. 94A.505( 6) requires calculation

of time served to be limited to confinement solely in regard to the offense for which the offender

is   being   sentenced.   Here, for example, the sentencing court would start with determining the

sentence for a single offense such as the burglary charge. Then, the statute requires the sentencing

court   to determine how        much   time the   offender spent   incarcerated solely   on   that   offense.   In this


case, Lewis did not spend any time incarcerated solely on any offense for which he was sentenced:

Therefore, if this court were to strictly apply the statute, the sentencing court erred by giving Lewis

credit for any time served.

          However, applying the statute in such a manner simply does not comport with the

principles of due process and equal protection that entitle an offender to credit for time served.


Regardless of how many offenses an offender has been charged with, an offender serving pretrial

confinement would be disadvantaged because he is serving pretrial confinement while a more

affluent defendant facing the same charges may not.

          This is the exact distinction the constitution prohibits the legislature from making. Medina,

180 Wn.2d       at   292 -93.    Therefore, an offender is entitled to receive credit for any pretrial

confinement he serves, provided he does not receive double credit by applying the same credit for

time    served on multiple sentences.       Williams, 59 Wn. App. at 381.




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            For the reasons explained below, application of these principles results in Lewis receiving

credit for time served for the first period of time between his arrest on May 13, 2011 and August

9, 2011. But, he does not receive credit for time served after the State charged him with the failure

to register on August 10, 2011.


A.          MAY 13, 2011 —AuGusT 9, 2011


            As of his sentencing on the burglary and assault charges, Lewis had not received any credit

for the time he spent in pretrial confinement prior to being charged with failure to register.

Although he did not serve any of this time incarcerated solely on a particular offense for which he

was sentenced, it would violate due process and equal protection to completely deny him any credit

for this time. And, because Lewis was sentenced for all burglary and assault charges on the same

date, he would not be receiving double credit for this time. Accordingly, the trial court properly

gave Lewis credit for the time served between May 13, 2011 and August 9, 2011.

B.          AUGUST 10, 2011 —AUGUST 31, 2012


            The trial court also gave Lewis credit for time served between August 10, 2011, when he


was charged with the failure to register, and August 31, 2011, when he was sentenced on the failure


to register. This was improper because it resulted in Lewis receiving double credit for this period

of time.


            When Lewis was sentenced on the failure to register charge, the trial court gave him credit


for time served from the date he was charged with the failure to register ( August 10, 2011) to the


date   of   sentencing ( August 31, 2012). When the trial court gave Lewis credit for the same period


of time toward his sentence on the burglary and assault charges, Lewis received credit for this time




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served twice, which is improper. Williams, 59 Wn. App. at 381. Accordingly, the trial court erred

by giving Lewis credit for time served between August 10, 2011 and August 31, 2012 toward his

sentence on the burglary and assault charges.

C.        SEPTEMBER 1, 2012 —DECEMBER 14, 2012


          Lewis also is not entitled to credit for time served for any of the time he was incarcerated

following imposition of his sentence for his failing to register as a sex offender conviction. After

he was sentenced for failing to register as a sex offender, Lewis clearly was not serving time solely

on the burglary and assault charges. In re Pers. Restraint ofSchillereff, 159 Wn.2d 649, 651 -52,

152 P. 3d 345,     cert.   denied, 551U .S. 1135 ( 2007);      Watson, 63 Wn. App. at 859 -60. Therefore, he

was not entitled to credit for time served between September 1, 2012 to December 14, 2012 under


the plain language of RCW 9. 94A.505( 6).


          Furthermore, Lewis is not entitled to credit for time served under the principles of equal

protection.      Once Lewis was sentenced for failing to register as a sex offender, he was no longer

able   to be    released   from   confinement.   Therefore, the distinction here is between a person being

confined as the result of a sentence and a person being confined as the result of the inability to

secure bail. This distinction is unrelated to the prohibited distinction between rich and poor which


would violate the constitutional principles underlying credit for time served. Medina, 180 Wn.2d

at   292 -93.   The distinction between a person being confined as a result of a sentence and a person

being confined pretrial as a result of an inability to secure bail is a distinction well within the

legislature' s authority to make. As a result, principles of equal protection do not entitle Lewis to

credit   for time   served after    he   was sentenced   for   failing   to   register as a sex offender.   Therefore,




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the trial court erred by giving him credit for time served for the period between September 1, 2012

and December 14, 2012.


          Here, the trial court incorrectly calculated the amount of credit for time served that Lewis

is   entitled   to   receive.   Accordingly, we reverse and remand to the trial court for a hearing, with

Lewis present, to calculate Lewis' credit for time served consistent with this opinion.




                                                                               Lee, J.




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