                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 15, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47391-7-II

                               Respondent,                   UNPUBLISHED OPINION

        v.

 ANDREW CHRISTOPHER WATKINS a/k/a
 UNDRA C. WATKINS,

                               Appellant.

       BJORGEN, A.C.J. — Andrew Christopher Watkins appeals from an order denying his

motion to correct a clerical mistake in his 1990 order of discharge. Watkins argues that the

superior court erred in denying his motion because the effective date of the discharge order

should have been October 13, 1989, the date upon which Watkins contends he had satisfied all of

his sentencing conditions. Because Watkins fails to show a clerical mistake in his 1990

discharge order, we affirm.

                                             FACTS

       On February 10, 1988, Watkins pled guilty to third degree rape and was sentenced to nine

months of incarceration. The sentencing court also imposed on Watkins $505 in legal financial

obligations (LFOs). On June 23, 1988, the Pierce County Sheriff’s Department filed a

memorandum notifying the superior court that Watkins’s release date would be on June 27,

1988. On November 29, 1989, the Department of Corrections (DOC) filed a report with the

superior court, stating in relevant part that Watkins had failed to make any payments towards his

LFOs. DOC’s November 29 report requested that the superior court issue a bench warrant and
No. 47391-7-II


impose bail in the amount of Watkins’s outstanding LFOs. The report stated that, if Watkins

were to pay the $505, “the Court [could then] authorize the preparation of an Order of

Discharge.” Clerk’s Papers (CP) at 458. On December 17, 1990, the superior court entered a

certificate and order of discharge, which restored Watkins’s civil rights and discharged him from

supervision by the DOC.

        On May 15, 2014, Watkins filed a “petition for certificate of discharge with an effective

date of October 13, 1989.” CP at 580. Watkins attached to this petition a payment record, which

showed that he had made the final payment satisfying his LFOs on October 13, 1989, prior to

DOC’s November 29 report stating that his LFO payments were delinquent. On June 3, 2014,

the superior court granted Watkins’s petition and issued a certificate of discharge, but it declined

to set the effective date of the order to October 13, 1989. Watkins filed a motion seeking

clarification of the June 3 order. At a hearing addressing Watkins’s clarification motion, the

State asserted that the effective date for a certificate of discharge is the date that the superior

court receives notice that an offender has satisfied his or her sentencing terms. The superior

court agreed with the State. Watkins acknowledged at the hearing that the record was unclear as

to the date DOC notified the superior court that he had satisfied his sentencing conditions.

        The superior court set the matter over so that it could review Watkins’s archived case

record to determine the date it was originally notified that Watkins had completed his sentencing

conditions. Upon reviewing Watkins’s case record, the superior court located the December 17,

1990 discharge order and thereafter entered an order vacating its June 3 discharge order.

Watkins did not appeal from either the June 3 discharge order that had declined to set the




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No. 47391-7-II


effective date of the order to October 13, 1989 or from the vacation of that order following his

motion for clarification.

       On August 4, 2014, Watkins filed a motion requesting a “nunc pro tunc order to correct a

clerical mistake in the certificate and order of discharge issued by [the superior] [c]ourt on

December 13, 1990.” CP at 602. Again, Watkins asserted that the effective date of his discharge

order should have been October 13, 1989. In a declaration attached to the August 4 motion,

Watkins acknowledged that the “record is not clear as to the date that the Court received notice

from the [DOC] regarding their intent to release jurisdiction of defendant.” CP at 603. At a

hearing addressing the August 4 motion, the superior court noted that Watkins failed to present

any evidence that the court had been notified of the completion of his sentence conditions prior

to December 13, 1990. On August 15, 2014, the superior court entered an order denying

Watkins’s request to correct the date of his order of discharge. CP at 611. Watkins appeals.

                                           ANALYSIS1

       Watkins asserts that the superior court erred when it denied his August 4 motion

requesting a nunc pro tunc order to correct a clerical mistake in his December 13, 1990 discharge

order. Because Watkins did not present any evidence showing a clerical mistake in his 1990

discharge order, the superior court did not abuse its discretion by denying his motion.

       CrR 7.8(a) governs post-judgment motions to correct clerical mistakes in orders entered

in criminal proceedings. CrR 7.8(a) provides in relevant part:



1
 As an initial matter, the State contends that Watkins has failed to present an appealable issue
under RAP 2.2(a), asserting that Watkins has not shown how the failure to correct the effective
date of his discharge order affects a substantial right. A commissioner of this court has already
ruled that Watkins presented an appealable issue, which ruling the State did not move to modify.

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No. 47391-7-II


       Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the
       record and errors therein arising from oversight or omission may be corrected by
       the court at any time of its own initiative or on the motion of any party and after
       such notice, if any, as the court orders.

We review a trial court’s CrR 7.8 ruling under an abuse of discretion standard. State v. Zavala-

Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). A trial court abuses its discretion when

its decision is based upon untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258,

893 P.2d 615 (1995). Under CrR 7.8(a), “[a] clerical mistake is one that, when amended, would

correctly convey the intention of the court based on other evidence.” State v. Davis, 160 Wn.

App. 471, 478, 248 P.3d 121 (2011). The superior court lacks authority under CrR 7.8(a) to

correct an order that contains a mistake that is judicial, rather than clerical, in nature. Davis, 160

Wn. App. at 478.

       Here, Watkins failed to present any evidence showing that the superior court, in entering

his original discharge order, had intended to make the effective date of the order October 13,

1989 rather than December 17, 1990. Watkins does not contend otherwise. Instead, he argues

that (1) DOC failed in its obligation to notify the superior court that he had completed his

sentencing obligations on October 13, 1989 and, alternatively, (2) the superior court was required

to determine whether he had completed his sentencing conditions on November 29, 1989, the

date that DOC erroneously informed the superior court that Watkins was delinquent in paying his

LFOs. But even assuming that either of these arguments is correct, it does not demonstrate any

clerical error in Watkins’s discharge order. Accordingly, we affirm the denial of his CrR 7.8(a)

motion.

       For the first time in his reply brief, Watkins also asserts that he is appealing not only the

denial of his August 4 CrR 7.8(a) motion to correct a clerical mistake, but also the June 3

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No. 47391-7-II


discharge order that had declined to set the effective date of the order to October 13, 1989, and

the vacation of that order following his motion for clarification. Watkins acknowledges that he

did not designate these orders in his notice of appeal, but argues that he may nonetheless appeal

from those orders under RAP 2.4(b). We disagree.

        RAP 2.4(b) provides in relevant part:

        Order or Ruling Not Designated in Notice. The appellate court will review a trial
        court order or ruling not designated in the notice, including an appealable order, if
        (1) the order or ruling prejudicially affects the decision designated in the notice,
        and (2) the order is entered, or the ruling is made, before the appellate court accepts
        review.

Watkins does not demonstrate that the superior court’s June 3 discharge order or the subsequent

vacation of that order prejudicially affected the superior court’s decision to deny his CrR 7.8(a)

motion. Accordingly, RAP 2.4(b) does not permit our review of those orders.

        Further, even if RAP 2.4(b) permitted appellate review of those orders, Watkins has

failed to assign error to the orders, raises his contentions with those orders for the first time in his

reply brief, and does not present any argument stating how those orders were incorrect. See RAP

10.3(a)(4) (“The brief of the appellant . . . should contain . . . [a] separate concise statement of

each error a party contends was made by the trial court, together with the issues pertaining to the

assignments of error.”); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d

549 (1992) (“An issue raised and argued for the first time in a reply brief is too late to warrant

consideration.”); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (“Without argument

or authority to support it, an assignment of error is waived.”). Accordingly, we decline to

address Watkins’s contentions with these earlier orders for these reasons as well. We affirm the




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denial of Watkins’s August 4 motion to correct a clerical mistake in his discharge order.

        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.



                                                      BJORGEN, A.C.J.
 We concur:



 MAXA, J.




 SUTTON, J.




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